Alternative Dispute Resolution. [5. ed.] 9780455236957, 045523695X

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ALTERNATIVE DISPUTE RESOLUTION

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ALTERNATIVE DISPUTE RESOLUTION

TANIA SOURDIN BA, LLB (UNSW), GDLP, LLM, PhD (UTS) Professor of Law and Dispute Resolution Monash University Professor of Law University of Newcastle

FIFTH EDITION

LAWBOOK CO. 2016

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW First edition ............................................................................................................................................................2002 Second edition ......................................................................................................................................................2005 Third edition .........................................................................................................................................................2008 Fourth edition ........................................................................................................................................................2012 National Library of Australia Cataloguing-in-Publication entry Sourdin, Tania Alternative dispute resolution/Tania Sourdin. 5th ed Includes index. ISBN 978 0 455 236957 (paperback) Dispute resolution (Law)–Australia. Compromise (Law)–Australia. 347.9409 © 2016 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at http://www.ag.gov.au/cca, faxed to (02) 6250 5989 or mailed to Commonwealth Copyright Administration, Attorney-General's Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Managing Editor: Lara Weeks Editor: Puddingburn Publishing Services Product Developer: Lucas Frederick Publisher: Robert Wilson Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: http://www.pefc.org

FOREWORD by Professor, The Hon Andrew Rogers AO, QC This scholarly book, infused with practical advice, is truly a guidebook to the galaxy surrounding the resolution of conflicts. It is a roadmap for students and those who are charged with the task of determining the most appropriate method for avoiding or, if necessary, resolving conflicts. One of the most frustrating aspects of conflict resolution outside the court system is the almost automatic reaction of judges and most practitioners to send a dispute to mediation. Where is the careful examination of the rich field of techniques that are part of the armory of the knowledgeable in the field? The great service provided by the author is that this book both surveys and guides the reader to the advantages and disadvantages of the different approaches. One of the few advantages of an advance in years is the acquisition of historical knowledge. It is now more than 30 years ago that as a relatively new judge of the Supreme Court of New South Wales I was afforded the privilege of auditing a course in ADR at Columbia University. At that time the very words ADR were unknown in the Australian lexicon. It is to the great credit of the writer of the Foreword to the first edition of this book, Sir Laurence Street then Chief Justice of New South Wales, that when this new field to resolution of disputes was explained to him he immediately grasped its potential and on retirement became the first practitioner of ADR in Australia. What needs to be pointed out is that almost intuitively Sir Laurence looked beyond mediation as the sole technique and adopted, for example, expert neutral evaluation of disputes. The point I am making is that unlike Sir Laurence, making his way through the thickets of resolving disputes outside the court, today’s practitioners, business executives, students and others have the great advantage of Professor Sourdin’s work. She brings to the work a unique blend of experience as a lawyer, a judicial officer, an outstanding academic in the field as well as a practitioner. The guidance the author provides is essential in a number of respects. First, since the tentative initial steps in establishing a framework of a technique for ADR, the variety of approaches recognised by practitioners in the field has grown exponentially. I might interpolate that care needs to be taken that the growth in techniques and the accompanying explosion in academic learning does not import rigidity in the application of ADR to individual cases. For example, the accreditation of mediators must not prevent disruptive approaches to the task by revolutionary thinkers. At the end of the day the underlying concept, that it is for the parties to choose a technique and framework that suits them, must remain paramount. Second, the practical hints, for example in the Chapter 7 headed “Skills” should prove invaluable to both new and experienced practitioners. v

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Third, the chapter “ADR and technology” lays out the groundwork for inevitable future advances. In conjunction with “Dispute system Design” it charts the way to the future. As one who has watched with interest and admiration the evolution and progression of Professor Sourdin as a thinker and practitioner, I can think of no higher praise for the new edition than that it is worthy of, and evidence of, the great talent the author has brought to this book. I commend it to all who have an interest in the field of ADR. 5 February 2016

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PREFACE To promote a peaceful and productive society we need to ensure that we have a productive and just rights-based system that enables structural inequalities and individual rights to be addressed. Clearly legal rights and responsibilities play a pivotal role in shaping the way that conflicts are resolved throughout the world. Whilst processes that sit outside the adjudicative legal system impact upon the behaviours and substantive outcomes that individuals and groups obtain, the importance of a “rights-based” dialogue cannot be underestimated. Martin Luther King, Jr, wrote: Let us never succumb to the temptation of believing that legislation and judicial decrees play only minor roles … . The habits, if not the hearts, of people have been and are being altered every day by legislative acts, judicial decisions, and executive orders. 1

However, a rights-based framework is increasingly clumsy in managing conflict that involves continuing relationships or interests that lie outside a clearly articulated rights-based framework. In addition, the cost and nature of discourse that occurs within such a framework has always meant that a civil society also requires a range of interest-based processes to attend to conflict in an attentive, respectful and responsive manner. This does not mean that rights-based frameworks should be abandoned – rather it means that rights- and interestbased systems can coexist and in many instances “learn” and develop more effectively from one another. An effective Alternative Dispute Resolution (ADR) system that builds individual and systemic capacity, respect and relationships into the future strengthens our society and our individual abilities to deal with conflict. Our world continues to present us with many opportunities to consider options for peaceful and effective conflict resolution. These opportunities arise at the individual, international and organisational levels. The responses that we make to conflict are increasingly informed by what has been described as a paradigm shift in dispute and conflict resolution (often referred to as alternative dispute resolution or ADR). The new paradigm suggests that processes that promote self-determination and a willingness to acknowledge and respond to human qualities can have a profound impact upon conflict outcomes and also upon the management of future human relations and our communication at all levels of society. These approaches are often not “new”; however, the organisational approaches, skills focus and widespread use of these approaches in Australia over the past 30 years have changed the way in which much social interaction takes place. Some authors who have explored recent inspirational approaches to conflict resolution suggest that even in areas where historic grievances are profound and where

1

Martin Luther King Jr, Strength to Love (Fortress Press, Philadelphia, USA, 1981) cited in M Glendon, Rights Talk (The Free Press, USA, 1991) p 105. vii

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notions of “payback” predominate, practical shifts in thinking can create new visions of reality that can support peace and healing. 2 These recent developments do not assume that all conflict can be dealt with in peaceful or non-destructive ways or that destructive conflict can be eradicated. However, the recent evolution of conflict management approaches supports the creation of an analytical framework for dispute and conflict resolution that is more concerned with effective and durable outcomes and common operating principles than short-term approaches that can, over time, inflame or create conflict. Within Australasia, the new paradigm has also had an impact upon the legal system and has the potential to transform the role of lawyers within our society. The tension that exists as lawyers act as advocates, peacemakers and negotiators has been present for many years. For example, one well-known lawyer, Abraham Lincoln, once stated: Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will be business enough. 3

When I first read this quote a number of years ago I was struck by the approaches taken by many lawyers to litigation and the opportunities provided by the emerging ADR system to transform legal practice and the outcomes of conflict. This book and much of my research since that time has been written as a result of my experiences in the litigation system and within the parallel and often related universe of alternative dispute resolution (ADR). The interplay between the processes and personalities of these systems has produced a constantly evolving approach to dispute and conflict resolution that now impacts upon all areas of society in Australia. The enormous changes in the way that disputes are resolved include an increased awareness of facilitative processes (rather than evaluative and determinative processes) as well as a blending of processes in newer ADR models such as those now operative in the Collaborative Practice and Conflict Coaching areas. In addition, dispute resolution processes that were once novel are now incorporated into our broad dispute resolution system. Processes such as “meditation” are no longer confused with “meditation”. They are commonplace and well known in the inter-national, national and local arena. This shift has impacted upon education and training and our expectations about negotiation and what can occur if disputes and conflict arise. For lawyers, this shift has had profound implications. For example, for young lawyers a focus on ADR skills represents a change in the content and delivery of legal education. In the past, it had been said: 2 3 viii

M Henderson, Forgiveness (Book Partners, Oregon, USA, 1999). A Lincoln, Notes for a Law Lecture, 1 July 1850, p 81.

Preface

Only after graduation do your attorneys come to the depressing realisation that 90% of what they were taught in academia will never be used in practice; and, conversely, 90% of what they need to know in practice was never taught to them at school. 4

Hopefully a greater focus on ADR skills – essentially advanced communication and thinking skills – will result in a more relevant law school (and University) education and, perhaps, an increase in different and more rewarding career opportunities for lawyers. This shift continues at a greater rate as lawyers rethink what it is that their clients need and adjust their practices so that many can focus on collaborative skills while retaining an important advisory role. For non-lawyers who are students and practitioners of ADR, the opportunities that are presented by improving communication, conflict avoidance and dispute resolution skills are enormous. ADR processes and concepts can assist at a personal and organisational level and provide people with a “user friendly” set of skills for daily life. Since 2002, when the first edition of this book was published, there have been great advances in ADR. These advances have occurred in a range of areas and include: the greater integration of mandatory forms of ADR; development and extension of standards and accreditation criteria; extensions in relation to technologically supported and conducted ADR as well as substantive and significant developments in respect of complaints handling. ADR use has grown and continues to grow around the world – increasingly, ADR systems are being built along side judicial systems and are seen as an essential part of civil society. The fifth edition of this book aims to introduce concepts and skills and to map issues that are arising within the ADR area. In doing so, this book does not seek to suggest that ADR processes are a substitute for judicial processes that are also evolving and adapting in response to a range of factors which include the emergence and increasing prevalence of ADR processes. Rather, the links and possible evolution of both systems is discussed in the context of a single dispute resolution system and the possible benefits of a strategic architectural approach. In this regard, the book also seeks to provide links between theory and reality and seeks to draw upon the fresh ideas and perspectives that are emerging throughout the broader dispute resolution system. It is hoped that the book will be useful for both practitioners and students. While much of the discussion is intended to provide information that is of general application, there has been an attempt to introduce principles, examples and perspectives that will assist those who are seeking to explore the different approaches to ADR that currently exist. In this regard the book is intended to be an everyday reference as well as a more in-depth reference book for practitioners and students who have a particular interest in ADR processes, skills and systems. 4

M H McCormack, What They Didn’t Teach Me at Yale Law School (William Collins Sons, Great Britain, 1987) p 10. ix

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Understandably, there remains some reluctance to use ADR processes in a variety of areas where conflict arises. Undoubtedly, a strong and effective “rule of law” and a robust legal system are essential to enable ADR to operate effectively. However, the increasing insights into the advantages of various negotiation strategies (rather than only two strategies – to avoid/submit, or win/lose (see Chapter 2)) has meant that areas where the full range of dispute resolution processes are not considered diminish each year. There are many who have assisted to develop ideas and concepts and who have commented upon chapters or concepts used in this book. These include: • Senior Researcher Naomi Burstyner who I have had the pleasure of working with for a number of years and who is always bright, motivated and an asset to the ADR community together with Lisa Wulfsohn who both assisted in editing and carefully progressing through footnotes and complex research in relation to this 5th edition; • The Hon Prof Andrew Rogers QC with whom I have had the pleasure of working for more than 25 years and who is my co director at Endispute Pty Ltd. His wit and intelligence continue to both delight and astound me. • The late Professors Jennifer David, Alexis Goh and Dr Jane Elix. The engaging Allan Parker, Natasha Serventy, Micheline Dewdney, Tom Altobelli, Robin Woellner, Michael Brogan, Marilyn Scott, Geri Ettinger, Sir Laurence Street, Peter Adler, Professor John Zeleznikow, Dr Lola Ojelabi, Dr Chinthaka Liyanage and Dr Peter Condliffe. I am also grateful to my international colleagues (many of whom are part of a Collaborative Research Network that is supported by the Law and Society Association) and who include Professors Archie Zariski, Nancy Welsh, David Wexler, Bobbi McAdoo and many others; • my former and current colleagues on the numerous committees and boards that I have been involved with and particularly those involved in the 2014 National Mediation Conference such as Ena Shaw and Walter Ibbs as well as those involved in SOCAP, the early iterations of the Mediator Standards Board, the Law Council of Australia Collaborative Law Committee, the Building and Evidence Base for the Civil Justice Committee and the American Bar Association Taskforce on Mediator Effectiveness; • my publisher, Thomson Reuters, in particular Lara Weeks and Lucas Frederick in respect of this 5th edition; • my former colleagues at the Australian Law Reform Commission (and the Commission itself) – my work there from 1996-1998 in relation to ADR concepts was invaluable in shaping my current thoughts and research. Many of the concepts in this book have evolved from those that were developed while writing issues papers and other documents and consulting with ADR practitioners around Australia; x

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• my former colleagues at La Trobe University who include a number of ADR experts such as Dr Tom Fisher and Associate Professor Lawrie Moloney, with whom I have had the great pleasure to work with on issues relating to standards development, as well as Deborah Macfarlane, who is the Chair of VADr and also assisted with complex research tasks in respect of the second edition; • my former colleagues at Monash University and at the Australian Centre for Justice Innovation (ACJI) where I was the Director from 2011 to 2016. Particular mention must be made of Professor Arie Freiberg who is an inspiration to academics, students and all those within the justice sector, Professor Paula Gerber and remarkable academics who include Becky Batagol, Genevieve Grant and many others. Former colleagues at the Australian Centre for Peace and Conflict Resolution at the University of Queensland and in particular Professor Nadja Alexander and Professor Di Bretherton as well as Senior Researcher Nikola Balvin, Naomi Cukier (now Burstyner), Alex Azarov (who provided research inputs into earlier works) and Sandra Padova who is always insightful; • my former co-trainers at the Resolution Institute (LEADR), Nina Harding, Anne Sutherland Kelly, Bradley Chenoweth, Carol Powell and Anna Quin whose perspectives in the areas of negotiation and conflict management are always insightful and useful; • Catherine Gale, a past President of the Law Council of Australia and the Law Institute of Victoria, who has introduced me to Collaborative Practice and with whom I have also co -trained on a number of occasions since 2005; and • my past colleagues at the National Alternative Dispute Resolution Advisory Council and, in particular, Jeremy Gormly SC, Justice Murray Kellam, and the past Chair, Professor Laurence Boulle, as well as David Syme (Secretariat) and Council members such as Tom Howe, Margaret Halsmith, Norah Hartnett, Allan Campbell, Helen Bishop, Lyn Stephens, Warwick Soden, John Spender and John Hannaford. The dispute resolution practitioner community within Australia and New Zealand deserve special thanks as they have tirelessly contributed to developments in the field of dispute resolution, endlessly and patiently (mostly) dealt with conflict and who have also willingly subjected themselves to continuing research because of their commitment and passion to effective conflict resolution processes. I am also grateful to the dispute resolution practitioners that I have now had opportunities to work with in Hong Kong, China, Canada, the United States, Europe and the Middle East (and particularly those within the United Arab Emirates). I also wish to thank my students and those who are in dispute who have granted me the privilege and honour of dealing with their disputes. They have not only assisted in providing me with a challenging and enjoyable working life but have also introduced a range of insights and perspectives that have been invaluable. xi

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My family deserve a final special mention and thanks. They include my mediator husband, Garth Brown, a great thinker, mediator and supporter, and my other very dear supporters –- our children, Alexei and Ella, who continue to encourage me to develop refined negotiation, brainstorming and option generating skills – they all make the process possible and worthwhile. TANIA SOURDIN February 2016

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TABLE OF CONTENTS Foreword ............................................................................................................................................. v Preface .............................................................................................................................................. vii Acknowledgments............................................................................................................................. xv

Chapter 1: Conflict and dispute resolution............................................................... 1 Chapter 2: Negotiation .............................................................................................. 41 Chapter 3: Mediation ................................................................................................. 75 Chapter 4: Collaborative practice ........................................................................... 121 Chapter 5: Complaints.............................................................................................. 155 Chapter 6: Advisory and determinative processes .............................................. 189 Chapter 7: Skills........................................................................................................ 239 Chapter 8: Court-based ADR................................................................................... 295 Chapter 9: ADR outside the courts......................................................................... 351 Chapter 10: ADR and technology ........................................................................... 383 Chapter 11: Obligations in ADR and enforcing ADR outcomes .......................... 419 Chapter 12: Confidentiality, admissibility and ADR practitioner liability in ADR ............................................................ 477 Chapter 13: Dispute system design......................................................................... 527 Chapter 14: Accreditation ....................................................................................... 569 Chapter 15: Future trends........................................................................................ 601 Appendix A: Further reading and exercises.......................................................... 647 Appendix B: Dispute Resolution Kit and Private Arbitration Kit....................... 671 Appendix C: Framework for screening, assessment and referrals .................... 733 Appendix D: Dispute resolution clauses................................................................ 773 Appendix E: NMAS standards and collaborative practice standards ................ 777

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Appendix F: NADRAC framework for ADR standards ............................. 805 Appendix G: ADR research work ................................................................ 819 Index .................................................................................................................................. 861

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ACKNOWLEDGMENTS Extracts from the texts listed below have been reproduced in this book: Andrews Toos, Cartoonist: http://www.cartoonresource.com/cartoonists.aspx I’m in a Chat Room with One of the Guys in the Castle. Cartoon ©copyright 2014 Andrew Toos. Attorney-General’s Department, Australian Government: www.ag.gov.au Access to Justice Advisory Committee, Access to Justice – An Action Plan (1994).

http://

Jennifer E McIntosh and Claire Ralfs, The Family Law DOORS Handbook (2012). Cybersettle, Inc: http://www.cybersettle.com Settlement Example (Graphic). Florida State University Law Review (by the Florida State University, College of Law): http://www.law.fsu.edu C Menkel-Meadow, “Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or ’The Law of ADR’” (1991) 19 Florida State University Law Review 1. Fran Orford, Cartoonist: http://www.francartoons.co.uk/wp/ Communicating with Empathy Training. Cartoon ©copyright 2014 Fran Orford. Apart From Illiteracy, Low Self Esteem .... Cartoon ©copyright 2014 Fran Orford. Management Self-Help Books. Cartoon ©copyright 2014 Fran Orford. This is Nurse Rochester, if there is anything .... Cartoon ©copyright 2014 Fran Orford. Jon Carter, Cartoonist: http://www.cartoonstock.com I’m in a Chat Room with One of the Guys in the Castle. Cartoon ©copyright 2014 Jon Carter. King Features Syndicate, Inc./™Hearst Holdings, Inc.: www.kingfeatures.com Hagar the Horrible – “Mediator”. Cartoon. ©King Features Syndicate, Inc.

http://

Lawbook Co, part of Thomson Reuters (Professional) Australia Ltd: http:// www.thomsonreuters.com R Charlton, Dispute Resolution Guidebook (2000). Law and Justice Foundation of New South Wales: www.lawfoundation.net.au Civil Justice Research Centre, Researching Alternative Dispute Resolution (1992).

http://

The Law Society of New South Wales: http://www.lawsociety.com.au The Law Society of New South Wales, Dispute Resolution Kit (December 2012). The Law Society of New South Wales, Private Arbitration Kit (May 2015).

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Mike Baldwin, Cornered (cartoons): http://cornered.co.nr/ I’m getting the fire breathing dragon with wings . Cartoon ©copyright 2014 Mike Baldwin. MSB (Mediator Standards Board): http://www.msb.org.au/ National Mediator Accreditation System (NMAS) (effective 1 July 2015). NADRAC (National Alternative Dispute Resolution Advisory Council): http://www.nadrac.gov.au ADR in the Civil Justice System – Issues Paper (March 2009). Glossary of ADR Terms (2007). Australian Standard, Dispute Management Systems: AS 4608-2004, quoting NADRAC Dispute Resolution Terms (September 2003). The Development of Standards for ADR, Discussion Paper (Attorney-General’s Department, 2000) Comment on the Federal Civil Justice Strategy Paper. A Framework for ADR Standards (Attorney-General’s Department, 2001). Productivity Commission, Australian Government: http:// www.pc.gov.au/ Access to Justice Arrangements – Inquiry Report (Report No 72, 2014), pp 1, 5. Ron Morgan, Cartoonist: http://www.ronmorgancartoons.com/ Our only option is to improve quality or hire more lawyers . Cartoon ©copyright 2014 Ron Morgan. Routledge, UK: http://www.routledgefalmer.com G Appleby in K Mackie (ed), A Handbook of Dispute Resolution: ADR in Action (1991). Standards Australia, Sydney: http://www.standards.com.au Australian Standard – Guide to the Prevention, Handling and Resolution of Disputes: AS 4608-1999 (1999). Australian Standard: Dispute Management Systems: AS 4608-2004, quoting NADRAC Dispute Resolution Terms (2003). Australian Standard AS/NZS 10002:2014: Customer Satisfaction – Guidelines for Complaint Management in Organizations (2014) Ted Goff’s Newsletter Cartoons: http://www.tedgoff.com Era of Indecision. Cartoon ©copyright 2004 Ted Goff. Filtering Out Your Conversation Spam. Cartoon ©copyright 2011 Ted Goff. Make It Sort Of Better. Cartoon ©copyright 2010 Ted Goff. Make No Bad Decisions. Cartoon ©copyright 2001 Ted Goff. New Way of Looking at Problems. Cartoon ©copyright 2008 Ted Goff. Problem Generation Machine. Cartoon ©copyright 2001 Ted Goff.

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Chapter 1 Conflict and dispute resolution [1.05]

Introduction......................................................................................................................... 1 [1.10] What is meant by ADR? ..................................................................... 2 [1.20] Process descriptions........................................................................................................... 5 [1.25] Social and historical growth ............................................................................................ 7 [1.30] Human reactions to conflict ............................................................... 9 [1.35] Evolution of processes ...................................................................... 10 [1.55] Emergence of the new paradigm .................................................... 15 [1.60] Recent background ............................................................................ 17 [1.65] Court-based programs ...................................................................... 23 [1.75] Broad objectives .................................................................................. 28 [1.115] Research about ADR .......................................................................... 36 [1.120] Conclusions ..................................................................................................................... 38

INTRODUCTION [1.05] This book is about how we, individually, within organisations and as a society negotiate, reach agreement and deal with disputes and conflict. The primary focus is on the development and use of alternative dispute resolution (ADR) processes to deal with conflict and disputes that exist apart from traditional litigation processes and the theories and practice that support effective and appropriate dispute resolution. The book also focuses on the relationship between negotiation, litigation and ADR processes that involve practitioners who assist to resolve, manage and settle disputes. This introductory chapter describes the historical emergence of ADR and includes a discussion about the relationship between ADR processes and court-based processes. 1 Later chapters explore ADR practice, skills and processes, and the relationship between those processes, litigation, complaints handling and broader societal changes. The first edition of this book was published in 2002. Since that time, ADR systems and processes have grown significantly within Australia: legislation has seen ADR processes become embedded in a wider range of contexts; standards have redefined accreditation and practice standards; and international, business, family and community-based ADR use has been dramatically extended. Many of these developments support the greater use of ADR outside the litigation system however there has also been significant growth of ADR within the litigation system. In recent years there has been an accompanying significant evolution in online ADR (ODR) and complaints handling systems and processes. New ADR 1

See also Chapter 15 and discussion in T Sourdin, “A broader view of justice” in M Legg (ed), The Future of Dispute Resolution (Lexis Nexis Butterworths, 2013) pp 155-166. [1.05] 1

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processes have also emerged and become established, which focus on relational approaches to conflict in local as well as global conflict situations. This fifth edition reports on the continuing transformation and growth of ADR and conflict management approaches.

What is meant by “ADR”? Description: ADR [1.10] In the past, dispute resolution processes that were “alternative” to traditional court proceedings were often referred to as “Alternative Dispute Resolution” (ADR). For many legal practitioners, ADR has been synonymous with “mediation” and, for some, a court or tribunal “conference” may not be defined as ADR. More recently, ADR has been used to refer to “Appropriate Dispute Resolution” and many have suggested in recent years that “Dispute Resolution” should be used to describe the various processes and that the word “Alternative” be dropped entirely. The use of “appropriate” rather than “alternative” has been cemented in Victoria in Australia, with legislation in that State now referring to “Appropriate Dispute Resolution”. These shifts are significant and signal not only a policy view about the importance of non-court dispute resolution processes but also a recognition that such processes will often support more effective forms of dispute resolution. ADR can also be used as an acronym for “assisted”, “additional” or “affirmative” dispute resolution processes. ADR processes may have application across many diverse areas that include commercial, legal, social, environmental, international and political settings. For this reason, it is said to be impossible to construct concise definitions of ADR processes that are accurate in respect of the range of processes available and the contexts in which they operate. It has been noted that ADR is increasingly being seen “not as an alternative to the formal justice system, but as a dispute resolution system in its own right”. 2 In the Family Court of Australia and related contexts, the term “primary dispute resolution” (PDR) was used in the past to describe similar processes. 3 At that time, it was noted in a report by the Family Court that: The term “Primary Dispute Resolution” was used initially because it reflects the outcome achieved by the Court in disposing of 95 per cent 2

National Alternative Dispute Resolution Advisory Council (NADRAC), Issues of Fairness and Justice in Alternative Dispute Resolution (Discussion Paper, NADRAC, 1997).

3

The definition used by the Family Court includes processes of relationship counselling and conciliation counselling: Family Court of Australia, Response of the Family Court of Australia to the AttorneyGeneral’s Department Paper on “Primary Dispute Resolution Services in Family Law” (Response, Family Court of Australia, 1997) pp 7 and 8.

2 [1.10]

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| CH 1

of matters by means other than litigation. In such circumstances it seems ludicrous to speak of “alternative dispute resolution” when in fact means other than litigation have long been the primary means of resolving disputes in the Court. 4

In this book, the term ADR is used to describe the processes that may be used within or outside courts and tribunals to manage, resolve or determine disputes 5 or to reach agreement and where the processes do not involve traditional (more adversarial) trial or hearing processes ADR is used to describe processes that may be nonadjudicatory as well as adjudicatory and which may produce binding or non-binding decisions. ADR includes processes 6 described as negotiation, mediation, evaluation, case appraisal and arbitration.

An ADR practitioner as a “third party” [1.15] ADR processes will usually involve a third party 7 (often referred to as an impartial ADR practitioner or more traditionally as a “skilled helper”), 8 who either assists the parties in a dispute or conflict to reach a decision by agreement, or makes a recommendation or a decision that may be binding or non-binding upon the parties. The National Alternative Dispute Resolution Advisory Council (NADRAC) has described ADR as an “umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them”. 9 There are, however, exceptions to this definition that now arise in ADR. For example, “collaborative practice”, which is explored in Chapter 4, involves a team approach and does not ordinarily involve a third party who is an impartial facilitator (although some collaborative team models may promote this). Also, the practitioners in a collaborative process may not be “impartial” and may act as “skilled helpers” as well as advocates within a constructive negotiation

4

Family Court of Australia, Response of the Family Court of Australia to the Attorney-General’s Department Paper on “Primary Dispute Resolution Services in Family Law” (Response, Family Court of Australia, 1997) p 7.

5

The word “dispute” has been broadly defined in this book. It is noted that, for some, the word “dispute” is defined by the possibility that the disagreement will be elevated to a court or tribunal. That is, a grievance may not become a dispute unless it cannot be resolved other than with the assistance of final litigation processes. Within each of these processes there may be considerable variation in process features and application (see Chapters 3, 4 and 6).

6 7 8 9

Negotiation is sometimes defined as an ADR process and will usually not involve a dispute resolution practitioner (see Chapter 2). NADRAC has referred to the term “skilled helper”. In the 2003 NADRAC terminology work Dispute Resolution Terms (Paper, AGPS, 2003), the descriptor of “neutral” was replaced by “practitioner”. NADRAC, Dispute Resolution Terms (Paper, AGPS, 2003). See also NADRAC, National Principles for Resolving Disputes and Supporting Guide (Guide, AGPS, 2011), available on http://www.ag.gov.au. [1.15] 3

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framework. Judicial determination can also involve grafted ADR processes and techniques, as discussed in Chapter 6, and may be preceded by judicial dispute resolution processes. 10 Among ADR practitioners, there is a continuing philosophical debate about the extent to which ADR processes should be defined. Some practitioners take the view that definitions adopted for ADR processes should be as broad as possible. This approach means that practitioners can vary processes, not follow strict process models or guidelines, and adapt the dispute resolution approach according to the characteristics of the dispute and the disputants. Other practitioners take the view that clear definitions are essential to enable ADR processes to develop and to provide greater consumer certainty. In this regard, some practitioners are concerned that there may be confusion among consumers of ADR processes because of definitional variations. NADRAC, which existed until the end of 2013, closely examined definitions and descriptions of ADR processes. In 1997 the council produced a series of “benchmark definitions”, 11 and in 2003, following a further consultation period, it released a series of process descriptions noting that: In NADRAC’s view it is usually better to “describe” rather than “define” dispute resolution terms. NADRAC sees “descriptions” as an indication of how particular terms are used, whereas “definitions” refers to essential nature or features of a specific process. 12

NADRAC noted that dispute resolution processes may be classified as facilitative, advisory or determinative: 13 • Facilitative processes involve a third party, often with no advisory or determinative role, providing assistance in managing the process of dispute resolution. These processes include mediation and facilitation. 14 • Advisory processes involve a third party who investigates the dispute and provides advice on the facts and possible outcomes. These procedures include investigation, case appraisal and dispute counselling. • Determinative processes involve a third party investigating the dispute, which may include a formal hearing, and the making of a determination which is potentially enforceable. These processes include adjudication and arbitration, 15 and may be binding or non-binding. Although the NADRAC descriptions have helped to produce some increased certainty in the area of ADR definitions, there are still considerable variations in 10

See T Sourdin and A Zariski, The Multi-Tasking Judge: Comparative Judicial Dispute Resolution (Lawbook Co, 2013).

11 12

NADRAC, Alternative Dispute Resolution Definitions (Paper, AGPS, 1997) p 2. NADRAC, Dispute Resolution Terms (Paper, AGPS, 2003).

13

Adopting the terminology used in NADRAC, Alternative Dispute Resolution Definitions (Paper, AGPS, 1997).

14

NADRAC, Alternative Dispute Resolution Definitions (Paper, AGPS, 1997) p 7.

15

Adopting the terminology used in NADRAC, Alternative Dispute Resolution Definitions (Paper, AGPS, 1997).

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the way in which various ADR processes are defined and used within Australian courts and tribunals, and outside the litigation system. 16 Part of this difficulty arises because processes are described similarly in legislation and rules, but their application may vary a great deal in practice. Definitional variations highlight the different use of processes in different jurisdictions and can also indicate where reforms can occur or have taken place because of the evolving nature of many ADR processes. The variations in processes mainly relate to the position and role of the dispute resolution practitioner. Variations can also arise because of vague legislative definitions. For example, mediation is defined in most legislation in vague terms and applied differently in practice. The most common variation in mediation can relate to whether or not a practitioner is able to provide a view as to the likely outcome should a dispute proceed to litigation. In most instances, a process that has an advisory component would not be regarded as “mediation” (see process descriptions at [1.20]). Some of the variations that occur within Australia and New Zealand in different courts and tribunals in relation to the most commonly used ADR processes are described in Chapters 3 and 8. As research into the use of ADR processes has often been targeted at specific processes rather than whole dispute resolution systems, much of this book focuses on what are perceived to be the major ADR processes operating within or related to the broader Australian dispute resolution system (which includes the Australian court and tribunal system). These include adjudicatory processes – such as expert determination and arbitration – and non-adjudicatory and hybrid processes that may involve mediation and med-arb (an amalgam of mediation and arbitration). 17 Relevant factors from a systemic perspective are, however, explored in Chapter 13, although to date there has been a lack of coherent systemic research and evaluation.

PROCESS DESCRIPTIONS [1.20] Given the diversity of contexts within which ADR processes, such as negotiation, mediation and arbitration are utilised, there are numerous subdefinitions and variations. Differences within processes can occur in response to the following considerations: • Length of the process and the formality that is present. There are vast differences in terms of formality in relation to different ADR processes and within various groups of ADR processes. For example, a mediation concerning a complex banking dispute may involve lawyers, experts and the preparation of extensive documentation, including preparatory documents, that may assist to define and describe the issues involved. It is likely to be conducted in a more 16

Australian Law Reform Commission, Alternative or Assisted Dispute Resolution (Adversarial Background Paper 2, ALRC, 1996) p 12.

17

M Cappelletti, “Alternative Dispute Resolution Processes within the Framework of the World-Wide Access-to-Justice Movement” (1993) 56 Modern Law Review 282. [1.20] 5

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formal manner than community-based or other forms of mediation. Similarly, arbitration may be conducted in a more informal conference style in some jurisdictions (see [6.75]). A mediation that focuses on all issues will often take a longer period of time than processes that only involve a focus on legal issues. • Where processes incorporate different elements. For example, in conciliation, the primary approach may involve mediation skills. However, conciliators may also be required to determine some issues. For instance, in some workers’ compensation areas (for example in Victoria), a conciliator may determine whether weekly payments should be made for a period of time and may also make determinations about medical and other expenses (see [6.10]). In these circumstances, processes are “blended” and there may be facilitative, advisory or determinative aspects to the dispute resolution process. • Role of a third party or parties in dispute resolution models. This involves, for example, whether in a mediation the mediator is able to express a view as to the likely outcome of a dispute, or the degree to which the third party can intervene and the nature of the interventions. Models of mediation may vary considerably in terms of interaction approaches and such approaches are unlikely to be static – a mediator may be intentionally directive at some point in a mediation but may not be consciously or unconsciously directive at others. Some mediators may be more elicitative than others and the communication styles and intervention approaches vary considerably. • Role of the participants. Who contributes to the discussion – the parties, their advisers, experts or lawyers, additional interest groups (such as children) – or do all interested stakeholders contribute? The needs and expectations of the participants may also impact on the way the process is conducted. For example, where parties have a history of abuse, a mediation may involve a “shuttle” negotiation approach (see [3.30]), 18 or may be conducted online or via Skype or another conferencing platform. Similarly, the role and the extent of communication between participants can be influenced by the technology that is used (see Chapter 10). • Subject of the dispute. This will impact on the relationship with the court and tribunal system and may mean that particular statutory or other requirements must be adhered to. This is particularly important in the family dispute resolution area but is also relevant in environmental and other contexts where court approval of settlements may be required or where courts oversee ADR processes. The subject matter of the dispute also may determine the timing of an ADR intervention as it may be subject to a pre-filing ADR requirement (See Chapter 8 and Chapter 11) or a court or tribunal referral requirement. • Reporting and referral requirements. Where processes are linked to schemes or courts and tribunals, it is possible that additional reporting and referral requirements will operate. There may, for example, be a requirement to report 18

See J Wade, “Mediation – The Terminological Debate” (1994) Australian Dispute Resolution Journal 5 at 204. See also A Schneider and C Honeyman (eds), The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator (American Bar Association, Dispute Resolution Section, Washington, 2006) pp 535 and 591.

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whether or not the participants in a mediation fulfilled conduct requirements (that is, did they negotiate in good faith? (see Chapter 11)) or to report systemic or pubic policy issues (for example, in the health care sector). These requirements may impact on the process adopted and the review or complaints mechanisms that are available. Review arrangements will generally only be available where determinative processes that produce binding outcomes are used. 19 • Objectives of the process. Some ADR processes may be used to assist in case management, while others may have the settlement or the resolution of a dispute as the primary objective. For example, the objectives of some forms of conferencing may be to reduce tension and improve the relationships of the parties. Other process models may be directed at improving skills, communication channels or transforming the conflict. • Philosophical underpinnings. Some forms of dispute resolution can be said to be founded on rational, scientific liberalistic philosophies. Problem-based negotiation and forms of ADR that are linked to principled negotiation are supported by these philosophical approaches. Other forms of ADR are more relational and focus on humanistic underpinnings in terms of underlying theory. For example, restorative and therapeutic models of dispute resolution are focused more on the characteristics of the relationship – that is, parties in conflict are perceived by reference to their relational aspects (self and other). Narrative approaches suggest that conflict is constructed by the participants and that deconstruction can assist to address the conflict. The process variations within mediation have been mapped by Wade and Gribben in a “mediation abacus”, which includes variables relating to levels of intervention and qualifications (see also Chapter 3 of this book where characteristics of mediation are described and mapped). In some ways, these variations are a reflection of the culture in which the process is being used. Variations may also be a reflection of social and historical growth that has determined how rights-based ADR processes have developed and how these developments have resulted in the growth of processes that counter the traditional paradigm. 20

SOCIAL AND HISTORICAL GROWTH [1.25] With the evolution of extended family groups and societies, humans have established a range of methods to deal with specific disputes and conflict. Humans fight, go to war, injure each other, compete, avoid, submit and use other more cooperative or peaceful processes when in conflict. Conflict can exist between countries, regions, organisations, States, at home, at work and in the neighbourhood. Conflict is ubiquitous. As Tillet, an eminent conflict theorist, has 19

This does not exclude parties from seeking to set aside an agreement that may be reached as a result of duress or some other relevant factor – see Chapters 11 and 12.

20

See, for example, M Alberstein, “Forms of Mediation and Law: Cultures of Dispute Resolution” (2007) 22(2) Ohio State Journal on Dispute Resolution 321. [1.25] 7

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noted: “It can focus on trivia or the future of life on earth”. 21 Strategies to deal with the resolution of conflict have included reference to principles of justice, morality and divine guidance. 22 Conflict is a constantly changing phenomenon. Perceptions and interpretations are used to translate the past, present and future. Small, seemingly irrelevant actions (or a lack of action) by one party in conflict have the capacity to shape large changes in the perceptions of others and to influence outcomes in significant ways. It is probable that many conflicts grow out of disputes after events, actions and responses have been interpreted, re-interpreted, exaggerated and, in part, distorted or “hallucinated” by the perceptual filters of all those concerned. Conflict is as individual as those who are involved in it. Many theorists use “conflict” and “dispute” interchangeably. 23 A dispute can be defined more specifically by reference to specific issues or a disagreement regarding isolated actions or inaction. Conflict is sometimes defined by reference to a general state of negative feelings, such as contempt, anger, fear and distrust. Conflict has also been described as the product of unmet needs (physiological and/or psychological) and of differences that remain unrecognised and unacknowledged. Conflict is a normal product of our interaction as humans and the effects of conflict can vary. Conflict produces change that can be viewed as positive or negative. Arguably, without conflict our society could not change and develop. Our ways of dealing with conflict have changed considerably over the past century in response to a range of social and other changes. Parents of children in western cultures were once told to “spare the rod and spoil the child”. “Servants”, not employees (or, as more recently developed, external contractors or “consultants”), did much of the work. Hierarchical groupings in which dominant males exercised power and determined structures, roles and tasks within groups were the norm. Adjudicative processes in courts, churches and communities were used to deal with disputes. Punishment, rather than rehabilitation, was the primary focus of civil and criminal systems. Guilt or innocence was determined by a complex set of processes that included ordeals and torture. We have experienced a social revolution in more recent years and this has changed the way we deal with social and familial interaction, disputes and conflicts. Some theorists map these changes as part of the macro-evolution of our civilisation. At the micro level, the changes can be explored in the context of changes to nurturing patterns. For example, from early childhood we learn to scream, push, hit, glare, insult and abuse each other. We also learn how to talk to each other, 21

G Tillett, Resolving Conflict: A Practical Approach (Sydney University Press, 1991) p 1.

22

ME Salla, “Conflict Resolution, Genetics and Alchemy: The Evolution of Conflict Transmutation” (2000) 3(3) The Online Journal of Peace and Conflict Resolution 2.

23

In contrast, a “complaint” is an expression of dissatisfaction or concern about goods, services, actions or inaction that is made by a complainant (see Chapter 5) – a complaint may not involve any disagreement and could be regarded as the first step in a dispute notification process.

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build rapport, negotiate and determine options to reach solutions. It is also clear that, from an early age, some people will more readily intervene in disputes and conflict, and help to build agreement and consensus about issues. In recent times, there has been a far greater emphasis on learning more effective communication, negotiation and intervention skills in early childhood and adulthood to promote a range of ways of dealing with disputes and conflicts.

Human reactions to conflict [1.30] Reactions to conflict develop from a young age when we first react to fear or anxiety with a primitive fight-or-flight response – a state where the body prepares to cope with a threat. It has been suggested that those who are repeatedly stressed as young children can end up with “overdeveloped” stress responses. That means that they may be more likely to overreact to situations or be more aggressive in stressful situations that occur when conflict is present. This finding has been linked to higher levels of the stress hormone cortisol and even changes to the brain and the way in which the corpus callosum assists in passing messages from one part of the brain to another (see Chapter 6). Undoubtedly, the patterns of responses we have to conflict are also derived from the approaches that we learn from our family groups. Some families have passionate nightly dinner table discussions, others may scream and yell, while some will adopt a “silent treatment” approach to conflict. Many of us who are in a conflict situation automatically assume a familiar approach to that conflict without realising that other strategies may be of greater assistance to either resolve the issues or prevent the conflict from reoccurring. Cornelius and Faire stated that: As soon as we’re in a conflict or see one looming up, we can choose our approach. But sometimes we fail to choose and revert to a knee-jerk reaction. We might think of our reaction as natural, but many of our natural reactions are actually habits, some of them acquired early in life. If you handle conflict much the same way each time, you have fallen into one of several “conflict habits”. 24

Our responses and reactions to conflict are also thought to be a reflection of our personality, preferences, experiences, culture, values, education and training. How we respond to conflict is also determined by our health (mental and physical). Other differences may be gender and age related. Our response to conflict is determined in part by how we perceive comments, actions or the inactions of others. Our perceptual filters may encourage us to respond in a certain way. It may also be that the context of a situation leads us to interpret an event in a manner that is entirely different from the way in which others might interpret the event. Our response to an issue can also determine or heighten the response of other individuals. For example, if the approach that is adopted is unconditionally constructive, despite great aggravation and irritation, it is less likely that the process used to deal with the conflict will involve violence or a 24

H Cornelius and S Faire, Everyone Can Win: How to Resolve Conflict (Simon and Schuster, Sydney, 1989) p 15. [1.30] 9

Alternative Dispute Resolution

competitive process. On the other hand, if the response includes a raised voice, a heightened sense of stress, and an approach where personal insults are traded, it is less likely that the process used to deal with the conflict will be collaborative or cooperative.

Evolution of processes [1.35] In some societies, there has been a far greater emphasis on collaborative problem-solving approaches and the facilitated resolution of disputes (rather than the determination of disputes by a third party). While this emphasis appears to stem in part from a greater emphasis on social harmony and the role of the society (rather than the individual’s rights), the approach also stems from some fundamental differences in communication and negotiation patterns, and cultural contexts that have become more apparent as our world has become more globalised. Human society first emerged with an emphasis on hunting and gathering. Often, the society comprised two or more families who intermarried to form bonds with nearby societies and groups. Turnbull, a famous anthropologist, noted in relation to his study of pygmies in Africa that hunting and gathering require cooperative processes: Hunting is a full-time occupation, and it could lead a group away for months on end. It called for the cooperation of men, women and children. 25

Initially, human society required a few tools to hunt and gather, as well as the capacity for a group to move from area to area should it be required for hunting or gathering purposes. Structures to deal with conflict related to the relationships that existed between parties. Structures that are common in modern society and that involve adjudicative processes and formal environments, such as courts and tribunals, did not exist. There was no requirement for police and punishment was meted out according to the family compositions and relationships. Tribal and village communities began to emerge as societies increased in size. Religious structures were established and early religious figures were often responsible for punishment as well as for conciliatory processes. As the relationships were long-term, cooperation and trust were required. The processes that were used to resolve conflicts and to deal with disputes were also required to foster long-term relationships. As the size of communities grew, structures needed to be put in place to respond to problems of dishonesty, power and coercion. Hierarchical, adjudicative and rights-based systems of dispute resolution began to evolve. The structures were often complex as well as formal and set out the system of processes which were generally intended to ensure that power was maintained by the ruling or dominant culture. The ancient Greeks responded to the development of more complex and hierarchical court systems by establishing arbitration as a major form of dispute resolution. Barrett noted that: 25

C Turnbull, The Forest People (Paladin Books, Great Britain, 1984) p 235.

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Both Aristotle (384–322 BC) and Cicero (106–43 BC) … made clear that arbitration was an alternative to the courts. Aristotle said arbitration was introduced to “give equity its due weight, making possible a larger assessment of fairness.” … Cicero said a trial is “exact, clear-cut, and explicit, whereas arbitration is mild and moderate”. 26

Many of the dispute resolution processes that have recently been labelled as ADR processes are derived from elements of dispute resolution processes and techniques that have been used around the world. In that sense, much ADR is not new. Tribal communities through to industrialised societies have used elements of facilitated consensus-building in dispute and conflict resolution. Modern techniques build upon these early processes and are often a global conglomerate of processes that have existed since society first evolved. At the same time, it has been noted 27 that in the modern era the insight that “cooperative conflict behaviour” can elicit favourable responses by the parties in conflict has been fundamental in spawning the creation of much new conflict resolution and dispute resolution theory. The impact of organisations and institutions [1.40] Burton, who was a leading social conflict theorist, suggested that: “major source of social conflict at all levels is within institutions and structures, and not within the discretion of the individual, or the identity groups to which individuals look for support”. 28 This approach assumes that in tribal communities and societies “natural law” operated so that there was a high level of conformity with traditional norms. 29 When authoritative systems developed, “positive law systems” were created and supported so that those who held power in the society declared and enforced rules. 30 The emergence of analytical and complex problem-solving processes in this context is a challenge to more conventional structures and processes. 31 Maslow, a famous early conflict theorist, noted that conflict relationships within a society can be related to individual strengths and skills as well as societal behaviours that can display differing wealth distribution systems, use of belongings and goods and ownership patterns, and whether the religious institutions are benevolent or “frightening”. 32 This approach assumes that many natural societies approached conflict differently – some viewed the world with 26

JT and J Barrett, A History of Alternative Dispute Resolution: The Story of a Political, Social, and Cultural Movement (Jossey-Bass, USA, 2004) p 8.

27 28 29

ME Salla, “Conflict Resolution, Genetics and Alchemy: The Evolution of Conflict Transmutation” (2003) 3(3) The Online Journal of Peace and Conflict Resolution 2. J Burton, Conflict Resolution and Prevention (St Martin’s Press, USA, 1990) p 147. J Burton, Conflict Resolution and Prevention (St Martin’s Press, USA, 1990) p 83.

30

J Burton, Conflict Resolution and Prevention (St Martin’s Press, USA, 1990) p 83.

31 32

This view can be contrasted with that of P Bohannan, We the Alien (Waveland Press, USA, 1992) p 151. A Maslow, “Synergy in the Society and in the Individual” (1964) 20 Journal of Individual Psychology 155. [1.40] 11

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aggression, others with affection. The recent growth in ADR processes in this context can be viewed as a response to changing dynamics within societies and between individuals. The growth of cooperative conflict and dispute resolution processes also emerged in response to changing management and organisational trends. As organisations grew in size and complexity, the creation of hierarchical management structures occurred. In such structures, formal and defined roles are adopted, initiative and individuality is viewed as disruptive, and consistency is the driving force. Conflict occurs between the individual and the controlling structure. 33 Changes in education and social patterns have challenged such structures. Management approaches emerged that suggested that intelligent organisations should be run “by persuasion and consent” 34 where individuality and creativity are supported. Such approaches have created a need for the development of human and communication skills at all organisational levels. This, in turn, has had implications for the way in which conflict is dealt with at all levels of society. Within most western societies, mediation, facilitation and other ADR processes have emerged as part of a response to the lack of effectiveness of informal structures. In addition, the rigidity, complexity and cost of formal structures has meant that courts, tribunals and other rights-based structures are often inaccessible to all but a few within a society. The incapacity of these structures to resolve conflict, although they may determine rights, has also been a relevant factor in the development of ADR. A lack of skill in negotiation and the reliance on positional negotiation (usually an approach adopted in one-off relationships) is another reason why alternatives to unassisted negotiation (and often positional) have continued to grow and flourish in many societies over the past 30 years. In this sense, ADR processes can be seen as processes that are alternatives to: • unassisted (and often competitive) negotiation; • complex, rigid and often costly 35 adjudicative structures; and • ineffective informal and formal structures. Conceptual and historical changes [1.45] As already described, many of the “newer” forms of ADR are amalgams of processes that have existed for many thousands of years and have been adapted from those processes that existed in early tribal as well as more developed 33

R Heller, Charles Handy (Dorling Kindersley, London, 2001), referring to Handy’s view that these cultures that are defined as “Apollonian” are too tightly designed, and can be “hijacked” by dissatisfied cogs or work units who may withhold labour.

34 35

C Handy, Gods of Management (Arrow, London, 1996). Costly from the perspective of personal time costs (that is, stress, loss of profit, loss of opportunity costs), as well as in a direct monetary sense (incorporating legal, expert and other fees).

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community structures. The shift in emphasis in more recent years has, however, been towards including more cooperative rather than adjudicative or determinative processes. Salla noted that: The conceptual breakthrough in discovering the practical benefits of cooperative conflict behaviour was a key departure from the ancient set of tools that were based on the assumption that cooperation, while morally desirable, was in many cases politically naive. 36

Salla also noted that Neville Chamberlain was criticised by Winston Churchill and others for his attempt to use cooperative strategy with Adolf Hitler to prevent World War II. Churchill’s criticism undoubtedly served to perpetuate the belief that competitive and adversarial conflict behaviour was the most appropriate strategy to serve the interests of one’s country. 37 Unfortunately, instances of cooperative behaviour where wars, violence or other side-effects of conflict have been averted are less well publicised. It has been suggested that a resurgence of interest in cooperative behaviour at the international level (as well as the domestic political level) arose after it was mathematically supported in game theories. Conflict resolution experts examined models to understand how parties negotiated in conflicts: [I]t was argued that cooperation showed itself to be the most desirable means of behaving in conflict situations insofar as all sides in a conflict would eventually learn they could optimise their interests by cooperating. 38

At the domestic level in modern society, less reliance has been placed on trust and cooperative relationships as a large proportion of social activity involves one-off relationships. It is no longer the case that we attend the same “corner” shop or purchase goods from one supplier. We are more likely to buy online, attend large supermarkets and have numerous transactions with a wide range of people. Our daily activities now bring us into contact with people who we may never meet face-to-face but will only converse with via the internet. Many of the informal dispute and conflict resolution processes that existed 50 or even 100 years ago in modern society are now no longer as available or as useful. Increasingly, communities are absorbed within large cities and the distances between individuals mean that informal family structures cannot be used effectively to assist in the resolution of conflict. The lack of relationship networks (that link family, work and community) also means that community and workplace conflict cannot be addressed in the same ways. It is questionable whether this phenomenon is more extreme in western cultures however, a greater emphasis on trust building and relationship building is often perceived 36 37 38

ME Salla, “Conflict Resolution, Genetics and Alchemy: The Evolution of Conflict Transmutation” (2003) 3(3) The Online Journal of Peace and Conflict Resolution 3. ME Salla, “Conflict Resolution, Genetics and Alchemy: The Evolution of Conflict Transmutation” (2003) 3(3) The Online Journal of Peace and Conflict Resolution 3. ME Salla, “Conflict Resolution, Genetics and Alchemy: The Evolution of Conflict Transmutation” (2003) 3(3) The Online Journal of Peace and Conflict Resolution 3. [1.45] 13

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to be a characteristic of Asian business cultures. In addition, the size of the community may be relevant, although in some large cities there may be more community cohesion than in others. Negotiation theory development [1.50] Negotiation and conflict theories abounded throughout the Cold War from 1946 until the late 1980s as nations and individuals struggled to deal with repeated impasse issues and to negotiate complex task and behavioural concerns. A greater emphasis on negotiation strategies and theories emerged in the early 1970s to assist with planning and strategy development and to manage the more complex “beyond community” relationships that were becoming an increasing feature of modern business activities. A close examination of the factors that surround a negotiation was seen as essential to determining appropriate negotiation strategies. Interest-based negotiation or bargaining can be traced back to a variety of negotiation theorists. 39 Negotiation theory achieved popularity and greater interest with the publication of Fisher and Ury’s text Getting to Yes in 1981. 40 In that text, a method and process of negotiation were developed. Movement from hard or soft positional bargaining could be achieved by using a method that Fisher and Ury called principled negotiation or negotiation on the merits. The Fisher and Ury model of negotiation was said to be a collaborative or cooperative model that promoted a “win-win” outcome. This model evolved from work completed in the late 1920s by the theorist Mary Parker Follett who wrote about and appears to be the first theorist to develop and explore the model of constructive or integrative negotiation. 41 In Getting to Yes, the four fundamental elements to achieve a successful negotiation were distilled as follows: 1.

people – separate the people from the problem;

2. 3.

interests – focus on interests, not positions; options – generate a variety of possibilities before deciding what to do;

4.

criteria – insist that the result be based on some objective standard. 42

These basic approaches were used to promote a different and more collaborative approach to negotiations. 39

40 41

42

N Spegel, B Rogers and R Buckley, Negotiation Theory and Techniques (Butterworths, Sydney, 1998), referring to Mary Parker Follet in AM Davis, “In Theory: An Interview with Mary Parker Follet” (1992) Australian Dispute Resolution Journal 7. See also AM Davis, “When Webb Met Follett: Negotiation Theory and the Race to the Moon” (2015) 31 Negotiation Journal 267. R Fisher, W Ury, Getting to Yes: Negotiating Agreement Without Giving In (Houghton Mifflin, Boston, 1981). M P Follett, Constructive Conflict (Paper presented at Bureau of Personnel Administration Conference, January 1925), reproduced in EM Fox and L Urwick (eds), Dynamic Administration: The Collected Papers of Mary Parker Follett (Pitman, London, 1973), summary extract available on http:// www.columbia.edu/~mwm82/negotiation/FollettConstructiveConflict.pdf. R Fisher, W Ury and B Patton, Getting to Yes: Negotiating Agreement Without Giving In (2nd ed, Random House, Sydney, 1991) 56 -57, 73.

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More recently, theorists have also suggested that there are a variety of approaches to any given negotiation. These can be categorised as follows: • avoidance – where the issue, dispute or conflict is avoided. In a family or workplace dispute, for example, this could be characterised by a lack of contact; • submission – where a party “gives in” and decides not to pursue an issue; • compromise – where “give and take” outcomes are suggested; • competitive or positional – where one party seeks to “win” and adopts a “position” without exploring the parties’ needs or interests; • collaborative or cooperative – where the parties’ needs and interests are explored and the options that are developed address those needs and interests. These different approaches to conflict and disputes underpin many variations in ADR processes. 43 When negotiating, as noted in Chapter 2, we may use all or some of the approaches. The approach that is adopted will depend on the negotiation circumstances as well as personal characteristics, preferences, skill level and expertise of the negotiator. 44 The response of the other party or parties to the negotiation will also vary. For example, both parties may decide to avoid an issue altogether; in other circumstances, one party may “win” on an issue while another may choose to submit. There are many reasons why different approaches can be taken (see Chapter 2) and it has been suggested that we are neurologically hardwired both to compete and to cooperate (that is to act selfishly and selflessly). 45

Emergence of the new paradigm [1.55] During the 1980s and 1990s, negotiation theorists continued to expand upon many of the notions contained in Follett’s work and in the Fisher and Ury model of negotiation that followed more than 50 years later. The basic premise that evolved was that conflict resolution could be based on an exploration of human needs or interests (rather than positions) and that this would lead to variable-sum or win-win outcomes as no basic needs would be compromised in conflict. 46 It was said that Fisher and Ury’s interest-based approach would not tend to lead to fixed-sum outcomes where parties had to compromise some of 43

See Chapter 2.

44

For example, children aged two are often said to inhabit a world where positional negotiation is the most favoured approach. In recent years there has been a greater focus on the approaches taken by negotiators in the context of their mindfulness and understandings (see Chapter 2). See also E Ariel Fox, Winning from Within: A breakthrough method for Leading, Living and Lasting Change (HarperCollins Publishers, New York, 2013) and W Ury, Getting to Yes with Yourself (and Other Worthy Opponents) (HarperCollins Publishers, USA, 2015). See R Condlin, “The ‘Nature’ of Legal Dispute Bargaining” (2016) 17 Cardozo Journal of Conflict Resolution, Draft Version available on http://digitalcommons.law.umaryland.edu/cgi/ viewcontent.cgi?article=2548&context=fac_pubs.

45

46

ME Salla, “Conflict Resolution, Genetics and Alchemy: The Evolution of Conflict Transmutation” (2003) 3(3) The Online Journal of Peace and Conflict Resolution 3. [1.55] 15

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their interests. The divergence in current mediation models is discussed further in Chapter 3 and is related in part to different approaches to negotiation. An extension in the theoretical development came with the adoption of ideas that relate to conflict transformation. It was said that: … merely cooperating to generate win-win solutions to conflict does not change underlying attitudes, which may easily resurface and fuel other conflicts … [M]erely providing parties with more effective tools to communicate and develop win-win solutions to conflicts is seen as no long-term solution by advocates of conflict transformation. The conflict, therefore, has to be taken as an opportunity to transform the parties’ perceptions and feelings to prevent future conflicts. What is needed is a more radical attempt to change the underlying emotions and perceptions that influence the behaviour of parties in conflict. This means effort is needed in systematically getting parties to acknowledge and identify the respective feelings, needs, and perceptions of one another and to seek to improve these. 47

In these models, improving communication and negotiation strategies was seen as essential in order to encourage more cooperative or collaborative behaviour: For the interest based model, one had to penetrate the surface level of positions and dive into the deeper waters of underlying interests behind the positions to generate win-win outcomes. For the needs based model, one had to go even deeper into the basic needs that underlie the interests and form the ultimate motivating forces of a conflict in order to achieve just and durable outcomes. The transformative based model of conflict goes even deeper into the sources of conflict by focusing on the antagonistic perceptions and feelings fuelled by frustrated needs of the conflicting parties. This is to accept the idea, initially proposed by Dollard, that the deepest source of conflict comes from a reservoir of frustrated needs. These frustrated needs manifest in terms of the antagonistic perceptions and feelings that damage relationships between parties and ultimately fuel conflict and violence … The tools developed for this transformative task use a range of strategies from a communication theory … to conventional religious principles, such as reconciliation and forgiveness, and psychoanalytical techniques developed by conflict intervention practitioners. 48

In Australia, as with many countries, there has been considerable discussion about these approaches to conflict resolution and how conflict resolution theory is changing and emerging. 49 In particular, there are concerns about the overlap between relational and therapeutic processes that involve a counselling skills base, and legal and related processes that are perceived to require an entirely different skills base. The changing theoretical approaches have resulted in substantive differences in ADR models and approaches. 47

ME Salla, “Conflict Resolution, Genetics and Alchemy: The Evolution of Conflict Transmutation” (2003) 3(3) The Online Journal of Peace and Conflict Resolution 3.

48

ME Salla, “Conflict Resolution, Genetics and Alchemy: The Evolution of Conflict Transmutation” (2003) 3(3) The Online Journal of Peace and Conflict Resolution 3, 5. The seminal text in this area was first published in 1994: R Bush and J Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (Rev ed, Jossey-Bass, San Francisco, 2005). See also J Folger and R Bush, “Transformative Mediation and Third Party Intervention: Ten Hallmarks of a Transformative Approach to Practice” (1996) 13(4) Mediation Quarterly 263.

49

See M Dewdney, “Transformative Mediation; Implications for Practitioners” (2001) 12 Australasian Dispute Resolution Journal 1 at 20.

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Aside from these key differences, there has also been a recognisable shift from decisional models of dispute and conflict resolution – where one party makes a decision that can be accepted by the parties to a dispute – to the emergence of models where the third party intervenes in a variety of different ways that are often not determinative. In the history of ADR in Australia, it is clear that decisional models, in which a third party exercised either an advisory or determinative function, were most popular until the early 1970s before a shift towards more facilitative processes was established. Theorists such as Burton, and also Parker, 50 have approached the development of this “new paradigm” by plotting the evolutionary trends and by reference either to preventing problems from escalating into damaging conflict, or building relationships, networks and structures that promote interactive problem-solving processes. Recently emerging processes, particularly in the collaborative and conflict coaching areas, focus less on third party intervention and more on providing support and assistance to disputants. The rise in Online Dispute Resolution (ODR) (see Chapter 10), however, may mean that advisory forms of ADR will increase in the future. This is particularly relevant given that many consumer disputes can now be resolved online using a mix of advisory and supportive processes with facilitative processes being reserved for more intractable disputes (see Chapter 10).

Recent background [1.60] These days, a more diverse range of dispute settlement and conflict resolution processes is commonly used throughout Australian society than at any time in our recent history. Many forms of dispute resolution have emerged outside of the courts in response to the changing way in which the community and society is dealing with disputes. It is now generally accepted that many disputes are unlikely to involve a lawyer and that “justice” will often be sought outside the court system. It is difficult to estimate the number of disputes that pass through the External Dispute Resolution (EDR) system. However the Productivity Commission suggested in 2014 51 that more than 540,000 disputes passed through ombudsmen and EDR schemes in 2012 and 2013 as noted below. The number of matters that are diverted to ADR is likely to be significantly higher than this as the estimate by the Productivity Commission only included schemes where reporting is conducted. In many instances where ADR takes place because of a contractual requirement, or as part of a workplace or internal organisational scheme, it is not reported or counted. In addition, the statistics above did not include complaints handling schemes which deal with millions of complaints and disputes each year (see Chapter 5). 52 50 51 52

P Fritz, A Parker and S Stumm, Beyond Yes (Harper Publishing, Sydney, 1998). Productivity Commission, Access to Justice Arrangements (Report No 72, Productivity Commission, 2014). For example, it has been noted that banking schemes within Australia may have as many as 100,000 “expressions of dissatisfaction” each month (see presentation by Rob Kennaugh, CBA, Customer [1.60] 17

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Figure 1.1 – The three major dispute resolution mechanisms a

[ aData for ombudsmen/complaint bodies and tribunals is for 2011–12, and data for courts is for 2012–13.] 53

53

Satisfaction is Not Enough (Presented at SOCAP Symposium, Sydney, 19 August 2015). Whilst some of these expressions of dissatisfaction may be relatively minor and others may result in complaints and even disputes, most will be resolved or finalised with front line staff (95 per cent or more). Productivity Commission, Access to Justice Arrangements (Report No 72, Productivity Commission, 2014) pp 1, 5.

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The Commonwealth has attempted to explore how this broader dispute resolution system works. 54 In deciding to adopt a much broader view of justice, it cited a number of theorists and noted that: Just as health is not found primarily in hospitals or knowledge in schools, so justice is not primarily to be found in official justice-dispensing institutions. Ultimately, access to justice is not just a matter of bringing cases to a font of official justice, but of enhancing the justice quality of the relations and transactions in which people are engaged. 55

In the 2009 report of the Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System the system was mapped as a complex and somewhat winding pathway with few matters progressing to court proceedings. Figure 1.2 shows the relationship between the number of disputes and method of resolution employed. Figure 1.2 – The relationship between the number of disputes and method of resolution

[Source: Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System (2009) p 4.] In discussing the family law arrangements, the Commonwealth taskforce noted that the processes used to resolve, settle or determine disputes in that area had changed in recent years. The report noted that:

54

55

See the reports published by the Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System (Report, Attorney-General’s Department, Commonwealth of Australia, 2009), available on http://www.ag.gov.au. M Galanter, “Justice in Many Rooms” in M Cappelletti (ed), Access to Justice and the Welfare State (Sijthoff and Noordhoff, Alphen aan den Rijn, 1981) pp 147–181, 161–2. [1.60] 19

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Government intervention in a non-violent family dispute focuses initially on improved access to information, to filter some disputes and assist all, then mandate the use of informal mechanisms to reserve the most entrenched disputes (and those involving violence) for the courts.

Figure 1.3 demonstrates how this family dispute resolution system operates so that most disputes are dealt with outside the formal justice system: Figure 1.3 – Operation of the family dispute resolution system

[Source: Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System (2009) p 5.] Many past government reports have acknowledged the need for industryfunded and other dispute resolution schemes. 56 The establishment of Community Justice Centres in New South Wales (Community Justice Centres Act 1983 (NSW)) and Dispute Resolution Centres in Queensland (Dispute Resolution Centres Act 1990 (Qld)) from the early 1980s were early attempts to promote the use of ADR to resolve community-based disputes and to support the notion that justice can exist outside the courts. Within Australia, the adoption of a wider range of ADR processes 57 was also related to the introduction of specific programs or schemes directed at commercial disputes, family law disputes and community conflicts. 58 In more recent years, there has been considerable growth and interest in dispute 56

See, for example, B Slade and C Mikula, The Use of Industry-based Consumer Dispute Resolution Schemes (Unpublished Paper, New South Wales Legal Aid, 1997) p 4, referring to Financial System Inquiry, Final Report (Report, AGPS, 1997) p 288 (Wallis Report).

57

Apart from recent developments, various forms of ADR have been available for many years. For example, formal arbitration and conciliation systems as well as tribunals offered ADR processes throughout the 20th century: see Chapter 6. H Astor and C Chinkin, Dispute Resolution in Australia (2nd ed, Butterworths, Sydney, 2002) pp 7–11.

58

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resolution processes that are facilitative (see Chapter 9). In this respect, it is acknowledged that, as noted above, while negotiation may resolve a large number of disputes – as far back as 1989 it was estimated that only 5.7 per cent of all commercial disputes ended up in the court system 59 – there has recently been a marked growth in industry-based, private, government and communitysupported dispute resolution schemes. 60 Some forms of ADR were initially adopted more readily within Australia than others. This may be a result of cultural, historical and other social factors. Arbitration, for example, was established in England in the late 1600s. 61 In the international arena and in many Western countries, arbitration was also adopted more readily than other forms of ADR. The permanent Court of Arbitration resulted from international meetings conducted between 1899 and 1907 in the Hague. The establishment of the League of Nations in 1918 also referred to arbitration as a mechanism for dispute resolution. Arbitration is the one form of ADR that most closely resembles court adjudication. Formal models of arbitration also operate in Australian States and Territories under legislation such as the Commercial Arbitration Acts. Under such legislation, arbitration may be chosen by the parties to resolve a variety of commercial disputes. 62 From an early stage, Australia was also concerned with arbitration and conciliation as a form of dispute settlement. 63 Section 20 of the Conciliation and Arbitration Act 1904 (Cth) provided a framework for the establishment of a court (and, later, a commission) where encouragement was to be given to “settling disputes”. Arbitration emerged as the primary system of dispute settlement after support from various High Court decisions. 64 Management theorists suggest that the shift from hierarchical adjudicative models has been mirrored in many management contexts. 65 A recent resurgence of interest in arbitration has led to the development of the State Commercial Arbitration Acts (which have as their agreed “core” the International Arbitration Act 1974 (Cth) (as amended in 2010)). 59 60

M Fulton, Commercial Alternative Dispute Resolution (Lawbook Co, Sydney, 1989) p 6. See, Ipsos Australia Pty Ltd, Alternative Dispute Resolution in Victoria: Community Survey 2007 (Report, Department of Justice, State Government of Victoria, 2007); Ipsos Australia Pty Ltd, Alternative Dispute Resolution in Victoria: Small Business Survey 2007 (Report, Department of Justice, State Government of Victoria, 2007); Alternative Dispute Resolution in Victoria – Supplier Survey 2006 (Report, Department of Justice, State of Victoria, 2007); C Field, Alternative Dispute Resolution in Victoria –Supply Side Research Project – Research Report (Report, Chris Field Consulting Pty Ltd, 2007), available on http://www.consumer.vic.gov.au.

61 62

H Astor and C Chinkin, Dispute Resolution in Australia (2nd ed, Butterworths, Sydney, 2002) p 12. See, the discussion in Chapter 2. See also the Commercial Arbitration Act 2010 (NSW), which provides a regime for managing domestic arbitrations in line with the Model Law as set out in the International Arbitration Act 1974 (Cth). Section 51(xxxv) of the Australian Constitution contains provisions relating to conciliation and arbitration for the prevention of industrial disputes, available on http://www.aph.gov.au.

63 64

D Plowman and G Smith, “Moulding Federal Arbitration: Employers and the High Court 1903-1935” (1986) 11(2) Australian Journal of Management 203.

65

Handy suggests that four cultural patterns can be identified in organisations: Zeus – where personal power results in a somewhat autocratic structure (the father figure); Apollo – where the system is rigidly based on systems, routines and predictability; Athena – where the emphasis is upon the [1.60] 21

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This is discussed in Chapter 6 at [6.75]. The significant amendments to the arbitration regime in Australia can be seen as an attempt to ensure that arbitration remains flexible and efficient rather than mirroring the significant problems inherent in adversarial litigation. Arbitration is also becoming increasingly important in the context of international relations as investor – state and free trade – agreements support international arbitration. These developments can provide for domestic court decisions and legislative approaches to be ousted and invite close consideration of the relationship between courts and ADR. Different forms of ADR may therefore challenge the existing court system (the relationship between more adjudicative forms of ADR and courts is explored in Chapter 6). In the United States, the increasing adoption of ADR processes has been linked to changing management trends, the civil rights conflicts in the 1960s, 66 dissatisfaction with litigation 67 and arbitration, 68 the growth of communitybased dispute resolution schemes, 69 and the movement towards a closer integration between “private” and State dispute resolution systems. 70 One United States commentator distinguished between the “new ADR movement” (which he viewed as emerging in the late 1970s in response to the 1976 Pound Conference on the Causes of Popular Dissatisfaction with the Administration of Justice), 71 and the “old ADR movement” that existed for centuries and promoted adjudicative processes. The Pound Conference was said to have “made ADR fashionable and brought it to the fore of the American adjudicatory scene”. 72 Many view the emergence of ADR from the perspective of the court system, which, in the United States, has changed considerably as a result. The Civil Justice Reform Act 1990 (US) was said to have produced a time of “controlled disarray” once experimentation in ADR occurred. 73 Prior to the enactment of performance of tasks and the creation of networks; Dionysus – where the culture supports creative Dionysian individuals who are creative and self-oriented. Handy suggests that successful organisations are those that balance the four cultural patterns: see C Handy, Gods of Management (Arrow, London, 1996). 66 67

R Salem, “The Alternative Dispute Resolution Movement: An Overview” (1995) 40 Arbitration Journal 3, 4. See K Slaikeu and R Hasson, Controlling the Costs of Conflict (Jossey-Bass, San Francisco, 1998).

68 69

J Sims, “Will ADR Kill Arbitration?” (1996) 15(2) The Arbitrator 91, 92. R Salem, “The Alternative Dispute Resolution Movement: An Overview” (1995) 40 Arbitration Journal 3, 6.

70

J Resnik, “Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication” (1995) 10(2) The Ohio State Journal on Dispute Resolution 211, 213. J Stempel, “Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood?” (1996) 11(2) Ohio State Journal on Dispute Resolution 310.

71 72

73

J Stempel, “Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood?” (1996) 11(2) Ohio State Journal on Dispute Resolution 310, 312. E Plapinger and M Shaw, Court ADR: Elements of Program Design (CPR Institute for Dispute Resolution, New York, 1992).

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that legislation, many courts had implemented ADR programs. The legislation led to a new wave of program adoption and required that: every federal district promulgate a civil justice expense and delay reduction plan and asserts “(e)vidence suggests that an effective litigation management and cost and delay reduction program should include several interrelated principles, including … utilization of alternative dispute resolution programs in appropriate cases”. 74

The surveys that have resulted from this effort have shown that there are considerable advantages in using ADR processes. 75 However, in the United States, it has been noted that “successful court ADR programs require significant investments of time and resources”. 76

Court-based programs [1.65] In Australian and New Zealand courts, non-adjudicative dispute resolution processes have been fostered in a different manner. Initially, they were used by courts and tribunals in a case management context to facilitate agreement between the parties on issues, to define outstanding issues and to explore the possibilities of settlement. Case management schemes can be related to more general practice and procedure issues as well as issues that relate to dispute resolution process availability. Practice and procedure issues that govern interlocutory processes may be interlinked with case management and dispute resolution schemes and this can have implications in relation to the formality and rigidity of the structures. Case management schemes can also foster streaming of cases into mediation, conciliation, evaluation or arbitration, 77 or may involve specific conference techniques that are also aimed at resolving issues and settling cases. The primary objective is to reduce delay and cost in court or tribunal proceedings. While initially case management may have been the prime objective of many court-based ADR schemes, there has been relatively rapid recognition that ADR processes exist as a separate and interlinked system of dispute resolution. 78 In this context, ADR is seen as an important way of enhancing access to and participation and satisfaction in court proceedings. There is now some referral to ADR processes by every court and tribunal in Australia. In this context, the 74

E Plapinger and M Shaw, Court ADR: Elements of Program Design (CPR Institute for Dispute Resolution, New York, 1992) p ix.

75

See JS Kakalik, T Dunworth, LA Hill, DF McCaffrey, M Oshiro, NM Pace, ME Vaiana, Just, Speedy, and Inexpensive? An Evaluation of Judicial Case Management under the Civil Justice Reform Act (RAND Corporation, Santa Monica, 1996), available on http://www.rand.org/publications/MR/MR800/ index.html (accessed 23 August 2011).

76

E Plapinger and M Shaw, Court ADR: Elements of Program Design (CPR Institute for Dispute Resolution, New York, 1992) p x. See, for example, Federal Court of Australia, Federal Court Rules 1979 (Cth), O 10 r 1(2)(g), O 72; Supreme Court of Victoria, General Rules of Procedure in Civil Proceedings 1996 (Vic), O 50.07 (Spring Offensive, 1995); Supreme Court of Queensland, Practice Direction No 4 (1987) and Practice Direction No 22 (1991).

77

78

J Spigelman, “Mediation and the Court” (2001) 39 Law Society Journal 63. [1.65] 23

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development of two separate streams of ADR can be mapped: ADR processes that “mimic” adjudication, 79 or are focused on exploring rights from an advisory perspective, and those that are not. More recently, there has been increasing discussion about broad dispute resolution objectives and the role and relationship of ADR processes to the litigation system. Much of this discussion has suggested that ADR is effective within and without the litigation system. In addition, reports from the Department of Attorney General and Justice (NSW), 80 the Commonwealth 81 and the Victorian Law Reform Commission 82 have made policy recommendations to impose obligations on potential litigants to resolve disputes before commencing court proceedings and this has resulted in the development of additional legislation and policy approaches in the ADR area (see Chapter 11). A threshold question in exploring the objectives of ADR processes concerns the role of ADR in our dispute resolution system and how ADR processes can relate to the conventional litigation system. 83 For example, it was once suggested that ADR processes should be kept quite separate and apart from litigation, as an option to be resorted to only with the agreement of the parties. It was also thought by a minority that the role of courts and tribunals within the litigation system should be limited to traditional adjudication processes only. 84 To some extent this is not an issue given the close integration of traditional and ADR systems that is explored further in Chapter 8. However, some consider the relationship to be difficult particularly where the increasing breadth of ADR may be viewed as diminishing the important role of the courts and potentially enabling budget cuts to be made to courts and tribunals. Some theorists who adopt this view: 79

80 81

82

See J Stempel, “Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood?” (1996) 11(2) Ohio State Journal on Dispute Resolution 343, referring to J Resnik, “Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century” (1994) 41 UCLA Law Review 1471. Department of Justice and Attorney General (NSW), ADR Blueprint: Draft Recommendations Report 1: Pre-Action Protocols & Standards (2009), available on http://www.ipc.nsw.gov.au. Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System (Report, Attorney-General’s Department, Commonwealth of Australia, 2009), available on http://www.ag.gov.au. Victorian Law Reform Commission, Civil Justice Review: Report (Report, Victorian Law Reform Commission, 2008), available on http://www.lawreform.vic.gov.au.

83

Department of Justice and Attorney General (NSW), ADR Blueprint: Draft Recommendations Report 1: Pre-Action Protocols & Standards (2009), available on http://www.ipc.nsw.gov.au.

84

M Harrison, “Resolution of Disputes in Family Law: Should Courts be Confined to Litigation?” (1997) 46 Family Matters 43 (Australian Institute of Family Studies). The Federal Attorney-General has suggested that one approach to the provision of ADR and counselling services that are related to the Family Court would be to “have all or most Government funded non-judicial services in family law managed by one body, an agency within my department … Such a body could over time come to be the central agency for the planning, contracting and management of all non-judicial family law services with overall responsibility for ensuring quality, location, and the mix of services available” (Attorney-General D Williams, National Press Club Address, 15 October 1996).

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consider the extension of the justice concept beyond court-based adjudication to be troubling and that courts are the heart – if not the whole – of the justice system. From this perspective, justice resides within the litigation system and not beyond its borders in ‘ADR land’. 85 Arguably, the framing of justice only in terms of legal rights and litigation may be underpinned by a somewhat romantic and perhaps unrealistic view of the court system and the outcomes provided within it. 86

The Commonwealth Government has accepted that a close integration between ADR and courts will continue and that the justice system involves both components. 87 In the Federal Civil Justice System Strategy Paper that was released for discussion purposes in early 2004, a key recommendation was that “Government … continue[s] to take a leadership role in facilitating the coordination of the various elements of the federal civil justice system [including ADR] and takes a holistic approach to the system when undertaking policy development” 88 (see discussion in Chapter 8 regarding multi-option referral). In 2009, the final Commonwealth Government report A Strategic Framework for Access to Justice in the Federal Civil Justice System noted that many litigants cannot afford to either commence court proceedings or to continue with court proceedings. Research on the demographics of those using the higher civil court system suggests that many disputants will not access higher courts because the system is too complex, costly or confusing. 89 The report’s major recommendation was for the establishment of a strategic framework for access to justice underpinned by the principles of accessibility, appropriateness, equity, efficiency and effectiveness. A key finding was that an increase in the early consideration and use of non-litigious dispute resolution has a significant capacity to improve access to justice. Australian courts have consistently indicated that some ADR processes are of central importance within courts: Mediation is an integral part of the Courts’ adjudicative processes and the “shadow of the Court” promotes resolution. 90

In his opening address to the National Access to Justice and Pro Bono Conference in 2006, the former Chief Justice of Australia the Hon Murray Gleeson AO said: 85

See, for example, H Genn, “What Is Civil Justice For? Reform, ADR, and Access to Justice” (Winter 2012) 24 Yale Journal of Law & the Humanities 397.

86

See T Sourdin, “A Broader View of Justice” in M Legg (ed), The Future of Dispute Resolution (Lexis Nexis Butterworths, Chatswood, 2013) pp 155-166. This is also the perspective taken by the Productivity Commission in late 2014. See Productivity Commission, Access to Justice Arrangements (Report No 72, Productivity Commission, 2014).

87 88

See NADRAC commentary on the Federal Civil Justice System Strategy Paper (2004) at http:// www.ag.gov.au.

89

See Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System (Attorney-General’s Department, Commonwealth of Australia, Canberra, 2009), Part 1, Chapter 2, available on http://www.ag.gov.au. J Spigelman, “Mediation and the Court” (2001) 39(2) Law Society Journal 63. This is explained in Chapter 6.

90

[1.65] 25

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Access to justice has a much wider meaning than access to litigation. Even the incomplete form of justice that is measured in terms of legal rights and obligations is not delivered solely, or even mainly, through courts or other dispute resolution processes. To think of justice exclusively in an adversarial legal context would be a serious error. 91

In the United States, it has been noted that there is increasing pressure on courts and judges to do “more” to resolve cases and to actively pursue settlement. 92 In many countries, ADR activities are blended so that it forms part of the judicial role. These developments are explored in more detail in Chapter 6. 93 In any event, whether integrated or not, commentators have suggested that litigation has been transformed in recent years so that “‘the trial’ has ceased to be the centrepiece of litigation”. 94 Issues about the objectives of ADR processes and their relationship to the litigation system are important as such discussion can assist in informing analysis and evaluation, as well as decisions about referral, policy and resource support of ADR processes. Determining and stating the objectives of ADR processes is also relevant as this is at the heart of discussion about the compatibility of the various components of the dispute resolution system. For example, as noted by the Australian Law Reform Commission (ALRC) 95 in its review of the federal system of litigation, some commentators consider that the objectives of adjudication – rule-making and determination – and the more general objective of dispute resolution (broadly defined) are not compatible. 96 Theorists who adopt this view consider that the settlement of disputes and the use of dispute resolution processes other than a court-based trial weaken the foundations of the judicial and social systems. 97 Practical implications of a blended system [1.70] At a practical level, the issues are more complex. First, the increasing use of ADR processes may mean that although the number of disputes that proceed to trial allowing a public articulation of values is reduced, 98 the reality is that 91

Hon Murray Gleeson AO, Chief Justice, High Court of Australia, Opening Address, National Access to Justice and Pro Bono Conference (Melbourne, 11 August 2006), http://www.nationalprobono.org.au/ page.asp?from=3id=123, p 1.

92

J Resnik, “Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century” (1994) 41 UCLA Law Review 1471.

93

See also T Sourdin and A Zariski (eds), The Multi-Tasking Judge: Comparative Judicial Dispute Resolution (Lawbook Co, 2013). C Glasser and S Roberts, “Dispute Resolution: Civil Justice and its Alternatives” (1993) 56 Modern Law Review 277.

94 95 96

The author was involved in this review as a legal specialist and team leader. O Fiss, “Against Settlement” (1984) 93 Yale Law Review 1073.

97

O Fiss, “Against Settlement” (1984) 93 Yale Law Review 1073, 1085. See also H Genn, “What Is Civil Justice For? Reform, ADR, and Access to Justice” (Winter 2012) 24 Yale Journal of Law & the Humanities 397. This is questionable. Some ADR theorists have noted that many ADR processes are in reality an alternative to unstructured negotiation (see [1.10] in this chapter). The benefits of using such

98

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most disputes are, in any event, resolved through processes such as negotiation (structured or not) prior to entry into the court system. Secondly, the argument that all disputes entering the court system should be adjudicated fails to recognise the complex nature of many disputes and that the settlement of disputes occurs for many different reasons in the life cycle of a dispute. Thirdly, dispute resolution processes vary widely in terms of the processes used and their timing. As noted, some court-based processes may be used to support case management functions while others may be blended with adjudicative functions. 99 These differences mean that ADR processes can be complementary 100 to the specific objectives of adjudicatory processes. 101 However, some criticisms, 102 and the fundamental differences between the role of many ADR processes and traditional trial-based adjudication, highlight important issues about whether there are any disputes that ought to be tracked into adjudicatory processes and supervised more closely by courts. 103 In this regard, it is important to consider the fact that in most jurisdictions court approval is required for certain settlements (whether mediated or not). In matters involving children or those with an incapacity under s 76 of the Civil Procedure Act 2005 (NSW), for example, or in categories of matters involving civil penalties, 104 as well as some categories of class actions around Australia, 105 and under the Family Law Act 1975 (Cth), s 90K (that a financial agreement was “just and equitable”) or in relation to children, s 55A (that the arrangements are “proper”), approval of the court is required before a court can make orders. On the other hand, plea bargaining in criminal law could be viewed as a form of ADR that is often less supervised by the court system.

structured processes may relate more to the advantages of such processes over unstructured negotiation. Such benefits could include faster and less costly resolutions (compared with negotiated outcomes that may involve weeks or months of distance communication), greater control by parties over decision-making, greater involvement in processes, a focus on non-legal or other issues and the generation of options that can be expressed in non-monetary terms. 99

100

101 102 103 104 105

For example, Under s 54A of the Federal Court of Australia Act 1976, the Federal Court may refer “a proceeding … or one or more questions arising in a proceeding … to a referee for inquiry and report”. Mackie considers that “ADR has quietly slipped into the mainstream of legal practice. Over the past two decades ADR has become a cornucopia of processes, procedures and resources for responding to disputes, all of which supplement rather than supplant traditional approaches to conflict”: KJ Mackie, A Handbook of Dispute Resolution: ADR in Action (Routledge, London, 1991) p 1. C Glasser and S Roberts, “Dispute Resolution: Civil Justice and its Alternatives” (1993) 56 Modern Law Review 277, 278. See also H Genn, “What Is Civil Justice For? Reform, ADR, and Access to Justice” (Winter 2012) 24 Yale Journal of Law & the Humanities 397, 411. See discussion in T Sourdin (ed), “The Relationship Between ADR and the Courts” (2004) 22(1) Law in Context 64 (Federation Press, 2004). See for example Australian Securities and Investments Commission (ASIC) v Ingleby [2013] VSCA 49 where the scope of court powers in relation to approval is discussed. See for example, Rowe v AusNet Electricity Services Pty Ltd [2015] VSC 232 (27 May 2015). [1.70] 27

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In the United States, debate has also focused on the vacating of court judgments with the consent of parties. 106 This feature of the system has attracted concern in appellate and lower courts in the United States where litigants are perceived to be overturning the court’s authority. These concerns have also been recognised by ADR practitioners in Australia. For example, mediators have recommended that certain categories of cases should not be the subject of mediation (see Chapters 3 and 9). There are other issues about the role of dispute resolution processes. For example, the ALRC has noted that the Australian Constitution provides that the court system plays an integral role in the government of democratic societies. Courts are intended to provide an open forum to which citizens may come to assert or establish legal rights and to receive an enforceable determination of those rights. The process is subject to review through public scrutiny and a hierarchy of appellate courts. Courts, therefore, provide a medium through which law is created, explained and applied. From this perspective, ADR proceedings can be seen as: threatening the essential role of judges which is “not to maximise the ends of private parties, nor simply to secure the peace, but to explicate and give force to values embodied in authoritative texts such as the Constitution and statutes”. 107

Some concerns about ADR processes are related to the “privatisation” of dispute resolution and the increasing trend to foster dispute resolution processes outside the courts. The implications of this trend have been questioned in the United States. 108 There, concerns have been expressed about arresting the development of legal precedent, the erosion of the central role of the courts, and the civil justice system becoming a second-class system as wealthier litigants use private adjudication rather than slower public adjudication. These issues have generally been discussed in the context of ADR processes that include and focus on private adjudication (or “rent a judge”). This debate tends to have a focus on adjudicatory processes such as arbitration.

Broad objectives [1.75] The main and particular objectives of ADR processes and attributes are discussed in more detail in Chapter 15. That discussion is linked to evaluation criteria and processes. However, it is useful to consider the broad system objectives; in this regard, a useful starting point is the objectives suggested by the ALRC for the Australian federal civil litigation system. The ALRC identified five key objectives of the federal civil litigation system in performing the roles of rule-making, determination and dispute resolution. Within each objective there were variations, and with some processes – for example, where adjudication 106 107 108

J Resnik, “Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century” (1994) 41 UCLA Law Review 1471. Australian Law Reform Commission (ALRC), Rethinking the Federal Civil Litigation System (Issues Paper 20, ALRC, 1997), referring to O Fiss, “Against Settlement” (1984) 93 Yale Law Review 1073, 1085. See J Resnik, “The Privatization of Process: Requiem for and Celebration of the Federal Rules of Civil Procedure” (2014) 162 University of Pennsylvania Law Review 1793.

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takes place – it was suggested that there were additional general objectives, such as ensuring the clear articulation of legislation or promoting certainty in the law. 109 NADRAC suggested that there are competing objectives among different groups in the ADR community and among different processes. It identified five common or core objectives of ADR, which are that it: • resolves disputes; • • • •

uses a process which is considered by the parties to be fair; achieves acceptable outcomes; achieves outcomes that are lasting; and uses resources effectively. 110

After a lengthy consultative process, NADRAC considered that the following three objectives of ADR are common for most parties, practitioners, service providers, government and the community: 111 1. 2.

to resolve or limit disputes in an effective and efficient way; to provide fairness in procedure;

3.

to achieve outcomes that are broadly consistent with public and party interests.

The NADRAC objectives are not dissimilar to the objectives proposed by the ALRC. However, there are some variations that are commented on further below. Key variations relate to whether or not the processes should be “timely” and “accessible” – both key ALRC objectives. One difficulty in proposing objectives for the whole of the system is that the objectives for trial-based adjudicatory processes and those that could be formulated for the wide range of ADR processes that involve very different processes (and, perhaps, objectives), can be inconsistent. The author has noted that an adapted set of objectives could apply to processes that involve the expenditure of public money. The noted objectives could also apply to internal rather than interstate (or international) disputes. This is partly because it is unrealistic to apply the same set of expectations and objectives across a broad range of cultural contexts. There are also issues about whether or not the objectives can apply to public as well as private disputes. In this regard, a State may choose to use processes that do not comply with settled objective measures in order to deal with particular issues. The process should resolve or limit the dispute [1.80] The objective that ADR processes should resolve or limit the dispute was proposed by NADRAC. No similar objective can be found in the work of the 109

ALRC, Rethinking the Federal Civil Litigation System (Issues Paper 20, ALRC, 1997), referring to O Fiss, “Against Settlement” (1984) 93 Yale Law Review 1073, 1085.

110

NADRAC, The Development of Standards for ADR, Discussion Paper (Attorney-General’s Department, 2000) p 22.

111

NADRAC, A Framework for ADR Standards (Attorney-General’s Department, 2001) pp 13–14. [1.80] 29

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ALRC. This is perhaps recognition that adjudicatory systems may not “resolve” disputes but merely settle or determine them. The underlying causes of conflict or tension may not be resolved. However, given that the term ADR includes adjudicatory processes such as arbitration, it is somewhat unusual that this objective has been proposed by NADRAC to deal with the broad range of ADR processes. In their broadest definition, ADR processes may also be oriented towards facilitating progress towards some agreed objective or criteria, rather than “resolving” disputes. For example, where facilitative case management processes are used, the objective may be to ready a dispute for trial. In this respect, the objective responds to the use of ADR processes as part of a case management approach. In case management approaches, processes are used to ensure that issues that may proceed to a hearing are defined, mapped and procedurally prepared. The failure of the ALRC to include such an objective is a reflection of other differences between litigation and ADR systems, and the way in which traditional court processes deal with disputes and conflict. For example, in relation to a conflict between individuals or organisations about a consumer purchase, litigation can be commenced in a variety of different courts or involve different sets of court proceedings. An intervention order (dealing with violence) or its equivalent will be dealt with at the Local Court level, a dispute about the actual consumer purchase at a consumer tribunal level, and defamation actions will ordinarily be dealt with at the Supreme Court level. Adjudication in each court or tribunal may deal with only part of the conflict between the parties. The process should be considered by the parties to be just (or fair) [1.85] The ALRC noted that one criterion or objective could be that the process be “just”. It has also noted that the term “justice” resists easy definition: A key issue is whether justice should be defined by reference to external “objective” values, or by reference to the parties’ own “subjective” evaluation of the process. 112

For example, the consistent application of rules and procedural requirements to the passage of a dispute through the litigation system may result in a “just” or “fair” process or adjudication, whereas participation by the parties (not necessarily their legal representatives) may be essential to ensure that parties perceive the process and outcome as just or fair (for example, in ADR processes). It is often said that mediation and other processes are viewed as “more fair” by disputants. However, this has been the subject of debate. According to some studies, “procedures are viewed as fairer when … ‘process control’ is vested in

112

NADRAC, A Framework for ADR Standards (Attorney-General’s Department, 2001) pp 13–14.

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the disputants”. 113 However, some recent researchers have identified additional relevant features. These have been identified as “dignitary process features” 114 and relate to: the manner in which the procedure is enacted, rather than with the distribution of control mandated by the procedure. Dignitary process features involve the belief that disputants are treated with respect and politeness and that the dispute is treated as a serious matter worthy of a dignified hearing. Field studies of procedural justice judgments have shown that dignitary process features are at least as important as control issues in determining whether a procedure is seen as fair. 115

There is also considerable overlap with these notions and the extensive and growing body of literature relating to “procedural justice”. Procedural justice theory and past work, 116 based on that of Lind and Tyler 117 and linked to the procedural justice work of Thibaut and Walker, suggests that if people consider that they have been treated fairly they are more likely to accept a decision and outcome. 118 However, a fundamental issue of ADR relates to whether it is the process or the outcome that is being considered and how evaluation can take place. If the process (rather than the outcome) is what is being considered then the extent and nature of disputant participation may be a relevant measure. Other relevant factors could include the length of the process and participant perceptions relating to exchanges within the process. If the focus is on the outcome, agreement or solution that is reached as a result of ADR processes then there are issues about whether or not such outcomes should have any objective characteristics. ADR literature refers to “win–win 113

See RJ MacCoun, EA Lind and TR Tyler, Alternative Dispute Resolution in Trial and Appellate Courts (RAND Corporation, Santa Monica, 1992) p 100 for reference to the extensive Thibaut and Walker research.

114

See RJ MacCoun, EA Lind and TR Tyler, Alternative Dispute Resolution in Trial and Appellate Courts (RAND Corporation, Santa Monica, 1992) p 100 for reference to the extensive Thibaut and Walker research. RJ MacCoun, EA Lind and TR Tyler, Alternative Dispute Resolution in Trial and Appellate Courts (RAND Corporation, Santa Monica, 1992) p 100, referring to studies reported in EA Lind, RJ MacCoun, PA Ebener, WLF Felstiner, DR Hensler, J Resnik and TR Tyler, “In the Eye of the Beholder: Tort Litigants’ Evaluations of their Experiences in the Civil Justice System” (1990) 24 Law and Society Review 953, EA Lind and TR Tyler, The Social Psychology of Procedural Justice (Plenum, New York, 1988) and TR Tyler, Why Citizens Obey the Law: Procedural Justice, Legitimacy and Compliance (Yale University Press, New Haven, 1990).

115

116

117 118

See, for example, T Sourdin and A Shanks, Gauging the User Experience Report (Report to Allen Consulting Group, ACJI, 2013); T Sourdin, Resolving Disputes without Courts: Measuring the Impact of Civil Pre Action Obligation (Background Paper, Monash University, 2012); T Sourdin, Evaluating Mediation in the Supreme and County Courts of Victoria (Report, The Department of Justice and ACPACS,2008). EA Lind and TR Tyler, The Social Psychology of Procedural Justice (Plenum Press, New York, 1988). See, for example, K Van den Bos, L Van der Velden and Al Lind, “On the Role of Perceived Procedural Justice in Citizens’ Reactions to Government Decisions and the Handling of Conflicts” (2014) 10(4) Utrecht Law Review 1 and the base work of J Thibaut, “Procedural Justice: A Psychological Analysis” (1978) 6 Duke Law Journal 1289 and J Thibaut and L Waler, Procedural Justice: A Psychological Analysis (Erlbaum, New Jersey, 1975). [1.85] 31

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solutions”, options for mutual gain and integrative bargaining. 119 There is also reference to mediation’s capacity to promote “wise” 120 agreement. Parker has suggested that it is appropriate for ADR practitioners to set standards for parties in conflict – that options should be “mutually beneficial”. 121 Parker also suggests that any defined outcome should be realistic as well as mutually beneficial. Clearly, a mutually beneficial outcome is not possible in many court proceedings. Perhaps the definition of what is “just” can be determined by analysing the particular process and the fact that different dispute resolution processes in turn have different objectives. For example, a process such as mediation may involve standards relating to inclusiveness, openness and fairness in terms of process, whereas a “just” outcome may require a value judgment by a practitioner, which is inconsistent with the defined role of a mediator (see Chapter 3). However, it could be suggested that in negotiation processes (that include considering the rights-based alternatives), 122 ethics, codes and standards 123 may assist to support outcomes and process that are “just”. A “fairness” requirement raises similar issues. NADRAC suggested that “fairness” could involve an ADR practitioner conducting a “process in a fair and even-handed way” 124 (see comments in Chapter 3 relating to impartiality and neutrality). It is of interest that NADRAC suggested another key objective – “achieves acceptable outcomes” – that draws on much of the ADR work referred to above. The process should be accessible [1.90] The ALRC noted that the concept of accessibility implies that: • appropriate dispute resolution processes exist and are available; • barriers to participation in the process, such as cost, are reduced or serve to channel parties into more appropriate forms of dispute resolution; and • parties and their advisers understand the process, their role in the process, and the reasons for the outcome. 125 At present, the various dispute resolution processes that are available within our society to individuals and organisations are funded differently and access is 119 120

121

J Gillespie and M Bazerman, “Parasitic Integration: Win–Win Agreements Containing Losers” (1997) 13(3) Negotiation Journal 271. R Fisher, W Ury and B Patton, Getting to Yes: Negotiating an Agreement Without Giving In (2nd ed, Random House, Sydney, 1991). Note that “a wise agreement is one which meets the legitimate interest of each side to the extent possible, and takes community interest into account”: p 4. There is also research that suggests that agreements can be more “creative”. See L Adrian and S Mykland, “Creativity in Court-Connected Mediation: Myth or Reality?” (2014) 30 Negotiation Journal 421. A Parker, The Negotiator’s Toolkit (Peak Performance, Sydney, 1998) p 156.

122

See T Sourdin, “A Broader View of Justice” in M Legg (ed), The Future of Dispute Resolution (Lexis Nexis Butterworths, 2013) pp 155-166.

123 124

See L Ojelabi and T Sourdin, “Using a Values-Based Approach in Mediation” (2011) 22(4) Australasian Dispute Resolution Journal 258. NADRAC, A Framework for ADR Standards (Framework, Attorney-General’s Department, 2001) p 113.

125

ALRC, Rethinking the Federal Civil Litigation System (Issues Paper 20, ALRC1997) p 27.

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limited by a variety of other factors including geography, gender, employment and the availability of information. Different funding arrangements mean that much of the ADR system is not supported by government structures. The obvious exceptions to this are disputes in the family law area and the well-publicised systems that operate in Community Justice Centres of New South Wales, the Dispute Settlement Centres of Victoria and the Dispute Resolution Centres of Queensland. Other States also support dispute resolution systems that have ADR processes as their focus. However, much ADR is privately funded and supported. The variations in cost can mean that in some circumstances it is cheaper to access the government-supported litigation system than to access private ADR. Accessibility to processes within the broader dispute resolution system may mean that government supports ADR options in ways other than by direct funding. For example, the Commonwealth Government’s support of NADRAC until the end of 2013 could be seen as one way in which government supports ADR processes. Other supportive mechanisms can include ensuring that websites, coordinating and referral processes exist. NADRAC did not propose an objective that is related to accessibility. This is probably in recognition of the fact that much of the work that occurs in the ADR system is carried out privately and it is difficult to promote access to a private system. Arguably, however, accessibility issues should remain at the heart of discussion about ADR processes and their role in the Australian dispute resolution system. There are also issues about the extent to which accessibility should be promoted by using processes that regulate and support the “private” system. The process should use resources efficiently and promote lasting outcomes [1.95] The ALRC noted that efficiency 126 can be viewed from a number of perspectives including: • the need to ensure appropriate public funding of courts and dispute resolution processes that avoid waste; • the need to reduce litigation costs and avoid repetitive or unnecessary activities in case preparation and presentation; and • the need to consider the interests of other parties waiting to make use of the court or other dispute resolution process. 127 Efficiency can also refer to long-term gains and rates of compliance, as well as the broader costs of unresolved conflict. Using these broader notions of efficiency, ADR processes can arguably meet efficiency objectives more readily than conventional litigation or non-integrative processes. In addition, some of the possible benefits of ADR are difficult to measure. For example, the increased 126

This is an adaptation of the ALRC criteria that states the process should be efficient.

127

ALRC, Rethinking the Federal Civil Litigation System (Issues Paper 20, ALRC, 1997) p 27. [1.95] 33

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use of ADR may lead to a decrease in litigious or adversarial behaviour, 128 foster better relationships between parties to disputes, or result in higher levels of compliance with outcomes. Comparing the direct litigation or other costs of conventional processes with ADR processes is difficult because many civil cases are settled out of court in any event. 129 NADRAC proposed the objective that the process “achieves outcomes that are lasting”. This objective recognises that one of the great strengths of ADR processes is that they are said to promote greater compliance with outcomes. The ALRC also proposed an objective that “the process should be timely”. The commission said that timeliness relates to minimising: • the delay between the commencement of proceedings and the hearing of the dispute having regard to the complexity and features of the dispute; • the time taken to resolve the dispute once the resolution process has commenced; and • the time that parties, their legal representatives, witnesses, judicial officers and others must devote to the process. 130 The ALRC objective has no parallel in the NADRAC objectives. To some extent timeliness is related to the effective use of public resources. However, the focus in many ADR processes is not on public expenditure but rather private expenditure and the direct and indirect costs that may be experienced if a dispute is not resolved. The process should achieve outcomes that are effective and acceptable [1.100] The ALRC proposed an objective that “the process should be effective”. This can be compared with the proposed NADRAC core objective that the process “achieves acceptable outcomes”. These two objectives are clearly interrelated as, unless an outcome is accepted by the parties, in any broader context it is unlikely to be effective. This is also related to the objective suggested by NADRAC in respect of lasting outcomes. The ALRC noted that effectiveness implies that: • the process should ensure, or at least encourage, a high degree of compliance with the outcome; 128

129

130

It has been suggested that those exposed to cooperative dispute resolution processes develop more constructive communication patterns and less obstructive behaviour: P Wanger, “The Political and Economic Roots of the ’Adversary System’ of Justice and Alternative Dispute Resolution” (1994) 9(2) Ohio State Journal on Dispute Resolution 203. For discussion on the methodological difficulties in evaluating ADR programs, see T Matruglio, Researching Alternative Dispute Resolution (Justice Research Centre, Sydney, 1992); S Caspi, “Mediation in the Supreme Court: Problems with the Spring Offensive Report” (1994) 5(4) Australian Dispute Resolution Journal 4; S Keilitz (ed), National Symposium on Court-Connected Dispute Resolution Research – A Report on Current Research Findings – Implications for Courts and Research Needs (State Justice Institute, USA, 1994); and notes from second (2005) and third (2007) National ADR Research Forums, available on http://www.ag.gov.au. ALRC, Rethinking the Federal Civil Litigation System (Issues Paper 20, ALRC 1997) p 27.

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• at the conclusion of the process, there should be no need to resort to another forum or process in order to finalise the dispute; and • the process should promote certainty in the law. 131 The notion that certainty in the law or the social structure is a relevant consideration is linked to ideas about the requirement to have a strong rights-based system to enable civil society to function. It may be that effectiveness can be judged by different sub-criteria when one considers ADR processes as compared to traditional adjudicatory processes. For example, where ADR processes are concerned, most ADR practitioners would consider that it would be inappropriate for the processes used to promote certainty in the law. However, many practitioners may consider that the promotion of a social structure, and possibly even the promotion of values such as “respect for others” and “transparent dialogue”, may underpin objectives used to assess ADR processes. In addition, the extent to which the process can or should promote satisfaction is relevant. Satisfaction could be a criterion to be considered when determining whether or not a process is effective. For example, can a process be regarded as effective if all concerned with the process are unsatisfied? In this regard, it has been noted that the success of mediation cannot be measured merely by savings in money and time. The opportunity of achieving participant satisfaction, early resolution and just outcomes are relevant and important reasons for referring matters to mediation. 132 One set of objectives? [1.105] The ALRC noted that their proposed objectives overlap with respect to the federal civil dispute resolution system. It is also the case that the “blended” objectives overlap if applied to the broader dispute resolution system (including ADR processes). For example, as previously noted, the direct costs (monetary payments) and indirect costs (loss of profit, loss of opportunity and other personal costs such as stress or illness) of a particular process have implications for the accessibility, effectiveness and efficiency of dispute resolution. The ALRC has noted that the “objectives may also conflict with one another, requiring consideration of priorities or the ability of particular dispute resolution processes to meet various objectives”. 133 In this manner, core objectives can inform the articulation of referral criteria and processes. The basic system objectives can also assist in informing discussion about the development of ADR processes and their future role within our society. Objectives also provide an opportunity to benchmark performance and assist in the development of common research approaches. However, examining the objectives from the perspective of the ALRC inquiry is somewhat flawed as its 131 132

ALRC, Rethinking the Federal Civil Litigation System (Issues Paper 20, ALRC 1997) p 27. J Spigelman, “Mediation and the Court” (2001) 39(2) Law Society Journal 63.

133

ALRC, Rethinking the Federal Civil Litigation System (Issues Paper 20, ALRC 1997) p 27. [1.105] 35

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primary focus is on disputes within the litigation system. As the bulk of disputes and much conflict is settled or dealt with in some manner outside the litigation system, it is appropriate to consider the NADRAC additional objectives that are not related to litigation processes. In this respect, any analysis of objectives could include reference to the business and broader social environment. Different objectives for facilitative, advisory and determinative processes [1.110] One approach is to use NADRAC’s basic framework and develop additional criteria and objectives for dispute resolution processes using NADRAC’s classification. This seems to be the approach that is often taken when reviewing, evaluating or monitoring ADR programs. In terms of how these additional objectives may be articulated, the objectives of facilitative processes are more closely examined in Chapters 2 and 3. The skills that are most relevant to facilitative practitioners are discussed in Chapters 3 and 7. However, there has been little focus by many in the ADR area on advisory and determinative processes, and the additional skills used in these processes (see Chapter 6). Where determinative processes are involved, arguably different criteria or objectives should operate in respect of transparency and fairness. This is primarily because a determination in the ADR setting may be enforceable under some circumstances and may not be the subject of an agreement. This means that the requirements for justice and fairness in decisional and advisory processes require attention to additional sub-criteria. The balance of this chapter focuses on the extent to which ADR research has evaluated processes by reference to these objectives.

Research about ADR [1.115] Many of the studies that have sought to determine whether ADR processes should be used and supported have focused on disputes that are the subject of litigation. To some extent this has skewed reporting about ADR processes, as the discussion and research usually takes place within the context of possible reform of the litigation system. As cost and delay are commonly claimed to be the major problems in the civil litigation system, many evaluations seek to determine the impact of the introduction of ADR processes on existing cost and delay. 134 Also, processes that “mime adjudication” are often found within the litigation system and the focus is therefore skewed towards a consideration of determinative or advisory processes. This research approach raises two other important issues. First, the studies do not engage in an analysis of the much broader conflict resolution system (that mainly operates outside courts and tribunals). 135 One study that attempted to assess community engagement and understanding of ADR suggested that ADR 134 135

See lengthier discussion in T Sourdin, “Using Alternative Dispute Resolution to Save Time” (2014) 33(1) The Arbitrator & Mediator 61. See also T Sourdin, “Resolving Disputes Without Courts?” (2013) 32(1) The Arbitrator & Mediator 25.

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processes may not be well understood within many communities and that certain individuals are more likely to use ADR than others. 136 Secondly, a focus on litigated matters or those commenced within the court system may mean that satisfaction within the broader justice system may not be explored. Issues such as “client satisfaction” and “unfairness” have been raised as important factors involved in the evaluation of litigation processes. The Justice Research Centre (JRC) survey, which surveyed a number of personal injury cases in the New South Wales District Court and New South Wales Law Society private mediation program, showed a link between plaintiff satisfaction with the legal process and the type of dispute resolution procedure used. For example, the proportion of satisfied plaintiffs who had used pre-trial conferences or mediation was much higher than the number of satisfied plaintiffs who had experienced trial or arbitration. 137 Other research studies have shown similar results although often disputants may be reasonably satisfied with trial processes (but not necessarily unassisted negotiation). 138 Some overseas studies have shown significant benefits in using ADR. One study in Canada that analysed more than 3000 cases in Ontario found that there were positive impacts upon the pace, cost and outcomes of litigation when ADR processes were used. 139 In the United States, however, one study of mediation and neutral evaluation programs was unable to show any effect of these methods of dispute resolution on satisfaction or views of fairness. 140 However, that study also referred to “mediated” cases as being those where the practitioner often gave an opinion as to the likely outcome – a process that many mediators would not define as mediation. 141 Other studies have attempted to evaluate mediation. There is now a significant body of evidence in Australia that shows that ADR processes may have different benefits in different types of disputes (see Chapter 15 and Appendix G). 142 More research is needed in this area. On the basis of the results 136

137 138 139 140

141 142

IPSOS Australia Pty Ltd, Alternative Dispute Resolution in Victoria: Community Survey 2007 Report (Department of Justice, State Government of Victoria, Melbourne, 2007), available on http:// www.consumer.vic.gov.au. M Delaney and T Wright, Plaintiffs’ Satisfaction with Dispute Resolution Processes (Justice Research Centre, Sydney, 1997) p 71. T Sourdin, Mediation in the Supreme and County Courts of Victoria (Report, Department of Justice, 2009) p 69, available on http://papers.ssrn.com. R Hann and C Baar, Evaluation of the Ontario Mandatory Mediation Program (Queen’s Printer, Ontario, 2001) p 3. J Kakalik, T Dunworth, L Hill, D McCaffrey, M Oshiro, N Pace and M Vaiana, An Evaluation of Mediation and Early Neutral Evaluation Under the Civil Justice Reform Act (RAND Corporation, Santa Monica, 1996) p 53. See Chapter 3. R Ingleby, In the Ball Park: Alternative Dispute Resolution and the Courts (AIJA, Melbourne, 1991); S Bordow and D Gibson, Evaluation of the Family Court Mediation Service (Family Court of Australia, 1994); C Chinkin and M Dewdney, “Settlement Week in New South Wales; An Evaluation” (1992) 2 Australian Dispute Resolution Journal 93; M Dewdney, B Sordo and C Chinkin, Contemporary Developments in Mediation within the Legal System: An Evaluation of the 1992–93 Settlement Week [1.115] 37

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of existing survey research, it seems that dispute resolution processes can provide greater satisfaction to disputants in many instances. It has also been said that ADR is pursued in different courts and tribunals for different reasons. For example, ADR may be introduced to reduce delay however the forms of ADR may not necessarily promote fair processes – “cheaper and faster is not necessarily the same thing as better”. 143 The claims made for ADR have been described as “qualitative-efficiency claims versus qualitative-justice claims”. 144 The variety of reasons for introducing ADR in community settings and different courts and tribunals has led to different forms of institutionalised ADR. 145 Initially in the Commonwealth Administrative Appeals Tribunal, for example, it was been noted that: To the extent that mediation is primarily focused on the resolution of disputes and the creation of peaceful harmonious relationships between parties, the elimination of a court backlog or using mediation as a case management tool satisfies the needs of the courts and the parties’ representatives only. It fails to focus on the needs of the parties themselves. 146

CONCLUSIONS [1.120] In addition to the growth in court- and community-based dispute resolution schemes, ADR has become institutionalised and grown within Australia and overseas. 147 In Australia, its development has been assisted by the creation and growth of professional organisations such as the newly formed Resolution Institute (that incorporates LEADR (Association of Dispute Resolvers), the Institute of Arbitrators and Mediators Australia (IAMA)), the Australian Disputes Centre (ADC), the Australian Dispute Resolution Association (ADRA) and a range of other State-based organisations. The emergence of the Mediator Standards Board (which manages the National Mediation Accreditation Scheme) and the growth of the National Mediation Conference (NMC) have more particularly focused on mediation. Other bodies have also focused on international and commercial arbitration (such as the Chartered Institute of Arbitrators). The increasing emphasis on ADR in education at school and tertiary levels has also led to an increasing acceptance and understanding of the processes. Program (Law Society of New South Wales, Sydney, 1994); C Bartlett, “Mediation in the Spring Offensive” (1992) 67(4) Law Institute Journal 232; B Sordo, “A Law Society Perspective of Law and Lawyers in Mediation” (1995) 2(2) Commercial Dispute Resolution Journal 77. 143

C Menkel-Meadow, “Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or ’The Law of ADR’” (1991) 19(1) Florida State University Law Review 10.

144

C Menkel-Meadow, “Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or ’The Law of ADR’” (1991) 19(1) Florida State University Law Review 10, 16. C Menkel-Meadow, “Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or ’The Law of ADR’” (1991) 19(1) Florida State University Law Review 10, 10–11.

145 146 147

J Handley, “Mediation in the Commonwealth Administrative Appeals Tribunal” (1995) 6 Australian Dispute Resolution Journal 5, 6. C Menkel-Meadow, “Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or ’The Law of ADR’” (1991) 19(1) Florida State University Law Review 10, 16.

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The development of the National Mediator Accreditation System (NMAS) that was designed to enhance consumer certainty and support mediation referral has also led to the increased use of mediation and additional consideration of pre-action or pre-filing protocols. This system and other accreditation processes are discussed at various points in this book and more fully explored in Chapter 14. Professional bodies such as law societies, institutes and Bar associations have fostered ADR processes within the ranks of the legal profession and have been partly responsible for introducing schemes in some courts. 148 Surveys in Queensland 149 and Western Australia 150 have indicated that awareness and use of ADR processes varies among practitioners in different jurisdictions and practice areas. The same studies have indicated that many practitioners support the use of these processes and play an active role in encouraging their clients to use ADR. 151 Members of the judiciary have also played a key role in introducing and institutionalising ADR processes within and without courts and tribunals. Some have opposed the introduction of ADR and have viewed its relationship to courts and tribunals as a relationship that usurps traditional judicial activity and has the potential to conceal conflict. Others have questioned its utility. 152 Some have labelled those who adopt this stance as “litigation romanticists” who overestimate the “accuracy, fairness, and wisdom of traditional adjudication”. 153 Menkel-Meadow has said that each of the groups involved in ADR reform inhabit different cultural worlds: The research of academics is ignored or simplified; judges move cases along and adopt the language of case management rather than justice; lawyers “infect” clients with a desire for adversarial advantage, or in other cases clients do the same to lawyers; and professionals argue about credentialising and standards for the new profession. 154 148

B Sordo, “A Law Society Perspective of Law and Lawyers in Mediation” (1995) 2(2) Commercial Dispute Resolution Journal 77.

149

N Spegel, Report on Survey to Ascertain Practitioner Attitudes and Practices Regarding Mediation (Unpublished Paper, University of Queensland, 1997). A Zariski, “Survey Finds Strong Support for ADR” (1997) 24(5) The Law Society of Western Australia Brief 29.

150 151

F Neilson, Lawyers as the Gatekeepers to PDR Services in Family Law: Are they Fulfilling their Duty? (Unpublished Paper, Sydney, 1997). In some instances practitioners may play less active roles, thereby discouraging ADR participation.

152

Chief Justice Tom Bathurst, Opening Address (Speech delivered at the 2011 Advanced Alternative Dispute Resolution Workshop, Sydney, 13 August 2011), available on http://www.austlii.edu.au/au/ journals/NSWJSchol/2011/26.pdf. J Stempel, “Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood?” (1996) 11(2) Ohio State Journal on Dispute Resolution 310 , referring to C Menkel-Meadow, “Narrowing the Gap by Narrowing the Field: What’s Missing from the MacCrate Report – Of Skills, Legal Science and Being a Human Being” (1994) 69 Washington Law Review 593, 604. C Menkel-Meadow, “Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or ’The Law of ADR’” (1991) 19(1) Florida State University Law Review 10, 38.

153

154

[1.120] 39

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However, arguably as ADR processes are increasingly integrated and related to court systems, the legal culture and environment as well as the processes are altered. These changes are partly in response to the culture of those introducing the processes. It is expected that the “cultural worlds” referred to above will also change. Increasingly, those in ADR are seeking to bring together the differences by fostering cooperative exchanges and ensuring that ADR is a reflection of a cooperative and multi-dimensional effort.

40 [1.120]

Chapter 2 Negotiation [2.05]

[2.25]

[2.45] [2.55] [2.60] [2.65]

[2.85] [2.90] [2.95]

Introduction....................................................................................................................... 41 [2.05] Negotiation – definitions .................................................................. 41 [2.20] How does a style influence a negotiation? ................................... 46 Integrative negotiation and distributive negotiation strategies .............................. 47 [2.35] Integrative negotiation ...................................................................... 49 [2.40] Integrative negotiation and distributive negotiation – case study ..................................................................................................... 51 Style and skills in negotiation ....................................................................................... 52 [2.50] Negotiating style profile – case study ............................................ 53 Preparing for negotiation ............................................................................................... 59 [2.55] Harvard Project – seven-element preparation model ................. 59 Negotiation model and stages ....................................................................................... 62 Conflict coaching as a supportive tool......................................................................... 63 [2.70] Stages in conflict coaching ............................................................... 64 [2.75] Conflict coaching – case study ........................................................ 66 [2.80] Varying approaches to conflict coaching ....................................... 67 Assisted negotiation – negotiating with agents ......................................................... 67 Complex negotiations...................................................................................................... 70 Research about negotiation ............................................................................................ 71

INTRODUCTION Negotiation – definitions [2.05] Negotiation is a process that is not frequently defined. This may be because of the wide variations in terms of negotiation theory and practice. Some authors have referred to the Oxford Dictionary definition of negotiation: To confer with another for the purpose of arranging some matter by mutual agreement. 1

The variations in definitions of negotiation can be partly attributable to the different ways in which negotiation can take place. Where, for example, the negotiation relates to a transaction, there may be few conflicting interests and some more simple forms of negotiation may be more likely to be used. On the other hand, where the negotiation arises because of differences or as a result of a dispute or conflict, then the definition may focus more on working towards a resolution. 2 1 2

See N Spegel, B Rogers and R Buckley, Negotiation: Theory and Techniques (Butterworths, 1998) p 1. See, for example, N Alexander, J Howieson and K Fox, Negotiation: Strategy, Style, Skills (LexisNexis, 2015) p 2. [2.05] 41

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There are other variations that can be linked to whether negotiation is “direct” or “indirect”. The National Alternative Dispute Resolution Advisory Council (NADRAC) descriptions refer to “indirect negotiation” as follows:

Description: Indirect negotiation [2.10] Indirect negotiation is a process in which the participants in a dispute use representatives (for example, lawyers or agents) to identify issues to be negotiated, develop options, consider alternatives and endeavour to negotiate an agreement. The representatives act on behalf of the participants, and may have authority to reach agreements on their own behalf. In some cases the process may involve the assistance of a dispute resolution practitioner (the facilitator) but the facilitator has no advisory or determinative role on the content of the matters discussed or the outcome of the process, but may advise on or determine the process of facilitation. 3 [2.15] However, it could be argued that the definition of negotiation is broader and extends beyond the actual interaction and conferral that may take place between negotiating parties. Negotiation in this sense includes preparatory steps as well as any concluding post-negotiation phase. 4 The outcome sought in negotiation may also not embody a sense of mutuality or even have agreement as a purpose. The objectives of any negotiation may vary according to the negotiation strategies adopted and the complexity of the issues involved. Negotiation processes may also be defined by reference to the outcome sought and the relationship between the participants. For example, negotiation has been used throughout our legal and social history to resolve disputes. However, as noted above, negotiation can also be used in a transactional sense to create and foster relationships. There are a number of differences that arise in the form and content of a negotiation depending upon whether negotiation is used in a transaction or to resolve a dispute and whether there is a degree of compulsion (that is whether the negotiation is mandatory or required to be undertaken) that exists within a negotiation. There is now a wealth of literature about negotiation and much of this is in the form of “self-help” books. Much that is written about negotiation originates in very different disciplines although there have been some attempts to bring 3

4

National Alternative Dispute Resolution Advisory Council (NADRAC), Dispute Resolution Terms (Paper, AGPS, 2003). See also NADRAC, Dispute Resolution Guide (Guide, NADRAC, 2011), where negotiation is described as an interest-based process, available on http://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Pages/NADRACpublications.aspx. See, for example, D Lax and J Sebenius, 3D Negotiation: Powerful Tools to Change the Game in Your Most Important Deals (Harvard Business School Press, Boston, 2006) in which they refer to the three dimensions of negotiation: “tactics”, “deal design” and “setup”.

42 [2.10]

Negotiation

| CH 2

theories and insights together in recent years. 5 Negotiation theory is based on a number of different theories that include game theory, behavioural analysis, 6 strategic decision-making and what has been referred to as negotiation analysis theory. 7 Most literature, however, refers to the theory in terms of distributive and integrative approaches to negotiation that underpin much of the negotiation work in recent years (see later discussion in this chapter) or in terms of behavioural analysis (and decision-making behaviour – see Chapter 6). 8 To some extent, this literature attempts to deal with rational theory and behavioural responses and actions in negotiation that may appear to be irrational. In recent years, there has been an increasing focus on how people respond in negotiation and that in order to negotiate effectively you must know “yourself”. 9 In addition, better understandings of neurobiology have suggested that: We now know that humans are predisposed by nature to resolve disputes by arguing over perceptions of fact, disagreeing over the meaning of norms, and seeking out resolutions that treat all parties equally. This human neurobiological inheritance trumps ideology and aesthetics in shaping dispute bargaining practice, and dispute bargaining theory, adversarial and communitarian alike, must take it into account. 10

As a dispute resolution process, negotiation is responsible for the resolution of more disputes than any other process. 11 As noted in Chapter 1 at [1.55], in 1989 it was estimated that only 5.7 per cent of all commercial disputes end up within the court system 12 and there has recently been a greater focus on the way that negotiation takes place within the business setting. This is not a new 5

6

7

8

9

See, for example, A Schneider and C Honeyman (eds), The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator (American Bar Association, Dispute Resolution Section, Washington, 2006). This collection of essays and other materials is directed at bringing together different disciplinary discoveries regarding negotiation. See, for example, W Bottom, A Mislin and P Boumgarden, Psychological Foundations of the Behavioral Theory of Negotiation, Meetings Paper (International Association for Conflict Management, 2007), available on http://papers.ssrn.com. See W Edwards, R Miles and D von Winterfeldt (eds), Advances in Decision Analysis (Cambridge University Press, New York, 2007) and the contribution by J Sebenius, Negotiation Analysis: Between Decisions and Games, available on http://papers.ssrn.com. See, for example, K Milkman, T Rogers and M Bazerman, Harnessing Our Inner Angels and Demons: What We Have Learned About Want/Should Conflicts and How that Knowledge Can Help Us Reduce Short-Sighted Decision Making (Working Paper No 08-020, Harvard NOM, 2004), available on http:// papers.ssrn.com. In terms of decision-making behaviours see D Malhotra and M Bazerman, Psychological Influence in Negotiation: An Introduction Long Overdue (Working Paper No 08-058, Harvard NOM, 2008), available on http://papers.ssrn.com.

11

Two Harvard authors have explored these concepts in different ways: see E Ariel Fox, Winning from Within: A Breakthrough Method for Leading, Living and Lasting Change (HarperCollins Publishers, New York, 2013) and W Ury, Getting to Yes with Yourself (and Other Worthy Opponents) (HarperCollins Publishers, USA, 2015). See R Condlin, “The ‘Nature’ of Legal Dispute Bargaining” (2016) 17 Cardozo Journal of Conflict Resolution, Draft Version available on http://digitalcommons.law.umaryland.edu/cgi/ viewcontent.cgi?article=2548&context=fac_pubs. It could be suggested that many involved in disputes do not negotiate but simply “give up”.

12

M Fulton, Commercial Alternative Dispute Resolution (Lawbook Co, Sydney, 1989) p 6.

10

[2.15] 43

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phenomenon – Fisher and Ury’s Getting to Yes: Negotiating Agreement Without Giving In 13 (and other key self-help negotiation strategy books that emerged from the Harvard Negotiation Project), and the business management industry throughout the 1970s, 1980s and 1990s spawned an industry that informed many in society about different negotiation strategies. Much of this material focused on transactional negotiation and techniques that were then transplanted into the dispute resolution setting. Some of this negotiation literature reflects on strategies, tactics and “type” identifiers and is focused in behavioural analysis. 14 In contrast, negotiation literature relating to dispute resolution may also focus on less linear constructions of negotiation. It may move beyond a competitive construction of negotiation and be more focused on problem-solving processes that “… subordinate[s] strategies and tactics to the process of identifying possible solutions and therefore allow[s] a broader range of outcomes to negotiation problems”; 15 that is, the focus in negotiation literature that is directed at dispute resolution tends to focus on style as well as process.

The “Orange story” The “Orange story” is often used to illustrate the basic problemsolving and interest-based approach in negotiation. In the Orange story, Fisher and Ury in Getting to Yes 16 tell of two sisters who each wanted an entire orange. Only one orange was available and it was cut in half to satisfy them. The first sister squeezed her half for the juice and threw away the peel. The second sister grated the peel from her half to use in a cake and threw the rest away (including the juice). Neither was satisfied or had their needs met with the “solution”. Both girls had wanted the whole orange, but each one needed (or had an interest in) only the juice or the peel respectively. Both of their interests could have been satisfied with each taking a part of the whole orange (for example, an agreement where one took the peel and the other the juice) – each maximising their gain, and not to the detriment of the other.

13

14

15 16

Fisher and Ury, Getting to Yes: Negotiating Agreement Without Giving In, (Houghton Mifflin, Boston, 1981); R Fisher, W Ury and B Patton, Getting to Yes – Negotiating Agreement Without Giving In (2nd ed, Random House, Sydney, 1991). See C Menkel-Meadow, “Legal Negotiation: A Study of Strategies in Search of a Theory” (1983) 8(4) American Bar Foundation Research Journal 905 referring to H Cohen, You Can Negotiate Anything: How to Get What You Want (Bantam Books, New York, 1980); see also R Brinkman and R Kirschner, Dealing With People You Can’t Stand (McGraw Hill, New York, 2002). C Menkel-Meadow, “Toward Another View of Legal Negotiation: The Structure of Problem Solving: A Study of Strategies in Search of a Theory, American B” (1984) 31 UCLA Law Review 754, 794. R Fisher and W Ury, Getting to Yes: Negotiating Agreement Without Giving In (Houghton Mifflin, Boston, 1981) p 100.

44 [2.15]

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| CH 2

The Orange story supports cooperative, principled or interest-based negotiation and stresses that in such negotiations the most important question is why someone wants something. That question will usually lead to an examination of the parties’ most important needs or interests, rather than a sole focus on their positions. There are often several needs and usually these are not exactly the same or necessarily in conflict with the needs (interests) of the other party. For example, in a family dispute over parenting, the reasons (interests) a mother may have in wanting the children to reside with her may not be incompatible with the reasons (interests) that the father may have. It is important to recognise that not all disputes can be resolved using interest-based negotiation. However, reinforcing an interest-based negotiation approach can assist the parties to negotiate more effectively. There has been little qualitative or quantitative empirical examination of the use of negotiation and satisfaction levels that occur where unassisted negotiation takes place. For example, there has been an increasing theoretical focus on the possible negotiation styles that can operate; however the impact on outcomes or problems that can arise in a negotiation setting are often difficult to assess. 17 As noted in Chapter 1 at [1.45], in terms of a behavioural approach the negotiation styles that can be adopted in any setting can be described as follows: • avoidance – where the issue, dispute or conflict is avoided. In a family or workplace dispute, for example, this could be characterised by a lack of contact or a reluctance to “confer”; • submission – where a party “gives in” and decides not to engage on an issue; • compromise – where the outcomes that are suggested are “give and take” outcomes and a bargaining approach is adopted; • competitive or positional – where one party seeks to “win” and adopts a “position” without exploring the parties’ needs or interests. This may be characterised by the use of coercive strategies; • collaborative or cooperative – where the parties’ needs and interests are explored and a range of options are developed that address those needs and interests. There are a range of activities that can assist individuals and groups to analyse their negotiation approach on a more general level. Some of these activities are set out in this chapter and may assist you to analyse your negotiation behaviour, style and approach. 17

R Gordon, “Private Settlement as Alternative Adjudication: A Rationale for Negotiation Ethics” (1985) 18(2) University of Michigan Journal of Law Reform 503. There is, however, an expanding body of evaluation literature in respect of some aspects of negotiations – for example, in relation to procedural fairness, see A Schneider and C Honeyman (eds), The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator (American Bar Association, Dispute Resolution Section, Washington, 2006). There is also an increasing focus on evaluation in specific domains: see the Negotiation Journal (various) published by the Program on Negotiation at Harvard Law School and Blackwell Publishing. [2.15] 45

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How does a “style” influence a negotiation? [2.20] Style or behavioural descriptors may be helpful to a varying degree in any negotiation. They can be used to assist a negotiator in responding or can be used to help analyse the approach of others in a negotiation. However, an individual negotiator may adopt one stance or style in relation to an issue at one time in a negotiation before shifting approaches. For example, a negotiator may adopt a competitive stance towards one issue and a collaborative stance towards another. Similarly, a negotiator’s stance may alter if they are tired, hungry or uncomfortable or if sabotaged by self-doubt or other challenges. 18 Where teams of negotiators are engaged, the styles may be influenced by the team dynamics as well as the impact of different negotiator characteristics. The style adopted may also be influenced by lateral, vertical or other pressures. The audience, constituents and the relationships may play a central role in influencing the styles adopted. A growing number of writers have suggested that there are a number of different negotiation strategies and approaches. These are clearly also related to personal style indicators and emotional inputs. 19 One approach is defined as an adversarial approach and involves competitive negotiation. In this “give and take” approach, “what one party gains the other must lose”. 20 For instance, one party states a position: “I want that orange”. The other says: “I want the orange”. Rather than exploring why either party wants the orange, one or both parties seeks an outcome where the whole orange is obtained by one party. These approaches many be unconscious and many negotiators may respond in a competitive way because they have not strategically considered the most appropriate response or because something has triggered a competitive response. 21 Compromissory negotiation patterns 22 (rather than cooperative approaches) are derived from the use of positional, competitive or adversarial approaches to negotiation. These approaches are based upon the assumption that “the parties desire the same goals, items, or values”. 23 The approach is most classically demonstrated as a “bidding approach”. Using the orange example above at [2.15], the orange could be cut in half. This occurs as one party seeks to “win” 18

See E Ariel Fox, Winning from Within: A Breakthrough Method for Leading, Living and Lasting Change (HarperCollins Publishers, New York, 2013) and W Ury, Getting to Yes with Yourself (and Other Worthy Opponents) (HarperCollins Publishers, USA, 2015).

19

See M Olekalns and D Druckman, “With Feeling: How Emotions Shape Negotiation” (2014) 30 Negotiation Journal 455.

20

C Menkel-Meadow, “Toward Another View of Legal Negotiation: The Structure of Problem Solving: A Study of Strategies in Search of a Theory, American B” (1984) 31 UCLA Law Review 754, 755. See also T Sourdin, “When to Step Away and When to Step Up”, in P Crisp (ed), So You Want to be a Leader (Hybrid Publishers, Australia, 2015) pp 131-145.

21 22 23

H Astor and C Chinkin, Dispute Resolution in Australia (2nd ed, LexisNexis Butterworths, Sydney, 2002) p 117. C Menkel-Meadow, “Toward Another View of Legal Negotiation: The Structure of Problem Solving: A Study of Strategies in Search of a Theory, American B” (1984) 31 UCLA Law Review 754, 765.

46 [2.20]

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| CH 2

and adopts a “position” without exploring the parties’ needs or interests. This is also referred to as distributive bargaining – essentially, a fixed amount of benefit is divided among those negotiating. Distributive bargaining is often accompanied by positional negotiation. 24 A characteristic of positional negotiation has been said to be the presence of confronting and personal attacks. Although everyone negotiates on a regular basis throughout life, many people use processes or strategies that could be categorised as distributive, compromissory or positional. Such negotiations are often unsuccessful for one or both of the parties. However, distributive bargaining may be useful where the relationship with the other party is not important, for example in a one off transaction or where ethical issues are not relevant. 25

INTEGRATIVE NEGOTIATION AND DISTRIBUTIVE NEGOTIATION STRATEGIES [2.25] In recent years, two almost opposite approaches to negotiation theory have emerged – integrative (“win-win”, collaborative, cooperative, interest based, communitarian) and distributive (“win-lose”, adversarial). The two approaches have resulted in the development of different strategies and models to assist in negotiation. Many theorists suggest that there are considerable variations and that strategies in negotiation should be viewed more holistically and on a continuum. 26 Further, what is required is dependent on the context and that negotiators need to clearly understand the range of negotiation strategies and behaviours to be effective in reaching an outcome. In this context it is useful to discuss the main negotiation approaches to negotiation. Problem-solving negotiation, which works towards joint or mutual gains and is popularly referred to as “win–win” negotiation or integrative bargaining has evolved and developed further than the adversarial style (partly because it can be successful but also because it can underpins more “satisfying” 24

25 26

A number of authors draw a distinction between “creating” and “claiming” value in a negotiation. See, for example, D Malhotra and M Bazerman, Negotiation Genius: How to Overcome Obstacles and Achieve Brilliant Results at the Bargaining Table and Beyond, (Bantam Dell, New York, 2007); D Lax and J Sebenius, 3D Negotiation: Powerful Tools to Change the Game in Your Most Important Deals (Harvard Business School Press, Boston, 2006). See R Lewicki, D Saunders and J Minton, Negotiation (3rd ed, Irwin McGraw Hill, Singapore, 1999). See, for example, R Condlin, “The ‘Nature’ of Legal Dispute Bargaining” (2016) 17 Cardozo Journal of Conflict Resolution Draft Version available on http://digitalcommons.law.umaryland.edu/cgi/ viewcontent.cgi?article=2548&context=fac_pubs, who suggests that: At the pure communitarian end are views of people like Folger and Baruch Bush, who believe in the transformative power of bargaining and the ability of people to be angels. At the adversarial end are the views of people like Jim White, who believe that most disputes are based on fundamentally opposed conceptions of fair treatment and equal distribution, and can be resolved only by argumentation and compromise. And in the middle are views that lean in one direction or the other, such as Menkel-Meadow’s problem solving view that assumes most (but not all) disputes are based on mistaken perceptions of interest and can be resolved by resort to shared interests and values, and views like those of Mnookin, Lax, and Sebenius, that combine adversarial and communitarian strategies equally, showing no presumption in favor of one or the other approach. [2.25] 47

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and inclusive ADR processes). This style of negotiation assumes that the content that is the subject of the negotiation is not fixed but variable. Variations in content can be related to a vast range of options that include timing, apologies, understandings, provision of additional information and new agreements, as well as options of high value to one negotiation participant and of low value to another. Obviously, not all conflicts can be resolved through integrative bargaining, but certainly many can. Learning when and how to apply this theory to conflict has been of major interest to negotiation theorists. In Getting to Yes, 27 Fisher and Ury focused on the method of interest-based negotiation. The most important technique in this type of problem-solving negotiation is to distinguish between interests (or needs) and positions (desires, wants). Some authors have suggested that, as noted in Chapter 1, the work of Fisher and Ury in Getting to Yes 28 was instrumental in popularising the establishment of alternatives to hard and soft positional bargaining. These variations in approaches underpin much of the development of different forms of ADR, such as mediation. For example, mediation may involve a focus on principled negotiation while case conferences and some forms of conciliation may assume that positional negotiation strategies will be used. Another factor that influences negotiation is related to content. In distributive negotiations, there is essentially a negotiation over who will have access to a limited resource. Distributive negotiations are often categorised as “hard” or “soft” according to the style adopted by the negotiators.

Description: distributive negotiation [2.30] The basic distributive negotiation approach is sometimes referred to as competitive negotiation and is founded on assumptions that: 1. 2.

negotiation is a zero-sum game where parties want the same goals, items and values; and the contents must be divided.

Distributive negotiation is often characterised by adversarial approaches and competitive behaviours. The result may be compromissory, that is each party must compromise, however, often the result may be that the negotiation fails to secure an agreed outcome for any of the parties involved. Distributive negotiation will usually involve: 1. 27

28

an opening offer and adoption of a style (avoid, submit, compromise or compete);

R Fisher and W Ury, Getting to Yes: Negotiating Agreement Without Giving In (Houghton Mifflin, Boston, 1981); R Fisher, W Ury and B Patton, Getting to Yes: Negotiating Agreement Without Giving In (2nd ed, Random House, Sydney, 1991). R Fisher and W Ury, Getting to Yes: Negotiating Agreement Without Giving In (Houghton Mifflin, Boston, 1981).

48 [2.30]

Negotiation

2.

the making of concessions; and

3.

tactical behaviours that can include withholding information, intimidation, aggression, deception, omission and modification.

| CH 2

Distributive negotiation is used where the focus is on a single or “one-off” transaction. The tactics and strategies that are used are often not supportive of any continuing relationship. For this reason, distributive negotiation is often unhelpful where a continuing relationship is involved, a fixed value is not in issue and all parties seek an agreed outcome. The down side of distributive negotiation may also relate to the lack of compliance with an agreed outcome (or behaviours post negotiation that mean that objectives are not met).

Integrative negotiation [2.35] Integrative negotiation, in contrast, assumes that the objectives and interests of the parties are not mutually exclusive. That is, by defining the problem, exploring underlying issues and generating options the parties can create an outcome that satisfies underlying interests (not positions). The dynamics of integrative negotiation are enhanced by training and clear understanding of the processes. There is much research that suggests that joint

[2.35] 49

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outcomes are more likely to be achieved where integrative negotiation processes are used. In addition, the integrative negotiation approach is said to enhance both relationships and satisfaction. 29 Integrative negotiation is also often referred to as cooperative, principled and interest-based negotiation and these forms of negotiation are said to increase the likelihood of reaching agreement if an “unconditionally constructive” 30 approach is adopted. Interest-based negotiation or bargaining can be traced back to a variety of negotiation theorists. In particular, Mary Parker Follett advocated a “mutual gains” approach to negotiation associated with what would be called “integrative bargaining”. 31 Negotiation theory achieved popularity and greater interest with the publication of Fisher and Ury’s Getting to Yes. 32

Description: integrative negotiation [2.38] The integrative negotiation approach is also referred to as collaborative, merit-based, principled, cooperative or problem-solving negotiation where: • a focus on interests, needs and objectives rather than positions is encouraged; • a range of options is generated before an outcome is determined after reference to any objective criteria; and • the issues rather than the people involved in the dispute remain the focus. 33

29 30

31

32 33

T Atkin and L Rinehart, “Research Report: The Effect of Negotiation Practices on the Relationship Between Suppliers and Customers” (2006) 22(1) Negotiation Journal 47. R Fisher and S Brown, Getting Together: Building a Relationship that Gets to Yes (Business Books Ltd, Great Britain, 1991) p 38. See also A Schneider, “Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style” (2002) 7 Harvard Negotiation Law Review 143. Follet is increasingly credited as the founder of constructive and interest-based negotiation theory: see AM Davis, “When Webb Met Follett: Negotiation Theory and the Race to the Moon” (2015) 31 Negotiation Journal 267. R Fisher and W Ury, Getting to Yes: Negotiating Agreement Without Giving In (Houghton Mifflin, Boston, 1981). See Australian Law Reform Commission (ALRC), Review of the Adversarial System of Litigation: ADR – Its Role in Federal Dispute Resolution (Issues Paper 25, ALRC, 1998) p 25, referring to H Astor and C Chinkin, Dispute Resolution in Australia (Butterworths, Sydney, 1992) p 83 and also to R Fisher, W Ury and B Patton, Getting to Yes: Negotiating Agreement Without Giving In (2nd ed, Random House, Sydney, 1991). See also C Menkel-Meadow, “Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or ’The Law of ADR’” (1991) 19(1) Florida State University Law Review 1, 3.

50 [2.38]

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Negotiation

Case study

Integrative negotiation and distributive negotiation [2.40] Example: Alexei purchased a mobile internet package from a telco provider. This included a portable wifi device that would provide wireless access to up to five computers, phones or other devices and a two-year contract with a monthly charge. The wifi device was “free” provided that a monthly amount was paid that was linked to his mobile phone account. A package containing the wifi device and brief instructions were delivered to his home. When he opened the package and tried to connect via his laptop computer, it would not work. He rang the telco company. What might happen in a distributive negotiation scenario? – Alexei rang the telco company. He waited for 20 minutes and then after following numerous prompts, gave up. He rang again the next day, waited for a considerable period of time and then, after speaking to a range of people in the accounts area, he was put through to someone who could help him (delay is often viewed as a strategy in competitive negotiations). Alexei presented them with a list of demands. He said that if he did not get his money back and compensation for business he had lost (manipulating costs is often a technique in competitive negotiations), he was cancelling all of his contracts and would contact a national media program (essentially an opening offer that is exaggerated). The telco employee responded by saying that Alexei had signed a contract and was liable to pay the full amount if he cancelled. The employee said that if there was something wrong with the equipment it could be returned, at Alexei’s cost, to be repaired. This would take up to four weeks. Further, the operator said that all of this was spelled out on the last page of the brochure that was contained in the sealed package Alexei had received and that was also available on the website. Alexei insisted that no concessions should be made by him because his starting point was valid. The employee responded “that is all that I can do” (final offer). Alexei then reinforced the threat of “going to the media”. What might happen in an integrative negotiation scenario? – Alexei rang the telco company. He was referred to an employee. The employee asked how he was going and said that it was clear that Alexei had been a customer with the company for a long time. Alexei and the employee spent some time talking about the problem and his telco needs. While they were talking, the employee went through some troubleshooting tips. The employee and Alexei talked through what may be causing the problem. After carefully checking the wifi device, it was clear that it was not connecting to the internet – essentially, the telecommunications network was not available. The employee checked availability in the area and said that the coverage should extend to his area. The employee then said that she would contact the service technicians and asked if she could ring Alexei back in 15 minutes. The employee rang back in 10 minutes and asked whether the device showed any different lighting patterns if the laptop was in the upstairs section of Alexei’s home. It did. The employee indicated that Alexei was in an area of patchy reception and that this [2.40] 51

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meant that the modem might not be able to access the network in all areas of his house. Alexei replied that he really needed the device to work all over the house (not just upstairs) as he did most of his work downstairs. Alexei and the employee then talked about what options might be available. The employee indicated that reception to Alexei’s area was expected to be “boosted” in about six months – until then the problem would not be fixed and he would probably only get wireless connectivity upstairs. Alexei said he did not think that was fair and the employee agreed. She asked Alexei about what he thought would be fair. He said: “I should get some sort of significant discount”. The employee said that she could not give a discount on the network charges but she could provide a “loyalty bonus” that would be equivalent to three months’ payment for the internet connection. Further, she indicated that if Alexei wished to sign up for another 12-month contract for his mobile phone she would send him a new mobile phone with an additional charger at no cost (in his initial conversation with the employee, he mentioned that his existing mobile phone was not remaining charged for as long as it had previously). They agreed to these options. Comments – Essentially in the integrative example, most of the time is spent exploring the problem rather than focusing on the exchange of offers. There are a range of options that are put forward and they are not “sold” or judged. The options in the integrative model are referenced back to needs and interests in the conversation. In the distributive example, there is almost no recognition of underlying interests and the discussion focuses on the negotiation demands and positions.

STYLE AND SKILLS IN NEGOTIATION [2.45] Regardless of whether the negotiation is distributive or integrative, and regardless of the content of any negotiation, it is useful to prepare before negotiating. One of the most commonly used tools to prepare for negotiation is derived from the Harvard Project work (see [2.55]). Good communication skills and an understanding of your own 34 pressure points are also essential. Communication skills are explored in more detail in Chapter 7. In terms of self-knowledge, there are a number of tools that can assist in understanding how you negotiate. One that might be useful is set out below and is adapted from a Negotiating Style Profile originally developed by the Law and Graduate Center of Ohio State Law School in the 1980s. This instrument is designed to help you gain a deeper understanding of your negotiating style. There are no right or wrong answers and it is important that you respond to each question in a candid manner. The final reporting information is designed to show you how you negotiate and how your style compares with other styles. 34

See E Ariel Fox, Winning from Within: A Breakthrough Method for Leading, Living and Lasting Change (HarperCollins Publishers, New York, 2013) and W Ury, Getting to Yes with Yourself (and Other Worthy Opponents) (HarperCollins Publishers, USA, 2015).

52 [2.45]

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| CH 2

This information may help you to determine whether changes in your style could increase your negotiating effectiveness. 35 Case study

Negotiating style profile [2.50] Directions: There are 30 statements in this instrument. Please respond to each statement by circling the response that most accurately reflects the extent to which the statement is descriptive of you or your thinking. Then continue with the key scoring instructions below. Please be candid with your responses. This instrument is best used solely as a self-evaluation exercise.

35

See also GR Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable People (2nd ed, Penguin Books, New York, 2006) and the reference to the Thomas-Kilman Conflict Mode Instrument (renormed by Xicom USA, in 2007). See also B Trippe and D Baumoel, “Beyond the Thomas–Kilmann Model: Into Extreme Conflict” (2015) 31 Negotiation Journal 89. [2.50] 53

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54 [2.50]

Negotiation

| CH 2

[2.50] 55

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Scoring key Directions: The 30 statements in the instrument above and your numerical response should be correspondingly mapped in five columns in the table below. 1.

Referring to your answer for each question above, transfer the number of the response given to each statement into the corresponding “score” column in the table below.

2.

Once you have transferred all response scores, add each column and enter the total score in the “total” row for each “response score” column.

3.

Check your total against the categories below to see your negotiation style profile.

56 [2.50]

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Score 6-10 10-15

Usage Negligible Limited

15-22

Regular

22-30

Primary

| CH 2

Description You do not or very rarely use this style when negotiating. You use this style under limited circumstances, when conditions are appropriate. This is one of your “go-to” styles that you have incorporated into your negotiation technique. This is a primary style for you.

In general, most negotiators could benefit by increasing their collaborative behaviours and decreasing other negotiation behaviours. To work out your own percentage, add up all your scores in relation to each style to get a total. Then divide your style number (for example, 22) by the larger total number (for example 101). Using this example the result would be 0.22. Then multiply by 100. This will give you a percentage score for that style of 22%. The band graph illustrates the percentage use of all five behaviour patterns by an average negotiator (if an average negotiator can be said to exist).

[2.50] 57

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An “ideal” use of these behaviours is said to look something like the following band graph. Naturally the style that is adopted is in part dependent on context and circumstances.

We all have assumptions about what is effective in a negotiation and some of these assumptions may be based on culture and experience. Our combined assumptions and behaviours become a personal approach. In a conflict situation, you may be inclined to respond in certain ways. Some examples are provided below – circle or underline the phrases that best describe your attitudes and behaviours when in conflict and then award one point for each response: Treat others as friends Seek agreement Make concessions to cultivate the relationship Be hard on problems and people Change your position easily Accept one-sided losses to reach agreement Search for the answer they will accept Insist on agreement Yield to pressure 58 [2.50]

Treat others as adversaries Seek to win Demand concessions as a condition of the relationship Be soft on people and problems (This can be contrasted with Fisher and Ury – Be soft on people and hard on problems) Stick rigidly to your position Demand one-sided gains as the price of agreement Search for the answer you will accept Insist on your position Apply pressure

Negotiation

Stop when you get an agreement TOTAL

| CH 2

Stop when you are ahead TOTAL

If you have scored more than five points in either column, this may indicate that you may have a tendency to avoid or submit (if you score more than five in the left-hand column) or a tendency to compete (if you score more than five in the right-hand column). These self-diagnostic tools may clearly be related to context – that is, in a work situation an individual may be more competitive and in a home situation their behaviour and style might be more submissive. Negotiation preparation tools are designed to raise awareness of negotiation styles and are also focused on supporting process models that are more likely to assist in particular contexts.

PREPARING FOR NEGOTIATION Harvard Project – seven-element preparation model [2.55] The Harvard Project outlined a number of steps that can be used to prepare for negotiation. 36 The seven-element preparation model it developed requires those who are negotiating to spend time working through a preparation model before they negotiate. 37 This model may assist in decision analysis and to support behaviours that can be useful in negotiation. The time spent working on the model may vary according to the complexity of the dispute. Adapted stages can be described as follows: 1.

2.

Determining interests. This requires each negotiator to explore their own interests (not positions) and to consider the interests of the other parties they are negotiating with. In addition, the negotiating party should consider the interests of others who may not be present at the negotiation. For example, in a salary negotiation an employee may consider their own interests (for example, economic needs, housing, profile, promotion, work tasks, flexibility etc), their employer’s interests (for example, having motivated staff, ensuring profitability, staff retention) and the interests of others who may be outside the negotiation (such as senior management, other employees, families). Determining alternatives. What is the alternative if the negotiation does not produce an agreed outcome? This requires the negotiator to consider not only their alternatives but also to consider the alternatives of the other party. The question is – what will happen if there is no agreement? When negotiating, it is worthwhile to explore these aspects and to determine how your alternatives can be improved, particularly your “best alternative to negotiated agreement” or BATNA, 38 and your “worst alternative to a

36

The Harvard Negotiation Project specialises in international negotiation and the broader Program on Negotiation (PON) was established in 1983 and is an interdisciplinary research centre – see http://www.pon.harvard.edu/.

37 38

See, for example, R Fisher and D Ertel, Getting Ready to Negotiate (Penguin, New York, 1995). R Fisher and W Ury, Getting to Yes: Negotiating Agreement Without Giving In (Houghton Mifflin, Boston, 1981). [2.55] 59

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negotiated agreement” or WATNA (these approaches and concepts are explored further and in some detail in Chapter 7). In addition, the alternatives of the other party (their BATNA and WATNA) need to be fully considered. Options to strengthen your alternatives and weakening the options of the other party should also be considered. 3.

4.

What options exist? That is, what ideas could be used in the negotiation? In a salary negotiation, for example, there may be options other than money that might be appealing, such as time in lieu, added flexibility, work opportunities and options that may improve the status of an employee. What information is required? Are there questions that can be asked and, if so, what are they? Are there any standards that can be used to assist in measuring the agreement or any options? What can you do to help persuade the other side or those outside the negotiation? Are there other processes that could be used to assist to reach an agreement? How will the negotiation take place, at what time and what are the expectations? Is there a better time or place? Could the negotiation be conducted face-to-face?

5.

How are you going to communicate? What messages will you send? How can they be framed? A message can be framed in many ways. For example, sometimes it can be useful to reframe a message in terms of mutual interests. In other circumstances the message might be framed in terms of more detailed information. The central approach requires that the impact on those that you are negotiating with is considered and that the message is framed in a way which is responsive to the other participants in the negotiation. There may be particular communication strategies that can be explored. These are canvassed in more detail in Chapter 7.

6.

What relationship issues exist? How can the relationship be improved? If there are relationship issues (for example, a lack of trust) what might the cause be and how can this be addressed? The relationship can impact on long- and short-term outcomes, and many negotiations can be adversely affected by perceptions of reliability or perceptions of behaviour. Unless such issues are attended to, the negotiation may not produce an outcome. What are the products of the negotiation? What needs to be agreed? How will it be followed up? Who will take action in future and how? Implementation is sometimes forgotten in a negotiation and agreements may be made as to something that will happen “as soon as possible” – if the parties are in dispute, this lack of certainty can lead to further communication breakdown.

7.

When preparing for a negotiation, it is sometimes helpful to set aside time for focusing on all seven items and noting down responses in every category. This may also support the negotiator in terms of confidence building and can be particularly useful where negotiation teams are involved. 39 Preparation workshops can also assist those who plan to negotiate over complex issues to 39

See also D Philbin, “The One Minute Manager Prepares for Mediation: A Multidisciplinary Approach to Negotiation Preparation” (2008) 13 Harvard Negotiation Law Review 249.

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better use the actual negotiating session and to ensure that useful information is considered prior to the negotiation. In some cases, all of those who will be involved in a negotiation will attend a preparation session – this approach has been used successfully in enterprise bargaining negotiations and other complex negotiations in the resources area. There are four basic considerations in principled or interest-based negotiation: 1. 2. 3. 4.

Separate the people from the problem. Focus on interests, not positions. Generate a variety of possibilities (options) before deciding what to do. Insist that results be based on objective standards.

This can be difficult particularly if an individual’s “triggers” are pressed. What may seem inoffensive to one person may offend another and sometimes it is difficult to take time before responding in a negotiation. Clearly, maintaining a relationship with the person they are in conflict with can be of great importance. This is especially true for those who must continue to deal or work with each other, such as family members, neighbours or employees. In some disputes, the relationship is as important, if not more so, than the substantive result of a negotiation. One of the important strategies of negotiation developed in Fisher and Ury’s Getting to Yes 40 was that of getting negotiators to be “unconditionally constructive”. This is good not only for the relationship but for each individual. Six points are outlined for unconditionally constructive negotiation: 1. 2. 3. 4,

balance emotion with reason; try to understand; inquire, consult and listen; be reliable;

4. 6.

be open to persuasion; try to persuade; accept the other as worth dealing with and learning from.

This work was expanded upon by Fisher and Brown in Getting Together – Building a Relationship That Gets to Yes, 41 in which it was noted that it is not necessarily sufficient in a negotiation to be internally consistent. What may be required is ensuring that the parties are “congruent” – that is, that they have a deep understanding of the beliefs of the other in a negotiation and are committed to building a relationship. This may require close consideration of the emotional state of each participant as well as considering how communication 40

41

R Fisher and W Ury, Getting to Yes: Negotiating Agreement Without Giving In (Houghton Mifflin, Boston, 1981). See also R Fisher and S Brown, Getting Together: Building a Relationship That Gets to Yes (Business Books, London, 1989) and R Fisher and D Shapiro, Beyond Reason; Using Emotions as You Negotiate (Viking, New York, 2005). R Fisher and S Brown, Getting Together: Building a Relationship That Gets to Yes (Business Books Ltd, Great Britain, 1991). [2.55] 61

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takes place. There is now a considerable literature on emotion and authenticity in negotiation which suggests that in order for a negotiation to be constructive, attention needs to be paid to what and how matters are communicated. 42

NEGOTIATION MODEL AND STAGES [2.60] There are various different models of negotiation 43 and these can be usefully explored in any preparation stage. Perhaps the most prevalent model resembles the mediation structure that is explored in more detail in Chapter 7. That is, following preparation and initial contact (that will assist in terms of framing communication, setting an agenda, determining who will attend and how they will be involved – see also Chapter 7), the negotiation process will, where constructive, involve: 1.

Initial opening comments – these may shape the negotiation and result in integrative or distributive approaches. The skills explored in Chapter 7 (including mutual framing) can be critical in shaping how the negotiation may work.

2.

Setting an agenda – this may be set before or during a negotiation meeting.

3.

Discussing and exploring the agenda or list of topics – this may be a relatively free- flowing discussion that is directed at exploring interests.

4.

Generating options and considering alternatives.

5.

Reaching agreement.

6.

Following up and communicating about the agreement or next steps.

Each stage may require careful consideration regarding how issues can be framed and exploring how communication can take place (see Chapter 7). For some negotiation participants, preparation can also involve conflict coaching (which may be of assistance where there are communication issues).

42

43

E K Kalokerinos, D Greenaway, D Pedder, and E Margetts, “Don’t Grin When You Win: The Social Costs of Positive Emotion Expression in Performance Situations” (2013) 14(1) Emotion 180; K Schneider, R Hempel and T Lynch, “That ’Poker Face’ Just Might Lose You the Game! The Impact of Expressive Suppression and Mimicry on Sensitivity to Facial Expressions of Emotion” (2013) 13(5) Emotion 852; and HY Tng and AKC Au, “Strategic Display of Anger and Happiness in Negotiation: The Moderating Role of Perceived Authenticity” (2014) 30 Negotiation Journal 301. See, for example, N Alexander, J Howieson and K Fox, Negotiation: Strategy, Style, Skills (LexisNexis, 2015).

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CONFLICT COACHING AS A SUPPORTIVE TOOL [2.65] Conflict coaching is a process that has been developed largely over the last two decades. It is “the process in which a coach and disputant communicate one-on-one for the purpose of developing the disputant’s conflict related understanding, interaction strategies, and interaction skills”. 44 Conflict coaching can be used to assist a participant or a group involved in a negotiation. Much of the work that has been done in the conflict coaching field is closely related to the executive coaching area. This field has rapidly developed since the mid-1980s and it has been estimated that there are more than 50,000 “executive coaches” in the United States. 45 However, conflict coaching has also been fostered in the ADR area with practitioners increasingly being involved in systemic design issues that focus on communication cultures and styles that can foster conflict coaching. Conflict coaching models vary; however, each will generally involve a discussion of a conflict or negotiation, exploring the conflict or negotiation using a multi-perspective approach, clarifying the approach taken in the past and rewinding events to explore conflict and negotiation styles and behaviours, and then discussing redirection. 46 Most models involve the coach spending time with an individual or group to fully understand the negotiation or conflict although some more recent models involve self-oriented learning processes. 47 Some coaches may also obtain information from other sources. Often a conflict coach will work with an individual or group over a number of weeks or months with meetings scheduled at regular intervals. The conflict coaching approach is based on a relational view of conflict. Some models are very focused on behavioural “triggers” and ascertaining core values in an attempt to avoid or prevent reactions to conflict that may impede an ability to engage in a negotiation collaboratively. 48 At present, there is no settled accreditation system for conflict coaches and a range of different organisations and individuals provide training. Many of these make reference to communication material that is used in the conflict resolution area (see Chapter 7), while some are also engaged at the organisational change level and focus on structures as well as individual responses. One issue that has emerged in this field relates to the extent to which the “coach” can provide 44

R Brinkert, “Conflict Coaching: Advancing the Conflict Resolution Field by Developing an Individual Disputant Process” (2006) 23(4) Conflict Resolution Quarterly 517.

45

R Brinkert, “Conflict Coaching: Advancing the Conflict Resolution Field by Developing an Individual Disputant Process” (2006) 23(4) Conflict Resolution Quarterly 517, 519.

46

See T Jones and R Brinkert, Conflict Coaching – Conflict Management Strategies and Skills for the Individual (Sage Publications, Los Angeles, 2008).

47

See for example, ‘New Ways for Families’ and the ‘CAR’s’ method (workplace disputes) explored at High Conflict Institute, available on http://www.highconflictinstitute.com/individuals. See also web based behavioural testing and supportive processes at Incredible Awareness, available on http:// incredibleawareness.com/. See also C Noble, Conflict Management Coaching (Cinergy Coaching, Canada, 2011).

48

[2.65] 63

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direction to the person being coached about whether or not they should accept an offer or do something that might assist them in a workplace environment. To some extent, this issue mirrors the differences that exist in other ADR processes – is the process intended to be facilitative or is there an advisory component? In relation to any advisory question, the issue may also be whether a coach advises on the content or process. However, all conflict coaching models have as a basic premise that the goal of the process is “self-empowerment” and to support individual decision making (see Chapter 3 for a further discussion regarding empowerment approaches in mediation). Conflict coaching can be used to support individuals and groups in negotiation, mediation, collaborative practice and any form of ADR where a continuing relationship is a possible outcome of the negotiation. It may be of particular assistance in workplace and family conflict where supported communication approaches can support relationships in the longer term.

Stages in conflict coaching [2.70] The conflict coaching process may have a number of stages: 1.

2.

3.

Goal setting. The coach will work with a group or individual to clarify or set the goals of the coaching and ensure that prioritising takes place. Useful questions in this stage of conflict coaching might include: • Can you tell me more about what you would like to get out of the session today? • What is your greatest concern today? • What would you like to accomplish by the end of our time together today? Assessment. The coach will investigate and clarify the presenting situation. This stage will commonly take place with the coach asking questions that are designed to elicit and establish the range of viewpoints that exist in respect of a dispute or negotiation. The assessment is not confined to the specific negotiation content and involves discussion of the behaviours and characteristics of the individual or group. Questions might include: • Can you tell me more about what has been happening? • Is there anything that you have not talked about? • What has been the impact on you so far? • How have you responded and tried to deal with this? • What do you think the other person/group was thinking? • What is it about the interaction that concerns you? What are you hoping to achieve? • What do you think the other person/group hopes to achieve? Identification of internal reactions, trigger points, impact of the negotiation or dispute, assumptions and the consequences of different reactive styles. Not all conflict coaching processes will involve a thorough and separate identification process. Conflict coach Cinnie Noble focuses on this aspect and a primary aim of her conflict resolution strategy is directed at

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evaluating values and how, in an exchange, an individual or group may have their core values or needs challenged. 49 Other coaching models will incorporate this stage into the second stage. The GROW (Goal, Reality, Options and Way forward) models that underpin a range of generalist coaching models involve evaluating ideas and thinking habits but not necessarily linking all behaviour to core value challenges. Questions that may arise in this stage could include: • Why do you think that the interaction challenged you? • What values or needs were challenged? (values could include loyalty, respect, autonomy, being organised, authenticity, trust) • What is it about that need or value that is important to you? • What emotions did you experience? • How were you affected – what was the impact on the interaction? • How did you react? • • • • • 4.

How did you interpret what the other person/group did? How did they interpret what you did? How did you interpret what they did? What assumptions did they make about you? Before the difficult interaction, what were you thinking?

Option or choice exploration. This stage involves the coach asking questions to support the identification of options, behaviours and outcomes. This stage may involve replaying past negotiations and behavioural responses as well as testing future arrangements. It may also involve communications coaching – that is, past situations may be reconstructed after exploring past responses. In addition, there may be exploration about how an individual or group may present an option to another in a way that is more likely to resolve an issue or present a construction or cooperative negotiation approach. This stage can involve a closer examination of issues relating to culture and dynamics (see Chapters 7 and 9), as well as exploring the value and belief systems that may operate within the other group or individual. Possible questions in this stage could include: • • • •

What do you think is the ideal way to handle this situation? How could you get the outcome that you want? Is there anything you could do differently? If you had the interaction again, is there anything you would do differently?

• What steps would you take – how would you do it? • What do you need to do before meeting the other party? • What do you think the other person/group needs? 49

See C Noble, Conflict Management Coaching (Cinergy, Canada, 2012) who has created the CINERGY system of coaching: see http://www.cinergycoaching.com. [2.70] 65

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5.

• What could prevent the negotiation from succeeding or working? • What would you do if you had unlimited time and resources? Commitment or “way forward”. This stage is aimed at confirming the direction and next steps. The coach will usually summarise, re-check and ask questions directed at monitoring potential outcomes. Possible questions could include: • What are the next steps? • • • • •

How and when will this take place? Is there anything else that could assist the process? How do you think they will respond? What might get in the way? How can you be supported?

• What will you take away from today? Much of the work in the conflict coaching area is directed at exploring the emotions and beliefs that are present in individuals and groups and that can have an impact on negotiations. This work is derived in part from cognitive behavioural therapy approaches and is directed at exploring approaches to conflict and cognitive responses. 50 Case study

Conflict coaching [2.75] Sigmund is the supervisor of a team of four people who work in the finance area of a government department. He has been a supervisor for two years and has been with the department for 14 years. Ella works in the same area and has worked there for eight years. Ella has been trying to find another job for two years. She is concerned about the workload and also does not like working with Sigmund. Sigmund is keen to ensure he “gets ahead” and is concerned about the low morale in the unit that he manages. Sigmund recently attended a leadership program at the request of his supervisor where there was a discussion about how decisions are made and how staff are involved in decision-making. He considers that his staff are too busy to be involved in decision-making and that because they are already overworked, they would not have time. Recently, they had a staff meeting in which Ella barely participated. When told that their team had to take on two new projects, she said: “We can't do it – you know that. We have too much work and doesn't anyone care? You are the manager – you should tell them”. Nobody else talked and the meeting ended. Sigmund then sent an email to the team that set out the deadlines for the two projects and added that, as a result of the addition of the projects, a new workload allocation formula would be required. 50

For a helpful supportive resource in this area, see S Edelman, Change your Thinking (2nd ed, ABC Books, Australia, 2006).

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Ella and Sigmund have not spoken since and Ella is waiting for a “new workload allocation formula”. When it arrives, she intends to challenge it. She has contacted the human resources area and complained about Sigmund who, she says, is not complying with company process guidelines. Sigmund's supervisor is aware of the issues and has suggested that Sigmund and Ella have some conflict coaching. In Sigmund's conflict coaching sessions, he indicates that over time he felt that he was undermined by Ella and his competency was challenged. An exploration of the discussion that Sigmund had with Ella and a close examination of Ella's responses highlights some staff autonomy issues that have surfaced in the past. Conflict coaching sessions result in a conversation between Ella and Sigmund where each speaks about their goals and their difficulties.

Varying approaches to conflict coaching [2.80] A very different approach to conflict coaching has been devised and is used in some complex multi-group negotiations. The T-Group process is directed at bringing groups together: … often at an isolated site, for a period of a week or more, and there under the supervision of trained experts [they] learn about themselves and their difficulties in large part from one another. Frequent opportunities are deliberately provided for the participants, who for this purpose are subdivided into smaller groups of around a dozen persons (called T-groups, T for training), to experience most varied, intensely emotional, and very frank interaction. 51

The training is directed towards supporting the participants to “learn about themselves and their relations with others, particularly how to communicate effectively with those from different groups, and thereby be able to overcome the usual verbal facades and possibly create innovative solutions to the conflict”. 52 This training approach was adopted by Doob in the Fermeda Workshop in an attempt to resolve complex disputes such as the border disputes between Somalia, Kenya and Ethiopia, which involved groups of people from different ethnic groups and different nations. The workshop approach is focused on a single interaction rather than a series of meetings that may take place over months or years.

ASSISTED NEGOTIATION – NEGOTIATING WITH AGENTS [2.85] Negotiation may sometimes be assisted by third parties or conducted by agents. Where negotiation takes place with the assistance of an external party, 51 52

LW Doob (ed), Resolving Conflict in Africa: The Fermeda Workshop (Yale University Press, New Haven, 1970) p 10. RJ Fisher, Interactive Conflict Resolution (Syracuse University Press, New York, 1997) p 38. [2.85] 67

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the process may be described as a facilitated negotiation. This process is discussed in more detail at the end of this chapter and in Chapter 3 (Mediation). Where agents are involved or where the style of the participants is competitive, the negotiation can be more “adversarial” than litigation processes, particularly where it is conducted in the shadow of litigation. For example, it has been suggested that lawyers negotiate in a way that contemplates litigation. 53 The ethical requirements may also not be as onerous as would be the case in litigation. One of the primary concerns in negotiation relates to the tactics that can be used and how they may influence the outcome and process. 54 The use of “dirty tactics” is one of the primary reasons why negotiation may fail or why those in dispute may prefer to adopt a third-party process. These can include stonewalling tactics such as “take it or leave it” ultimatums or “calculated delays”; attacks on credibility, threats or manipulating the physical environment; or deceitful tricks including “good guy/bad guy” strategies, using false facts or claiming a lack of authority. It may be that the imposition of obligations or good faith requirements on those who use ADR processes or who are negotiating can limit the use of such tactics (see Chapter 11). Negotiation is often conducted on a “without prejudice” basis in the litigation arena where any comments made or documents produced are confidential and cannot be used in subsequent proceedings. At times this rule is modified so that the discussions are “without prejudice save as to costs” so that, should the dispute end up being litigated, after the outcome has been determined, the parties can introduce evidence of offers from a without-prejudice conference to support their claim for a costs order (see Chapter 12). In the United States, a two-part ethical standard has been set out in the American Bar Association Model Rules for lawyers in negotiation: • the lawyer must act honestly and in good faith; and • the lawyer may not accept a result that is unconscionably unfair to the other party. 55

53

54 55

R Gordon, “Private Settlement as Alternative Adjudication: A Rationale for Negotiation Ethics” (1985) 18(2) University of Michigan Journal of Law Reform 503, 514. See also R Mnookin, S Peppet and A Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes (Belknap Press of Harvard University Press, Cambridge, 2000). M Willis, “The Negotiator’s Ethical and Economic Dilemma: To Lie, Or Not to Lie” (2001) 12(1) Australasian Dispute Resolution Journal 48. R Gordon, “Private Settlement as Alternative Adjudication: A Rationale for Negotiation Ethics” (1985) 18(2) University of Michigan Journal of Law Reform 503, 524. It has been argued that such a rule is unhelpful as the definition of good faith is so uncertain. See a full discussion of ethical issues in negotiation in C Menkel-Meadow and M Wheeler (eds), What’s Fair: Ethics for Negotiators (JosseyBass, San Francisco, 2004). This issue and the ABA Model Rule were formally considered in a formal opinion of the ABA in 2006 (06–439). See American Bar Association, Formal Opinion 06–439 http://www.illinoislegalmal.com/archives/06-439.pdf.

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However, most writers consider that more complex ethical measures that extend beyond truthfulness and fairness are aspirational. 56 Aside from ethical concerns, there are broader issues about lawyers’ cultures and behaviours that could be considered to determine whether lawyers negotiate from a positional and adversarial perspective (see also Chapters 11 and 15). It has been said that some lawyers negotiate while wearing their “adversarial suits” 57 and that this approach promotes the risk of stalemate and hostility because extreme positions and a focus on “winning” 58 “most often produce an unprincipled compromise even if a settlement is reached”. 59 For others, negotiation processes can redefine the role of a lawyer at this level, which can include assisting to resolve a dispute in a constructive and helpful way. 60 In Australia, attempts to change the negotiation culture and approach have been the subject of a report by the National Alternative Dispute Resolution Advisory Council (NADRAC) 61 as well as the Victorian Law Reform Commission (VLRC). 62 NADRAC has suggested that conduct standards should be imposed on disputants who are engaged in mandatory ADR at the federal level and that good faith participation should be required. 63 The VLRC proposed that those involved in litigation and associated ADR should be required to have an “overriding obligation”. The obligation is “to create a ‘model standard’ for the behaviour of all who become involved in the civil justice system”. 64 Essentially, the obligations are intended to improve standards of conduct. The VLRC has said that “many of these reforms have been directed to ameliorating the adversarial culture, in particular by emphasising ‘cooperation, candidness and respect for truth’”. 65 The VLRC set out proposed obligations that include a duty to act in good faith as well as obligations to use reasonable endeavours to resolve the dispute by agreement. In some ways, this is an attempt to encourage the use of certain tactics in distributive negotiation and also an attempt to support integrative approaches. However, it is 56

See C Menkel-Meadow and M Wheeler (eds), What’s Fair: Ethics for Negotiators (Jossey-Bass, San Francisco, 2004) and, in particular, E Holmes Norton, Bargaining and the Ethics of Process (p 270).

57

C Menkel-Meadow, “Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or ’The Law of ADR”” (1991) 19(1) Florida State University Law Review 1, 33–35. P Killingsworth, “’Winning’Redefined: A Positive Approach to the Practice of Law” (1996) 12 Georgia State University Law Review 653, 654.

58 59

C Menkel-Meadow, “Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or ’The Law of ADR’” (1991) 19(1) Florida State University Law Review 1, 36.

60

B Sordo, “The Lawyer’s Role in Mediation” (1996) 7 Australian Dispute Resolution Journal 20. See also Chapter 4. See NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (Report, NADRAC, 2011), available on http://www.ag.gov.au.

61 62 63

See VLRC, Civil Justice Review: Report (Report, VLRC, 2008) at http://www.lawreform.vic.gov.au. See NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (Report, NADRAC, 2011) pp 34–36, available on http://www.ag.gov.au.

64 65

See VLRC, Civil Justice Review: Report (Report, VLRC, 2008) at [6]. See VLRC, Civil Justice Review: Report (Report, VLRC, 2008) at [13] and [16]. [2.85] 69

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questionable whether the reforms that have been made in response to the VLRC proposals will achieve this (see Chapter 11). Negotiation may also be conducted (or not take place at all) in a more adversarial manner as a result of the power or dominance issues that may exist in a relationship. Participants who are affected by outcomes may never be invited to the negotiation table, deliberately excluded from it; or, if they attend, they may be prevented from participating effectively because of the underlying structures, language used, cultural constraints or lack of recognition present within the negotiation. 66 Power imbalance within a negotiation framework may arise as a result of the existing power, status, resources, education, personal attributes, association and experience with process that individuals may have and these factors can shape the strategies and approaches adopted within the negotiation. Forces outside a negotiation environment may also exert pressure. The involvement of the media or other lateral pressures may also cause behaviours to become more adversarial and less constructive as negotiation approaches are reinterpreted and redefined without the involvement of the central participants. Issues relating to the way in which conduct obligations may define and impact on negotiation practice are explored in more detail in Chapter 11.

COMPLEX NEGOTIATIONS [2.90] Negotiations can be complex because of the behaviours, characteristics and cultures of those who are involved, and also because of the number of people, organisations and interests that are involved. The issues that are involved may also be complex and this (of itself) can present challenges in any negotiation. Complex negotiations may take some years to complete and may involve a series of complex interactions and team-building processes. 67 In some instances, team problem-solving approaches can be used to support interactions. 68 Where complex issues are involved, technology may be of assistance (see Chapter 10). Technology can be used to support negotiation and understanding and may also assist to support decision-making through artificial intelligence and collaborative decision-making processes. There are few guidelines available to assist in the development of negotiation approaches to deal with complex public disputes. 69 These disputes can present environmental, economic and social dilemmas. Wootten divides these categories 66

P B Kritek, Negotiating at an Uneven Table: Developing Moral Courage in Resolving our Conflicts (Jossey-Bass, San Francisco, 2002).

67 68

See L Crump, “Analysing Complex Negotiations” (2015) 31 Negotiation Journal 131. See LE Susskind, and D Rumore, “Using Devising Seminars to Advance Collaborative Problem Solving in Complicated Public Policy Disputes” (2015) 31 Negotiation Journal 223. J Elix, More Than Resolution: System Design for the Management of Intractable Natural Resource Conflict in Australia (PhD thesis, La Trobe University, Melbourne, 2005).

69

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into “site-specific disputes and policy-related matters”. 70 Where numerous groups are involved in conflict, there is now a considerable shift in the way in which collaborative processes are used to manage the conflict. Simplistic negotiation approaches that focused on individual differences are no longer seen as optimal. Approaches based on broader negotiation strategies, the mapping of past conflict and communication and value differences are seen as essential. In the complex environmental conflict areas, there is also a greater focus on determinative and advisory processes and the use of blended techniques (see Chapter 5).

RESEARCH ABOUT NEGOTIATION [2.95] Negotiation behaviour and styles have been the subject of considerable academic research over the past few decades. In addition, practitioners have been confronted with many “how to” books setting out approaches to negotiation that are founded in either distributive tactical approaches or integrative problem-solving theory. There is, however, a fairly substantive body of empirical research that suggests that problem-solving styles of negotiation are more effective in simulated situations. 71 The simulated negotiation scenarios, where different styles of negotiation are tested, can involve very large numbers of participants and are often used to test theories that have been developed regarding integrative negotiation. One such study, for example, involves training negotiators in an integrative problem-solving approach (such negotiators are then defined as “enlightened” and may be prompted by a script to adopt an intellectual and relational approach to the negotiation) while others are untrained (and defined as “naïve” negotiators). 72 Other studies have focused on international negotiations and have again concluded that “better outcomes” are likely to be achieved through the use of integrative approaches. 73 There is also an increasing focus on the use of integrative negotiation in the international 74 and domestic area. 70

H Wootten, “Environmental Dispute Resolution” (1993) Adelaide Law Review 47, 65–66.

71

See, for example, C Boone, B De Brabander and A van Witteloostuijn, “The Impact of Personality on Behavior in Five Prisoner’s Dilemma Games” (1999) 20(3) Journal of Economic Psychology 343 and G Berger, M Kern and L Thompson, The Enlightened Negotiator: What is the Best Type of Interaction? (16th Annual IACM Conference Melbourne, June 15–18, 2003), available on http://papers.ssrn.com.

72

G Berger, Gail, M Kern and L Thompson, The Enlightened Negotiator: What is the Best Type of Interaction? (16th Annual IACM Conference Melbourne, June 15–18, 2003), available on http:// papers.ssrn.com. See M Watkins, S Rosegrant and S Peres, “Integrative Negotiations” in Breakthrough International Negotiation: How Great Negotiators Transformed the World’s Toughest Post-Cold War Conflicts (JosseyBass, San Francisco, 2001) pp 31–33.

73

74

As noted by C Menkel-Meadow, “Chronicling the Complexification of Negotiation Theory and Practice”, (2009) 25 Negotiation Journal 415–429, available on http:// www.scholarship.law.georgetown.edu. [2.95] 71

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There are criticisms of integrative negotiation and what has been labelled as communitarian bargaining approaches. 75 These approaches support a group or community approach to problem solving. Such criticisms are in part related to the lack of broad scale empirical research in this area and the concern that many individuals can focus on self rather than group interests. There are some studies that show that integrative negotiation styles are more effective in real-life situations. For example, some empirical studies have drawn upon lawyers’ behaviour in negotiation. These studies address concerns that have been expressed regarding an early empirical study by Gerald Williams conducted in 1976. 76 The Williams study involved a relatively small sample group of 351 lawyers (women lawyers were deleted from analysis because they only constituted three per cent of the sample). A more recent and larger study of negotiation behaviour suggests that lawyers who are most effective use a problem-solving style. 77 In addition, lawyers who use an adversarial or competitive approach are unlikely to be perceived as effective (25 per cent of competitive lawyers were perceived to be “effective” in the Williams study and only nine per cent in the much larger and more recent study by Schneider). 78 My own research on this topic also suggests that for clients, negotiation through lawyers is a more unsatisfying form of dispute resolution than alternatives such as mediation, arbitration and trial, although it is not clear whether the styles of negotiation or the process itself (for example, whether it was conducted via a “shuttle” letter-based exchange) impacted on these perceptions. 79 Similarly, the Macfarlane 80 study in the collaborative practice area suggests that integrative problem-solving can assist parties to reach significantly better outcomes. This study is explored in some detail in Chapter 4. There is also work in the mediation sector that is relevant. This is further explored in Chapter 3. There are, however, only a few empirical studies that exist that apply to the use of negotiation styles within the general population, or even specific dispute

75

76

RJ Condlin, “’Every Day and in Every Way, We are All Becoming Meta and Meta:’ Or How Communitarian Bargaining Theory Conquered the World (of Bargaining Theory)” (2008) 23(2) Ohio State Journal on Dispute Resolution 231, available on http://papers.ssrn.com (accessed 23 August 2011). G Williams, Legal Negotiation and Settlement (West Publishing Co, US, 1983). See also IG Asherman, P Bob, J Randall and S Asherman (eds), The Negotiation Sourcebook (2nd ed, Human Development Press, Amherst, 2001) p 149 (for a summary by G Williams).

77

A Schneider, “Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style” (2002) 7 Harvard Negotiation Law Review 143.

78

A Schneider, “Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style” (2002) 7 Harvard Negotiation Law Review 143, 189.

79

See T Sourdin and J Elix, Review of the Financial Industry Complaints Service 2002 – What are the Issues? (Report, Community Solutions, La Trobe University and University of Western Sydney, 2002), available on http://www.fos.org.au. J Macfarlane, The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases (Report, Family, Children and Youth Section, Department of Justice, Canada, 2005).

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areas 81 that can assist negotiators to understand the many issues that are presented when analysing negotiation by reference to empirical studies concerning “real life” behaviour. 82 Some small-scale studies have found that: • acknowledging the other side in a negotiation can improve the chances of them accepting your concessions; 83 • better negotiation outcomes are likely to occur in positive climates (high trust, cooperative orientations); 84 • there is a link between negotiators, attitudes toward competitive-unethical negotiating tactics and their actual behaviour; 85 • individuals trained to think creatively are more able to reach more integrative solutions that are mutually beneficial to participants. 86 Most studies use simulated negotiations to make conclusions rather than analysing real negotiations. While much research suggests that “adversarial techniques” are unsatisfying and may have substantive impacts on a relationship 87 and outcomes, there is undoubtedly a need to conduct further empirical work in this area. It is probable that this work will be further developed in the negotiation decision support area which involves using technology to support negotiations and decision-making. Negotiation support structures are discussed further in Chapter 10.

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82

83 84 85 86 87

See, however, R Paqet, I Gaetan and J Bergeron, “Does Interest-Based Bargaining (IBB) Really Make a Difference in Collective Bargaining Outcomes?” (2000) 16(3) Negotiation Journal 281 and a more recent study discussed in T Atkin and L Rinehart, “The Effect of Negotiation Practices on the Relationship Between Suppliers and Customers” (2006) 22(1) Negotiation Journal 47. See RJ Condlin, “’Every Day and in Every Way, We are All Becoming Meta and Meta:’ Or How Communitarian Bargaining Theory Conquered the World (of Bargaining Theory)” (2008) 23(2) Ohio State Journal on Dispute Resolution 231, available on http://papers.ssrn.com. A recent study concluded that “many questions in the field of negotiation research can be effectively tested by using trained students as subjects”: see U Herbst and S Schwarz, “How Valid is Negotiation Research Based on Student Sample Groups? New insights into a Long-Standing Controversy” (2011) 27(2) Negotiation Journal 147. See A Ward, L Disston, L Brenner and L Ross, “Acknowledging the Other Side in Negotiation” (2008) 24(3) Negotiation Journal 269. See D Druckman and M Olekalans, “Turning Points in Negotiation” (2011) 4 Negotiation and Conflict Management Research 1. See R Volkema, D Fleck and A Hofmeister, “Predicting Competitive-Unethical Negotiating Behavior and It’s Consequences” (2010) 23(3) Negotiation Journal 263. See D Ogilvie and S Simms, “The Impact of Creativity Training on an Accounting Negotiation” (2009) 18(1) Group Decision and Negotiations 75. See, for example, T Sourdin and N Harding, A Review of Manly Council’s Development Application (DA) Process, 2006 (Review Report, La Trobe University (Melbourne) and Nina Harding Mediation Services, 2006). [2.95] 73

Chapter 3 Mediation [3.05] [3.10] [3.15]

Introduction....................................................................................................................... 75 Mediation – is there a common definition? ................................................................ 78 Core characteristics – an empowering process........................................................... 81 [3.20] Substance-oriented mediation? ........................................................ 82 [3.25] Transformative mediation ................................................................. 84 [3.30] Other models of mediation .............................................................. 86 [3.35] The mediation process – National Mediation Accreditation System Standards .. 87 [3.40] Mediation models ............................................................................................................ 89 [3.50] Neutrality and impartiality – being attached yet detached ..................................... 92 [3.55] Impartial and ethical practice – National Mediation Accreditation System Standards ...................................................... 96 [3.60] Power, inequality and mediator interventions ........................................................... 97 [3.65] Power issues – National Mediation Accreditation System Standards ............................................................................. 100 [3.70] Fairness – National Mediation Accreditation System Standards ............................................................................. 104 [3.80] Environmental mediation ............................................................... 106 [3.85] Family sector mediation ................................................................. 107 [3.90] Role of lawyers and others in mediation processes ................................................ 110 [3.95] Presence and mediator qualities.................................................................................. 113 [3.100] Approval requirements and mediators – National Mediation Accreditation System Approval Standards .............. 114 [3.105] Conferencing ................................................................................................................. 115 [3.115] Research about facilitative processes ........................................................................ 119

INTRODUCTION [3.05] Mediation can now be used around the world almost everywhere that there is unresolved conflict. Mediation can be used to deal with isolated disputes or broader conflict that arises between individuals and groups, in communities, families, workplaces, hospitals and in respect of consumer issues. It can be used to resolve conflict in the corporate sector as well as large-scale environmental conflict. It has been used to resolve conflicts from construction and building disputes to issues over refugee rights. In short, mediation can now be used wherever there is conflict and conflict is ubiquitous. Mediation is also used where there is no conflict, but rather a need to make decisions or plan projects into the future. It can be used to assist people in analysing interests and assessing alternatives. Increasingly, mediation is used as an adjunct to sound decision-making in respect of complex issues that require focused conversation. Mediators are drawn from every professional field and from all backgrounds. They can have a background in an original discipline such as law, medicine, [3.05] 75

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business, social science or the arts, or may be unrelated to any discipline. Mediators may also be drawn from every culture and region. In Australia for example, they can be drawn from different groups such as Vietnamese, African and aboriginal Australians, and many mediators adapt their practice to suit the needs of the particular culture they are operating in. The multidisciplinary nature of mediation means that mediators are diverse in terms of backgrounds, education, culture and their approach to mediation. A mediation process can take hours, days or even years (for example, in complex native title mediation). Mediators may be full-time, part-time, local, regional, national and international. It has been said that it is impossible to provide a final definition of “mediation”. At its simplest, it involves the intervention of a trained, impartial third party (or third parties in the case of co-mediation) 1 who will assist the parties to make their own decisions. One overseas practitioner, Press, has noted that: By definition, mediation will defy complete codification. Its inherent flexibility and strengths will continue to grow and applications will be discovered in new areas. 2

Legislation and reports across a range of jurisdictions within Australia and New Zealand have provided a number of definitions for “mediation”. However, those definitions, although similar, are brief 3 and primarily refer to the facilitative nature of mediation processes. In practice, very different forms of mediation processes are used in different jurisdictions and subject areas. The primary difference relates to the role of the mediator. 4 The lack of clear legislative definition may mean that in different States and areas of jurisdiction there is a tendency to adopt the process characteristics that are most used in that State or jurisdiction. This may mean that the process of mediation is conducted quite differently in States such as Victoria and New South Wales within Australia. The time at which mediation takes place can also vary significantly. It is probable that the form of mediation is influenced by those who are involved in the process as well as other factors (see Chapter 1 at [1.20]) and that the timing of mediation can also shape the process. For example, a report into the use of pre-action mediation and other pre-action ADR processes suggests that different States and Territories around Australia may use mediation in different ways. In focus groups conducted as part of that research, it was noted that Sydney lawyers may be less inclined to settle via ADR than those in Melbourne and in the Northern Territory. 5 Tasmania has also been perceived as a State where legal 1 2

Co-mediation is discussed in Chapter 7 and see also Appendix A at [16.70]. S Press, “International Trends in Dispute Resolution – A US Perspective” (2000) 3(2) ADR Bulletin 23.

3 4

In some jurisdictions, the term has not been defined: see Native Title Act 1993 (Cth). Other variations relate to the use of private sessions and the structure of the process (eg, when parties’ statements are summarised). T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (Report, ACJI, Monash University, 2012) p 139, available at http://www.civiljustice.info/.

5

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representatives might be “less cooperative” in mediations 6 (see also discussion at [3.90]). The extent to which different “cultures of settlement” might exist is evident in various comments from Federal Court magistrates who were interviewed as part of this research. 7 Research in 2014 also suggested that settlement cultures in different jurisdictions could influence not only the timing of ADR and mediation but also its effectiveness. 8 These differences may mean that mediation is defined partly by the cultures in which it takes place. In addition, some mediation definitions are shaped in part by obligations in relation to confidentiality, admissibility and liability or the obligations that may apply to participants – for example to engage in “good faith” or to make a “genuine effort” (these topics are explored in greater detail in Chapters 11 and 12). A number of well-known commentators have discussed the various definitions that exist in respect of mediation models. Boulle, for example, has referred to four separate mediation approaches or models: settlement, facilitative, therapeutic and evaluative. In each “model” the objective is different. In settlement mediation, the objective is to reach a compromise. In facilitative mediation, the objective is to promote negotiation in terms of underlying needs and interests rather than legal rights or obligations. In the “therapeutic” or transformative model, underlying causes of behaviour may be considered. 9 In evaluative mediation, which many commentators consider a misnomer, the primary focus is on settlement according to legal rights (see [3.15] – [3.20]). Boulle notes that a mediation may commence in one mode and then adopt characteristics of another 10 (for example, it may become evaluative after a facilitative opening). Other writers have suggested that there is a fifth category of mediation – narrative mediation – that involves a more interpretive and analytical response; 11 while others, such as Adler, 12 have suggested that effective mediators are “protean” or able to shift between different models and styles according to the needs of the individuals and groups involved in the

6

Comment at Sydney Lawyers Focus Group (conducted at the Law Society of New South Wales, Sydney, 27 August 2012) in T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (Report, ACJI, Monash University, 2012) p 139, available at http://www.civiljustice.info/.

7

Comments from Federal Magistrates’ Court Focus Group (conducted at Federal Magistrates’ Court, Melbourne, 30 July 2012) in T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (Report, ACJI, Monash University, 2012) p 139, available at http://www.civiljustice.info/.

8

See T Sourdin and A Shanks, Evaluating Alternative Dispute Resolution in Taxation Disputes: Exploration of Selected ADR Processes that took place from 1 July 2013 – 30 June 2014, Final Report (Report, ACJI, Monash University, 2014).

9 10 11

L Boulle, Mediation: Principles, Process, Practice (3rd ed, LexisNexis, 2011) pp 44–45. L Boulle, Mediation: Principles, Process, Practice (3rd ed, LexisNexis, 2011) p 43. M Alberstein “Forms of Mediation and Law: Cultures of Dispute Resolution” (2007) 22(2) Ohio State Journal of Dispute Resolution 321.

12

See G Nelson, A Protean Negotiator: An Interview with Peter Adler available on http:// www.mediate.com/articles/NelsonInterviewAdler.cfm. [3.05] 77

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mediation. Some theorists have also referred to other possible forms of mediation that are linked to traditional ADR processes – “wise counsel” and “tradition-based” mediation. 13 Others have noted that theoretical approaches to mediation may be derived at least partly from the core values adopted by the theorists themselves 14 while others have suggested that flexibility 15 in the context of definitional approaches may be appropriate if there are agreed values that are supported in processes. 16

MEDIATION – IS THERE A COMMON DEFINITION? [3.10] The description been accepted by the National Alternative Dispute Resolution Advisory Council (NADRAC) assumes that a “facilitative” model will operate (see description below). However, NADRAC also noted that: NADRAC prefers to see the term mediation used for processes where “… the mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted”. In practice, however, the term “mediation” is often used in instances where the dispute resolution practitioner gives advice on the substance of the dispute. These issues of practice may be better addressed through regulation or codes of practice in specific areas, rather than by a stand-alone definition. Regulations or codes would clearly spell out practitioner roles and responsibilities, and the consequences associated with non-compliance. 17

The definition is important, particularly from a consumer perspective. As NADRAC noted, consumers of mediation services should understand what process they are using and their needs, expectations and interests must be considered when they enter into mediation and when promulgating material about mediation processes. 18 The NMAS supports this approach. Under the National Mediation Accreditation System and Standards (NMAS Standards) (which commenced on 1 January 2008 and which were revised on 1 July 2015), those processes that involve an evaluative or advisory component are regarded as 13 14

15

16 17

18

See N Alexander, “The Mediation Meta-Model – the Realities of Mediation Practice” (2011) 12(6) ADR Bulletin 126, available on http://epublications.bond.edu.au/adr/vol12/iss6/5. See C Irvine, Mediation’s Values: An Examination of the Values Behind Five Mediation Texts (Thesis, April 27, 2007), available on http://ssrn.com/abstract=1686195 or http://dx.doi.org/10.2139/ ssrn.1686195. See also L Charkoudian, “Just My Style: The Practical, Ethical, and Empirical Dangers of the Lack of Consensus about Definitions of Mediation Styles” (2012) 5 Negotiation and Conflict Management Research 4, 367. L Akin Ojelabi and T Sourdin, “Using a Values Based Approach in Mediation” (2011) 22 Australasian Dispute Resolution Journal 258. National Alternative Dispute Resolution Advisory Council (NADRAC), Glossary of ADR Terms (Report, AGPS, 2007) on http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/ NADRACPublications-A-Z.aspx. See National Alternative Dispute Resolution Advisory Council (NADRAC), Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice through People Report (Report, AGPS, 2011) on http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/NadracPublications ByDate.aspx#2003.

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“blended”; that is, they are not defined as mediation but as an amalgam of processes and the consent of disputants is required for this amalgam to be used (in addition ADR practitioners must have appropriate skills and qualifications and insurance where they offer a “blended” process model: see Appendix E NMAS Standards at Part III at 2.2 and 10.2). Many practitioners, however, may still consider that two main forms of mediation exist – facilitative and evaluative – and this may be partly linked to the theoretical debates in the USA where no common definition has been promulgated (see discussion at [3.20] relating to substantive and process orientations). The more widespread acceptance of the facilitative NADRAC description and the increasing use of mediation standards (see below) has meant that in most jurisdictions within Australia, the mediator’s role is perceived to be purely facilitative (rather than evaluative), and it has been recommended that “the mediator’s hand not be seen in the outcome”. In some jurisdictions, particularly where processes were embedded in the 1990s, the mediator may still be perceived to be active in making recommendations, evaluating the dispute and furnishing advice to the parties about the range of likely outcomes should a matter be litigated. 19 That is, the processes may not follow the mediation model that is articulated in the NMAS Standards or any standard industry training model (where the mediator does not proffer any opinion or advice) but may more closely resemble an evaluative or blended model. 20 In other areas, there is recognition that different approaches may operate. For example, in the Federal Court of Australia, it is acknowledged that a range of processes may be used. 21 Despite this, and even where a mediator uses a “blended process”, the primary focus may not be only on compromise and more creative options (discussed via interest-based negotiation) may still be explored. Often where mediators are non-lawyers, there may be a greater focus on more facilitative interventions and elicitive approaches. This can be explained partly 19

20

21

See discussion in T Sourdin and N Balvin, “Mediation Styles and Their Impact: Lessons from the Mediation in the Supreme and County Courts of Victoria Research Project” (2009) 20(3) Australasian Dispute Resolution Journal 142, 152. See full report at Social Science Research Network (SSRN), available on, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1395550. Some legislative examples where mediation, or the mediation process, is defined are as follows: Civil Procedure Act 2005 (NSW); Magistrates Courts Act 1921 (Qld), s 23. As noted in J Wade, Family Mediation: A Premature Monopoly in Australia?, Unpublished Paper (Bond University, Gold Coast, 1996), there are many different styles of process, knowledge and skills used in mediation processes. These are described and symbolised in the mediation abacus developed at Bond University. The abacus notes that factors that influence the process of mediation include whether there was: consensual entry into the process; a choice of mediator (or whether the mediator was appointed); a qualified mediator; an independent mediator (or an insider); much intervention by the mediator; advice given; a particular objective; confidentiality; rigid or flexible rules; a binding agreement; or a focus on the past as well as the present and the future. See Information about mediation – Federal Court of Australia: “Mediators may assist negotiations by asking questions, encouraging open discussion, offering different perspectives and expressing issues in alternative ways. Parties may be encouraged to identify and test the consequences of potential solutions”, available on http://www.fedcourt.gov.au/case-management-services/ADR/mediation. [3.10] 79

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because there are risks in the context of a mediator offering advice (from a liability perspective – see Chapter 12 at 12.55 – Liability of ADR Practitioners). This difference may also be explained, however, in the context of mediator professional orientations and possibly some discomfort with facilitative rather than more advisory approaches. 22 Whilst some theorists have considered mediation processes primarily by reference to a facilitative or evaluative approach, 23 most recent discussion about processes reflects a more nuanced approach that considers the nature of all the interventions and enables an analysis of mediation to be conducted that considers multiple perspectives. 24 For example, in the context of these approaches that consider the nature of the interventions made (not just whether an evaluative approach was adopted at some point in a mediation) many mediation practitioners consider there to be a distinction between asking questions that “reality test” the options that may be put forward by parties to a dispute and an ADR practitioner suggesting what the likely outcome could be if a matter proceeded to litigation or did not resolve at the mediation. The timing of any reality testing may also vary and in most facilitative models option exploration and testing is discouraged until there has been a full conversation about interests. Where lawyers expect and promote evaluative mediation models, the mediator chosen is more likely to have a background in law and will be more likely to adopt a more evaluative or directive approach. Once the mediation commences, lawyers may seek to focus on the legal rights of the parties involved rather than the broader interests and issues. This approach can also mean that a more evaluative approach is adopted and the questioning approach is not “elicitive” but directive (see Chapter 7 in relation to questioning). Some relevant differences in mediation approaches are set out in the diagram below and discussed in more detail in both this chapter and in Chapter 7 (Skills).

22

23

24

See discussion in T Sourdin and N Balvin, “Mediation Styles and Their Impact: Lessons from the Mediation in the Supreme and County Courts of Victoria Research Project” (2009) 20(3) Australasian Dispute Resolution Journal 142, 152, available on http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 1395550. See original material in L Riskin, “Understanding Mediator’s Orientations, Strategies and Techniques: A Grid for the Perplexed” (1996) 1 Harvard Negotiation Law Review 7. See also K Kovach and L Love, “Mapping Mediation: The Risks of Riskin’s Grid” (1998) 3 Harvard Negotiation Law Review 71; and more recently See N Alexander, “The Mediation Meta-Model – the Realities of Mediation Practice”’ (2011) 12(6) ADR Bulletin 126, available on http://epublications.bond.edu.au/adr/vol12/iss6/5. L Riskin, “Decision-Making in Mediation: The New Old Grid and the New New Grid System” (2003) 79(1) Notre Dame Law Review 1, 30.

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Figure 3.1 – Differences in mediation approaches

CORE CHARACTERISTICS – AN EMPOWERING PROCESS [3.15] The different approaches to mediation have also been categorised as process-oriented (facilitative) or substance-oriented (evaluative) mediation. 25 In a process-oriented approach the parties, rather than the mediator, are said to provide the solution to their dispute and the mediator is the facilitator of the process rather than an authority figure providing substantive advice or pressure to settle (see also discussion at [3.70]). It has been suggested by some theorists that mediation can be described as neutral, relational, transformative, analytic or pressing 26 to acknowledge the impact of “pressure” by the mediator as well as the focus on interaction. In the process model, the mediator does not require 25

R Amadei and S Lehrburger, “The World of Mediation – A Spectrum of Styles” (1996) 5 Dispute Resolution Journal 62.

26

J Wall and K Kressel, “Research on Mediator Style: A Summary and Some Research Suggestions” (2012) 5 Negotiation and Conflict Management Research 403, 413. [3.15] 81

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knowledge of the subject matter of the dispute. Process-oriented mediation can be facilitative, settlement focused, transformative, narrative or therapeutic (or a mix of these approaches). The original 2007 NMAS Standards expressly referred to this difference noting that, “The mediator has no advisory or determinative role in regard to the content of the matter being mediated or its outcome. The mediator can advise upon or determine the mediation process that is used” (NMAS, 2007 Standards at 10). The 2015 revision of the NMAS Standards excludes this content which some may consider is critical in the context of articulating the core concept of self-determination in mediation. The concept of self-determination is arguably a narrower concept than that of “empowerment” which may require a mediator to support the “voice” of a participant and may also incorporate notions of procedural justice. In contrast, self-determination may relate more to determining or agreeing upon an outcome. 27 The revised NMAS Standards note that mediation “promotes the self determination of participants” and that they “reach and make their own decisions” (NMAS, 2015 revision at 2.2) which is in contrast to the earlier standards that provided for a greater process focus and also a significantly broader focus on self-determination (although see also s 7.5 that states: “A mediator must provide participants appropriate opportunities to speak to and be heard by one another in the mediation, and to articulate their respective interests, issues and underlying needs”). 28 Some mediation scholars have suggested that self-determination and empowerment are critical values in mediation with empowerment at the “heart” of the mediator’s mission and self-determination being the most critical value in mediation. 29 Others have suggested that “Self Determination Theory” (or “SDT”) is linked to notions of consent and requires that mediators should also educate participants “about the continuum of mediation approaches and identify the approaches” that the mediator may use. 30

Substance-oriented mediation? [3.20] In this context and in view of the mediation definitions and descriptions (see below), “substance-oriented mediation” is arguably not a form of mediation, 27 28

29 30

See also S Douglas, “Neutrality, Self-Determination, Fairness and Differing Models of Mediation” (2012) 19 James Cook University Law Review 19, 21-37. The 2007 NMAS provided that “The Mediator provides assistance in managing a process which supports the participants to make decisions about future actions and outcomes” at 2.3 Approval Standards (2007) and “Mediation is essentially a process that maximises the self-determination of the participants. The principle of self determination requires that mediation processes be nondirective as to content” at 2.5 Practice Standards (2007). Standards and report available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1134622. See R Baruch Bush and J Folger, “Reclaiming Mediations Future; Re Focussing of Party Self Determination” (2015) 16(3) Cardozo Journal of Conflict Resolution 741, 742. See S Imperati and S Maser, “Why Does Anyone Mediate if Mediation Risks Psychological Dissatisfaction, Extra Costs and Manipulation? Three Theories Reveal Paradoxes Resolved by Mediator Standards of Ethical Practice” (2014) 29(2) Ohio State Journal on Dispute Resolution 223, 231, referring to Oregon Mediation Standards.

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rather, as NADRAC has noted, may more properly be referred to as evaluation, conferencing or conciliation (see Chapter 6 at [6.10]). In this process, the participants are focused on persuading the ADR practitioner to provide an opinion that supports their perspective or position (rather than negotiating with each other) and the decision making is dependent on the advice given by the ADR practitioner. The ADR practitioner in this model is often an authority figure who evaluates the dispute (and may use the word “case”) based on experience and offers recommendations on how the case should be resolved. Many practitioners and theorists consider that the basic philosophy of mediation requires recognition that the process is to be empowering and that therefore substance-oriented mediation cannot be defined as mediation. This view is also supported in the NADRAC descriptions and the NMAS Standards (at 2.2 “A mediator does not evaluate or advise on the merits of, or determine the outcome of, disputes”) 31 (see also discussion above). Aside from the definitional differences, there are also liability issues for mediator practitioners who provide a view as to outcome. In these situations, practitioners are more likely to be sued if a party has settled a dispute following “advice” (which may be incorrect) that has been provided to a party or parties. Clearly an “adviceless” mediator cannot be sued regarding incorrect or uninformed advice (as they have not given any). Providing advice is a particular concern in any advisory models that are blended with mediation as any “advice” given by the third party is unlikely to have been tested and will be based on information that may be gathered in the private meetings held in a mediation (see Chapter 7 for a full process model). Substance-oriented mediation, in which a practitioner provides a view as to the outcome, is also known in the United States as “muscle”, “rhino” or “rambo” mediation. 32 This process does not appear to offer the same empowerment opportunities and the mediator will often adopt a directive rather than an “elicitive” approach, which essentially locates the mediator as the controller of both process and outcome. The participants in such a mediation may not feel that they have solved their own problem and may have their issues more narrowly defined by reference to legal rights rather than interests. As noted above, empowerment is often viewed as an essential characteristic of mediation and relates not only to outcome but also to the process that is used to support participants: [Mediation] derived from the recognition that participants were quite capable of negotiating for themselves and reaching their own decision. The parties’ ability in 31 32

See Australian National Mediator Standards: Practice Standards (July 2015), available at Mediator Standards Board on http://www.msb.org.au/mediator-standards/standards. This model can sometimes be described as conciliation within Australia – see Chapter 6 at [6.10] and has been described as operating in the Victorian Workers’ Compensation Scheme and is now described as conciliation as part of the Accident Compensation Conciliation Service at http:// www.conciliation.vic.gov.au: see D Bryson, “’And the Leopard Shall Lie Down with the Kid’: A Conciliation Model for Workplace Disputes” (1997) 8(4) Australian Dispute Resolution Journal 245. [3.20] 83

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this regard was acknowledged and respected. As any solution was not imposed, but arose out of the empowerment of the parties, it was more likely to be acceptable to both sides and adhered to. 33

Transformative mediation [3.25] Another form of mediation is known as “transformative” mediation, in which the emphasis is not on problem-solving but on the nature of the process itself. Transformative models are increasingly used in community conflict, victim–offender conferencing and complex family conflict. In a transformative model, the mediator’s role is to foster empowerment and recognition in the parties; this is done by encouraging parties to communicate and make decisions more effectively, subject to their own choices and limits. 34 Essentially the transformative model requires that the mediator does not have, or does not use, subject matter expertise and provides that mediation is a “‘safe haven’ from the culture of experts, in which parties can act with true self determination, showing that they are the real ‘stars’ of the conflict resolution experience, and we [the mediators] are merely ‘supporting’ actors”. 35 At the heart of the process is empowerment. 36 Some mediators consider that the transformative model of mediation existed as part of the New South Wales Community Justice Centre mediation model however in recent years the model has become more structured and facilitative with a greater focus on agenda setting. The transformative form of mediation does not focus on resolution but changes in the individual and group dynamics that can lead to social change as well. A model that is often seen as related is “therapeutic mediation” where professional therapeutic techniques are used to encourage communication and behavioural concerns. The transformative mediation model has been explored in a series of research projects that have focused on the United States Postal Service (USPS) REDRESS program. The USPS originally employed over 800,000 employees (the number of employees has declined in recent years as email communication has increased) and receives over 25,000 informal equal employment opportunity (EEO) complaints each year. In 1997 it implemented the REDRESS program, which 33

R Charlton, Dispute Resolution Guidebook (Lawbook Co, Sydney, 2000) p 14.

34

R Bush, “The Unexplored Possibilities of Community Mediation” (1996) 21 Law and Social Inquiry 715. See also R Bush and J Folger, The Promise of Mediation: The Transformative Approach to Conflict (Jossey-Bass, San Francisco, 2004). See R Baruch Bush and J Folger, Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Re-Focusing on Party Self-Determination (Unpublished paper, 2014), available on mediate.com http://www.mediate.com/articles/BushFolgerFuture.cfm. See also R Baruch Bush and J Folger, “Reclaiming Mediations Future; Re Focusing of Party Self Determination” (2015) 16(3) Cardozo Journal of Conflict Resolution 741, 742.

35

36

See R Baruch Bush, “Taking Self-Determination Seriously: The Centrality of Empowerment” in J Folger, R Baruch Bush and D Della Noce (eds), Transformative Mediation: A Sourcebook (ACR Publishing and ISCT, USA, 2010) p 51.

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offered transformative mediations to EEO complainants. 37 Exit surveys conducted following the implementation of the project conducted by the USPS demonstrated high levels of participant satisfaction with the program. Ninety six per cent of complainants and 97 per cent of supervisors reported that they were “very satisfied” or “somewhat satisfied” with the practitioners conducting the transformative mediations. 38 Recent evaluations of this program have achieved similarly high levels of satisfaction. 39 Other surveys also suggest that the transformative model can cause behavioural shifts in participants. 40 Antes, Folger and Della Noce interviewed mediators about behaviours the mediators had observed during at least two transformative mediations they had either conducted or observed. This research was regarded as somewhat questionable given the focus on mediator perceptions of behaviour. 41 However, the research did suggest that participants tend to become more open and confident as mediations progress and that productive engagement can occur following difficult discussions. In addition, participants were said to be more likely to establish personal connections and understand more about themselves and others after engaging in the process. 42 However, transformative mediation has also been the subject of criticism. This is particularly because some transformative mediation practitioners consider that the process can lead to substantive changes in the way that individuals deal with conflict and each other – in short, that the process can assist with the “moral development” of an individual. In a review of Bush and Folger’s book The Promise of Mediation, 43 Menkel-Meadow argues that the objective of transformative mediation is not clearly articulated and that it is almost impossible to determine whether an individual has become more skilled at

37

38

39 40

T Natabashi and L Blomgren Ansler (formerly Bingham), “Transformative Mediation in the USPS REDRESS Program: Observations of ADR Specialists” (2001) 18(2) Hofstra Labor and Employment Law Journal 402. L Blomgren Ansler (formerly Bingham), Mediation at Work: Transforming Workplace Conflict at the United States Postal Service (IBM Centre for the Business of Government: Human Management Series, Washington, DC, October 2003) App 2 at p 34, available on http:// www.businessofgovernment.org. T Nabatchi, L Blomgren Ansler (formerly Bingham) and Y Moon, “Evaluating Transformative Practice in the US Postal Service REDRESS Program” (2010) 27, Conflict Resolution Quarterly, 25. See R Bush and J Folger, The Promise of Mediation: The Transformative Approach to Conflict (Rev ed, Jossey-Bass, San Francisco, 2005).

41

LP Gaynier, “Transformative Mediation: In Search of a Theory of Practice” (2005) 22(3) Conflict Resolution Quarterly 398.

42

JR Antes, JP Folger and DJ Della Noce, “Transforming Conflict Interactions in the Workplace: Documented Effects of the USPS REDRESS Program” (2001) 18(2) Hofstra Labor and Employment Law Journal 399. R Bush and J Folger, The Promise of Mediation: The Transformative Approach to Conflict (Rev ed, Jossey-Bass, San Francisco, 2005).

43

[3.25] 85

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dealing with conflict. 44 To some extent, the criticism also relates to what is perceived to be a lack of theoretical underpinning. 45

Other models of mediation [3.30] Models of mediation may vary in other ways. 46 Many models have, for example, been developed in the family sector (see [3.85] relating to child inclusive and child focused models) and it has been suggested that twenty-five models of mediation have been described. 47 Some models are specifically designed for more complex contexts. For example, an “impasse” model of mediation is one departure from the mediation model. It was developed in the United States and is used for difficult and complex post-separation disputes between couples affected by a “divorce impasse”. In such cases, the parties are unable to move forward into a settled divorce or to move back into a workable marriage. The impasse is usually due to a combination of factors such as personality disorder, ambivalence about separation and extended family involvement. Impasse mediation is also known as therapeutic mediation and can use a short-term intervention of about 10 weeks that involves the whole family. The process has three phases: • a pre-negotiation counselling phase; • a negotiation or conflict resolution phase; and • an implementation phase. In these models a counsellor–mediator may combine therapeutic and counselling approaches with a primary goal of getting the parents to focus on the needs of their children. 48 “Shuttle” mediation is another process that can be used where the mediator shuttles between parties, conveying options and ideas. In this model, the mediator acts as a go-between. It has been said that shuttle mediation is most useful in situations where there has been violence or threatened violence; for example, in domestic violence situations. Shuttle mediation is also widely used

44 45 46

47 48

C Menkel-Meadow, “The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices” (1995) 11(3) Negotiation Journal 237. J Folger and R Bush, “A Response to Gaynier’s ’Transformative Mediation: In Search of a Theory of Practice’” (2005) 22(3) Conflict Resolution Quarterly 123. Some variations may be relatively minor and it may be that facilitative mediation is also known as integrative mediation. See K Kressel, T Henderson, W Reich and C Cohen, “Multidimensional Analysis of Conflict Mediator Style” (2012) 30 Conflict Resolution Quarterly 135. J Wall and T Dunne, Mediation Research: A Current Review (2012) 28 Negotiation Journal 217. J Johnston and L Campbell, Impasses of Divorce: The Dynamics and Resolution of Family Conflict (Free Press, New York, 1988); R Charlton, Dispute Resolution Guidebook (Law Book Company, 2000) p 8.

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in older e-mediation models where email is a primary form of contact (see Chapter 10). However, this model has the potential to disempower participants by preventing joint problem-solving. 49 “Narrative” mediation is another mediation model based on social constructionist theory. It suggests that “people make sense of events in their lives by organising them in a story form”. Generally, narrative mediators will focus on the stories told by disputants and will support the deconstruction and externalisation of stories (not unlike a first, second, third person shift: see Chapter 7) rather than focusing on interests or relationships. 50

THE MEDIATION PROCESS – NATIONAL MEDIATION ACCREDITATION SYSTEM STANDARDS [3.35] The differences in mediation styles discussed above have been reflected to a limited extent in the National Mediation Accreditation System and Standards (revised in 2015). The system involves accreditation and practice standards and sets out a broad description of mediation that reflects the views of practitioners and stakeholders and enables a wide range of mediation models to operate. The 2008 Practice Standards were prepared by the author of this book following consultation and input from mediators and others. 51 The updated 2015 Standards attempt to describe mediation by reference to key characteristics and state: NMAS Standards

2 – The Mediation Process 2.1

A mediator uses the knowledge, skills and ethical principles referred to in Part III Section 10.1 of the NMAS to assist participants to make their own decisions in relation to disputes, conflicts or differences among them.

2.2

Mediation is a process that promotes the self-determination of participants and in which participants, with the support of a mediator: (a)

49

50

51

communicate with each other, exchange information and seek understanding

T Sourdin and N Balvin, “Mediation Styles and Their Impact: Lessons from the Mediation in the Supreme and County Courts of Victoria Research Project” (2009) 20(3) Australasian Dispute Resolution Journal 142, 152. See full report at Social Science Research Network (SSRN), available on http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=1395550. The notion that deconstructing and reconstructing a narrative about an event can assist to change perceptions about future actions is increasingly being explored outside the mediation area. For example, see work on critical incident stress debriefing and in particular JW Pennebaker and J Evans, Expressive Writing: Words that Heal (Idyll Arbor Books, USA, 2014). See also T Ehrenfeld, Don’t Say I, available on https://www.psychologytoday.com/blog/open-gently/201407/dont-say-i. See Australian National Mediator Standards: Practice Standards (July 2015), available at Mediator Standards Board on http://www.msb.org.au/mediator-standards/standards. [3.35] 87

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(b)

identify, clarify and explore interests, issues and underlying needs

(c)

consider their alternatives

(d)

generate and evaluate options

(e)

negotiate with each other; and

(f)

reach and make their own decisions.

A mediator does not evaluate or advise on the merits of, or determine the outcome of, disputes. 52

In crafting the description used in the 2008 descriptions, I met with mediators around Australia. From the research and consultations conducted, it was clear that most of the mediators considered that the major differences in mediation definitions related to the extent that a mediator could provide advice. Other differences existed between transformative, facilitative and narrative models; however, in none of these models did mediator intervention encompass an advisory component. Interestingly, the issue about whether mediators could proffer advice was at times related to mediator disciplines. The strongest opposition to a non-advisory approach was by some lawyer mediators who sought to ensure that advisory approaches were retained or at least available to lawyer mediators. In contrast, other mediators adopted a firm view that mediation was not an advisory process. The Victorian Association of Dispute Resolvers suggested, prior to the introduction of the 2008 Standards, that: In the absence of national standards, a number of ADR practices have developed over 20 years. These have been loosely termed “mediation” and include advisory, evaluative and blended processes. They differ from the facilitative, non-advisory models of mediation currently taught and assessed, and used as a basis for accreditation, under current systems. We believe advisory and evaluative processes are better categorised as “conciliation”. We see these as a valid form of ADR, commonly practiced. However, they are distinct from mediation in the input into the content, and sometimes the outcome, by the person conducting the process. Blended processes, in particular, can be based on quite different frameworks, for example, mediation/arbitration, which we see as equally valid, but requiring additional qualifications to that of a mediator. 53

There is no doubt that when a mediator moves from a facilitative approach to an advisory approach that significant process changes take place. As noted 52

Australian National Mediator Standards: Practice Standards (July 2015) s 2, available at Mediator Standards Board on http://www.msb.org.au/mediator-standards/standards. See also the full report on the Standards process: T Sourdin, Accrediting Mediators – the New National Mediation Accreditation Scheme (Australia) (Report, 2007), available on http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 1134622.

53

Submission made to the author in the NMAS consultations in July 2007. See the Report on the NMAS Standards at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1134622.

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previously, on one level, the participants, rather than being focused on the negotiation and attempting to persuade each other, become focused on attempting to persuade the mediator so that any advice is favourable to them. On another level, the shift to an advisory approach may create legal liability issues (especially for the mediator if the advice is incorrect – this is more likely to be the case in mediation where untested information may emerge in private meetings) and disempower the participants as they are less likely to reach their own solutions. The definitional issues are now largely settled in Australia as a result of the creation of the Standards. Mediation is non-advisory – however, there is still room for conciliation and blended processes (reflecting the realities of different ADR practice). The subject of qualifications, accreditation and mediator standards is explored in more detail in Chapter 14 and a copy of the current Standards is reproduced in Appendix E.

MEDIATION MODELS [3.40] Mediation models have been formulated by a variety of training institutions and professional bodies. One of the most widely used models has been adopted by the Law Society of New South Wales. That process model provides for a number of set stages in a mediation and is reproduced in Appendix B. Chapter 7 sets out the skills and sample questions and interventions that can be used by the mediator in each stage of the model. The stages can be described as: 1.

introductory stage;

2.

brief description of the issues – all participants speak about how they see the issues except the mediator;

3.

summary and reflection of participants’ views by mediator;

4.

setting an agenda, list of topics or questions to be answered;

5.

discussion and exploration of all agenda items;

6.

private meetings;

7. 8.

clarification and discussion of options; evaluation of options and decision-making.

Many organisations that provide training and education in mediation promote similar basic processes that follow these stages (see also Chapter 7 where the stages and skills are explored in some detail). 54 One of the primary process differences in the major mediation training models relates to whether the mediator summarises after each of the parties’ opening statements or after all parties have spoken. There is also a divergence of opinion about how the generic model is practised. Most mediators recognise that this is only a “classic 54

LEADR & IAMA, Australian Commercial Disputes Centre (ACDC), Monash University, Sydney University and the University of Technology, Sydney use similar models. [3.40] 89

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mediation” model. 55 This means that mediators may decide that it is appropriate to depart from the basic model where it is warranted. For example, in workplace mediations, it may be more appropriate for the mediator to spend a greater period of time in the pre-mediation stage – that is, meeting with parties separately – prior to bringing the parties into a face-to-face mediation. Often mediation can be used to provide parties with an opportunity to obtain expert legal advice (from their lawyers and others) about their prospects of success should the matter proceed to further litigation, and information about litigation and other costs. The conflicting nature of advice given to other parties by their lawyers can also be highlighted. The transformative and narrative approaches provide for different process models. Here the role of the mediator may be more fluid and less likely to be compliant with clear stages or steps, although the nature of the interventions used by the mediator may be similar and the tracking of progress may be the subject of close analysis. Importantly, in such models there may be no agenda-setting stage and, in addition, the approach of the mediator may be less formal and more conversational. The extent of mediator reframing will also vary greatly according to different models. In this regard, the mediator in a transformative model would, for example, be more focused on reflective techniques (that is, accurately reflecting what has been said rather than asking or suggesting a reframed response). These approaches are discussed in more detail in Chapter 7 (Skills). The roles of lawyers and others can also vary greatly in different mediation processes. These variations relate to the type of dispute, process and mediator experience, behaviour of participants and nature of the process. In some processes, the representatives may take on a more substantive role and participants may speak less. 56 Previous studies have found that: Supporting party participation through early involvement and engagement and in agenda setting and exploration may enhance disputant perceptions of fairness and satisfaction and may also result in higher levels of agreement. 57

Other differences may stem not only from the style of engagement and the extent of party participation but may relate to the issues explored and the logistics of the mediation session. In the Spedley mediation, for example, it was noted by one participant that, at one point: The mediation had now become very lawyer driven. Some clients became exasperated by the Byzantine debates between lawyers on drafting issues. This lawyer domination was brought home starkly to one ANI executive. He recalled 55 56

57

R Charlton, Dispute Resolution Guidebook (Lawbook Co, Sydney, 2000) p 18. T Sourdin and N Balvin, “Mediation Styles and Their Impact: Lessons from the Mediation in the Supreme and County Courts of Victoria Research Project” (2009) 20(3) Australasian Dispute Resolution Journal 142, 149–150. T Sourdin and N Balvin, “Mediation styles and Their Impact: Lessons from the Mediation in the Supreme and County Courts of Victoria Research Project” (2009) 20(3) Australasian Dispute Resolution Journal 142, 151. See also T Sourdin, “Evaluating Alternative Dispute Resolution (ADR) in Disputes About Taxation” (2015) The Arbitrator & Mediator (forthcoming).

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with amusement that at one stage when there were more than 50 people in the room Sir Laurence called for the lawyers to leave so that he could have some discussions with the parties. Only six people remained behind. 58

In response to the posturing of the parties and their lawyers, the mediator in the same matter noted that: I am amazed that such confident advice could be given. It is impossible that all these contradictory lawyers’ views can be correct. One of them will be proven wrong and some client unfortunately will pay for it. 59

Main descriptions: Mediation [3.45] Various Australian Standards have described mediation. For example, the Australian Standard, Dispute Management Systems: AS 4608–2004, defines “mediation” by reference to the NADRAC description, as follows: [A] process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntarily, under a court order, or subject to an existing contractual agreement.

An alternative that was suggested by NADRAC is “a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator) negotiate in an endeavour to resolve their dispute”. 60 The most recent standard in complaints handling, the Australian Standard AS/NZS 10002:2014: Customer Satisfaction – Guidelines for Complaint Management in Organizations defines mediation in a similar way to the 2012 NADRAC User Guide as follows: Mediation is a process where the participants, with the assistance of an independent person as mediator: • listen to and are heard by each other • work out what the disputed issues are • work out what everyone agrees on • work out what is important to each person • aim to reach a workable agreement • develop options to resolve each issue • develop options that take into account each person’s needs and desires

58 59

M Slattery, “The Spedley Mediation From the Inside” (1993) NSW Bar Association Bar News 23, 28. M Slattery, “The Spedley Mediation From the Inside” (1993) NSW Bar Association Bar News 23, 26.

60

NADRAC, Glossary of ADR Terms (Paper, AGPS, 2007), available on http://www.ag.gov.au. [3.45] 91

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• discuss what everyone could do as a way of assessing the options and exploring what might lead to an outcome that everyone can live with.

A mediator can help you and the other participants have a respectful, even handed discussion and decision making process. Your role is to listen to the other points of view, contribute to the discussion and make decisions.

This description does not include reference to the non-advisory role of the mediator. However the Guide for Users produced by NADRAC in 2012 also notes that: There are some things that mediators do not do. They do not: • take sides – they are there to help each participant • make decisions – you and the other participants make decisions • tell you what to agree to – you decide what to do, including whether to stay at mediation • decide who is right or wrong – everyone is different; the focus of mediation is on finding an outcome that everyone can live with • give legal, financial or other expert advice – if you choose, your lawyer can give you legal advice and your financial adviser can give you financial advice, before, during and after mediation • provide counselling – if you choose, your psychologist, psychiatrist or counsellor can give you support before, during and after mediation. 61

NEUTRALITY AND IMPARTIALITY – BEING “ATTACHED YET DETACHED” [3.50] As noted above, most definitions and descriptions of mediation within Australia do not now refer to “neutrality” which was once considered to be a defining characteristic of mediation. However, discussions about bias, impartiality and neutrality in relation to facilitative processes such as mediation are still commonplace. 62 Often these terms are used interchangeably, although impartiality may be used to denote freedom from favouritism or bias 63 and neutrality may relate to the nature of the involvement of the mediator. 64 In the opening comments made by mediators, it was once commonplace for mediators to refer to themselves as “neutral”. This practice has changed, however, and mediators are more likely to use the word “impartial” to refer to 61 62

63 64

See NADRAC, Your Guide to Dispute Resolution (2012), available on http://www.ag.gov.au. Notably this was intended to be a “user friendly” layperson’s guide to ADR. See, in particular, C Baylis and R Carroll, A Review of Statutory Mechanisms to Address Power Imbalances in Mediation in Australia and New Zealand (Paper presented at ALTA Conference, Vanuatu, July 2001). H Astor and C Chinkin, Dispute Resolution in Australia (2nd ed, LexisNexis Butterworths, Sydney, 2002) p 150. NADRAC, Issues of Fairness and Justice in Alternative Dispute Resolution (NADRAC, 1997) p 42. See also C Moore, The Mediation Process (3rd ed, Jossey-Bass, San Francisco, 2003) p 53.

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their role and their relationship with participants. Notably, the revised NADRAC descriptions of ADR processes now refer to “practitioners” rather than “neutrals” and the notion of neutrality is also absent from the NMAS Standards. In one sense, neutrality may not be consistent with accepted mediation practice. 65 NADRAC has noted for example that “in some instances, dispute resolvers must intervene in order to ensure that power imbalances are addressed, procedural fairness maintained and fair and just outcomes encouraged”. 66 Mayer has suggested that people in conflict do not necessarily want a “neutral” practitioner – and that neutrality should not be regarded as a defining feature of the role played by mediators. 67 Further, clearly mediators may have different perceptions based on their own value systems. 68 However, the concept of mediator neutrality is arguably more intact in the transformative mediation model, which focuses on party empowerment and recognition 69 – although Bush and Folger do not appear to support the use of the word “neutral”. 70 This is perhaps because in many ADR processes the dispute resolution practitioner establishes a close relationship and engages with a high level of empathy with dispute participants (this quality is also called being “present”) (see below). NADRAC (which was abolished, and its functions absorbed into the Federal Attorney-General’s Department in 2013) before its closure, considered whether it was appropriate to abandon the concept of “neutrality” and replace it with “consensuality”. However, it continued to refer to “neutrality” in its reports and noted that this suggested particular responsibilities on the part of an ADR practitioner. These include responsibilities to identify and disclose: • any existing or prior relationship between the practitioner and the parties; • any interest in the outcome of the dispute; • any present or future conflicts of interest; and • any values, experience or knowledge that may prevent a practitioner from acting impartially. 71 The broader dilemmas facing mediators can be summarised as:

65

See, for example, B Wolski, “Voluntariness and Consensuality: Defining Characteristics of Mediation?” (1997) 15 Australian Bar Review 213.

66 67

NADRAC, Issues of Fairness and Justice in Alternative Dispute Resolution (NADRAC, 1997) p 42. B Mayer, Beyond Neutrality: Confronting the Crisis in Conflict Resolution (Jossey-Bass, San Francisco, 2004) p 17: Mayer suggests that mediators “overidentify our work with the third-party role” (p 29). H Astor and C Chinkin, Dispute Resolution in Australia (2nd ed, LexisNexis Butterworths, 2002) fn 23, p 151. R Bush and J Folger, The Promise of Mediation: The Transformative Approach to Conflict (Revised ed, Jossey-Bass, San Francisco, 2005).

68 69 70

R Bush and J Folger, The Promise of Mediation: The Transformative Approach to Conflict (Revised ed, Jossey-Bass, San Francisco, 2005) pp 65–70.

71

NADRAC, A Framework for ADR Standards (Attorney-General’s Department, 2001) p 114. [3.50] 93

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• how to maintain the integrity of the process without allowing the process to violate community interests or the interests of unrepresented parties; and 72 • how to maintain equal bargaining power without compromising neutrality. 73 NADRAC previously released a report that raised many issues relating to neutrality and impartiality, 74 gender, cultural, age, disability, geographic and other power differences. In response to mediator concerns, there have been some attempts to formulate standards that address issues about fairness and impartiality. These are discussed further in Chapter 14 where there is additional discussion relating to the Australian Standards. There are other issues that can be explored in the context of practice issues in respect of practitioner neutrality. For example, the neutrality of a mediator may be perceived differently according to the order in which the parties in the dispute “tell” their stories. 75 In terms of skills exhibited by ADR practitioners, the concept is probably best discussed in terms of the quality of being attached, yet detached, from the participants and the dispute. 76 The extent to which practitioners remain detached from the outcome will depend on the ADR process (clearly, in determinative and advisory processes the practitioner is closely attached to the outcome). This quality was considered in the context of a mediation process by the Western Australian Supreme Court in Pittorino v Meynert (as Executrix of the Wills of Pittorino (dec’d)) [2002] WASC 76. Scott J stated: I accept that it would not be proper for a mediator to bring improper pressure to bear on any party to a mediation. This is a difficult and sometimes delicate role for a mediator to fulfil in that the mediator will from time to time convey offers made by one party to another. I accept that in some cases body language and the way in which a mediator expresses himself or herself may give rise to concern.

Pittorino suggests that mediators need to be aware and conscious of their verbal and non-verbal language (see Chapter 7). This case law suggests mediators must also be careful not to use process steps that may lead a party to take the view that the mediator was not impartial (for example, if a shuttle negotiation takes place) requiring a level of detachment from the outcome. Some ADR processes may also require the practitioner to be “detached” to some extent from a practitioner notion of process structure (rather than the

72 73

H Astor and C Chinkin, Dispute Resolution in Australia (2nd ed, LexisNexis Butterworths, Sydney, 2002) fn 23, pp 152–153. NADRAC, A Framework for ADR Standards (Report, Attorney-General’s Department, 2001) p 42.

74 75

NADRAC, A Framework for ADR Standards (Report, Attorney-General’s Department, 2001) p 104. R Fuller, W Kimsey and B McKinney, “Mediator Neutrality and Storytelling Order” (1992) 10(2) Mediation Quarterly 187.

76

See D Bowling and D Hoffman, Bringing Peace into the Room (Jossey-Bass, San Francisco, 2003) p 168 for an interesting discussion regarding this dilemma.

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outcome). 77 For example, this approach can be linked to enhancing party self-awareness and choice in the transformative approach to mediation by not focusing on a preferred practitioner process model. Mediation in this context requires the practitioner to be detached from both the outcome and a process structure and order as this is determined by the parties (although there is clear recognition that transformative mediation requires particular skills and interventions). Cukier (now Burstyner) has pointed out that this shift and move to a more detached pose may be particularly difficult for mediators who have an occupational background as lawyers, as they are more used to adopting a partial demeanour and therefore, when mediating, must make a number of paradigm shifts. 78 In addition, and as noted previously (and in the NMAS Standards in Appendix E), there are arguably some situations where it is appropriate for a mediator to be partial and one commentator has suggested “neutrality should be perceived as a situated concept which defies any universal or absolute meaning”. 79 In addition it may be very appropriate for those conducting conferences to be partial 80 (see [3.105] Conferencing below). For example, Law identifies the key principles of neutrality and impartiality in mediation as predominantly Western constructs, noting that anthropological studies suggest that mediators in Central American, Asian and Middle-Eastern cultures “… maintain a close relationship with disputants based on the concept of trust, connectedness and continuity. These mediators [who may be more appropriately defined as conciliators] are insider, partial, and must possess local knowledge and local connections”. 81 Law goes on to note that, increasingly, Western academics have argued for the inclusion of “cultural inclusive or sensitive mediation practices” and have questioned and critiqued the notion of the mediator as neutral. Law draws upon interviews with three mediators of Chinese origin and conflict resolution literature to examine the Western concept of mediator neutrality in the context of the Chinese approach to dispute resolution. 82 More recent research suggests that mediators can employ several positive strategies to manage their partiality. Marshall suggests that issues about 77 78 79 80 81 82

This quality could also be linked to the practitioner’s personal orientation – for example, whether the practitioner has a high task rather than relationship focus. N Cukier, “Lawyers Acting as Mediators: Ethical Dilemmas in the Shift From Advocacy to Impartiality” (2010) 21 Australasian Dispute Resolution Journal 59. T Bogdanoski, “Beyond the Paradox of Neutral Intervention: Towards a Situated Theory of Mediator Neutrality” (2010) 21(3) Australasian Dispute Resolution Journal 146. Douglas K, Sager N and Field R, “Hearing the Voices of Victorian Conferencing Practitioners: Views on Neutrality” (2010) 21 Australasian Dispute Resolution Journal 163, 170. S Law, “The Construct of Neutrality and Impartiality in Chinese Mediation” (2011) 22 Australasian Dispute Resolution Journal 118. S Law, “The Construct of Neutrality and Impartiality in Chinese Mediation” (2011) 22 Australasian Dispute Resolution Journal 118. [3.50] 95

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partiality are likely to arise when challenging a party’s way of thinking. Important mediator competency areas are the ability to: • create an appropriate hypothesis – balancing intuition against domainrelevant experience; • putting their hypotheses tentatively – preventing “… disrespectful categorising of people in a way that ignores their sense of identity”; and • allow “face-saving” – noting the value of reframing in achieving this. 83

Impartial and ethical practice – National Mediation Accreditation System Standards [3.55] As noted above, in the NMAS Standards, the term “neutrality” has been abandoned in favour of a reference to impartiality. The NMAS Standards state: NMAS Standards

7 – Procedural fairness and impartiality 7.1

A mediator must conduct the mediation in a fair, equitable and impartial way, without favouritism or bias in act or omission.

7.2

A mediator must identify and disclose any potential grounds of bias or conflict of interest before the mediation, or that emerge at any time during the process.

7.3

A mediator must not mediate in cases involving a conflict of interest without the informed consent of the participants, and then only if, in the mediator’s view, the conflict would not impair his or her impartial conduct of the process. (The remaining sections of part 7 are discussed below under “Procedural Fairness”.)

8 – Ethical conduct and professional relations

83

8.1

A mediator must mediate only where they have the competence to do so.

8.2

A mediator must not use information obtained in mediation for personal gain or advantage.

8.3

A mediator must adhere to the ethical code or standards prescribed by the professional organisation or association of which they are a member or by whom they are employed.

8.4

A mediator should encourage participants to consider the interests of any vulnerable stakeholders.

8.5

A mediator should encourage participants to obtain other professional support when appropriate but should refrain from recommending the services of particular individuals or firms.

8.6

A mediator may liaise with other relevant professionals with permission from the relevant participant.

8.7

A mediator should extend professional courtesy to other professionals engaged by the participants.

P Marshall, “The “Partial” Mediator: Balancing Ideology and the Reality” (2011) 11(8) ADR Bulletin 4.

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8.8

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A mediator should, where possible, engage in professional debriefing, peer consultation and mentoring of less experienced mediators. 84

The NMAS Standards assume that existing ethical standards will bind mediators and impact upon their approaches. This would seem to be appropriate given the diversity of areas in which mediators practice. For example, it is clear that the ethical standards that may apply in some areas (such as in the family sector) will be different from those that apply in other areas. Ethical obligations are explored further in Chapter 11 (Obligations and ADR) and the NMAS Standards are reproduced in Appendix E.

POWER, INEQUALITY AND MEDIATOR INTERVENTIONS [3.60] Related to issues of neutrality and impartiality are questions concerning power and also inequality. To some extent, power relations and a lack of equality will determine who comes to the table in a mediation. 85 Mayer has noted that “[p]eople who have no source of power in regard to a dispute do not have to be dealt with or taken into consideration and are therefore not a party to the conflict”. 86 Similarly, Avruch notes that “power trumps everything including cultures” 87 and Cohen that “a power imbalance can force compliance”. 88 Power can sometimes be perceived as a concept that is related to cultural difference. Whether in the role of mediator, representative, disputant or intake coordinator, all people participating in mediation carry with them “cultural baggage” and biases. These frames of reference and cultural nuances have the potential to influence the impartiality of the mediator, the mediation model and the actual outcomes of the process. The mediation process has been criticised in the past as a process that may support certain power relations or may cause people to behave for a short time in a way that is culturally inappropriate or masks the causes of a conflict. Burton, 84

85 86

87 88

Australian National Mediators Standards: Practice Standards (July 2015) s 5, available at Mediator Standards Board on http://www.msb.org.au/mediator-standards/standards and Appendix E of this book (accessed 12 August 2015). For a full report on the Standards process, see T Sourdin, Accrediting Mediators – the New National Mediation Accreditation Scheme (Australia) (Report, 2007), available at SSRN on http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1134622. PT Coleman, “Power and Conflict” in M Deutsch and PT Coleman (eds), Handbook of Conflict Resolution: Theory and Practice (Jossey-Bass Publishers, San Francisco, 2000) pp 121–126. B Mayer, “The Dynamics of Power in Mediation and Negotiation” in CW Moore (ed), “Practical Strategies for the Phases of Mediation” (1987) 16 Mediation Quarterly 75 (Jossey-Bass, San Francisco, Summer 1987). K Avruch, Culture and Conflict Resolution (4th ed, United States Institute of Peace, Washington, 2004) p 48. R Cohen, Culture and Conflict in Egyptian–Israeli Relations: A Dialogue of the Deaf (Indiana University Press, 1990), cited by K Avruch, Culture and Conflict Resolution (4th ed, United States Institute of Peace, Washington, 2004). [3.60] 97

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for example, has stated that a “major source of social conflict at all levels is within institutions and structures, and not within the discretion of the individual, or the identity groups to which individuals look for support”. 89 It may be that mediation could be used to “mask” such conflict, which can be present as a result of social and other structures. This has also been expressed as a concern in the context of the growing professionalism of mediation. Increased regulation of mediation and its incorporation into the mainstream justice system, in fact, can be seen to transform mediation into a discipline or a means of organisation that “contributes to the insertion of disciplined, orderly individuals into the machineries of production and the dominant economic, political, and legal relations of power”. 90 Thus, rather than alter the way in which disputes are resolved, the use of mediation may merely reinforce existing power relationships. Other concerns about mediation and power relate more to perceptions about imposing a model of dispute resolution on cultures that is “western” in its orientation. Briggs, for example, suggests that there is an operation of power in the promotion of mediation as “… explicit and implicit mediator techniques lead disputants to behave and perform themselves in ways consistent with the goals of mediation and Western norms around conflict and selfhood”. 91 It is partly for these reasons, as previously discussed at [3.25] that empowerment and self-determination 92 are often viewed as essential and defining characteristics of mediation. 93 Arguably, however, unless the model of mediation is at least culturally responsive, or designed with some cultural literacy and with the input of those concerned, there are real issues about whether the process may be simply supporting Western norms or understandings. There are also more specific issues that relate to mediator power and the power relations between the participants in a mediation. In this regard, it is clear that mediators can exercise a considerable amount of power and this is even more relevant if there is any advisory component. This may result in mediators shaping the outcomes according to their perception of the participants, the dispute, the interests or the likely outcomes. In mediations, the process itself may serve to recognise inequities. Mediators may, for example, follow certain approaches that can unconsciously support a power imbalance (these may 89 90 91 92

93

J Burton, Conflict: Resolution and Prevention (St Martin’s Press, USA, 1990) p 147. L Pinzon, “The Production of Power and Knowledge in Mediation” (1996) 14(1) Mediation Quarterly 319. M Brigg, “Mediation, Power, and Cultural Difference” (2003) 20(3) Conflict Resolution Quarterly 287. See also R Baruch Bush, “Taking Self-Determination Seriously: The Centrality of Empowerment” in J Folger, R Baruch Bush and D Della Noce (eds), Transformative Mediation: A Sourcebook (ACR Publishing and ISCT, USA, 2010) p 51. R Bush and J Folger, The Promise of Mediation: The Transformative Approach to Conflict (Rev ed, Jossey-Bass, San Francisco, 2005) p 72.

98 [3.60]

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include forms of address or even the deference accorded to a participant). 94 This type of mediator behaviour may also mean that some behaviours are sanctioned and others are not. There may also be assumptions made about respect and protocols that may be unconscious. Much of the material written about power and mediation is, however, more focused on issues relating to the power imbalance that might be present between disputants. 95 One response to concerns about power imbalance is to suggest that mediators should not remain “neutral”. This is seen as a necessary response, particularly in the international arena where power imbalances may result in sub-optimal outcomes (again, there is the difficultly in determining what is “sub-optimal”). Mayer, who has written widely in this area, also suggests that mediators should not be “neutral” in terms of the way that they represent the process of mediation, particularly as media and government reporting of wars and terrorist acts depict power responses, rather than rights- or interest-based approaches to conflict. 96 In addition, Mayer suggests that neutrality is undesirable in some contexts and that where a power imbalance exists, mediators should not remain neutral. More recently, Mayer’s writings have suggested that a key tool in ensuring that the mediator is effective, is the ability to remain flexible, 97 and as such, this might mean shifting interaction approaches if the situation requires it. He states: Different circumstances, different players, and especially the interactional dynamics of players and circumstances determine what is possible, what works, and what is ethical. The better able we are to recognize and the more flexible we are in adapting to these interactional dynamics, the more successful we will be over time, and more to the point – the more useful a service we will provide. 98

In contrast, many mediators consider that the presence of a power imbalance may mean that a dispute should not be mediated or that sanctions should be imposed to manage issues that can surface. Another approach is to consider whether overarching values can be articulated for mediators that will assist them to determine when and how mediation can be used. 99 For example, see s 6 of the Practice Standards in the NMAS Standards, reproduced below. The Standards have also been reproduced in Appendix E. 94 95

JG Shailor, Empowerment in Dispute Mediation: A Critical Analysis of Communication (Praeger Publishers, Westport, 1994) p 6. See, for example, AM Davis and RA Salem, “Dealing with Power Imbalances in the Mediation of Interpersonal Disputes” (1984) 5 Mediation Quarterly 17.

96

See B Mayer, Beyond Neutrality (Jossey-Bass, San Francisco, 2004) pp 41–81: Mayer also notes that in recent conflict situations there has been marked ambivalence towards consensus-focused conflict resolution techniques.

97

B Mayer, Be Less Certain – And More Flexible (2015), available on Mediate.com, http:// www.mediate.com//articles/MayerFutures.cfm.

98

B Mayer, Be Less Certain – And More Flexible (2015), available on Mediate.com, http:// www.mediate.com//articles/MayerFutures.cfm; and see also B Mayer, The Conflict Paradox: Seven Dilemmas at the Core of Disputes (Jossey-Bass, Hoboken, 2014). L Akin Ojelabi and T Sourdin, “Using a Values Based Approach in Mediation” (2011) 22 Australasian Dispute Resolution Journal (forthcoming).

99

[3.60] 99

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Power issues – National Mediation Accreditation System Standards [3.65] Section 6 of the Practice Standards in the NMAS Standards states: NMAS Standards

6 – Power and safety 6.1

A mediator must be alert to changing balances of power in mediation and manage the mediation accordingly.

6.2

A mediator must consider the safety and comfort of participants and where necessary take steps, which may include: (a)

agreeing guidelines to encourage appropriate conduct;

(b)

activating appropriate security protocols;

(c)

using separate sessions, communication technology or other protective arrangements;

(d)

having a participant’s friend, representative or professional advisor attend mediation meetings;

(e)

providing participants with information about other services or resources; and

(f)

suspending or terminating the mediation with appropriate steps to protect the safety of participants. 100

In terms of understanding power imbalance issues there are a range of diagnostic and intake tools that have now been developed in the mediation area. In the family sector, these tools have been established with a particular focus on violence and abuse. 101 These concerns have also been echoed in standards developed in the mediation area around the world. For example, the Association for Conflict Resolution specifies that a family mediator “… shall recognise a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly”. 102 The Family Mediation Centre (Canada) competencies also sit at this end of the spectrum, including not just the ability to assess the degree of power imbalance but also the “… ability to use techniques to redress power imbalances”. 103 In both of these cases, the actual steps to be taken 100

National Mediator Accreditation System (NMAS), Australian National Mediator Standards: Practice Standards, p 11, available at Mediators Standards Board on http://www.msb.org.au/sites/default/files/ documents/NMAS%201%20July%202015.pdf (accessed 12 August 2015). For a full report on the Standards process, see T Sourdin, Accrediting Mediators – the New National Mediation Accreditation Scheme (Australia) (September 2007) at SSRN, available on http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1134622.

101

See in particular the DOORS framework available at The Family Law Doors, available on http:// www.familylawdoors.com.au/. See Association for Conflict Resolution, Model Standards of Practice for Family and Divorce Mediation, available on http://www.acrnet.org. See Family Mediation Canada (FMC), Practice, Certification and Training Standards (November 2005 version), available on http://fmc.ca/sites/default/files/sites/all/themes/fmc/images-user/ CertificationStandards.pdf.

102 103

100 [3.65]

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are omitted. Little direction is given as to how to balance the notions when they come up against each other in practice – such as the tension between preserving party self-determination and attending to power imbalances. 104 Tools developed within Australia assist to some extent 105 – at least in the family sector. There are settled assessment tools and guidelines that have been produced by organisations and the government to assist family dispute resolution (FDR) agencies. For example, the Detection of Overall Risk Screening Tool (DOORS) is now in use across the sector and aims to detect physical, verbal and psychological abuse. 106 An extract of this tool is located in Appendix C. In addition, there are many different ways in which mediation processes can be conducted. Mediation may for example be conducted face-to-face: • with all parties in the same room and one mediator; • with all parties in the same room and co-mediators; • separately in different rooms using the same mediator who moves between the two rooms (“shuttle” mediation); or • separately in different rooms using co-mediators. There are other variations in the process that can be used: for example, telephone and online mediation can be used where there are issues of abuse or violence (see Chapter 10) and support people can be used in different ways. In past years, the nature of that support has varied extensively however some have noted that lawyers can play a critical role in supporting those that have been involved in abusive and violent relationships in the family dispute area (see also discussion at [3.90]). For example, Field suggested a model of mediation (FDR) for cases of family violence that would involve family lawyers attending mediation as well as providing advice during the mediation process. 107 Field’s model emphasises thorough screening for violence issues, significant training of mediation staff and access to independent legal advice for targets of violence at three distinct stages of the process: before mediation to ensure informed consent to the process, advice as to the legal position and alternatives to mediation and coaching; during

104 105

T Fisher, “Advice by Any Other Name …” (2001) 19(2) Mediation Quarterly 197, 214. It has been noted that some screening tools may not be culturally appropriate – see Australian Law Reform Commission and the NSW Law Reform Commission, Family Violence — A National Legal Response (ALRC Report No. 114 and NSWLRC Report No 128, 2010) p 1017 and also discussion in T Brown, B Batagol and T Sourdin, Family Support Program Literature Review: Review of the Family Support Program Family Law Services (Literature Review, ACJI, Monash University, March 2013), available on http://www.civiljustice.info/fdr/1/.

106

See in particular the DOORS framework available at The Family Law Doors, available on http:// www.familylawdoors.com.au/. R Field, “A Feminist Model of Mediation that Centralises the Role of Lawyers as Advocates for Participants who are Victims of Family Violence” (2004) 20 Australian Feminist Law Journal 65, 85-91.

107

[3.65] 101

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mediation for advocacy, if necessary, and support; and after mediation for safety and support, making the agreement legally binding and advice in the event of a breach. 108 Concerns about representation in mediation processes led to significant shifts in family dispute resolution until 2009. Until that time, it was a policy that clients were not permitted to be legally represented at FDR sessions conducted at the centres in order to “move away from an adversarial approach to negotiating parenting arrangements”. 109 In July 2009, the Attorney-General announced a change in this policy, 110 suggesting that lawyers could attend dispute resolution sessions with their clients in some circumstances, in cases involving family violence. 111 In the family sector, mediators (often Family Dispute Resolution Practitioners or FDRPs) have specific obligations to consider power imbalances. The practitioner must consider whether the ability of any party to negotiate freely in the dispute has been affected by issues such as family violence, unequal bargaining power of the parties, and the emotional, physical and psychological health of the parties. 112 The family dispute resolution practitioner in the assessment process decides whether: • a joint session is a suitable process for the disputants; • a joint session is suitable but only if it is conducted with special conditions attached to the process, and that the disputants are prepared to agree to special conditions; or • a joint session is not a suitable and/or safe process for these disputants. In assessing how dispute resolution should take place and/or the suitability of dispute resolution, the mediator in the family context will take into account the disputants’: • • • •

overall level of functioning; ability to communicate; ability to deal with emotion; level of anxiety;

108

109 110

111 112

See also T Brown, B Batagol and T Sourdin, Family Support Program Literature Review: Review of the Family Support Program Family Law Services (Literature Review, ACJI, Monash University, March 2013), available on http://www.civiljustice.info/fdr/1/. Australian Government, Attorney-General’s Department, Operational Framework for Family Relationship Centres (Framework, Attorney-General’s Department, 2006) p 10. R Field, “Federal Family Law Reform in 2005: The Problems and Pitfalls for Women and Children of an Increased Emphasis on Post-Separation Informal Dispute Resolution” (2005) 5 Queensland University of Technology Law and Justice Journal 28; R Field, “A Feminist Model of Mediation that Centralises the Role of Lawyers as Advocates for Participants who are Victims of Family Violence” (2004) 20 Australian Feminist Law Journal 65. Attorney-General Robert McClelland, Speech to the Albury–Wodonga Family Pathways Network Event (Speech delivered at the Albury–Wodonga Family Pathways Network Event, Albury, 24 July 2009) p 9. Family Law Regulations 1984 (Cth), reg 62(2).

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• willingness to abide by any agreements resulting from dispute resolution; • overall health including mental health; and • the existence of the risk domains: domestic or family violence, child abuse/child abduction, self-harm and harm to others. 113 Many screening and assessment tools are clearly developed for the family sector and are focused to some extent upon capacity, safety, abuse and suitability. In the broader mediation sector, concerns have been expressed that these types of tools are not helpful. Indeed, in the commercial sector it has been said that tools and standards are unnecessarily focused on “abuse” and should not generally apply across the mediation sector. 114 In this regard, it is probably more useful to discuss how a power imbalance may arise rather than focusing on “abuse” (which may be a related action). Clearly it can be difficult to identify a power imbalance. This is because negotiation power may be derived from: • the authority and resources of an individual or group; • understandings about rights-based processes; • the ability to access and understand information; • personal characteristics of the negotiator as well as their formal and informal connections to others; • the ability to irritate, inflame or upset another; • the status quo and moral “high ground”; and • the capacity to define issues and problems in a favourable manner. 115 The use and exercise of power may ebb and flow in a mediation and alter according to the particular dynamics that are present. Some mediators are relatively clear that they play no real role in attempting to balance power – essentially their role is to maintain procedural fairness. 116 Other mediators consider that their role is to analyse the bargaining disadvantage and attempt to 113

114

See for example, the 2008 Framework for Screening, Assessment and Referrals in Family Relationship Centres and the Family Relationship Advice Line (Framework, Attorney-General’s Department (Cth), 2008) p 35. For example, in the commentary to the Practice Standards as part of the National Mediation Accreditation System and Standards (September 2007) , the author noted that the organisation known at the time as the Institute of Arbitrators and Mediators Australia (IAMA) was concerned about the use of the word “abuse” in the standards and stated in its submission that: “IAMA believes that the inclusion of the word ‘abuse’ in this section is not terminology that is appropriate to all forms of mediation (eg commercial mediation) and hence should not be included in generalised national mediator accreditation standards”. See T Sourdin, Accrediting Mediators – the New National Mediation Accreditation Scheme (Australia) (Report, September 2007), available on http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=1134622.

115

CW Moore, The Mediation Process. Practical Strategies for Resolving Conflict (3rd ed, Jossey-Bass, San Francisco, 2003) p 378 referring to B Mayer, “The Dynamics of Power in Mediation and Negotiation”, (1987) 16 Conflict Resolution Quarterly 75 and B Mayer, The Dynamics of Conflict Resolution: A Practitioner’s Guide (Jossey-Bass, San Francisco, 2000).

116

See B Mayer, Beyond Neutrality: Confronting the Crisis in Conflict Resolution (Jossey-Bass, San Francisco, 2004). [3.65] 103

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deal with it “if appropriate”. 117 Many mediators are uneasy with this additional role, particularly those who practise in the transformative and narrative area. While there is less concern about analysis and action prior to the commencement of a mediation, there is concern about mediator strategies within a mediation – other than those that may support or enhance a level of procedural fairness.

Fairness – National Mediation Accreditation System Standards [3.70] The NMAS Standards impose particular responsibilities upon mediators in relation to procedural fairness. The language expresses the responsibilities primarily in terms of requirements although notably absent is the requirement in the earlier version of the standards that stated that mediators not place “pressure” upon the parties to accept any particular option. Some theorists such as Lande have referred to this as a requirement that there be “high quality consent”; that is, that decisions are made without excessive pressure 118 or pressure to select particular options. “Pressure” has also been noted as a factor in determining mediation model characteristics (see also Chapter 15 – “pressure is often also explored as a factor in procedural justice research that focusses on mediation”). 119 The NMAS Standards now refer to “undue influence” and state, at section 7 that: 120 NMAS Standards

7 – Procedural fairness and impartiality ... 7.4

117 118

119 120

A mediator must support participants to reach agreements freely, voluntarily, without undue influence and on the basis of informed consent.

S Goldberg, F Sander, and N Rogers, Dispute Resolution: Negotiation, Mediation and Other Processes (2nd ed, Little Brown & Co, Boston, 1992) p 166. See J Lande, “How Will Lawyering and Mediation Practices Transform Each Other?” (1997) 24 Florida State University Law Review 839, cited in B Anderson, l Swanson and S Imperati, “Veils and Cloaks of Ignorance: Under-Used Tools for Conflict Resolution” (2014) 30(1) Ohio State Journal on Dispute Resolution 45, 78. See J Wall and K Kressel, “Research on Mediator Style: A Summary and Some Research Suggestions”’ (2012) 5 Negotiation and Conflict Management Research 403, 413. Australian National Mediator Standards: Practice Standards (July 2015) s 7, available at Mediator Standards Board on http://www.msb.org.au/sites/default/files/documents/NMAS%201 %20July%202015.pdf . See also T Sourdin, Accrediting Mediators – the New National Mediation Accreditation Scheme (Australia) (Report, 2007), available on http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=1134622.

104 [3.70]

Mediation

7.5

A mediator must provide participants appropriate opportunities to speak to and be heard by one another in the mediation, and to articulate their respective interests, issues and underlying needs.

7.6

A mediator must ensure, so far as practicable, that participants have had sufficient time and opportunity to access sources of advice or information necessary for their decision-making.

7.7

A mediator must encourage and support negotiations that focus on the participants’ respective interests, issues and underlying needs and must encourage participants to assess any proposed agreements accordingly and with reference to their long-term viability.

| CH 3

Mediated outcomes [3.75] The issue of procedural fairness is also related to concerns about mediation outcomes and whether such outcomes are fair. The previous NMAS Standards (2008) noted that outcomes may be reached that do not conform with outcomes that could be achieved through litigation. “Fairness” as a criterion to measure mediation effectiveness is discussed in Chapter 7 at [7.75] and it is clearly almost impossible to regulate mediated outcomes, particularly where court approval processes are not in place. In this sense, the fairness of an outcome, like beauty, is said to be in the eye of the beholder. In considering “fairness”, it is, however, possible at times to distinguish between process and outcome. That is, a process may be perceived as fair even if the outcome is not. It is, however, not usually possible to assess objectively whether an outcome is fair – particularly when outcomes are reached following negotiation processes. This is because settlements reached in such processes are often arrived at with incomplete information and “untested” assertions as statements and comments are unsworn. It is also incorrect to assume that even if all information is present, the “outcome” would be identical in any rights-based process. This is partly because resolutions reached as a result of negotiation may reflect interests rather than positions and may not reflect rights (as a result, they may therefore enable more flexible outcomes to be reached). In addition, rights-based processes may lead to different outcomes even in similar or identical circumstances. In any event, even where an agreement is not reached in a mediation, participants may report that they considered the process was “fair” as they were given an opportunity to speak and be heard. 121 This dichotomy between levels of satisfaction with procedural and outcome fairness is demonstrated by past research that has explored procedural fairness perceptions of mediation compared to perceptions of more formal adjudicatory procedures. For example, Bingham, Raines, Hedeen and Napoli conducted a study relating to dispute design systems in 2010, which included measurement of respectfulness, 121

L Moloney, A Love, T Fisher and S Ferguson, “The Words to Say It – Clients’ Own Experiences of Family Mediation” (1996) 10(1) Australian Journal of Family Law 53, 53. [3.75] 105

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impartiality, fairness, and performance for supervisors and employees involved in employment disputes which underwent EEOC Mediations (as opposed to the traditional more formal EEOC proceedings or other grievance procedures including arbitration). Employees were more frequently satisfied or very satisfied with the mediation process overall (59 per cent) than with the more formal grievance arbitrations or traditional EEO processes (46 per cent and 35 per cent, respectively). In particular, and in the context of procedural fairness indicators, they were satisfied with their control over mediation, their ability to participate in it, and the fairness of the mediation process. On these indicators, mediation outperformed other more legalistic and adjudicatory processes. However, satisfaction with the fairness of the outcome was slightly higher for the grievance procedure (40 per cent) than for mediation (36 per cent). 122 Some past work 123 and work by Lind and Tyler 124 that is linked to the procedural justice work of Thibaut and Walker suggests that if people consider that they have been treated fairly they are more likely to accept a decision and outcome. 125 The mediation process, in being focused on the participants’ ability to frame the dispute in their own words and have those words heard by the other party, may result in a perception of both a successful outcome and procedural fairness. 126 Issues relating to the enforcement of mediated outcomes and the extent to which unconscionability and other factors may have an impact are explored in more detail in Chapter 11.

Environmental mediation [3.80] The fairness of an outcome is, however, expressed as a specific concern where mediation processes are used in the environmental area. This is often related to the view that the outcome may not reflect all relevant interests, only those represented at the mediation – or, alternatively, that the power imbalance issues may be more acute than in other forms of mediation. Lack of “court” oversight, suggestions about “secret” deals and concerns about the impartiality or credentials of “facilitators” as well as about outcomes and compliance with 122

123

L Blomgren Bingham, S Summers Raines, T Hedeen and LM Napoli, “Mediation in Employment and Creeping Legalism: Implications for Dispute Systems Design” (2010) 1 Journal of Dispute Resolution 6, 147. See for example, T Sourdin and A Shanks, Gauging the User Experience Report (Report to Allen Consulting Group, ACJI, 2013); T Sourdin, Resolving Disputes without Courts: Measuring the Impact of Civil Pre Action Obligation (Background Paper, Monash University, 2012); T Sourdin, Evaluating Mediation in the Supreme and County Courts of Victoria (Report, Department of Justice and Australian Centre for Peace and Conflict Studies, 2008).

124

E Allan Lind and Tom R Tyler, The Social Psychology of Procedural Justice (Plenum Press, New York, 1988).

125

See for example, K Van den Bos, L Van der Velden and A Lind, “On the Role of Perceived Procedural Justice in Citizens’ Reactions to Government Decisions and the Handling of Conflicts” (2014) 10(4) Utrecht Law Review 1; the base work of J Thibaut, “Procedural Justice: A Psychological Analysis” (1978) 6 Duke Law Journal 1289; J Thibaut and L Waler, Procedural Justice: A Psychological Analysis (Erlbaum, New Jersey, 1975). L Moloney, A Love, T Fisher, and S Ferguson, “The Words to Say It – Clients’ Own Experiences of Family Mediation” (1996) 10(1) Australian Journal of Family Law 53, 54.

126

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core environmental principles are primary issues where mediation processes are used in environmental conflict management. These criticisms have been mostly related to mediation processes, rather than the full range of facilitative processes. Horn has stated: On balance, mediation is not suited to environmental conflicts where the risk of damage to the environment is serious because there is no certainty that the environment will be protected. More progress is needed to establish an appropriate institution which can monitor standards, consider complaints and enforce accountability on the part of mediators. There are also no means of ensuring that environmental policies and legislation are taken into account when the mediated settlement is agreed to. The practice of mediation of environmental conflicts is not adequately monitored to ensure that the process is ethical and that the outcome prevents degradation to the environment and protects the interests of present and future generations. 127

Are such concerns valid and can such concerns be addressed by ensuring that conflict resolution and management processes are adequately planned and considered prior to and during their use? Many conflict resolution theorists and practitioners consider that mediation may not be the “answer” to complex environmental conflict but that carefully facilitative structured processes may assist in most so-called “intractable” disputes. 128 On the other hand, mediation has clearly played a major role in the resolution of many complex national and international conflicts over the past two decades. However, in complex environmental disputes most commentators suggest that the broader range of facilitative processes, which may incorporate mediatory aspects, are of greater assistance. Additional safeguards – such as external agreement approval mechanisms – may, for example, assist particularly where the concern is that external interests have not been considered when an outcome is reached.

Family sector mediation [3.85] In the family sector, Family Dispute Resolution (FDR) which is an adapted form of mediation is used to deal with many disputes. FDR is not defined in the legislation except in the brief form 129 as a process: “(a) in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and (b) in which the practitioner is independent of all of the parties involved in the process.” 130 While it is often regarded as a form of mediation 131 (or that FDR includes mediation) there are some characteristics of the process that suggest 127 128

L Horn, “Mediation of Environmental Conflicts” (2005) 22 Environmental and Planning Law Journal 369, 384. J Elix, “New Approaches in Adversarialism and Politics – Three Facilitative Tools in Use in Australia” (2006) 17 Australasian Dispute Resolution Journal 105, 112.

129 130

See Family Law Act 1975 (Cth) s 10F. See Family Law Act 1975 (Cth) s 10F.

131

See information at http://www.familyrelationships.gov.au/Services/FamilyLawServices/FDR/Pages/ default.aspx. [3.85] 107

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that the family dispute resolution practitioners (FDRPs) may have an advisory role and FDRPs certainly have additional obligations in terms of focus (on the best interests of a child), reporting (see Chapter 12 at [12.50]) and also have accreditation requirements that are intended to incorporate the NMAS Standards but which include many additional education and other requirements (see Chapter 14). In the family area there have been a number of adapted mediation models that have been trialled in an attempt to ensure that the interests of those outside the mediation room are considered. Two examples are the development of a child-inclusive practice model 132 and combining mediation with therapy. 133 The continuum of models relating to children can be described as child focused, child-centred and child inclusive. Child-focused approaches may involve having the parents post up drawings of their child’s hand to keep the child at the forefront of their thinking. Research indicates that child-focused service as a model may be very acceptable to parents. 134 Additionally a number of practitioners use child inclusive mediation. 135 The three approaches are as follows: • child-focused services: the services encourage the parents to hear their children’s views but where the child is not actually present expressing his/her views; • child inclusive: the child is included in decision-making processes in some particular recommended ways; and • child centred: the child is kept central to the process including a variety of opportunities for their participation. 136 Research suggests that the various approaches result in parents “reporting favourable outcomes of gaining a better understanding of the children; children may also report a sense of being listened to when they have not previously been heard, of relief at being able to express themselves and a sense that they are being cared for as individuals”. 137

132 133 134 135 136

137

J McIntosh, “Child-Inclusive Divorce Mediation: Report on a Qualitative Research Study” (2002) 18(1) Mediation Quarterly 5569. Conjoint Mediation and Therapy (CoMeT): A New Therapeutic Mediation Model (Report, Jaffe Consulting Pty Ltd for the Commonwealth Attorney-General’s Department, 2001). T Brown, A Campbell, J Hannan and K Barker, Advancing Children’s Interests (Paper Presented to the FRSA Annual Conference, Darwin, 13 November 2012). T Brown, A Campbell, J Hannan and K Barker, Advancing Children’s Interests (Paper Presented to the FRSA Annual Conference, Darwin, 13 November 2012). Urbis, Guidelines for the Providers of SCaSP Services (2011) available at http://www.ag.gov.au/ FamiliesAndMarriage/Families/FamilyRelationshipServices/Pages/Forfamilyrelationship serviceproviders.aspx. See T Brown, B Batagol and T Sourdin, Family Support Program Literature Review: Review of the Family Support Program Family Law Services (Literature Review, ACJI, Monash University, March 2013), available on http://www.civiljustice.info/fdr/1/.

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Models of child-inclusive practice were initially researched and piloted with a government grant at the Family Mediation Centre in Melbourne. 138 This initiative eventually led to the Australia-wide Children in Focus Program, a series of symposia and workshops 139 which aimed to inform and skill practitioners about child-focused and child-inclusive practice. The model of “child-inclusive” mediation involves a psychologist interviewing children and then attending a family mediation to talk about the impact of conflict upon the child and their views of the conflict. In contrast, “child-focused” mediation involves the mediator taking action to ensure that the less powerful interests are represented (that of the child in family mediation). 140 In such models it is ultimately up to the mediator to determine how they discuss, support and promote the best interests of the children. 141 Child-focused and child-inclusive models have been the subject of some review. In 2007, a McIntosh report on child-inclusive mediation found that there are: a number of independent effects of the child-inclusive intervention relating to relationship improvement and psychological wellbeing – these were strongest for fathers and children. The agreements reached by the group targeted by childinclusive intervention were more durable and workable over the year with the parents being half as likely to instigate new litigation over parenting matters in the year after mediation than the parents exposed to child-focused intervention. 142

In addition, and perhaps most importantly, McIntosh found that the mediations resulted in “… developmentally sensitive agreements with which parents and children remained more content over the year since mediation”. 143 Observations from more recent studies done by McIntosh and others found that: Parents who participated in child-inclusive mediation (where school-aged children’s needs and views were assessed separately, and incorporated into the mediation) were more likely to maintain the same arrangement over a 4 year post mediation period, than parents who received child-focused mediation (where children’s needs and views were not assessed). In addition, they found that children whose parents participated in child-inclusive mediation were more likely to have remained in a primary care arrangement over a 4 year post mediation time period. 144 138 139 140

J McIntosh, “Child-Inclusive Divorce Mediation: Report on a Qualitative Research Study” (2002) 18(1) Mediation Quarterly 5569. See (April 2003) 9(1) Journal of Family Studies (comprises a special edition on the Children in Focus Program). J McIntosh, “Child-Inclusive Divorce Mediation: Report on a Qualitative Research Study” (2002) 18(1) Mediation Quarterly 569.

141

K Smoron, “Conflicting Roles in Child Custody Mediation: Impartiality, Neutrality and the Best Interests of the Child” (1997) 36(2) Family and Conciliation Courts Review 258, 277.

142

J McIntosh, YD Wells and CM Long “Child-focused and Child-inclusive Family Law Dispute Resolution: One Year Findings from a Prospective Study of Outcomes” (2007) 13(1) Journal of Family Studies 8, 23.

143

J McIntosh, YD Wells and CM Long “Child-focused and Child-inclusive Family Law Dispute Resolution: One Year Findings from a Prospective Study of Outcomes” (2007) 13(1) Journal of Family Studies 8, 23.

144

J McIntosh, B Smyth, M Kelaher, Y Wells, C Long, Post-separation Parenting Arrangements and Developmental Outcomes for Infants and Children (Collected Reports, Attorney General’s Department, 2010) p 12. Three reports prepared for the Australian Government Attorney General’s Department. [3.85] 109

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In addition to the FDR processes noted above there have also been recent attempts to introduce additional conferencing processes in the family law area. These processes are variously referred to as “mediation style conferences” or “family law settlement conferences”. The processes are more properly described as evaluative processes or settlement conferences as the ADR practitioner is likely to be rights focused and more directive as to content. In addition, the ADR practitioners may not be accredited under the NMAS and may have only completed some limited training and not reach the NMAS requirements or the more onerous FDRP requirements. An evaluation completed in 2013 145 suggested that the process could have some benefits for clients and lawyers.

ROLE OF LAWYERS AND OTHERS IN MEDIATION PROCESSES [3.90] There has been considerable discussion about the role of lawyers (see also [3.05]) and others (such as experts, advisers and support people) in dispute resolution processes such as mediation. With lawyers, these discussions are broadly focused on concerns regarding their role as representatives rather than mediators. These concerns can be grouped into five main areas, which are that: 1.

the involvement and engagement of lawyers in the mediation process may disempower the disputants in mediation and similar processes where self-empowerment is often considered to be an important issue;

2.

negotiations that occur with the involvement of lawyers can be more focused on rights rather than interests and may be conducted with an adversarial style or tone (see Chapter 2 at [2.90]);

3.

representatives and support people may derail transitional movements in mediation and inflate the dispute (see Chapter 7 at [7.40] and below);

4.

lawyers and others may not participate in an effective manner in dispute resolution processes as they may adopt adversarial negotiation patterns and that conduct or good faith obligations or requirements should be imposed to address behavioural and other issues (see Chapter 11 at [11.25]);

5.

the education, training and background of many lawyers makes it difficult for them to constructively engage and participate in mediation processes (as ADR skills-based learning does not yet form part of the mandatory subjects in most Australian law schools).

Many mediators and participants in mediation consider that lawyers can greatly assist in the mediation process by advising and supporting their clients and lawyers can play very different roles. One study, for example, suggested that Queensland family lawyers were almost universally child-focused and relational 145

M Scott, Sydney Family Law Settlement Service, 2012 Service Evaluation Report (Report, Law Society of NSW, 2013), available on http://www.lawsociety.com.au/cs/groups/public/documents/ internetcontent/884023.pdf.

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in their practice. 146 That assistance may not only be in terms of assisting clients to understand their alternatives outside the mediation process (and supporting fair outcomes) but will also include assisting them where there are power and other imbalance issues. In this regard, the ALRC has noted: 8.59 On the Commission’s analysis, consensual resolution was more likely to be achieved if both parties were represented. Lawyer-led negotiation appeared a significant factor encouraging settlement. Parties made repeated attempts at settlement at all stages of the process, including before filing their applications. Settlements were often achieved later in the process. As stated in Chapter 5, unrepresented parties were more likely to withdraw, cease defending or have their cases determined following a hearing. They were much less successful in brokering a consent outcome. Unrepresented parties most frequently nominated to the Commission “frustration with the process” as the important reason they withdrew or settled their cases. 147

The conclusions of the ALRC suggest that, in many circumstances, lawyers are aiding the negotiation process in somewhat unexpected ways. This conclusion is at odds with the suggestion that lawyers can hinder negotiations. On the other hand, in terms of the participation by disputants in the mediation process, it is clear that in some mediations a “legal take over” 148 can be experienced: that is, the lawyers may take control of the mediation, exclude any direct party involvement and may even physically exclude a party from the mediation (in the research referred to previously, 149 one disputant reported “I was so cold sitting outside on a bench for most of the day”). This phenomenon of silencing or excluding the disputant voice is experienced in a range of mediation processes. It has been the subject of reports from around Australia and is indeed a feature of some international mediation processes (where it may be linked to conciliation and rights-based processes). 150 In some ways, the exclusion of the party voice can be subtle and involve lawyers silencing their own parties as a “protective measure”, or may stem from a lack of any understanding about interest-based negotiation. The silencing can be caused by the representatives for the other party and, as noted in my recent research, in service delivery models where the representatives are responsible for the choice of mediator, adversarial behaviour may be more likely to be tolerated: “Some mediations may be conducted in a way that is more comfortable for 146 147

C Banks, “Being a Family Lawyer and Being Child Focussed – A Question of Priorities?” (2007) 21 Australian Journal of Family Law 37. Australian Law Reform Commission, Managing Justice – A Review of the Federal Civil Justice System (ALRC Report No 89, ALRC, 2000) p 547.

148 149

See M Dewdney, “Party, Mediator and Lawyer Driven Problems” (LEADR Update, 5 June 2007) p 9. T Sourdin, Mediation in the Supreme and County Courts of Victoria (Report, Department of Justice, State Government of Victoria, 2009) p 69.

150

O Rundle, “Barking Dogs; Lawyer Attitudes Towards Direct Disputant Participation in Court–Connected Mediation of General Civil Cases” (2008) 8(1) Queensland University of Technology Law and Justice Journal 84. See also A Finch, “Harnessing the Legal and Extralegal Benefits of Mediation: A Case for Allowing Greater Client Participation in Facilitative Mediation” (2010) 21 Alternative Dispute Resolution Journal 155. [3.90] 111

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lawyers, rather than disputants. Lawyers choose the mediators and lawyers therefore play an important role in determining the process adopted.” 151 There is a range of intervention measures that a mediator might use to support the process and support the positive involvement of representatives (see Chapter 7): Under such circumstances, in a mediation the mediator may discuss process with the representative and engage a number of interventions to attempt to ensure that the approach does not negatively impact upon the mediation process, however some mediators may be concerned about continued referrals. For example, one mediator at the focus group stated: “Some barristers use mediation to grandstand – about what they are going to do in court”. 152

Some lawyers may have subtle impacts upon the mediation process and others may have more significant and visible impacts. One lawyer in the study referred to above mentioned: “… sometimes I find the lawyers get in the way, usually the barristers, or aggressive solicitors who want to show off in front of the client”. 153 In the same report, I noted that many mediation schemes included guidelines for lawyers and others in mediation to ensure that the mediation process was supported by systemic measures and this topic is explored in some detail in Chapter 11. There are other issues that arise with representatives in mediation processes. These issues include concerns about authority (for example, representatives in mediation attending with inadequate authority) and disclosure, which are more fully explored in Chapters 11 and 12. 154 Non lawyers who are involved in mediations as experts, advisers and supporters can also have an impact on the mediation process. In addition, there may be few guidelines to deal with their involvement although mediators may agree with parties to limit input (see Chapter 7) or ensure that confidentiality in the process is supported (see Chapter 12).

151

152

T Sourdin, Mediation in the Supreme and County Courts of Victoria (Report, Department of Justice, State Government of Victoria, 2009) p iv, available on http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1395550. Lawyer and mediator’s comment at the mediator’s focus group (conducted at the Law Institute of Victoria, 15 July 2008) in T Sourdin, Mediation in the Supreme and County Courts of Victoria (Report, Department of Justice, State Government of Victoria, 2009) p 69, available on http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=1395550.

153

Barrister’s comment at the lawyers focus group (conducted 10 July 2008) in T Sourdin, Mediation in the Supreme and County Courts of Victoria (Report, Department of Justice, State Government of Victoria, 2009) p 130, available on http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1395550.

154

Interestingly, the issues that surface with lawyers do not often appear to be aligned with a lack of preparation. For example, most mediators (88 per cent) in the Supreme and County Court Mediation schemes considered that lawyers had prepared adequately for the mediation: see T Sourdin, Mediation in the Supreme and County Courts of Victoria (Report, Department of Justice, State Government of Victoria, 2009) p 53, available on http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=1395550 .

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PRESENCE AND MEDIATOR QUALITIES [3.95] Mediators use a range of interventions to assist parties to consider the dispute from various perspectives and the nature of these interventions has been the subject of considerable discussion over the last decade and a half. Bowling and Hoffman have noted that: The effectiveness of our interventions often arises not from their forcefulness but instead from their authenticity. When our action as mediators … communicates a high degree of genuineness, presence, and integration, even the gentlest of interventions may produce dramatic results. 155

A list of mediator qualities reflecting a range of writings on mediators and their interventions is located below. Essentially, mediation involves the integration of these qualities, which include: 1.

Presence, respect, trustworthiness and authenticity … a quality of being in which the individual feels fully in touch with, and able to marshal, his or her spiritual, psychic, and physical resources, in the context of his or her relationship with other people and with his or her surrounding environment. Others have used the term “mindfulness” to describe this quality. 156

This concept is also related to respect, which is often perceived to be a primary characteristic of any effective mediation process. In essence, mediators are said to be respectful of each person and that the process is intended to promote mutual respect. To create a respectful process, a practitioner must be trustworthy. 157 2.

Emotional intelligence and empathy These characteristics can support mediators having an emotional reaction while ensuring that this does not create an appearance of partiality. That is, mediators need to be responsive but appropriately so. To do this, a high level of awareness (of self and others) 158 and empathy must be present.

3.

Curiosity, artistry and intuition Mediators need to be genuinely curious and focused on feelings and perceptions as well as facts – in other words they need to listen and be engaged with the whole story. Artistry involves combining all their resources with knowledge, skills and personal characteristics. 159 Intuition can be described in the context of mediator responsiveness and essentially involves the mediator responding to their “inner voice”

155 156

D Bowling and D Hoffman, Bringing Peace into the Room (Jossey-Bass, San Francisco, 2003). D Bowling and D Hoffman, Bringing Peace into the Room (Jossey-Bass, San Francisco, 2003) p 14.

157

J Winslade and G Monk, Narrative Mediation: A New Approach to Conflict Resolution (Jossey-Bass, San Francisco, 2001) p 67. See K Cloke and J Goldsmith, The Art of Waking People Up; Cultivating Awareness and Authenticity at Work (Jossey-Bass, San Francisco, 2003).

158 159

J Winslade and G Monk, Narrative Mediation: A New Approach to Conflict Resolution (Jossey-Bass, San Francisco, 2001) p 126. [3.95] 113

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or gut response. Notably, however, some mediators would suggest that counter-intuitive responses are essential in mediation 160 – that is, the mediator does not respond to an exchange between disputants in a “normal” manner, rather the mediator uses some artistry to respond. In this context, intuition can be viewed not from the context of the nature of the response (which may be counter-intuitive) but rather in the context of the ability to discern where there is dissonance or resonance between verbal and non-verbal responses or even an awareness of omission, distortion or movement in behaviour. There are other qualities that may also be relevant to mediator effectiveness. The capacity to be patient and positive and the ability to ensure that a mediator does not consider their view to be superior to that of any other participant in the mediation are all perceived as necessary qualities. There is also an ongoing discussion about how “wise” a mediator needs to be. This somewhat difficult issue arose in the National Standards project in 2007 (as part of the National Mediation Accreditation System). Clearly, wisdom is not necessarily related to age. However is “life experience” necessary for mediators?

Approval requirements and mediators – National Mediation Accreditation System Approval Standards [3.100] The NMAS Approval Standards state: NMAS Approval Standards

2 – Approval requirements for accreditation 2.1

An applicant must be of good character and possess appropriate personal qualities and experience to conduct a mediation process independently, competently and professionally. An applicant must: (a)

provide written references from two members of their community who have known them for more than three years to the effect that they are of good character, or demonstrate that they already satisfy this requirement under another system; … 161

In formulating the 2008 standard, consultations held by the author suggested that many mediators consider that age is not necessarily a barrier to operating as a mediator. Clearly, some school-age children are able to mediate in school mediation programs. However, many mediators consider that life experience is essential to enable mediators to operate effectively. This issue is not often 160

See, for example, M Roberts, Developing the Craft of Mediation – Reflections on Practice and Theory (Jessica Kingsley Publishers, Philadelphia, 2007) p 213.

161

Australian National Mediator Standards: Approval Standards, s 3, at Mediator Standards Board, available on http://www.msb.org.au/sites/default/files/documents/NMAS%201%20July%202015.pdf.

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explored in the mediation literature and is of interest in terms of how mediation training and education is structured. The huge growth in graduate mediation programs in the United States where the average age of graduating mediators may be relatively young (in their 20s) can be contrasted with the Australian experience where the average age of those attending postgraduate courses and training in mediation may be considerably older. A related concept deals with the depiction of a mediator as a “wounded healer”. In this depiction, the mediator who is “wounded” may be better able to function as a mediator as they have mastered certain skills and are better able to cope with human suffering and be compassionate. 162 The personal skills required of mediators have yet to be reflected in national standards (other than by reference to “personal qualities” or “life skills”), although many competencies that have been developed assume that mediators can be taught essential skills and that life skill prerequisites are not required. This issue is further discussed in Chapter 7 (Skills). Other personal qualities that are clearly relevant to the practice of mediation relate to professionalism and the capacity of mediators to understand potential conflicts of interest and to ensure that such conflicts are properly addressed. Other qualities include requirements to ensure that mediators are “honest” (and without a serious criminal record). In terms of conflicts of interest, mediators have particular obligations under the NMAS in relation to participants in a mediation (or related people or organisations) and there are also requirements in relation to the recommending of professional services (see Appendix E for the NMAS Standards).

CONFERENCING [3.105] Conferencing is a process that is increasingly being used in the workplace and the criminal law setting. It involves bringing together all those who may have been affected by a dispute, conflict or action and discussing the nature of the action and the impact that it has had upon the parties. Many regard conferencing as a mediation process. However, a few distinguish it from mediation processes by indicating that its major focus is on resolving conflict (in a broader sense – see Chapter 1) rather than a focus on single-issue disputes. In some schemes, conferencing is referred to as “reparative mediation”, “restorative justice” or “victim–offender mediation”. These processes have emerged in a range of countries in recent years, and it would seem that there are some major

162

For an in-depth discussion of the concept of the wounded healer, see M Smith, Jung and Shamanism in Dialogue: Retrieving the Soul/Retrieving the Sacred (Trafford Publishing, New York, 2007). This concept is also explored in D Bowling and D Hoffman, Bringing Peace into the Room (Jossey-Bass, San Francisco, 2003). [3.105] 115

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similarities with mediation processes, although it could also be said that the range of process variations is even more pronounced. 163 For instance, King, Freiberg, Batagol and Hyams note that: In 1989 New Zealand introduced the Children, Young Persons and their Families Act in response to Maori community concerns that existing justice system responses – including the forced removal of children from their families – disregarded their traditional concept that wrongdoing involves collective responsibility and that they failed to address underlying issues. The Act emphasises diversion from the system as a primary response to youth offending. Family group conferencing is an important part of this response. It involves a meeting facilitated by a youth justice coordinator and attended by the victim (and supporter) or representative, the young person and family, and a representative from the police. A lawyer and social worker may also be present at some conferences. 164

By comparison, the Wagga Wagga model of conferencing developed in the 1990s in New South Wales differs significantly from the New Zealand model: police act as mediators. Family caucus decision-making is not used, and emphasis is placed on offenders feeling shame for their conduct in a supportive environment as a mechanism for promoting reform … This model has become the basis for other police-led conference programs around the world. 165

In the two decades since youth conferencing was first used by the NSW Police Service in Wagga Wagga, restorative justice has effectively been incorporated into existing criminal justice systems. 166 As the Justice and Community Directorate states in relation to the ACT Scheme, “it [restorative justice] ‘augments’ the criminal justice system without replacing it”. 167 Throughout Australia, restorative justice programs are used alongside traditional criminal justice processes. 168 In 2011, the National Justice CEOs Group discussed the development of national guidelines to underpin restorative justice practices for criminal matters in Australia and these were endorsed by the Standing Council on Law and Justice (SCLJ) in 2013. 169 These Restorative Justice National 163 164

165 166

167 168

169

See, for example, the various examples given in A Morris and G Maxwell (eds), Restorative Justice for Juveniles: Conferencing, Mediation and Circles (Hart Publishing, Oxford, 2001). M King, A Freiberg, B Batagol, and R Hyams, Non-Adversarial Justice (The Federation Press, Sydney, 2009) p 41. This Act was reprinted in December 2014 and is available at http:// www.legislation.govt.nz/act/public/1989/0024/latest/DLM147088.html. M King, A Freiberg, B Batagol, and R Hyams, Non-Adversarial Justice (The Federation Press, Sydney, 2009) pp 41, 42. Australian Government, Australian Institute of Criminology, research and public policy series 121-140, “Restorative justice in the Australian criminal justice system”, available on http://www.aic.gov.au/ publications/current%20series/rpp/121-140/rpp127/05_restorative.html. ACT Government 2013 – ACT restorative justice scheme, available on http://www.justice.act.gov.au/ criminal_and_civil_justice/restorative_justice/act_scheme. Australian Government, Australian Institute of Criminology, research and public policy series 121-140, “Restorative justice in the Australian criminal justice system”, available on http://www.aic.gov.au/ publications/current%20series/rpp/121-140/rpp127/05_restorative.html. Standing Council on Law and Justice (SCLJ) 2013a, SCLJ Communique 10–11 October, (Sydney: Standing Council on Law and Justice), http://www.sclj.gov.au/agdbasev7wr/sclj/ sclj%20october%202013%20communique%20final.pdf cited in Australian Government, Australian

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Guidelines are intended to encourage consistency in the use of restorative justice in criminal matters throughout Australia and provide guidance on outcomes, program evaluations and training. 170 By way of example as to the prolific (and successful) use of these restorative justice conferencing programs, community conferencing (which is now named youth justice conferencing) was introduced in Queensland in 1997 through the Juvenile Justice Act 1992 as a pilot project. 171 During 2012–13, it was reported that 99 per cent of youth justice conferencing participants (including the victim and/or their representative) were satisfied with the outcome. 172 As at 1 January 2013, following amendments to the Youth Justice Act 1992 (formally Juvenile Justice Act), young offenders can only be referred to a youth justice conference by a police officer; that is, they can no longer be referred to a conference by a court. 173 Conferencing has been available for adults under the Justice Mediation Program since 1992. In 2011, an internal evaluation into the effectiveness of this program was undertaken, with a specific focus on client and stakeholder satisfaction as well as the degree of reoffending. The review found that the Justice Mediation Program is effective in achieving various important outcomes, such as high participant satisfaction rates and low reoffending rates. The indicative reoffending rates found in this review were an average of eight per

Institute of Criminology, research and public policy series 121-140, “Restorative justice in the Australian criminal justice system”, available on http://www.aic.gov.au/publications/ current%20series/rpp/121-140/rpp127/05_restorative.html. 170

Standing Council on Law and Justice (SCLJ) 2013b, Guidelines for restorative justice processes in criminal cases (Sydney: Standing Council on Law and Justice), http://www.sclj.gov.au/agdbasev7wr/ sclj/restorative%20justice%20national%20guidelines.pdf cited in Australian Government, Australian Institute of Criminology, research and public policy series 121-140, “Restorative justice in the Australian criminal justice system”, available on http://www.aic.gov.au/publications/ current%20series/rpp/121-140/rpp127/05_restorative.html.

171

Australian Government, Australian Institute of Criminology, research and public policy series 121-140, “Restorative justice in the Australian criminal justice system”, available on http://www.aic.gov.au/ publications/current%20series/rpp/121-140/rpp127/05_restorative.html. Queensland Government 2013a, Youth justice conferencing in Queensland. Restorative justice in practice (Queensland: Department of Communities), cited in Australian Government, Australian Institute of Criminology, research and public policy series 121-140, “Restorative justice in the Australian criminal justice system”, available on http://www.aic.gov.au/publications/ current%20series/rpp/121-140/rpp127/05_restorative.html.

172

173

Queensland Government 2013b, Youth justice conferencing referrals, http://www.justice.qld.gov.au/ youth-justice/youth-justice-conferencing/referrals cited in Australian Government, Australian Institute of Criminology, research and public policy series 121-140, “Restorative justice in the Australian criminal justice system”, available on http://www.aic.gov.au/publications/ current%20series/rpp/121-140/rpp127/05_restorative.html. [3.105] 117

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cent, with one location having a rate of 1.5 per cent. 174 The review also found that the stakeholders were generally satisfied with the operation of the program. 175 This Queensland program involves approximately 300 conferences conducted each year and it has been found that agreement rates are consistently high, as is compliance by offenders with all the terms of the agreement. 176 A review of evaluations concerning restorative justice also noted that there were many factors that appear to impact upon the success or otherwise of conferencing processes in the criminal area. The factors related to systemic design issues (including intake and funding) as well as the skills of those conducting the processes. 177 Most programs, however, aim to support a dialogue between crime victims and offenders (usually juveniles) that is focused on how the crime affected the victims and others, and considering options such as apology, compensation and other forms of reparation. Conferencing can also be used to refer to advisory processes where advice is rendered and for this reason it may be classified as an advisory process under some circumstances. 178 Some commentators have suggested that there are particular issues relating to impartiality and neutrality in relation to conferencing that are more pronounced than in mediation processes. Douglas and others note that this is partly related to the more influential role that the facilitator plays in selecting who will attend and how the meeting choreography will proceed: Actions taken by the facilitator will affect the unfolding story of the conference and will affect the experiences of the various participants. A facilitator’s culture and identity will affect his or her practice in conferencing – as will his or her perception of neutrality. 179

There is also another issue that may impact on practitioner neutrality: In the context of [the Douglas et al] study of conferencing, the frame of practice was found to be on the rehabilitation of the offender. The priority given to the offenders’ 174

175

176

177

178 179

Department of Justice & Attorney-General personal communication October 2013; Australian Government, Australian Institute of Criminology, research and public policy series 121-140, “Restorative justice in the Australian criminal justice system”, available on http://www.aic.gov.au/ publications/current%20series/rpp/121-140/rpp127/05_restorative.html. Department of Justice & Attorney-General personal communication October 2013; Australian Government, Australian Institute of Criminology, research and public policy series 121-140, “Restorative justice in the Australian criminal justice system”, available on http://www.aic.gov.au/ publications/current%20series/rpp/121-140/rpp127/05_restorative.html. Department of Justice & Attorney-General personal communication October 2013; Australian Government, Australian Institute of Criminology, research and public policy series 121-140, “Restorative justice in the Australian criminal justice system”, available on http://www.aic.gov.au/ publications/current%20series/rpp/121-140/rpp127/05_restorative.html. See L Walgrove (ed), Repositioning Restorative Justice (Willan Publishing, United Kingdom, 2003) and I Aertsen, T Daems, and L Robert (eds), Institutionalising Restorative Justice (Willan Publishing, United Kingdom, 2006). T Sourdin, “Five Reasons why Judges Should Conduct Settlement Conferences” (2011) Monash University Law Review 145. K Douglas, N Sager and R Field, “Hearing the Voices of Victorian Conferencing Practitioners: Views on Neutrality” (2010) 21 Australasian Dispute Resolution Journal 163, 166.

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rehabilitation may mean that the practitioners may not have sufficient time and attention to give to the victim throughout the process. 180

Specific skills based issues relating to neutrality are explored in Chapter 7.

Description: Conferencing [3.110] NADRAC has described conferencing as follows: Conference/Conferencing is a general term, which refers to meetings in which the parties and/or their advocates and/or third parties discuss issues in dispute. Conferencing may have a variety of goals and may combine facilitative and advisory dispute resolution processes. 181

RESEARCH ABOUT FACILITATIVE PROCESSES [3.115] There is a wealth of literature about mediation that is related to and based on qualitative and quantitative research relating to mediation and facilitative processes. This is discussed to some extent in Chapter 15, and qualitative and quantitative studies undertaken in Australia are referred to in Appendix G. The research is at times focused on the various forms of mediation and the micro-skills used by practitioners (these are explored in more detail in Chapter 7). However, much of the research conducted in the United States and elsewhere is often related to small-scale studies that may not examine context. 182 This is partly because it can be difficult to fund broader research studies and confidentiality issues can also arise in the mediation context which may mean that parties, lawyers and mediators are less likely to be engaged in the evaluation of, and research about mediation (see Chapter 15). A current study into mediator effectiveness by reference to empirical studies is currently being undertaken by the American Bar Association Taskforce on mediator effectiveness and it is likely that this work will assist in future studies in respect of mediator interventions. 183 Other research is theory-based and refers to the importance of human needs and social exchange theory in understanding how mediation has developed and how it can work. Some research is focused on the perceptions of participants within the process as well as those who may be outside (for example, children). There is also a vast amount of literature that is directed at how outcomes are achieved, as well as a more recent focus on the long-term impacts of mediation. 180

K Douglas, N Sager and R Field, “Hearing the Voices of Victorian Conferencing Practitioners: Views on Neutrality” (2010) 21 Australasian Dispute Resolution Journal 163, 170.

181

NADRAC, Dispute Resolution Terms (Paper, AGPS, 2003) p 6, available on http://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Pages/NADRACPublications-A-Z.aspx.

182

See J Wall and K Kressel, “Research on Mediator Style: A Summary and Some Research Suggestions” (2012) 5 Negotiation and Conflict Management Research 403, 413.

183

The author is a member of this Taskforce. [3.115] 119

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Many of these involve more complex longitudinal studies and tend to be undertaken where mediation has been funded by government (and thus presents a more stable sample) and where policy-makers are most interested in the long-term impacts of mediation processes and interventions. 184

184

See, for example, T Sourdin and N Balvin, “Mediation Styles and Their Impact: Lessons from the Mediation in the Supreme and County Courts of Victoria Research Project” (2009) 20(3) Australasian Dispute Resolution Journal 142.

120 [3.115]

Chapter 4 Collaborative practice [4.05] [4.10]

[4.45]

[4.90]

Introduction..................................................................................................................... 121 History of collaborative practice ................................................................................. 124 [4.15] Post-1990 – collaborative practice in the United States ............ 124 [4.20] Canada ............................................................................................... 130 [4.25] United Kingdom, Europe and the IACP ..................................... 131 [4.30] Australia ............................................................................................ 132 [4.35] Supporting collaborative practice – practice groups ................. 135 [4.40] Process characteristics ..................................................................... 136 Stages of collaborative process .................................................................................... 138 [4.50] 1. Initial intake and assessment stage .......................................... 138 [4.55] 2. Client preparation meeting ........................................................ 140 [4.60] 3. Meeting with the other collaborative practitioner(s) ............ 141 [4.65] 4. Joint meetings, four way or multi-disciplinary meeting ...... 142 [4.70] 5. Debrief meetings .......................................................................... 142 [4.75] 6. Subsequent joint meetings ......................................................... 143 [4.80] Skills of the collaborative practitioner ......................................... 144 [4.85] Timing ................................................................................................ 144 Use of collaborative practice in non-family areas.................................................... 144 [4.95] Research ............................................................................................. 146

[4.100] Other collaborative processes – Partnering, Dispute Review Boards (DRBs) .. 150 [4.115] Conclusions ................................................................................................................... 153

INTRODUCTION [4.05] Collaboration, at the most basic level, refers to people working together to achieve shared goals. In the ADR arena, it can also refer to specific processes where ADR practitioners are not third parties who are independent of disputants. Instead, in collaborative processes in an ADR setting practitioners work with, and may advocate for disputants with the assistance of constructive and interest-based negotiation protocols. There are various forms of collaborative dispute resolution and perhaps the best known is “collaborative practice” which originated in the family dispute area. Lesser known forms include “partnering” and components of “dispute review board” processes which are mainly used in the construction dispute area and which are discussed at the end of this chapter. Collaborative practice is recognised as a facilitative approach to resolving disputes, where the parties, their lawyers and other experts sign an agreement to focus on negotiation and settlement rather than litigation. Whilst it is related to “partnering” processes used in the construction area and collaborative conferencing used in other settings (these processes are discussed further at the

[4.05] 121

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end of this chapter), there are a number of distinctive characteristics and collaborative practice has emerged as a distinguishable form of conflict resolution. 1 The characteristics include the making of a collaborative agreement (or a participation agreement) that will provide that if the dispute is not resolved following a series of meetings involving the disputing parties, lawyers and experts, and then proceeds to litigation, then the lawyers and any other experts engaged in the collaborative process must withdraw and can no longer act for the parties. This disqualification approach means that the parties involved in the process are focused on resolving the dispute rather than maintaining a focus on litigation. The parties, their lawyers and any other experts who form part of the collaborative team commit to this approach by signing a collaborative agreement. The agreement also sets out how the negotiations will be conducted and the consequences of any breach. Collaborative processes also require lawyers to take a client-focused approach to dispute resolution. Lawyers agree to establish an environment that aims to support interest-based negotiation. 2 These processes (and variations) mean that: “… lawyers are increasingly establishing an environment that aims to support interest-based negotiation and … there is a redefinition of the role of the lawyer.” 3 Initially, the collaborative process was directed at family lawyers and their clients and was referred to as collaborative law or, in some cases, “collaborative divorce”. In recent years, however, it has become known as collaborative practice and has extended beyond the family dispute resolution area. 4 The change in terminology has occurred as a result of a focus on a multidisciplinary approach to this form of dispute resolution and the fact that the process can be used in a broad range of dispute settings. As a dispute resolution process, collaborative practice may involve the disputing parties, lawyers, mental health experts, financial experts, business planners, conflict coaches and any other team member who can usefully support the process. Initially, the model tended to only involve joint meetings between lawyers and their clients where particular issues were referred to experts. However, increasingly within Australia a range of models is now being used: the “lawyer only” model, the “lawyer and referral to expert” model and the “full collaborative team” model (involving participants, lawyers and experts in all joint meetings). 1 2 3 4

See A Dorczak, “Beyond Judicial Intervention: Collaborative Law as a Novel Approach to Conflict Resolution” (2015) 1 European Scientific Journal 275. T Sourdin, “Not Teaching ADR in Law Schools? Implication for Law Students, Clients and the ADR Field” (2012) 23 Australian Dispute Resolution Journal 148, 149. T Sourdin, “Not Teaching ADR in Law Schools? Implication for Law Students, Clients and the ADR Field” (2012) 23 Australian Dispute Resolution Journal 148, 149. S Abney, “Moving Collaborative Law Beyond Family Disputes” (2014) 38(2) The Journal of the Legal Profession 277. See also Global Collaborative Law Council, available on http:// www.collaborativelaw.us/index.html.

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In terms of the actual process, collaborative practice is essentially focused on a collaborative negotiation. All participants are members of a problem-solving team who agree to disclose all information and also agree to negotiate in a constructive manner (often by agreeing to communication and other protocols). In most collaborative models, parties wishing to engage in the collaborative process are supported by a lawyer. The parties must also be prepared to participate actively in a process of open negotiations, aimed exclusively at settlement. The process will usually take place after a disputant contacts a collaborative practitioner and the dispute is regarded as appropriate for a collaborative process (see [4.45]). Following an intake and assessment process, the other people involved in the dispute also contact a collaborative practitioner and a series of joint meetings are held. The joint meetings involve the collaborative team, which is made up of disputants, legal practitioners and will often also involve experts. Meetings are often held on a regular basis over a number of months and no substantive negotiation or discussion occurs outside these collaborative meetings. As discussed below, collaborative practice has been widely used in family disputes in Canada, the United Kingdom and the United States, and much of the literature on this topic has a focus on family conflict. 5 However, in recent years, the process has also been applied to probate, business, workplace, health and even construction disputes. In this regard, the process is directed at conflict situations where there is a continuing relationship between those who are in dispute. The advantages of using collaborative practice to resolve family disputes are said to be that: • it reduces the time that lawyers must spend in correspondence with each other; • it uses the expertise of independent experts, including child specialists and financial advisers, outside of the adversarial system; • it provides a formal negotiation structure in which positive child-focused communications are modelled by the advisers; • it provides legal advocacy support during collaboration; • it removes the threat of litigation; • it encourages parties to develop a relationship of trust for their future parenting; • it directly involves the parties in negotiations based on interests and not positions; and • it aims to achieve results that meet the needs of both parties and their children. 6 5 6

See, for example, P Tesler and P Thompson, Collaborative Divorce (Harper Collins, New York, 2006). See Family Law Council, Collaborative Practice in Family Law: A Report to the Attorney-General Prepared by the Family Law Council (Report, Attorney-General’s Department (Cth), 2006) p 4, [4.05] 123

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HISTORY OF COLLABORATIVE PRACTICE [4.10] Collaborative practice initially emerged as a way of practising law in contrast to “partnering”, which was developed as a way of managing decision-making in the commercial context. Most collaborative practice literature is focused on the emergence of the more highly developed legal collaborative practice form as it related to resolving issues in the legal sector (particularly in the family law context). The practice of collaborative family law (CFL) is said to have originated in Minneapolis, Minnesota, in 1990 following experimentation in a different model of practice by American family lawyer Stu Webb. Webb, who is regarded as the “father” of the collaborative practice area, had been a family lawyer in Minnesota for more than 20 years. He was disappointed with the financial and emotional costs of a litigation-oriented approach to family conflict and noted that at times negotiations between lawyers and their clients could work well – particularly where there was trust, rapport and a commitment to resolving differences. As an alternative to litigation, Webb developed an early version of the collaborative dispute resolution model that had the settlement of the dispute as the focus. To maintain that focus in his own practice as a lawyer, if settlement could not be reached Webb decided he would withdraw from the litigation. 7 Webb considered that this approach would support a focus on settlement rather than litigation and he also decided that he only wanted to work with clients and other lawyers who were interested in constructive negotiation rather than litigation as a more civilised way to divorce. In addition, Webb considered that the collaborative process could offer some clients a more superior option than mediation as it supported constructive lawyer involvement and ensured that lawyers could be engaged in the drafting of settlement agreements. After writing to judges to advise them of his new approach and his decision to abandon his trial practice, he persuaded other lawyers to also use this approach and within a relatively short period he had handled almost 100 cases on a collaborative basis. 8

Post-1990 – collaborative practice in the United States [4.15] Since 1990, the practice of CFL has spread to most States in the United States and every province in Canada. In the United States, Texas and North Carolina have collaborative law statutes and CFL is now taught in a number of law schools. The process is also used in Australia, England, Ireland, Austria and Switzerland. Within Australia, there are now collaborative lawyers practising in every major city while many non-lawyer services are also available as more

7 8

available on http://www.ag.gov.au (accessed 31 July 2011). The author of this book was a member of the committee that prepared this report. See S Webb and R Ousky, The Collaborative Way to Divorce: The Revolutionary Method That Results in Less Stress, Lower Costs, and Happier Kids-Without Going to Court (Penguin, Toronto, 2006). W Schwab, “Collaborative Lawyering: A Closer Look at an Emerging Practice” (2004) 4 Pepperdine Dispute Resolution Law Journal 351, 355.

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practitioners gain training in the models used within this jurisdiction. In 2008, collaborative training was also undertaken in New Zealand and there have been limited attempts to introduce collaborative practice there. In various parts of the United States, the collaborative model is now used extensively (particularly in the family sector) and has been varied according to jurisdictional and other needs. For example, in California collaborative services have been available since 1993. 9 There are a number of dedicated collaborative law firms 10 and more than 239 practice groups have been established to promote collaborative law. 11 Collaborative processes are also well understood in some jurisdictions and the notion of a problem-solving team environment (which is well known in restorative justice and problem-solving court settings – see Chapter 6) has also led to changes in the way that courts may operate. This has required recognition of collaborative approaches and the development of these approaches across a range of jurisdictions. 12 Some courts initially set up collaborative law divisions to support collaborative approaches. For example, in 2000, the then presiding family law judge of the San Francisco Superior Court, Judge Hitchens, established a Collaborative Law Department within the family area of the Superior Court. She indicated that: [collaborative law] empowers people to resolve their own disputes, and to do it in a more creative and more lasting manner than has ever been achieved by a court order. 13

Judge Hitchens indicated that the best way for the San Francisco Superior Court to demonstrate its support for collaborative law was to establish a department within the court to encourage and support the process. 14 The Collaborative Law Department handled all routine filings (including collaborative contracts) and ensured that if an impasse issue arose, they could be dealt with quickly. This is a variation on a number of other collaborative processes that assume that there will be no court involvement. In other States in the USA, the approaches have been somewhat different. In most States, the processes are supported by active practice groups that emerged from the early 1990s. For example, in Ohio, the first collaborative practice groups 9 10

11

12 13 14

W Schwab, “Collaborative Lawyering: A Closer Look at an Emerging Practice” (2004) 4 Pepperdine Dispute Resolution Law Journal 351, 355. See, for example, Collaborative Lawyers of Northern California on http:// www.collaborativeattorneys.com or Collaborative Divorce Team Trainings on http:// www.collaborativedivorce.com. See International Academy of Collaborative Practice (IACP), available on https:// www.collaborativepractice.com/public/about/resources-for-the-public/collaborative-practicegroups-around-the-world/united-states-of-america.aspx. See the Superior Court of California, San Francisco Collaborative Courts, available on http:// www.sfsuperiorcourt.org/divisions/collaborative. Judge Hitchens, quoted in P Tesler, “Donna J Hitchens: Family Law Judge for the Twenty-First Century” (2000) 2(2) Collaborative Quarterly 1, 3. Judge Hitchens, quoted in P Tesler, “Donna J Hitchens: Family Law Judge for the Twenty-First Century” (2000) 2(2) Collaborative Quarterly 1, 2–3. [4.15] 125

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emerged in 1997. The notion of a practice group is seen as an essential supporting component of collaborative practice. Practice groups are designed to not only extend knowledge and understandings but also play a central role in peer review processes – the participants include both lawyers and many other professionals. There are also other objectives that relate to the setting of standards. For example, the principal aim of the Cincinnati Academy of Collaborative Professionals is to “ensure that collaborative law is practised ethically and effectively”. 15 To be on a “roster” of collaborative professionals, this group (as with its Australian counterparts) requires collaborative practitioners to attend regular practice meetings. The academy notes that “the meetings also promote collegiality among the professions and provide space for the development of trusting relationships which help engender successful Collaborative results”. 16 It also notes that lawyers who wish to be placed on a roster must have been licensed for at least three years, and that: Each applicant for membership should possess those characteristics of competency, compassion and commitment to the skills of negotiation and civility which are integral to the Collaborative Practice. Each applicant complete and sign an application form provided by the Academy, which among other things, requires the applicant’s adherence to the principles and guidelines of the Cincinnati Academy of Collaborative Professionals. 17

The academy also states that financial and other professionals must have met minimum guidelines and standards that include attendance at training courses. These courses can include “training in communication and mediation skills, client centred, facilitative conflict resolution and interdisciplinary collaborative training”. 18 In 2001, Texas became the first American State to enact legislative provisions recognising the use of collaborative law in family disputes: see the Family Code (Texas), ss 6.603 and 153.0072. 19 The amendments to the Texas Family Code stay court time limits that may otherwise apply, until the collaborative process is concluded. There are many variations in collaborative process models. Some relate to how various professionals are engaged. For example, in some parts of the United 15 16 17 18 19

See Cincinnati Academy www.collaborativelaw.com. See Cincinnati Academy www.collaborativelaw.com.

of

Collaborative

Professionals,

available

on

http://

of

Collaborative

Professionals,

available

on

http://

See Cincinnati Academy of Collaborative, Becoming a Member of CP Cincinnati, available on http:// www.collaborativelaw.com/1-1_Collab-Group-Membership.cfm. See Cincinnati Academy of Collaborative, Becoming a Member of CP Cincinnati, available on http:// www.collaborativelaw.com/1-1_Collab-Group-Membership.cfm. Section 6.603 provides that “[o]n a written agreement of the parties and their attorneys, dissolution of marriage proceeding may be conducted under collaborative law procedures”. Collaborative law is defined in subs (b) as a procedure in which parties to a family law dispute and their legal representatives enter a written agreement to “make a good faith attempt” to resolve their issues without judicial intervention. If the collaborative process is unsuccessful, parties must retain new lawyers to represent them in any subsequent court proceedings. See http:// www.statutes.legis.state.tx.us/Docs/FA/htm/FA.6.htm.

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States each disputant in a collaborative model might be supported by their own mental health professional (MHP) or family relations specialist. In other models, the professionals on the team may include two lawyers, a financial professional, a MHP and a child specialist (where needed). The MHP may be involved from the beginning of the process and may even have introduced the parties to the collaborative process. The “sole mental health coach practitioner” model is widely used in Texas and the coach may assist all parties in the process. There are issues and differing views about whether a therapist who has had an existing or previous relationship with one or both parties is appropriate as a team member or can be involved in some other way. 20 There have been recent attempts to produce a more coherent approach toward collaborative practice across the United States and a uniform Collaborative Law Act has been produced by the United States Uniform Law Commission. 21 State adoption of the Act is growing rapidly and it has been enacted in Alabama, the District of Columbia, Hawaii, Maryland, Michigan, Montana, Nevada, New Jersey, Ohio, Texas, Utah and Washington. 22 The Act has also been introduced in Florida, Massachusetts and Texas. 23 The American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility and a number of State Bar ethics committees (Kentucky, Maryland, Minnesota, Missouri, New Jersey, North Carolina, Pennsylvania and Washington) have expressly approved the use of collaborative law. 24 Initially the ABA declined to support the Act and suggested amendment areas. More recently the ABA Committee on Collaborative Law favourably commented on the Act and also produced a draft summary of ethical rules. 25 The Uniform Collaborative Law Act 2010 (US) seeks to set out some agreed characteristics of collaborative practice. The Act: • applies only to collaborative law participation agreements that meet the requirements of the Act, thus seeking to insure that parties do not inadvertently and without express consent and understanding enter into a collaborative law process (section 3); • establishes minimum requirements for collaborative law participation agreements, including written agreements that state the parties’ intention to 20 21 22 23

24 25

L Solomon and N Levine-Trusch, The Mental Health Professional as a Neutral Coach in the Collaborative Process (Paper presented at IACP Conference, Toronto, 2007). See Uniform Law Commission, Uniform Collaborative Rules and Uniform Collaborative Law (Last Revised or Amended in 2010), available on http://www.collaborativepractice.com. See Uniform Law Commission, Legislative Fact Sheet – Collaborative Law Act, available on http:// www.uniformlaws.org/LegislativeFactSheet.aspx?title=Collaborative Law Act. See Uniform Law Commission, Legislative Fact Sheet – Collaborative Law Act, available on http:// www.uniformlaws.org/LegislativeFactSheet.aspx?title=Collaborative Law Act. See also ABA comments and commentary at American Bar Association, Section of Dispute Resolution: Collaborative Law Committee, available on http://apps.americanbar.org/dch/committee.cfm?com=DR035000. See Uniform Law Commission, Collaborative Law Act Summary, on http://www.nccusl.org/ ActSummary.aspx?title=Collaborative Law Act. Communication to the author from the International Academy of Collaborative Professionals (10 August 2011). [4.15] 127

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resolve their matter through a collaborative law process under the Act and a description of the matter submitted to a collaborative law process (section 4); • emphasizes that party participation in collaborative law is voluntary by prohibiting tribunals from ordering a party into a collaborative law process over that party’s objection (section 5(b)); • specifies when and how a collaborative law process begins and is concluded (section 5); • creates a stay of proceedings when parties sign a participation agreement to attempt to resolve a matter related to a proceeding pending before a tribunal while allowing the tribunal to ask for periodic status reports (section 6); • makes an exception to the stay of proceedings for emergency orders to protect health, safety, welfare or interests of a party, a family member or a dependent (section 7); • authorizes tribunals to approve settlements arising out of a collaborative law process (section 8); • codifies the disqualification requirement for collaborative lawyers when a collaborative law process concludes (section 9); • defines the scope of the disqualification requirement to include both the collaborative matter and a matter “related to the collaborative matter” (section 9) – those involving the “same parties, transaction or occurrence, nucleus of operative fact, dispute, claim, or issue as the collaborative matter” (section 2(13)); • extends the disqualification requirement beyond the individual collaborative lawyer to lawyers in a law firm with which the collaborative lawyer is associated (imputed disqualification) (section 9(b)); • relaxes imputed disqualification if the firm represents low income parties for no fee, the parties agree to the exception in advance in their collaborative law participation agreement, and the original collaborative lawyer is screened from further participation in the matter or related matters (section 10(b)); • creates a similar exception for collaborative lawyers for government agencies (section 11(b)); • requires parties to voluntarily disclose relevant information during the collaborative law process without formal discovery requests and update information previously disclosed that has materially changed. The parties may also agree on the scope of disclosure required during a collaborative law process if that scope is not inconsistent with other law (section 12); • acknowledges that standards of professional responsibility and child abuse reporting for lawyers and other professionals are not changed by their participation in a collaborative law process (section 13); • requires that lawyers disclose and discuss the material risks and benefits of a collaborative law process as compared to other dispute resolution processes such as litigation, mediation, and arbitration to help insure parties enter into collaborative law participation agreements with informed consent (section 14(2)); 128 [4.15]

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• creates an obligation on collaborative lawyers to screen clients for domestic violence (defined as a “coercive or violent relationship”) and, if present, to participate in a collaborative law process only if the victim consents and the lawyer reasonably believes that the victim will be safe (section 15); • authorizes parties to reach an agreement on the scope of confidentiality of their collaborative law communications (section 16); • creates an evidentiary privilege for collaborative law communications which are sought to be introduced into evidence before a tribunal (section 17); • provides for possibility of waiver of and limited exceptions to the evidentiary privilege based on important countervailing public policies (such as the protection of bodily integrity and crime prevention) similar to those recognized for mediation communications in the Uniform Mediation Act (sections 18 – 19); • authorizes tribunal discretion to enforce agreements that result from a collaborative law process, the disqualification requirement and the evidentiary privilege provisions of the Act, despite the lawyers’ mistakes in required disclosures before collaborative law participation agreements are executed and in the written participation agreements themselves (section 20). 26 The Uniform Law Commission envisages that: As an increasing number of States adopt the uniform approach, costs associated with interstate dispute resolution will be reduced, and both practitioners and clients will benefit from the practical experience of sister jurisdictions. 27

While many of these provisions could also potentially be adopted by non-United States jurisdictions, others may require reworking to meet local conditions (in particular, in respect of pre-litigation requirements, privilege, confidentiality and admissibility: see Chapters 11 and 12 in respect of Australian developments in these areas). Despite the expansion of collaborative practice, the use of collaborative processes beyond, and even within the field of divorce has been unexpectedly slow and remains “patchy” with some States having a vibrant collaborative framework and cultures while other States are at early developmental stages. 28 One commentator notes that: Given that collaborative divorce has many attractive qualities, one might question why its small surge in popularity has not been more of a tidal wave. Even though

26

27 28

Uniform Collaborative Law Act 2010, drafted by the National Conference of Commissioners on Uniform State Laws and by it approved and recommended for enactment in all US states at its annual conference meeting in its 118th year in Santa Fe, New Mexico July 9–16, 2009. It has since been amended (2010). See Uniform Law Commission, Collaborative Law Act Summary, on http://www.nccusl.org/ ActSummary.aspx?title=Collaborative Law Act. See L Salava, “Collaborative Divorce: Why the Underwhelming Advance?” (2015) 32(1) GP Solo 70; L Salava, “Collaborative Divorce: The Unexpectedly Underwhelming Advance of a Promising Solution in Marriage Dissolution” (2014) 48(1) Family Law Quarterly 179. [4.15] 129

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collaborative divorce has been in existence for decades, few states have collaborative divorce statutes in effect. Many people, even some attorneys, are unaware of collaborative divorce as an option. 29

Canada [4.20] In Canada, collaborative practice is also well developed. In particular areas (such as Alberta), the process is said to have significantly reduced the number of cases in the court system 30 and is being developed in different ways in different provinces. 31 The model used is often a multidisciplinary one involving divorce coaches, lawyers and financial advisers and/or child specialists. 32 Dr Julie Macfarlane has suggested that the multidisciplinary approach is popular in Vancouver because a large number of clients can afford to retain a team of collaborative professionals to assist them to resolve disputes. 33 From an institutional perspective, collaborative processes appear to be reasonably well supported in the family area. For example, in 2012, the Canadian Bar Association issued a resolution in support of collaborative processes. The Canadian Bar Association has committed to: [R]ecognize and support the collaborative family law dispute resolution as a viable option, promote the collaborative law process and address matters related to the collaborative law process on a national level. 34

In addition, the Law Commission of Ontario (LCO) highlighted the importance of collaborative law in its 2013 report into family law reform. 35 The report states that: Most professionals to whom the LCO talked believed that, where possible, efforts to encourage a collaborative process, or on the contrary, where necessary, efforts to use the legal system to create a distance between parties involved in a family dispute and providing mental health support on each side separately, were essential elements to improve the family justice system. 36

29

L Salava, “Collaborative Divorce: Why the Underwhelming Advance?” (2015) 32(1) GP Solo 70, 71.

30

The Hon R Lueck, “The Collaborative Law Revolution: An Idea Whose Time Has Come in Nevada” (April 2004) Nevada Lawyer 1.

31

British Columbia Ministry of Justice, Collaborative Law, available on http://www.ag.gov.bc.ca/dro/ publications/bulletins/collaborative-law.htm. See Collaborative Divorce Vancouver on http://www.collaborativedivorcebc.com.

32 33 34 35 36

Dr J Macfarlane, The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases (Report, Department of Justice, Canada, 2005) p 23. Canadian Bar Association, Resolution 12-03-A: Collaborative Law, available on https://www.cba.org/ cba/resolutions/pdf/12-03-A-ct.pdf. Law Commission of Ontario, Increasing Access to Family Justice Through Comprehensive Entry Points and Inclusivity (Final Report, Law Commission of Ontario, 2013). Law Commission of Ontario, Increasing Access to Family Justice Through Comprehensive Entry Points and Inclusivity (Final Report, Law Commission of Ontario, 2013) p 34.

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United Kingdom, Europe and the IACP [4.25] Collaborative law was introduced to the United Kingdom in 2003. 37 Following the launch of a collaborative law website in December 2004, interest in collaborative law grew rapidly. 38 A group called Resolution promotes the practice of collaborative law in England and Wales. 39 Members of Resolution must adhere to its Code of Practice. 40 The Code of Practice requires members to commit to resolving disputes in a non-confrontational manner. For example, members must “[a]void use of inflammatory language both written and spoken” 41 and “[e]ncourage clients to put the best interests of the children first”. 42 According to the standards set by Resolution, collaborative law training is available to family law specialists who have held their accreditation for at least three years. Training generally takes two days and lawyers who undergo the training are entitled to practise collaborative law as soon as they join the Collaborative Practice Group (which is a subset of Resolution). Resolution is an organisation of 6500 family lawyers and other professionals who consider a constructive, non-confrontational approach to family law matters is beneficial. 43 Initial training in England was followed by training and developments in Ireland 44 and Europe. At an overarching level, the International Academy of Collaborative Professionals (IACP) 45 is the peak international body promoting collaborative practice. The IACP has over 5000 members 46 from 24 countries around the world. 47 The IACP has noted that: There is a Collaborative Practice practitioner in virtually every state in the US, every province in Canada and in 22 other countries around the world. There are more than 300 Collaborative Practice groups around the world. 48

37 38

J Pirrie “Expanding Your Portfolio: Training in Collaborative Law” (2005) 155 New Law Journal 365, 365. See Resolution First For Family Law, available onhttp://www.resolution.org.uk.

39

See Resolution First For Family Law, available on http://www.resolution.org.uk.

40

Resolution First for Family Law, Code of Practice (2014), available on http://www.resolution.org.uk/ site_content_files/files/2014_web_version_final.pdf.

41

Resolution First for Family Law, Code of Practice (2014), available on http://www.resolution.org.uk/ site_content_files/files/2014_web_version_final.pdf.

42

Resolution First for Family Law, Code of Practice (2014), available on http://www.resolution.org.uk/ site_content_files/files/2014_web_version_final.pdf.

43

Resolution First for Family Law, About Us, available on http://www.resolution.org.uk/about_us/.

44 45

R Horgan, “Let’s Work Together” (2005) 99(5) Gazette of the Law Society Ireland 24, 25. See International Academy of Collaborative Professionals, available on www.collaborativepractice.com.

46 47

TA Lastovka, “Collaborative Law: A New Approach to Divorce” (2015) 32(1) GP Solo 54. IACP members come from Australia, Austria, Bermuda, Canada, Czech Republic, England, France, Germany, Ireland, Israel, Italy, Netherlands, Ireland, Scotland, Switzerland, USA: see https:// www.collaborativepractice.com/public/about/resources-for-the-public/collaborative-practicegroups-around-the-world.aspx. IACP, Facts and Figures About Collaborative Practice, available on https:// www.collaborativepractice.com/media/41986/IACP_FactsAndFiguresAboutCP.pdf.

48

http://

[4.25] 131

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The IACP has become a resource organisation for professionals interested in the collaborative practice movement and, as such, has practitioner resource material, including: • draft agendas; • • • •

draft participation materials; by-laws; civil practice precedents; screening tools; and

• protocols (for all professionals). 49 The IACP has adopted an official ethics and standards document that contains the recommended minimum expectations for collaborative professionals. 50 The document is intended to be used as an educational tool for professionals, clients and the public. 51 The document covers the following areas: • definition of collaborative practice; • ethical standards for collaborative practitioners; • minimum training and other qualification standards for practitioners; and • standards for collaborative practice trainings and trainers. 52

Australia [4.30] Although the collaborative practice movement has continued to develop in Australia over the past decade, there has been little legislation and no case law dealing with the topic. 53 While the existing legislation clarifies the collaborative law process, a trend towards codification of the process is gathering momentum. 54 Collaborative law has been received well by the Australian legal community and is accepted as a form of ADR by many. 55 One commentator has stated that: In effect, collaborative law has been promoted in Australia mainly through training meetings for those working in collaborative law, held in a number of states in 49

50 51 52 53 54 55

See International Academy of Collaborative Professionals, Members, available on https:// www.collaborativepractice.com/members/member-home.aspx (note these resources are only available for IACP members.) There are numerous reports and research materials available on this website. See IACP, Standards & Ethics (as of February 2015), available on https:// www.collaborativepractice.com/professional/resources/iacp-standards-and-ethics.aspx. IACP, Standards & Ethics, available on https://www.collaborativepractice.com/professional/ resources/iacp-standards-and-ethics.aspx. IACP, Standards & Ethics, available on https://www.collaborativepractice.com/professional/ resources/iacp-standards-and-ethics.aspx. D Lavi, “Can the Leopard Change His Spots?! Reflections on the “Collaborative Law” Revolution and Collaborative Advocacy” (2011) 13(1) Cardozo Journal of Conflict Resolution 61, 78. D Lavi, “Can the Leopard Change His Spots?! Reflections on the “Collaborative Law” Revolution and Collaborative Advocacy” (2011) 13(1) Cardozo Journal of Conflict Resolution 61, 78. H Kha, “Evaluating Collaborative Law in the Australian Context” (2015) 26 Australian Dispute Resolution Journal 178, 179.

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Australia, in commercial centers, universities, and offices of collaborative law attorneys. This is the case in states such as Victoria, Queensland, New South Wales and Australian Capital Territory, where the main use of collaborative law is in family law cases, and where groups, composed of professionals dealing with collaborative practice (not necessarily attorneys), outline the boundaries and ethical rules for the procedure. 56

A recently popular debate in Australia has concerned the appropriateness of collaborative practice in disputes involving family violence. 57 One commentator has noted that Western Australia has considered expanding the practice of collaborative law to cases of family violence. 58 Within Australia, international material has been considered, reported on and extended by the Family Law Council and the Law Council of Australia. In 2011, guidelines were published by the Law Council of Australia that apply to lawyers who seek to act as collaborative lawyers. 59 The council also published separate standards in relation to training and trainer minimum threshold standards. 60 The council’s Collaborative Law Committee published the standards and guidelines after consultation with representatives from around Australia. 61 The guidelines are intended to be a “living document” and will be reviewed from time to time. They are derived in part from the United States material of the IACP and they also respond to the matters raised in other standards that apply to ADR practitioners (specifically the National Mediator Accreditation System). The guidelines are located at Appendix E. The main areas covered in the Law Council of Australia’s Australian Collaborative Practice Guidelines for Lawyers are as follows: • A description of the collaborative process. The collaborative practitioner acts to assist clients to reach their decision and provides advice where required in a manner that supports the collaborative process (ss 1–7). • Application. Collaborative processes support interest-based negotiation and can take place in all areas where decisions are made (ss 8–12). • How to start a collaborative process. Prior to the collaborative process taking place, the collaborative practitioners will ensure that the participants have 56 57

58 59 60 61

D Lavi, “Can the Leopard Change His Spots?! Reflections on the “Collaborative Law” Revolution and Collaborative Advocacy” (2011) 13(1) Cardozo Journal of Conflict Resolution 61, 78. See K Markwick, “Appropriate Dispute Resolution in Cases of Family Violence and the Collaborative Practice Model” (2015) 5 Family Law Review 4; P Easteal, J Herbert and J Kennedy, “Collaborative Practice in Family Law Matters with Coercive Control-type Family Violence: Preliminary Thoughts From the Practitioner Coalface” (2015) 5 Family Law Review 13. D Lavi, “Can the Leopard Change His Spots?! Reflections on the “Collaborative Law” Revolution and Collaborative Advocacy” (2011) 13(1) Cardozo Journal of Conflict Resolution 61, 78. Law Council of Australia, Australian Collaborative Practice Guidelines for Lawyers, available on http://www.lawcouncil.asn.au. Law Council of Australia, Collaborative Standards for Training; Collaborative Practice Standards for Trainers, available on http://www.lawcouncil.asn.au. The author is a member of this committee and was responsible for drafting the initial documentation in the guidelines and standards area, and for re-drafting following consultation. [4.30] 133

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been provided with an explanation of the process and have had an opportunity to reach agreement about the way in which the process is to be conducted (ss 13–17). • How to deal with power issues. Collaborative practitioners shall have completed training that assists them to recognise power imbalance and issues relating to control and intimidation, and to take appropriate steps to manage the collaborative process accordingly (ss 18–20). • Impartial and ethical practice. A collaborative practitioner must conduct the process in an impartial and supportive manner and adhere to ethical guidelines of practice (ss 21–25). • Confidentiality. A collaborative practitioner should respect the confidentiality of the participants (ss 26–33). • Competence. Collaborative practitioners must be competent and have relevant skills and knowledge as well as be proficient in any area where they seek to give advice (ss 34–38). • Inter-professional relations. Collaborative practitioners should respect the relationships with professional advisors, other collaborative practitioners and experts that complement their practice of collaborative process (ss 39–41). • Procedural fairness. A collaborative practitioner will conduct the collaborative process in a procedurally fair manner and support interest-based negotiation following a discussion of interests (ss 42–51). • Information provided by the collaborative practitioner. The collaborative practitioner can provide advice about content matters that are within their area of expertise. The collaborative practitioners can also advise on the collaborative process that is used (ss 52–56). • Termination of the process, withdrawal and disqualification. The collaborative practitioner may suspend or terminate a collaborative process if continuation of the process might harm or prejudice one or more of the participants or if they consider that the collaborative process is no longer effective (ss 57–63). • Charges for services. The collaborative practitioners should make explicit to parties all charges related to the practitioner’s services and how they are calculated (ss 64–68). • Making public statements and promotions of services. The collaborative practitioner should ensure that public statements made by the collaborative practitioner promoting business are accurate, educative and objective (ss 69–73). There are also standards for training and trainers. The Collaborative Practice Standards for Trainers provide that: • Trainers need to meet strict requirements with regard to experience (s 1). • To meet practitioner standards, trainers need to have completed a minimum amount of hours of mediation (s 2). • Trainers need to be registered and of good repute (s 3). • Trainers need to have the skills to conduct a training according to the requirements of the Law Council of Australia Training Standards (s 4). 134 [4.30]

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• Trainers need to be conversant in skills relevant to collaborative practices, such as communication, problem-solving, facilitative dispute resolution, mediation, interpersonal relationships, conflict management and resolution, and interest-based negotiations. Trainers should also be competent using a variety of teaching methods such as demonstrations, role-plays and other educative techniques (s 5). • Trainers should have suitable knowledge in the area relating to dispute training, whether it be, for example, in relation to financial or tax matters or family law matters (s 6). • There are also minimum experience requirements that must be met that vary amongst particular areas of disciplines (s 7). In addition, Collaborative Training Standards have been promulgated. The following criteria for training must be met to meet the requirements: • a minimum amount of hours spent in education workshops (s 1); • a knowledge of the theories, practices and skills to commence collaborative practice (s 2); and • in particular, the following education criteria must be met:: – a thorough knowledge of the collaborative model as a tool for dealing positively with conflict; – negotiation theory; – dynamics of interpersonal conflict; – effective communication skills; – team-building skills; – all issues affecting the clients’ circumstances; – an interdisciplinary team approach and an awareness of the involvement that each profession contributes; – understanding the needs of the participants’ community; – acknowledging one’s own shortcomings and having the ability to ask for assistance; – the skill to assess the client’s ability to effectively partake in a collaborative process; – the organisational skills required to set up a collaborative process; – ethical considerations; – a thorough understanding of particular areas of dispute such as familial or financial issues; – training that consists of a variety of educative techniques, such as role-plays, small group exercises or demonstrations; – the supply of written materials that will be constructive after completing the training; – evaluations of both the trainers and the training should take place. 62

Supporting collaborative practice – practice groups [4.35] Unlike many other areas in ADR, collaborative practitioners must work as a team to support disputants in reaching an agreement. This team approach 62

Law Council of Australia, www.lawcouncil.asn.au.

Collaborative

Standards

for

Training,

available

on

http://

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requires that practitioners trust and respect one another and, for this reason, in most areas where collaborative practitioners work there is a requirement to attend a practice group and a minimum number of annual meetings; for example, this is a requirement of the Law Institute of Victoria. 63 At present, various practice groups, law societies and institutes around Australia promote and are engaged in collaborative practice. As a result of the spread of practice approaches and the difficulty in obtaining information about collaborative practitioners, a national approach was introduced. To this end, in 2007 the then federal Attorney-General launched a national website called Collaborative Law in Australia, which provides a portal to State-based organisations operating in this area. 64 The website reflects the approaches that have been undertaken in the various States and the rapid growth of practice groups. Each State in Australia has different numbers of professionals. For example, according to the Law Institute of Victoria website there are a number of collaborative practitioners registered in Victoria. At this stage, suitably qualified practitioners are primarily lawyers, with a smaller number being financial advisers, psychologists and other experts. 65

Process characteristics [4.40] The collaborative practice model requires: • all participants to sign an agreement not to litigate; 66 • face-to-face meetings rather substantive issues; and

than

separate

discussions

on

• a focus on interest-based negotiation and interests rather than a focus on litigation or the likely outcomes of a court hearing.

The collaborative agreement ordinarily provides that the parties cannot commence or threaten litigation while engaged in the collaborative process. It also provides that the lawyers and other practitioners must cease an involvement in the case (other than a defined handover) if the collaborative process fails to result in an agreement. Clearly, if the collaborative process fails to result in an agreement the parties may still decide to litigate, but they are required to retain new lawyers to represent them. This requirement acts as a disincentive for parties to terminate the collaborative process as instructing new lawyers to litigate the matter is likely to 63

Practitioners who do not meet this requirement are no longer able to have their names noted on the Law Institute of Victoria Collaborative Professionals website located at http://www.liv.asn.au.

64

See Collaborative Law in Australia, available on http://www.collaborativelaw.asn.au. This extensive website provides detailed information about collaborative practice within Australia.

65 66

See Law Institute of Victoria, Collaborative Professionals, available on http://www.liv.asn.au. DT Sholar, “Collaborative Law – A Method For the Madness” (1993) 23 Memphis State University Law Review 667, 669.

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be costly and time-consuming. 67 There are other cost incentives in that legal and other costs are not expended on litigation that may not eventuate. There are also additional circumstances where a lawyer or other practitioner must cease to act; for example, if information that may be relevant in the resolution or discussion of the dispute is not disclosed to other parties. If litigation has already commenced, it is possible for a collaborative process to be used. However, the participants must agree on how to deal with the litigation – ordinarily, once lawyers commence in a collaborative process, they will be unable to act in any parallel or subsequent litigation. Under such circumstances and where litigation is underway, the lawyers may not adopt a collaborative process but may instead agree to focus on interest-based negotiation. Anecdotal evidence suggests that such an approach (that is, not having a disqualification provision) greatly diminishes the chances of an agreement being reached. Where there is a disqualification provision and a collaborative process approach is used, there is evidence that there are high rates of settlement. Research reviewing more than 930 collaborative matters suggests that the agreement rate in collaborative practice matters ranges from 88–96 per cent. Variations in agreements reached appear to be related to the “difficulty” level of each matter and may also be related to the model used (multidisciplinary team models were used in 43 per cent of the sample and may produce higher rates of settlement). 68 In the family area, the collaborative agreement will usually require all parties to: • engage in the collaborative process in good faith; • provide full and honest disclosure of all relevant information; • focus on the future wellbeing of themselves and their children; • make every attempt to minimise the negative emotional, social and financial consequences of the dispute; and • actively participate in developing practical and mutually beneficial options. 69 The collaborative agreement is designed to ensure that the parties understand that they have responsibility for the outcome of their dispute. 70 It also contains

67

SM Gutterman, Collaborative Law: A New Model For Dispute Resolution (Bradford Publishing, Denver, 2004) p 16.

68

See IACP, Collaborative Process Outcome and Satisfaction, https://www.collaborativepractice.com. (Note that the statistical information also suggests that in a very small percentage of cases reconciliation occurs.)

69

Family Law Council, Collaborative Practice in Family Law: A Report to the Attorney-General Prepared by the Family Law Council (Report, Attorney-General’s Department (Cth), 2006) item 2.6. See http:// www.ag.gov.au. SM Gutterman, Collaborative Law: A New Model For Dispute Resolution (Bradford Publishing, Denver, 2004) p 16.

70

[4.40] 137

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confidentiality provisions that prevent parties from using information that is disclosed during the collaborative process in any subsequent litigation. 71

STAGES OF COLLABORATIVE PROCESS [4.45] Collaborative practice is based upon a series of defined meetings that include debriefing between parties and other professionals. The process relies on practitioners having trust in the other practitioners who are working with them in a collaborative model. For that reason, most practitioners will only work with other collaboratively trained practitioners who they feel comfortable in working with. The typical meeting choreography is as follows:

1. Initial intake and assessment stage [4.50] This stage involves the practitioner conducting an initial client interview. Unlike interviews that may often be conducted between lawyers and clients, the focus is not on the provision of legal advice or the taking of instructions for the purpose of preparing a matter for legal proceedings. The practitioner who is operating in a collaborative model asks elicitative questions in an attempt to understand the issues that are important to the client. In addition, the practitioner explains process options (such as direct negotiation, mediation, litigation and collaborative practice) and assesses suitability for a collaborative process. A practitioner will ordinarily provide written and verbal information about the collaborative process. They will also refer a client to additional resources to assist them to determine whether a collaborative process is likely to be suitable. The screening process that takes place at this stage is an essential step as the collaborative model assumes that rational decision-making can take place. There may be reasons why collaborative practice is not appropriate or where there are possible options to support a person in their decision-making (for example, by providing a conflict coach). Capacity indicators may relate to the past history of the dispute and whether there is (or has been): • violence; 72 • • • •

drug or alcohol abuse; mental illness/personality disorders; dishonesty; and an extreme lack of trust.

71

See, for example, SM Gutterman, “Collaborative Family Law: Part 1” (2001) 30 Colorado Lawyer 57. Gutterman notes (at 57) that the collaborative law agreement causes a shift away from “the threat or expectation of a courtroom battle to a mandate that the parties, assisted by a professional collaborative team, resolve the complex trade-offs to meet their reasonable objectives and, thus, maximise their autonomy and priorities in crafting their own compromised resolutions”.

72

There is some recent material that suggests that the process can be effective in cases where violence is present – see P Easteal, J Herbert and J Kennedy, “Collaborative Practice in Family Law Matters with Coercive Control-type Family Violence: Preliminary Thoughts from the Practitioner Coalface” (2015) 5 Family Law Review 13.

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Other indicators that would suggest that the process is not appropriate include whether either participant: • • • •

has unrealistic objectives; wants to “punish” the other side; does not consider that a dispute exists; does not wish to disclose information; and

• behaves in an aggressive manner and shows little insight. According to Lande, 73 collaborative practitioners need to place a great deal of importance on weighing up the “benefits and risks” of collaborative practice as compared to other dispute resolution alternatives. He considers that assessing appropriateness is a complex process. Parties may be unwilling to reveal pertinent data and the difficult dynamics that surround the situation may not be initially evident. A challenging case may be dependent upon the availability of professional experts and the readiness of the clients to use them. In particular, Lande notes that clients need to understand that different processes require different financial commitments so some options are dependent on clients’ readiness and capacity to make monetary and emotional investments and take risks accordingly. 74 Others, particularly those who practise in the team collaborative model, suggest that a better way of assessing case suitability is to start with the premise that “all cases are suitable for collaboration” but that some may be less suited than others and to ask the question – how would these clients fare in litigation? From this perspective, the intake questions are about how a team can be assembled in a responsive way to meet the needs of the participants. In the team model, it may also be that any family professional (often a psychologist) can assist with intake and assessment, and might use the tools used in the family dispute resolution environment to assist with this task. There has been some literature that analyses the screening process in Canada and this may provide some helpful insight for practitioners. 75 In addition, material on capacity and assessment screening referred to in Chapter 3 may also be helpful (see also Appendix C). Questions a practitioner could ask of a client at this stage of the collaborative process include: • Would you be comfortable in the same room as (the other person in the matter)? • How well do you co-operate together? 73

J Lande and F S Mostes, “Collaborative Lawyers’ Duties to Screen the Appropriateness of Collaborative Law and Obtain Clients’ Informed Consent to Use Collaborative Law” (2010) 25(2) Ohio State Journal on Dispute Resolution 349.

74

J Lande and F S Mostes, “Collaborative Lawyers’ Duties to Screen the Appropriateness of Collaborative Law and Obtain Clients’ Informed Consent to Use Collaborative Law” (2010) 25(2) Ohio State Journal on Dispute Resolution 349. See N Cameron QC, Collaborative Practice – Deepening the Dialogue (Continuing Legal Education Society of British Columbia, Canada, 2004).

75

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• Do you consider that you can trust the other person? • How well do you communicate with each other? • How have you resolved disagreements in the past? The responses to these questions may not necessarily mean that collaborative practice is not appropriate for the client but they may give an indication as to whether It is likely to be successful in resolving issues. The responses may also suggest how the process could be varied to enable the clients to function effectively during face-to-face meetings (for example, a party or parties may be supported by a family expert or a conflict coach). Considering the timing of the process may also be helpful. Some clients may be unable to participate because they are not ready to accept that any change to the current situation is necessary.

2. Client preparation meeting [4.55] This stage involves the collaborative practitioner explaining the process that will be followed in the first joint meeting and further discussing interests and objectives. This is an important stage as in many collaborative processes, the first meeting will involve the client talking about their goals and objectives. In a family dispute, these could include goals relating to any children (for example, “that the children feel loved and supported by both parents in a stable environment”) and financial security. The participation agreement, fees and obligations are discussed as well as particular issues that relate to the substantive dispute. The focus is on how matters might be discussed in joint meetings and also around expected responses that are likely to arise in those meetings. The emotional responses of the client and their comfort levels are explored by practitioners using a series of open questions (see Chapter 7 at [7.70]). The practitioner may also ask a series of questions about which issues require early attention so that an agenda can be prepared prior to the first meeting. Urgent issues relating to housing and transitional financial issues may, for example, be dealt with in early joint meetings. Most collaborative legal practitioners will avoid providing legal advice for a range of reasons at this point. First, any advice is likely to be based on an insufficient understanding of the facts (from both parties’ perspectives). Secondly, the early provision of legal advice may support the forming of positions by the client rather than supporting a more open exploration of interests. Legal advice is more often given later in the collaborative process with clients’ consent after more information has been given and is usually given in the open joint meetings rather than provided in the individual meetings. Some practitioners may take clients through a seven-element preparation model (see Chapter 2 at [2.55]) and other practitioners may assist with conflict coaching support (see Chapter 2 at [2.60]ff). These approaches have been said to redefine the role of lawyers in this process as “helpers” and supporters rather than adversarial competitors. 140 [4.55]

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There may also be separate meetings with other professionals if this would be helpful. For example, a family expert may meet separately with the parties to support an effective professional relationship and explore issues and concerns.

3. Meeting with the other collaborative practitioner(s) [4.60] This stage involves the collaborative practitioners meeting without clients to jointly prepare an agenda and discuss what information may be required at the first joint meeting. The agenda will be framed in neutral, mutual language (see Chapter 7, Skills). Many collaborative practitioners in Australia may have a number of set agenda items for the first meeting. A typical agenda for a first meeting might include: • introductions (including a discussion about the roles of lawyers, experts and housekeeping issues such as setting up a group email, assigning minute-taking and other tasks); • agreement (including signing the participation agreement and checking understanding); • legal advice (discussing what legal advice has been given – this may vary from jurisdiction to jurisdiction); • costs (including a discussion about how costs are to be paid and what the professional hourly rates are – in some matters, one party may be responsible for all costs or these may be paid out of a joint fund); • mapping interests, goals and expectations (where underlying interests are explored as well as long-term goals); • temporary issues (these will clearly vary but could include, for example, in a family matter “Where will the children go for the next holiday?”, or in a commercial matter “What short term arrangements need to be made for the management of the practice?”); • other business; • next meeting (incorporating homework and scheduling requirements, including setting dates and an agenda for future meetings).

The collaborative practitioners discuss process rather than substantive issues in any meetings at which the clients are not present, and may indicate to each other how they consider that their client can be best supported through the process. They may also discuss mechanics such as where the first meeting will be held, who will take minutes and longer-term time frame issues (that is, what the client expectations are). If information that is relevant is in the possession of one party, a discussion may take place about how that information can be usefully imparted to the other parties. The practitioners may also discuss what additional resources could assist the disputants. In a family context, there may be a particular focus on how the parents wish to support the children in dealing with the transition to what may be two separate family units. For example, there may

[4.60] 141

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be an initial discussion about whether a child specialist can provide additional information and support during a transition period. The objective of this stage is not to prepare statements of assets or liabilities or to focus on options or solutions prematurely. Rather, it is to ensure that the process supports a constructive and interest-based negotiation and that the focus in the first meeting is therefore on underlying interests, not positions or assets.

4. Joint meetings, “four way” or multi-disciplinary meeting [4.65] In the first joint meeting (also referred to as a four-, six- or eight-way meeting depending on the number of participants), the collaborative practitioners will assist the participants to review the process and ensure that all have a full understanding of the stages involved, ensure that the costs (including practitioner fees) are discussed and understood, check on housekeeping and time issues (for example, indicating how breaks can be taken and ensuring that the meeting length is understood), sign a participation agreement and begin discussion about the agenda items. Ordinarily, two hours will be allowed for each joint meeting that is held. Practitioners will take turns in hosting meetings and preparing minutes that are then emailed to all participants. Practitioners will also summarise perspectives and note all “follow up” points, which will be reflected in the minutes of each meeting. Joint meetings are intended to support constructive negotiation and each participant will speak and discuss each issue. The initial material relating to goals and interests is used as an anchor point throughout all meetings. Practitioners will use open and reflective questioning rather than closed questioning. Practitioners are focused on ensuring that interests are fully understood before options are put forward by the parties and before those options are evaluated. The involvement of other professionals (financial, child and other) may be canvassed if such practitioners are not already engaged in the process. Practitioners may need to take care that they do not adopt an adversarial posture and ensure that they focus on ensuring that client interests are explored, heard and understood.

5. Debrief meetings [4.70] Following each joint meeting, the practitioner will debrief with the client about what worked well in the meeting and what they would do differently on the next occasion. The practitioner will also debrief with the other practitioner(s). In some models – for example, the Texan collaborative team model – the team will ordinarily meet without clients following the joint session and the legal professionals will debrief with the clients within 24–48 hours of the meeting. Debriefing meetings are typically of a short duration and focus on process, not content. The focus is on how the clients can be supported, what they may need in terms of resources to assist in their decision-making and whether there are particular areas in which clients may have difficulty expressing themselves. 142 [4.65]

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6. Subsequent joint meetings [4.75] At each meeting, agreements may be built up over time and discussions will be summarised in the minutes. In most collaborative models other practitioners will join the process as required, and in most areas where this model is used those practitioners will be trained in the process. Typically, it may take six to eight meetings to resolve the issues and to support the making of an agreement. Meetings may vary according to the three main models discussed previously. The “lawyer only” model involves lawyers and clients only, with other professionals involved as experts or consultants on an “as needed” basis. 76 The other two models can include impartial, jointly-retained professionals. 77 In the “lawyer and referral to expert” model, the lawyer refers their client to other professionals (such as psychologists or financial advisers) to assist at various stages of the process. 78 In the “full collaborative team” model, parties appoint an interdisciplinary group of professionals at the outset of the matter and it may also be that a facilitator is used (who may also be a family expert). 79 The use of multidisciplinary models is partly based on the view that multidisciplinary approaches can support faster and more effective settlements. The author has previously noted the increased popularity of the multidisciplinary team, stating that: In these forms of ADR, it is increasingly common that a multi-disciplinary team is assembled, all trained in interest-based negotiation to assist the disputants to reach an agreed outcome. This form of ADR is increasingly popular in North America and can include lawyers, financial planning experts and family consultants. 80

Each meeting is directed at sharing information and interests before generating options, negotiating settlements and preparing agreements. This approach is a critical feature of the process and supports interest-based negotiation rather than competitive and compromissory negotiation. The purpose of the meetings that involve all participants is to address every issue in the dispute in a way that focuses on resolving the matter to the parties’ mutual satisfaction. The direct communication between the parties and lawyers, in the form of four-way meetings (or larger interdisciplinary meetings that can be five- or six-way, or 76

P Easteal, J Herbert and J Kennedy, “Collaborative Practice in Family Law Matters with Coercive Control-type Family Violence: Preliminary Thoughts from the Practitioner Coalface” (2015) 5 Family Law Review 13.

77

P Easteal, J Herbert and J Kennedy, “Collaborative Practice in Family Law Matters with Coercive Control-type Family Violence: Preliminary Thoughts from the Practitioner Coalface” (2015) 5 Family Law Review 13. P Easteal, J Herbert and J Kennedy, “Collaborative Practice in Family Law Matters with Coercive Control-type Family Violence: Preliminary Thoughts from the Practitioner Coalface” (2015) 5 Family Law Review 13.

78

79

P Easteal, J Herbert and J Kennedy, “Collaborative Practice in Family Law Matters with Coercive Control-type Family Violence: Preliminary Thoughts from the Practitioner Coalface” (2015) 5 Family Law Review 13.

80

T Sourdin, “Alternative Dispute Resolution (ADR) Principles: From Negotiation to Mediation” (2014) 258 Nagoya Journal of Law and Politics 179. [4.75] 143

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larger), assists in achieving this and is characterised by interest-based negotiations. Interest-based negotiating requires that the parties focus on their needs and interests rather than grievances. Negotiating on this basis helps parties to separate incidental issues from the substantive issues in dispute. It also encourages parties to develop realistic expectations of the negotiation process. During interest-based negotiations, lawyers (and any other team members in the interdisciplinary setting) assist the parties to identify the issues in dispute, evaluate all their options and to negotiate towards an agreement. 81

Skills of the collaborative practitioner [4.80] The skills of the collaborative practitioner are discussed in more detail in Chapter 7. However, in addition to the use of facilitative and negotiation skills, the collaborative practitioner provides advice on content and the range of likely outcomes. This advice is often given in open meetings but may (as noted above) also be provided separately to the client. During the course of each meeting, the client and practitioners may have “time out” or short meetings to consider options, suggestions and advice. Non-legal practitioners (such as financial, tax and child specialists) may attend joint meetings or may meet separately with parties outside of meeting times to assist in the future planning of financial and other options.

Timing [4.85] Many collaborative practice processes take between six to eight joint meetings before final agreement is reached although the number of meetings may be fewer (or greater) depending on the issues involved. Meetings are usually held every two to four weeks and there may be follow-up work that is done between meetings. This means that a collaborative process may typically take between three and six months to resolve all issues that are present between the parties (this time frame may be expanded if there is additional complexity). Where additional complexity is present or an impasse is reached, it may be that a mediator will be used to assist the collaborative team.

USE OF COLLABORATIVE PRACTICE IN NON-FAMILY AREAS [4.90] There has been a continuing growth in collaborative practice in the non-family area. Recent developments have suggested that collaborative practice may have benefits in disputes involving probate, professional negligence, insurance, construction, commerce, employment, the environment and elder

81

R Fisher, W Ury and B Patton, Getting to Yes: Negotiating Agreement Without Giving In (2nd ed, Random House, Sydney, 1991) pp 40-41 (originally Fisher and Ury, Getting to Yes: Negotiating Agreement Without Giving In, Houghton Mifflin, Boston, 1981).

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law. 82 As noted previously, in the United States there has been a recent movement to use collaborative law across a broader variety of disputes. 83 One commentator has stated that: Given the benefits realized and general success in the area of domestic relations, there has been a recent movement to apply collaborative law to other types of civil disputes where preserving relationships and privacy is important. The federal government has begun to include collaborative processes in the menu of services and training offered by entities such as the Federal Labor Relations Authority and the Bureau of Land Management of the US Department of Interior. Many areas of law are incorporating this relatively new form of alternative dispute resolution: probate, trust and estate, personal injury, business, real estate, construction, medical error, and employment. 84

However, this growth has been seen as problematic in areas where lawyers have long-term relationships with their clients. In the commercial arena, the requirement that lawyers disqualify themselves if the dispute is not resolved is difficult particularly where the client is a major corporate entity or where the lawyer has a long-term relationship with the client that they wish to continue. 85 A taskforce of the IACP met in August 2005 to explore how to best promote the use of this new approach in all areas of civil jurisprudence. The group decided that the “collaborative commitment” was essential – that is, in a collaborative matter the participants must sign a participation agreement requiring the lawyers to withdraw if settlement is not reached. This was viewed as a basic universal premise of all collaborative law and collaborative practice cases. 86 They recognised that some adaptations in lesser protocols may be necessary as the process expands into other areas of law. As a result of these concerns, there have been developments that are focused mainly around the disqualification provision. 87 For example, it has been suggested that disqualification should only ever attach to the individual practitioner (not the firm). However, this approach is difficult where the practitioner is an in-house counsel or sole practitioner. 88 The IACP has not sanctioned developments that are not described as collaborative practice. The various related forms are called “CL-lite”, “cooperative” litigation, “unilateral CL” 89 or “cooperative law” 90 or may rely on the use of settlement counsel. All are alternatives to collaborative practice where either the client or the lawyer’s 82

L Maxwell Jr, The Collaborative Dispute Resolution Process is Catching on in the Civil Arena (Unpublished Paper, IACP, Core Collaborative Practice Skills Institute, Dallas, 2005).

83 84

TA Lastovka, “Collaborative Law: A New Approach to Divorce” (2015) 32(1) GP Solo 54. TA Lastovka, “Collaborative Law: A New Approach to Divorce” (2015) 32(1) GP Solo 54, 57.

85 86

J Chanen, “Collaborative Counselors” (2006) 92 American Bar Association Journal 52. P Oswin, G Cox and P Novotna, “Collaborative Practice Mediation: Are We Ready to Serve this Emerging Market?” (2006) 6 Pepperdine Dispute Resolution Law Journal 451.

87

See a discussion in the (Fall 2004) 6(3) Collaborative Review for a useful discussion on this topic by David Hoffman.

88

M Endriss, “Designing Civil Collaborative Law for Employment Matters” (2006) 8(2) Collaborative Review.

89

See L Wallerstein, “A Unilateral Collaborative Law” (2003) Collaborative Law Journal. [4.90] 145

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firm is reluctant to use collaborative law. It has been noted that these forms of legal practice may be very helpful in the resolution of commercial disputes. 91

Research [4.95] There is some limited evaluation of collaborative processes within Australia; 92 however, in the United States and Canada there has been considerably more research and evaluation work that has been undertaken. The IACP has been conducting research surveys in relation to collaborative practice since 2006. 93 These extensive surveys involve practitioners reporting electronically on case characteristics and outcomes in jurisdictions across the world. More than 1000 cases have been analysed in various jurisdictions that use different collaborative practice models. In addition, small-scale intensive surveying is also undertaken by the IACP. A small-scale client survey of 98 matters in 2010 considered why clients chose collaborative practice and what they experienced. 94 The survey results suggest that clients experience high levels of satisfaction when engaging in collaborative processes: Why did the clients choose Collaborative Practice over the traditional litigation process? The most highly rated reasons on a 5 point scale, with all reasons ranked as very important, were clients’ expectations that the Collaborative Practice process would: result in a better outcome; better focus on what was most important to them (with this factor being significantly more important to female respondents than male respondents); be a less confrontational and adversarial process; be a more respectful process; and provide more client control over the outcome. Why did the clients choose Collaborative Practice over mediation? The most common client responses (n=17) included the following: clients felt they needed legal representation, and clients’ spouses suggested or requested that the Collaborative process be used. What was the outcome of cases reported on by clients? Ninety percent (90%) settled in the collaborative process and 10% terminated prior to settlement of all issues. No clients reconciled with their spouse during the Collaborative process. Clients’ retention or lack thereof of a financial professional or one or more mental health professionals did not alter the settlement rate. How satisfied were clients with Collaborative Practice? 90

See J Lande and G Herman, “Fitting the Forum to the Family Fuss – Choosing Mediation, Collaborative Law or Cooperative Law for Negotiating Divorce Cases” (2004) 42(2) Family Law Review 280.

91

See as noted by J Lande, “Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering” (2003) 64 Ohio State Law Journal 1315.

92

H Kha, “Evaluating Collaborative Law in the Australian Context” (2015) 26 Australian Dispute Resolution Journal 178. See also W Schwab, “Collaborative Lawyering: A Closer Look at an Emerging Practice” (2004) 4 Pepperdine Dispute Resolution Law Journal 351. In 2007, the IACP began to publish information about collaborative practice that was the result of practitioners reporting from around the world.

93

94

See IACP, Client Experience Surveys Completed for the International Academy of Collaborative Professionals (IACP) Research Project as of July 6, 2010, available on https:// www.collaborativepractice.com/members/resources/collaborative-practice-data.aspx.

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• Seventy-five percent (75%) of clients were somewhat or extremely satisfied with Collaborative Practice overall. For the 90% of clients whose cases settled, 79% were somewhat or extremely satisfied with Collaborative Practice overall. • Seventy-two percent (72%) of clients were somewhat or extremely satisfied with the outcome of their case. For the 90% of clients whose cases settled, 79% were somewhat or extremely satisfied with Collaborative Practice overall. • Seventy-five percent (75%) of clients were somewhat or extremely satisfied with the Collaborative Practice process. For the 90% of clients whose cases settled, 77% were somewhat or extremely satisfied with Collaborative Practice overall. • The retention by clients of a financial professional or one or more mental health professionals did not significantly alter clients’ satisfaction. 95

In the larger surveys conducted by the IACP and directed at collaborative professionals, there is additional information about how collaborative practice is used and the impact of the process on resolution. The following information is from Cases Reported to the Practice Survey as of July 6, 2010 International Academy of Collaborative Professionals Research Project. 96 Some key findings were: • • • • •

97 per cent of the 933 cases reported in the database involved divorces. 44 per cent of the cases had at least one mental health professional involved. 48 per cent of collaborative cases involved a financial professional. 97 per cent of the cases did not involve mediators. 43 per cent of cases used a team model. 42 per cent of cases were handled by lawyers only, 14 per cent used the referral model. There were regional variations. • 84 per cent of all collaborative divorce cases involved children. • 44 per cent of all cases were completed in less than seven months, and 58 per cent in less than nine months. Only 21 per cent took longer than a year, and 14 per cent took less than three months. • 96 per cent of all divorce cases had joint meetings with both spouses present. 56 per cent of cases reporting meeting data involved one or more meetings with all core professionals. In the cases that reported that meetings took place with all core professionals, 14 per cent reported only one meeting that included all the core professionals. 37 per cent reported five or more such meetings; the average number of these joint meetings was four. The average number of hours per meeting was approximately two and a half. • It is highly likely that the cases would either be completed with a settlement agreement (86 per cent) or by reconciliation (two per cent) (one per cent rated the result as “other”). • 40 per cent of collaborative cases were viewed as difficult or very difficult by the professionals on the case. 20 per cent were viewed as easy or very easy. 97 95 96

IACP, Client Experience Surveys Completed for the International Academy of Collaborative Professionals (IACP) Research Project as of July 6, 2010. See IACP, FAQs Based on Cases Reported to the Practice Survey as of July 6, 2010 Conducted by the International Academy of Collaborative Professionals Research Project, available on https:// www.collaborativepractice.com/members/resources/collaborative-practice-data.aspx.

97

See IACP, FAQs Based on Cases Reported to the Practice Survey as of July 6, 2010 Conducted by the [4.95] 147

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The IACP’s second large-scale research project, the Divorce Experience Survey, commenced in 2015. 98 The project will compare and contrast the divorce experiences of individuals who used collaborative practice, settlement processes other than collaborative practice, “do-it-yourself divorce” and traditional court processes. 99 The project will measure the satisfaction of these individuals with their divorce experiences. 100 In addition, a three-year, qualitative study of collaborative family law cases in Canada and the United States has been undertaken by Professor Julie Macfarlane. Macfarlane’s research objective was “to explore the differences that CFL [collaborative family law] makes to the process and outcome of divorce disputes, and in particular to assess its impact on the clients of family legal services”. 101 The study was not focused on the multidisciplinary team approach as this was only just emerging as a model of practice at the time of Macfarlane’s study. Macfarlane’s research involved 66 initial interviews with collaborative lawyers, clients and independent experts in nine locations across the United States and Canada. The following year, she analysed 16 recently contracted cases in Medicine Hat, Vancouver, Minneapolis and San Francisco. A total of 150 standard-form interviews were conducted with the lawyers, clients and independent experts involved in the 16 cases. The interviews sought reflective information about attitudes towards, and experiences of, collaborative law. 102 Macfarlane considers that “the exponential growth of collaborative family lawyering is one of the most significant developments in the provision of family legal services in the last 25 years”. 103 She drew the following conclusions about collaborative law: • Screening, mentoring and accreditation are issues that law societies and practitioners may need to address more carefully as collaborative practice develops.

98 99 100 101

102

103

International Academy of Collaborative Professionals Research Project, available on https:// www.collaborativepractice.com/members/resources/collaborative-practice-data.aspx. IACP, Current Research Study, available on https://www.collaborativepractice.com/members/ resources/current-research-study.aspx. IACP, Current Research Study, available on https://www.collaborativepractice.com/members/ resources/current-research-study.aspx. IACP, Current Research Study, available on https://www.collaborativepractice.com/members/ resources/current-research-study.aspx. J Macfarlane, The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases (Report, Family, Children and Youth Section, Department of Justice, Canada, 2005), Executive Summary, p vii. The full report is accessible at Department of Justice, Canada, on http:// www.justice.gc.ca/eng/rp-pr/fl-lf/famil/2005_1/pdf/2005_1.pdf. J Macfarlane, The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases (Report, Family, Children and Youth Section, Department of Justice, Canada, 2005), Executive Summary, p vii, available on http://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/2005_1/pdf/2005_1.pdf. J Macfarlane, The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases (Report, Family, Children and Youth Section, Department of Justice, Canada, 2005), Executive Summary, p vi, available on http://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/2005_1/pdf/2005_1.pdf.

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• The outcomes of the cases that were resolved either matched or exceeded the legal standard in most respects. Macfarlane noted that “many outcomes reflected value-added components including detailed and creative plans for co-parenting and access, support paid in different formats and enhanced communication”. • There is a high likelihood that collaborative negotiations will deliver creative and durable solutions to a range of legal, financial and emotional issues. It is rare for parties who engage in collaborative negotiations to make unrealistic demands on each other and their lawyers. • Most lawyers who offer collaborative services do so because the process of collaborative law reflects personal values and views more closely than litigation. Often lawyers are also motivated by a desire to offer a broader and more attractive range of services. Clients, on the other hand, are generally attracted to a faster and less costly method of dispute resolution. Macfarlane noted there was some evidence that other professionals were unsure about the role of the lawyer in the collaborative process and stated that “some therapists indicated that they were uncomfortable with the blurring of the boundaries between their role and that of some lawyers who assume a more therapeutic relationship with the client”. • Collaborative law reduces “the posturing and gamesmanship that characterises traditional lawyer-to-lawyer negotiations” as well as the tendency to make highly inflated or unrealistically low offers during negotiations. • Collaborative law maintains a “strong ideological commitment to cooperative negotiation”, which encourages open communication and information sharing between the parties and which has a “significant impact on the bargaining environment”. • Collaborative law clients “are expected to take on more responsibility for solving their own problems, by planning and participating in face-to-face negotiations. Those clients who recognised a change in control regarded it as a positive characteristic”. 104 Macfarlane noted the four-way meetings were found to generally: • avoid the reactive–defensive bargaining dynamics of traditional adversarial negotiations; • engender and sustain a climate of cooperative negotiation; and • produce results that are both fair within a legal standard and satisfactory to the parties. 105 Macfarlane also noted that there were ethical issues relating to withdrawal that could arise and that lawyers may be required to advise their client to

104

105

J Macfarlane, The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases (Report, Family, Children and Youth Section, Department of Justice, Canada, 2005), Executive Summary, pp vii-viii, available on http://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/2005_1/pdf/2005_1.pdf. J Macfarlane, The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases (Report, Family, Children and Youth Section, Department of Justice, Canada, 2005), Executive Summary, p ix, available on http://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/2005_1/pdf/2005_1.pdf. [4.95] 149

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withdraw. 106 There were also issues about cost and time with a small number of clients, who indicated that the process took longer and cost more than they had expected. In addition to this, issues about how much information should be disclosed in the process were raised. The issues related to whether: • all information should be disclosed; • only relevant information should be disclosed; or • whether anything or any information that could become relevant should be disclosed. Macfarlane noted that many of these issues could be addressed by the use of clear protocols and guidelines. She concluded that while there are challenges in the areas of ensuring clients understand the process and in managing client expectations of the time and costs involved, collaborative law “offers a chance for separating spouses to negotiate a solution that they deem ‘fair’”. 107 Other writers have suggested that collaborative practice can be viewed as part of a continuing trend toward more therapeutic jurisprudence approaches and that, in addition, it can transform the practice of law. 108 There is, however, no clear information or research about this impact, although a number of collaborative practitioners have written about their changed practice environment.

OTHER COLLABORATIVE PROCESSES – PARTNERING, DISPUTE REVIEW BOARDS (DRBS) [4.100] A range of different processes in the construction and commercial area are designed to promote collaborative and interest-based negotiation. Many of these are not oriented towards disputes but are directed at dispute avoidance and are sometimes known as Dispute Avoidance Processes (or “DAPs”). Essentially, these processes involve meetings that are intended to ensure that disputes can be dealt with quickly using an inclusive, interest-based process. 109 Whilst these processes can include Dispute Resolution Boards (“DRBs”) (also discussed at [6.75]) and partnering, each process could be said to be most closely related to collaborative practice and has emerged in the construction area. Each can, however, be viewed as both a dispute avoidance and resolution process as they involve those who are in a continuing relationship meeting and making consensual decisions about their interests, and developing strategies, procedures 106

J Macfarlane, The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases (Report, Family, Children and Youth Section, Department of Justice, Canada, 2005), Executive Summary, p xii, available on http://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/2005_1/pdf/2005_1.pdf.

107

J Macfarlane, The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases (Report, Family, Children and Youth Section, Department of Justice, Canada, 2005), Executive Summary, p xiv, available on http://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/2005_1/pdf/2005_1.pdf. P Tesler, “Collaborative Law: A New Paradigm For Divorce Lawyers” (1999) 5(4) Psychology, Public Policy and the Law 967. See a broader discussion at P Gerber and B Ong, Best Practice in Construction Disputes: Avoidance, Management and Resolution (LexisNexis, Sydney, 2013).

108 109

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and objectives to avoid future problems. The partnering group can be comprised of all those involved in a venture or relationship – such as unions, contractors and others – who will then meet regularly to exchange information, report on issues and evaluate the relationship. Partnering has been widely used in Asia (in particular, in Hong Kong) as well as in the United States and is often used informally in many business and other relationships. In contrast, DRBs will involve a team of experts who can support more effective meeting and dispute resolution processes. The Australian Competition and Consumer Commission (ACCC) has noted that common features of partnering relationships are agreed processes and procedures that are designed to: • enhance communication and facilitate development of constructive synergies between parties; • help parties work collaboratively to resolve problems without external assistance; and • help parties handle unresolved problems efficiently using a nominated facilitator. 110 There has been some limited research conducted into partnering processes. For example, Smythe and Pryke 111 embarked on a project to evaluate the value of partnering relationships in the construction industry. The project examined collaborative partnerships used across different organisations. Their findings led to a conclusion that if collaborative partnerships are to work effectively, there is a need to carefully consider and support the management of relationships that are part of a partnering collaboration. Multi-organisational teams, the involvement of team members and the private–public interface must be considered as part of the partnering project. Contracts and sub-contractors must also be included as otherwise communication is liable to break down. The development of social capital and addressing the significance of relationships is vitally important. The overseeing of relationships is an immense task; however, collaborative partnerships can construct and support powerful project working environments. 112 In contrast, DRBs which are the subject of further discussion in Chapter 6 (at [6.75]) tend to be used in large-scale construction projects 113 and involve

110

Australian Competition and Consumer Commission, Benchmarks for Dispute Avoidance and Resolution – A Guide (ACCC, 1997) p 20.

111

H Smyth and S Pryke (eds), Collaborative Relationships in Construction: Developing Frameworks and Networks (Wiley-Blackwell, Oxford, 2009) p 245. See also http://www.onlinelibrary.wiley.com/book/ 10.1002/9781444301069.

112

H Smyth and S Pryke (eds) Collaborative Relationships in Construction: Developing Frameworks and Networks, (Wiley-Blackwell, Oxford, 2009) p 245.

113

See The Dispute Resolution Board Foundation, available on http://www.drb.org/index.htm. [4.100] 151

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assembling a panel (usually three people) 114 who assist from the beginning of a project to conduct meetings, hold regular site visits, review project documentation and assist with informal dispute resolution. 115 Often, one of the board members is an experienced lawyer and the other members may have engineering and project management expertise.

Description: partnering and Dispute Resolution Boards [4.105] NADRAC has described “partnering” as follows: Partnering involves the development of a “charter based on the parties” [sic] need to act in good faith and with fair dealing with one another. The partnering process focuses on the definition of mutual objectives, improved communication, the identification of likely problems and development of formal problem-solving and dispute resolution strategies. 116

Dispute Resolution Boards have been described as follows: Dispute Resolution Boards are [A] panel of, generally, three independent and experienced persons who are jointly chosen and appointed by the contracting parties at the commencement of a project. The DB [dispute board] members become familiar with the construction project, and remain up-to-date with developments through regular site visits and meetings with the parties. The DRBs’ expertise and competence in the type of construction being performed enables them to understand potential complexities in the project, and their involvement with the parties and project enables them to help the parties prevent any conflicts that might arise, from escalating into disputes. 117

[4.110] Partnering resembles collaborative practice in that it involves requirements to disclose all relevant information during discussions. In addition, discussions are conducted jointly on a regular basis. However, partnering may not require the same level of commitment to an interest-based negotiation. In addition, partnering may involve the appointment of a facilitator; however, they may be drawn from the ranks of those who are present in the negotiation. It may well be that the materials and processes that develop in relation to collaborative practice 114

115 116 117

See P Gerber and B Ong, “Should DAPs be Included in Standard Form Contracts?” (2012) 143 Australian Construction Law Newsletter 6; P Gerber, “Alliances and Dispute Review Boards: Best Friends or Worst Enemies?” (2012) 10(1) Australian Journal of Civil Engineering 57, B Ong and P Gerber, “Dispute Avoidance Processes (DAPs) In Australia—Bringing The Future Into The Present” (2011) 141 Australian Construction Law Newsletter 51. For a comparison of different approaches, see Dispute Resolution Board Foundation, General Articles, available on http://www.drbf.org.au/document/general-articles. National Alternative Dispute Resolution Advisory Council (NADRAC), Dispute Resolution Terms (Paper, AGPS, 2003) p 9: see http://www.ag.gov.au. See B Ong B and P Gerber, “Dispute Boards: Is There a Role for Lawyers?” (2010) 5(4) Construction Law International 7, 8.

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will assist those who use partnering processes (as well as Dispute Resolution Boards, discussed at [6.75] in respect of open negotiation and advisory processes in commercial matters).

CONCLUSIONS [4.115] Collaborative practices appear to have emerged in response to a desire to mix advisory and interest-based approaches in a way that ensures information is exchanged in a negotiation in a transparent manner. The processes are directed at supporting “good faith” and interest-based negotiation and obligations – expressed through contractual guidelines which seek to ensure that these types of negotiation processes are used (see also Chapter 11 in relation to good faith at [11.30]). Collaborative processes also invite a reconsideration of theories relating to self-determination and empowerment by supporting disputant engagement with a problem-solving team approach. A number of theorists have suggested that collaborative processes may not only offer a more client-focused approach 118 but that they may also offer new and more satisfying ways for lawyers and others to work. 119 Although collaborative practice was initially directed at family disputes where participants were assessed as able to engage in an interest-based negotiation, the processes have now been extended beyond the family area. Collaborative practices have also been modified so that participants who may not initially have the “capacity” to negotiate in an interest-based manner can be supported by a range of professionals to develop these skills, even in relatively high-conflict situations. There is an increasing interest in Australia in ensuring that collaborative practice models are supported by government and that legislative changes can be made to ensure that such additional forms of conflict resolution are supported. Such changes are directed at institutional support 120 as well as legislative reform. 121 At the same time as collaborative process models have developed in the family area, partnering and DRB processes have developed to support better quality decision making in the construction area. Whilst these processes are not recognised as “collaborative”, they share many similar characteristics. These processes are likely to expand further in coming years. Notably, in relation to the possible extension of collaborative practice to the non-family area, in 2011, the then Australian Attorney-General said that he considered that collaborative 118 119 120 121

See A Zylstra, “A Call to Action: A Client-Centred Evaluation of Collaborative Law” (2011) 11(3) Pepperdine Dispute Resolution Law Journal 13, 457. See, for example, J MacFarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (UBC Press, Vancouver, 2008). For example, the Law Council of Australia established a Collaborative Practice Committee in 2007. See the recommendations in Family Law Council, Collaborative Practice in Family Law: A Report to the Attorney-General Prepared by the Family Law Council (Report, Attorney-General’s Department (Cth), 2006) item 2.6, available on http://www.ag.gov.au. This report includes recommendations about reforms in relation to confidentiality under ss 10H and 10J of the Family Law Act 1975 (Cth). [4.115] 153

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practices meet the criteria under the Civil Dispute Resolution Act 2011 (Cth) (CDRA), which requires many participants in civil federal disputes to take genuine steps to resolve disputes before commencing court proceedings. He said: “Given the object of collaborative law is to resolve a matter, I would anticipate that genuine participation in such process would likely be accepted as satisfying the requirement”. In addition he stated that just as compulsory mediation of family disputes had encouraged the development of collaborative law in family matters, it would be “… reasonable to expect that operation of the CDRA may similarly encourage the development of collaborative law in other areas of civil law”. 122

122

R McClelland, Australian Financial Review (22 July 2011), p 41. The CDRA is discussed in more detail in Chapter 11.

154 [4.115]

Chapter 5 Complaints [5.05] [5.10]

Introduction..................................................................................................................... 155 Complaint behaviour..................................................................................................... 157

[5.15] [5.20]

Technology and social networks ................................................................................. 160 Complaints systems – basic elements ........................................................................ 161 [5.25] Leadership and responsiveness ..................................................... 167 [5.30] Complaints policy ............................................................................ 169 [5.35] Accessibility ...................................................................................... 170 [5.40] Encouraging feedback ..................................................................... 171 [5.45] Responsiveness ................................................................................. 172 [5.50] Time frames and tracking complaints .......................................... 174 [5.55] Assessing complaints ...................................................................... 175 [5.60] Handling the complaint .................................................................. 176 [5.65] Resolving complaints ...................................................................... 177 [5.70] Gathering and using information ................................................. 180 [5.75] Monitoring and improvement ....................................................... 182 [5.80] Skills to manage and deal with complaints ................................ 183

[5.85]

Research about complaints........................................................................................... 186

INTRODUCTION [5.05] As noted in Chapter 1, a “complaint” is an expression of dissatisfaction or concern about goods, services, actions or inaction that is made by a complainant (often a consumer) or by another person on their behalf (for example, a carer or a member of staff). A complaint can be about any area of human activity – such as government services, the actions or inaction of a neighbour, online purchasing, health care, or the purchase or repair of a car. Complaints may be made in writing, through social media, expressed during discussions (at a frontline, telephone or other level such, for example, via web chat) or in a consumer feedback survey. The 2014 Australian Standard on Complaints (AS/NZS 10002:2014) defines a complaint a little more narrowly and by reference to an expectation that a response will be made: Expression of dissatisfaction made to or about an organisation, related to its products, services, staff or handling of a complaint, where a response is implicitly expected or legally required. 1

1

Standards Australia, Australian Standard (AS/NZS 10002:2014): Guidelines for Complaint Management in Organizations (2014). [5.05] 155

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In the past, it has been estimated that more than two million consumer complaints are made each year in the State of Victoria in Australia 2 – however, as with disputes, there is no comprehensive “counting” of complaints. It seems likely that the number is considerably higher than this because internal complaints relating to banks alone within Australia are likely to number many more than 1 million each year. 3 In the online dispute resolution area (ODR) (as noted in Chapter 10), many “disputes” could be categorised as “complaints” and it is likely in this area complaints number in the hundreds of millions around the world each year. 4 Unresolved complaints may become disputes – however, an unresolved complaint may also be left as “unresolved”’ to the dissatisfaction of the complainant concerned (this may mean that the complainant simply “gave up”). Complaints systems usually underpin dispute systems and many of the principles explored in Chapter 13 are also essential in the complaints handling area – however, complaints systems can differ from dispute systems as they often have an additional focus on risk management and quality assurance. Also, complaints can be used to assist organisations with improvements in the context of better systems, processes and people. Systems can therefore provide for a significant return on investment and can, under some circumstances, enhance reputation. Complaints systems are usually “internal” to an organisation, while dispute resolution systems will often incorporate external elements. 5 Complaints systems can be influenced by organisational cultures, standards, law, policy as well as other external factors. 6 In particular, in Australia, Australian Standards have focussed on the framework and processes needed to deal with complaints. 7 However, the skills of persons who deal with complaints 2

IPSOS Australia Pty Ltd, Alternative Dispute Resolution in Victoria – Community Survey 2007 Report (prepared for Department of Justice, Melbourne, 2007). See also http://www.consumer.vic.gov.au/ library/publications/resources-and-education/research/dispute-resolution-in-victoria-communitysurvey-2007.pdf.

3

For example, it has been noted that banking schemes within Australia may have as many as 100,000 “expressions of dissatisfaction” each month (see presentation by Rob Kennaugh (CBA) ‘Customer Satisfaction is Not Enough’ (Paper presented at SOCAP Symposium, Sydney, 19 August 2015). Whilst some of these expressions of dissatisfaction may be relatively minor and others may result in complaints and even disputes, most will be resolved or finalised with front line staff (95 per cent or more).

4

It has been estimated that e-commerce disputes will exceed 700 million disputes in 2015 and will exceed 930 million disputes in 2017. See Colin Rule (MODRIA), “Re-designing Processes for the Future” (Speech delivered at ODR Conference, Pace University, New York, 4 June 2015), available on http://law.pace.edu/odr-2015-agenda. Many of these disputes could be more properly categorised as “complaints”. This is not always the case – many “complaints” systems can reside outside organisations and should perhaps be referred to as a dispute resolution system (as they deal with identified disagreements).

5 6

7

Society of Consumer Affairs Professionals in Australia and the Australian Centre for Justice Innovation, Australian Competency and Ethical Framework For Complaint Professionals (Framework, SOCAP & ACJI, 2014) p 4. These include: Consumer Affairs Division, Department of Treasury, Industry Self-Regulation in Consumer Markets (Report, DT, 2000); Consumer Affairs Division, Department of Industry, Science and Tourism, Benchmarks for Industry-Based Customer Dispute Resolution Schemes (Benchmarks,

156 [5.05]

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– the complaints handlers – have often received little attention. The Australian Competency and Ethical Framework For Complaint Professionals 8 (Australian Competency and Ethical Framework), introduced in 2015, was designed to enhance and add value to the existing approaches dealing with complaints by considering the competencies and standards of practice of complaint professionals. Complaints can also be influenced by organisational size. Often small organisations will have limited resources to deal with complaints while larger organisations may have extensive departments (some of which may involve offshore staff). In addition, some organisations may have, regardless of their size, a significant commitment to dealing with complaints that is linked to improving products and services while others may have little engagement with complaint reporting. This chapter explores core complaints handling principles and system design issues, and also focuses on the skills and competencies necessary for effective complaints handling.

COMPLAINT BEHAVIOUR [5.10] Research about complaints suggests that consumers complain when they receive a “negative consumer surprise”. 9 That is, the consumer receives information that negatively impacts upon their perception of what could be expected in the transaction. More often than not the consumer has not had their needs met in one of the following areas: • Content. The item or service does not do what it should do, it breaks down, the problem is not fixed or the content is of a low standard. • Psychological. The consumer does not feel respected, valued or that they are important. • Process. The transaction took too long (or was too quick), insufficient information was provided or the process was not “fair”. Often consumers will not proceed with a transaction if procedural, psychological and substantive content fundamentals are not addressed during an initial DIST, 1997); National Alternative Dispute Resolution Advisory Council (NADRAC), Alternative Dispute Resolution Definitions (AGPS, Canberra, 1997); Standards Australia, Australian Standard 4608–1999: Guide to the Prevention, Handling and Resolution of Disputes (1999), which included negotiation criteria and was superseded by a standard that was directed less at processes and more focused on systemic design (AS 4608–2004: Dispute Management Systems); Australian Standard AS4269–1995: AS ISO 10002–2006: Customer Satisfaction – Guidelines For Complaints Handling in Organizations; Australian Securities and Investments Commission (ASIC), ASIC Regulatory Guide – Approval and Oversight of External Dispute Resolution Schemes, available on http://asic.gov.au/regulatoryresources/find-a-document/regulatory-guides/; Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014). 8

9

Society of Consumer Affairs Professionals in Australia and the Australian Centre for Justice Innovation, Australian Competency and Ethical Framework For Complaint Professionals (Framework, SOCAP and ACJI, 2015). The author was the primary writer of this Framework. See Evalue Pty Ltd and Psychologica, SOCAP Consumer Emotions Study 2003 (Report, SOCAP, 2003). This study surveyed 4000 consumers (9 companies). See also http://www.socap.org.au. [5.10] 157

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negotiation phase. If these needs are not met during any follow-up complaints process, research suggests that consumers may feel angry, disappointed or irritated and may escalate the complaint to the level of a dispute. If the needs of the consumer are met in a positive manner – and the consumer receives a “positive consumer surprise” 10 – this is likely to impact upon the way that the complainant perceives the organisation or person who has provided the service. Some organisations “trade” on providing a positive consumer surprise by providing information about products and services and exceeding expectations (initially and in any complaints phase) in the fundamental areas outlined above (for example, the Nordstroms stores in the United States). 11 With an increase in offshore complaint-handling centres, some Australian companies are more focused on providing an Australian call centre experience and regard this as providing them with a competitive trade advantage. 12 Complaints in all settings provide unique information about the needs of consumers and the quality and standards of services and goods provided. As such, complaints information forms an essential part of any risk management approach. As noted above, complaints systems often have additional objectives to those articulated for dispute resolution systems that are linked to quality assurance approaches. Quality assurance measures are based on two principles: 1.

services should be accountable to those who access them; and

2.

quality improvement requires a commitment to regular evaluation and measurement of quality improvements.

The themes represented in the quality improvement area are often replicated in the complaints handling area. For example, the work of Business Excellence Australia, 13 which is focused on developing organisational excellence through the delivery of high-quality services, is one area where complaints handling processes are considered as part of an overall commitment to improving quality. Other important works in this field have included the Disability Support Framework, which was developed in Queensland 14 and is oriented, in large part, on more effective complaints handling. This orientation means that a good complaints system should not only encourage people to raise concerns, but should also ensure that complaints 10

See Evalue Pty Ltd and Psychologica, SOCAP Consumer Emotions Study 2003 (Report, SOCAP, 2003) p18.

11 12

R Spector and P McCarthy, The Nordstrom Way (John Wiley and Sons, San Francisco, 2000). A Queensland Government inquiry noted the advantages of onshore call handling: see Queensland Department of Justice and Attorney-General, Queensland Government Code of Practice for Contact Centres (Queensland Government, 2011), available on http://www.justice.qld.gov.au/__data/assets/ pdf_file/0003/8976/ir-callcentres-code.pdf. See, for example, the Australian Business Excellence Framework 2007 (Framework, SAI Global Ltd and Standards Australia, Sydney, 2003): available http://www.saiglobal.com.

13 14

See Queensland Government, Quality Framework in the Disability Sector in Queensland (Framework, 2000).

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facilitate improvements. An effective complaints system will also save time and cost by resolving complaints in an effective and timely manner and will prevent unnecessary dispute escalation. An effective complaints system will therefore: • assist in improving safety and quality by providing information about a complainant’s experience; • assist an organisation to track and report systemic issues identified through the complaints process to reduce complaints and improve products and services; 15 • assist in restoring a complainant’s trust and confidence; • assist in monitoring whether effective action has been taken to prevent the causes of complaints; • provide an opportunity for the reputation of the provider to be enhanced; • assist an organisation to maintain a competitive edge and prevent negative publicity; • provide a low-cost source of information about consumer expectations; • save management time because complaints are resolved quickly and simply without resorting to more complex dispute resolution processes; and • promote a culture of reporting and accountability. The complaints systems that operate in the Australasian region seem to provide examples of very evolved systems in some sectors and more primitive systems in others. There are evaluations conducted from time to time that focus on particular segments of industry (these can be driven by external dispute resolution providers – see Chapter 9). For example, the Resilient Consumers Report that was produced by the Telecommunications Industry Ombudsman (TIO) 16 found that many complaints in the telecommunication area arose because of the way in which initial contact with the consumer took place. For example, the TIO found that: Customer service and complaint handling issues remained prevalent in new complaints. In this respect, while our complaints data indicated a decline in complaints about customer service wait times and inability to access service provider support areas, we also noted the increase in complaints about the accuracy of advice being given by service provider support areas and also the growth in complaints about service providers failing to action undertakings given to resolve matters. 17 15

16

17

Society of Consumer Affairs Professionals in Australia and the Australian Centre for Justice Innovation, Australian Competency and Ethical Framework for Complaint Professionals (Framework, SOCAP and ACJI, 2014). See Telecommunications Industry Ombudsman, The Resilient Consumers Report (Report, TIO, 2011), available on http://www.tio.com.au/__data/assets/pdf_file/0020/9434/Resilient-Consumers-ReportAug-2011.pdf. See Telecommunications Industry Ombudsman, The Resilient Consumers Report (Report, TIO, 2011), available on http://www.tio.com.au/__data/assets/pdf_file/0020/9434/Resilient-Consumers-ReportAug-2011.pdf p 2. [5.10] 159

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TECHNOLOGY AND SOCIAL NETWORKS [5.15] As discussed in Chapter 10, technology and social networking has had a growing and significant impact on complaints processes. Prior to the creation of web-based social networking sites, individual complaints were ordinarily not visible to a broader population and as a result consumers and others were often not aware of complaint issues when making purchasing and other decisions. The increased use of social media in society has transformed the way in which many organisations now deal with their complaints processes and this is likely to have a continuing impact into the future. Twitter, Facebook or any other social media sites, or professional networking sites (LinkedIn) have enabled customers to have a public platform on which to criticise a company that may have significant consequences to its reputation. Other sites have enabled extensive public airing of grievances to take place. For example, YouTube has been used to enable some customers to complain about products and services. 18 This changing backdrop to complaints handling has had a number of effects: 1.

Organisations may find that a complaint “goes viral” if it is not attended to.

2.

Complaints may be played out in a public forum with organisations having increased difficulties in terms of brand and reputation protection.

3.

Organisations may find that “customers” or “clients” are now likely to be drawn from an ever widening pool. Technological changes mean that cross-border transactions are now more common than at any time in the past. Consumers from different jurisdictions may have different expectations of consumer handling and complaints frameworks, and consumers with specific limitations and disabilities can use technology in their daily lives, which also affects their expectations around complaints handling. (This feature of modern-day complaints handling and dispute resolution is explored further in Chapter 10.)

4.

The rapidly changing and expanding technological environment has also meant that companies are more likely to maintain a presence on the major social networks.

5.

Changing technology means that complaints handling processes are more likely to include online processes (forms and information) as well as social media, Skype, VOIP and even text messaging options. Processes need to ensure relevance in relation to progress in such fields as science, technology and systems. 19 For example, organisations might make their complaints processes more accessible by using social media and by providing toll free numbers, text telephone services (for people with

18

The famous United Airlines Broke my Guitar YouTube video has had more than 10,000,000 hits: see http://www.youtube.com/watch?v=5YGc4zOqozo. Other YouTube videos give detailed instructions to people on how to complain and also about poor consumer experiences. Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014).

19

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hearing impairments), access to interpreting/translating services, use of Relay Services 20 and acceptance of complaints via other technology such as video calls. 21 These changes mean that existing standards and processes used to deal with complaints need to rapidly evolve. On the one hand, many of the changes may make it easier for organisations to engage in accurate data mining to use complaints and other data to improve their operations. In addition, the changes can improve consideration and response times to systemic trends. On the other hand, the changes, the immediacy of social networking and the newer technologies mean that organisations need to be far more responsive to complaints and ensure that processes are clearly articulated and can be defended (or even used to maintain brand loyalty or to foster a “market edge”).

COMPLAINTS SYSTEMS – BASIC ELEMENTS [5.20] There are a number of Australian standards and reports that are relevant to complaints handling. 22 For smaller organisations, many of these elements can be confusing and perhaps unnecessary. However complaints can “make or break” any organisation and as a result a specific complaints toolkit has been prepared to assist smaller organisations. 23 The Australian standards suggest that effective complaints systems will have certain characteristics and more recent work in the area of complaints standards has focused on using complaints to enhance quality and to identify and manage risk. This additional focus can mean that there is a concentration on more advisory and investigatory processes (see Chapter 6). This can be problematic as such processes may be less satisfying. In

20

For example Australian National Relay Service and New Zealand Relay Service (a phone solution for people who are deaf or have hearing or speech impairments).

21

Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014) p 22. These include: Consumer Affairs Division, Department of Treasury, Industry Self Regulation in Consumer Markets (Report, DT, 2000); Consumer Affairs Division, Department of Industry, Science and Tourism, Benchmarks for Industry-Based Customer Dispute Resolution Schemes (Benchmarks, DIST, 1997); National Alternative Dispute Resolution Advisory Council (NADRAC), Alternative Dispute Resolution Definitions (Paper, AGPS, 1997); Standards Australia, Australian Standard 4608–1999: Guide to the Prevention, Handling and Resolution of Disputes (1999), which included negotiation criteria and was superseded by a standard that was directed less at processes and more focused on systemic design (AS 4608–2004: Dispute Management Systems); Australian Standard AS4269–1995: AS ISO 10002–2006: Customer Satisfaction – Guidelines For Complaints Handling in Organizations; Australian Securities and Investments Commission (ASIC), Approval and Oversight of External Dispute Resolution Schemes, Regulatory Guide 139 (2011), available on https://www.westpoint.asic.gov.au; Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014). See Australian Centre for Justice Innovation, Professional Standards in Complaints Handling, available on http://www.monash.edu/law/centres/acji/research/complaints-handling.

22

23

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1999 the Consumer Redress Study 24 reported that there were particular problems with complaints schemes that promoted advisory and determinative processes. 25 In 2004, an international standard on complaints management was produced by the International Organization for Standardization (ISO). The international standard (ISO 10002–2004: Quality Management – Customer Satisfaction – Guidelines for Complaint Handling in Organizations) sets out guiding principles such as visibility, accessibility, responsiveness, objectivity, charges, confidentiality, customer-focused approaches, accountability and continual improvement. 26 The complaints handling framework (as with many existing models and those that operate in the dispute resolution sphere) refers to commitment, policy, responsibility and authority, planning and design, communication (including responsiveness, tracking and investigation), maintenance, improvement and auditing. 27 ISO 10002–2004 does not, however, suggest what types of dispute resolution processes may be used for handling complaints and this approach accords with international variations in complaints handling (in some cultures, investigation and “determination” rather than more facilitative dispute resolution may be the norm). In 2006, Standards Australia published an updated Australian standard on complaints handling entitled AS ISO 10002–2006: Customer Satisfaction – Guidelines for Complaints Handling in Organizations. 28 This standard was based largely on ISO 10002–2004. Also in 2006, Standards Australia produced a handbook on complaints management, The Why and How of Complaints Handling (HB 229–2006). In relation to initiating a complaints handling system, Standards Australia advocated commitment from the top, effective planning and design, sufficient resources and skills, complaints handling procedures, disputeprevention mechanisms, management responsibility and authority, visibility, accessibility and responsiveness. The handbook states that an effective complaints handling system will increase brand loyalty, decrease negative publicity and assist in executing an effective compliance program. In 2014, a new Australian standard was prepared by the Joint Standards Australia/Standards New Zealand Committee QR-015, 29 Complaint Handling, to supersede, AS ISO 10002–2006, Customer Satisfaction – Guidelines for Complaints Handling in Organizations (ISO 10002:2004, MOD). This standard is based on but not equivalent to ISO 10002:2004, Customer Satisfaction – Guidelines. This revised 24

Commonwealth Department of the Treasury, Consumer Redress Study (Report, CDT, 1999).

25

Referred to in NADRAC, A Framework for ADR Standards (Report, Attorney-Generals Department, 2001) p 28. International Organization for Standardization, ISO 10002–2004, Quality Management – Customer Satisfaction – Guidelines for Complaint Handling in Organizations (2004) pp 3 and 4. See http:// www.iso.org/iso.

26

27

International Organization for Standardization, ISO 10002–2004, Quality Management – Customer Satisfaction – Guidelines for Complaint Handling in Organizations (2004) pp 5–10.

28

Standards Australia, Australian Standard ISO 10002–2006: Customer Satisfaction – Guidelines for Complaints Handling in Organizations (2006).

29

The author was a member of this committee and the committees involved in the previous standards.

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edition, referred to as AS/NZS 10002:2014, is intended for complaint management in organisations, incorporating new perspectives and approaches to complaints handling that have proved effective over recent years, and reflects the trend away from quality management approaches in the complaint management/ dispute resolution field. 30 The standards’ introductory comment notes that the standard is a “living document” which will continue to evolve thereby reflecting progress in science, technology and systems. 31 The standard has been referred to as a benchmark for “best practice” and seeks to provide a higher level of public confidence in an organisation by establishing an environment that encourages feedback and complaints and one in which where complaints are managed in a timely and fair manner. 32 This new standard set out guidelines for effective complaints management under the following general headings: 33 • Enabling complaints, including recommendations relating to: • having a people-focus with no detriment to the complainant; • visibility and transparency via well-publicised information about how to make a complaint; • accessibility to everyone including those who need assistance; and • no fees being charged for making a complaint. • Managing complaints, including guidelines relating to: • responsiveness and advice to complainants about processes and timelines; • objectivity and fairness as well as non-interference with conflicting interests; • complaints being addressed in an equitable manner as well as the importance of organisational policies relating to the issue of unreasonableness of complaint behaviour; • privacy, disclosure and associated ethical obligations; and • communication including explanations around policies and procedures. • Managing the parties, including guidance in relation to: • clear policies regarding the behaviour of both complaints handling staff and complainants; • ensuring the health and safety of the complaints professionals; • pre-arranged communication and information exchange where there are multiple parties involved in a complaint or where multiple areas of the organisation are involved; and 30

Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014).

31

Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014). Queensland Ombudsman, Good Decision Making Guide – 2007 (Guide, Queensland Ombudsman, 2007) p 10.

32 33

Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014). [5.20] 163

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• empowerment of complaints handling staff to implement the complaints handling system as required by their role. • Accountability, learning and prevention including suggestions relating to: • complaints management staff having clarity about their accountability for the operation of the complaints management system; • organisations learning from complaints to ensure continual quality improvement; and • organisations developing systems to prevent escalation of disputes into ongoing and intractable disputes. The key changes in Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations, as compared with the previous Standard (AS ISO 10002–2006: Customer Satisfaction – Guidelines for Complaints Handling in Organizations) are: 34 • The new definition of a complaint has been broadened to include complaints made to a third party about an organisation, and includes complaints being made about staff, as well as the notion that a response to the complaint might be legally required; • The increased responsibility of the Chief Executive in relation to promotion of awareness of complaint handling policy and procedures, cultivating a people focus throughout the organisation, ensuring information about the complaints handling policy is easily accessible, appointment of a complaints handling manager with clearly defined responsibilities and authority, implementation of a process for timely and appropriate notification to senior management of any significant complaints or systemic issues identified through complaints, a process for regular reporting, and ensuring complaints are managed effectively; 35 • The emphasis of the importance of continual training for complaints handling staff; • The emphasis of the importance of recording and reporting as well as the implementation of Root Cause Analysis processes; • The importance of any review/escalation of a decision being managed by departments other than the staff/department who originally dealt with the complaint; and • The increased customer/people focus.

Some complaints handling systems are now said to be compliant with the 2006 complaints handling Australian standard, and a number of systems are in the process of becoming compliant with the new Australian standard. However, some complaints handling systems continue to also rely on the Consumer Affairs Division, Department of Industry, Science and Tourism benchmarks that were promulgated in 1997. The Benchmarks for Industry-based Customer Dispute 34 35

Summary by Naomi Burstyner, Senior Researcher, the Australian Centre for Justice Innovation, Monash University, 2015. Distilled from SOCAP Standards Webinar Express, 31 March 2015.

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Resolution Schemes were first introduced in 1997 and reviewed and republished in February 2015. This publication sets out key areas that are discussed in this chapter in more detail, and has also been relied upon by ASIC in Regulatory Guide 139 (2013). 36 The benchmarks are important because some external dispute resolution schemes that require ASIC approval must comply with these requirements. The benchmarks are complementary to the Key Practices for Industry-based Customer Dispute Resolution which provide dispute resolution services with practical ways of implementing the benchmarks in their schemes. 37 The National Mediation Accreditation System (NMAS) (which commenced on 1 January 2008 and was revised on 1 July 2015) requires that mediators who wish to be accredited must belong to a Recognised Mediation Accreditation Body (RMAB) that has “a complaints system that meets the Benchmarks for Industrybased Customer Dispute Resolution Schemes, or the ability to refer a complaint to a scheme that has been established by statute …”. 38 The six underlying principles of the Benchmarks for Industry-Based Customer Dispute Resolution Schemes are: 1.

2.

36

37 38

Accessibility Underlying principle: The office makes itself readily available to customers by promoting knowledge of its services, being easy to use and having no cost barriers. Purpose: To promote access to the office on an equitable basis. Independence Underlying principle: The decision making process and administration of the office are independent from participating organisations. Purpose: To ensure that the processes and decisions of the office are objective and unbiased, and are seen to be objective and unbiased. The original benchmarks are discussed in detail at http://ccaac.gov.au/2013/04/24/review-of-thebenchmarks-for-industry-based-customer-dispute-resolution-schemes/. The updated 2015 benchmarks can be found at http://www.treasury.gov.au/PublicationsAndMedia/Publications/2015/ benchmarks-ind-cust-dispute-reso. See also ASIC, Approval and Oversight of External Dispute Resolution Schemes, Regulatory Guide 139, available on http://www.asic.gov.au/regulatory-resources/ find-a-document/regulatory-guides/rg-139-approval-and-oversight-of-external-complaintsresolution-schemes/. The benchmarks were developed prior to the Australian Standard 4608–1999: Guide to the Prevention, Handling and Resolution of Disputes (1999), which included negotiation criteria and was superseded by a standard that was directed less at processes and more focused on systemic design (AS 4608–2004: Dispute Management Systems), and drew upon the earlier standards on complaints handling. The website of the Treasury, Australia (March 2015), available on http://www.treasury.gov.au/ PublicationsAndMedia/Publications/2015/benchmarks-ind-cust-dispute-reso. See s 3(5) of the National Mediation Accreditation System (NMAS): Approval Standards (2008) reproduced in Appendix E, available on http://www.nadrac.gov.au (accessed 8 August 2011). See also the Mediator Standards Board at http://www.msb.org.au/sites/default/files/documents/ NMAS%201%20July%202015.pdf. [5.20] 165

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3.

Fairness Underlying principle: The procedures and decision making of the office are fair and seen to be fair. Purpose: To ensure that the office performs its functions in a manner that is fair and seen to be fair.

4.

Accountability. Underlying principle: The office publicly accounts for its operations by publishing its final determinations and information about complaints and reporting any systemic problems to its participating organisations, policy agencies and regulators. Purpose: To ensure public confidence in the office and allow assessment and improvement of its performance and that of participating organisations. Efficiency Underlying principle: The office operates efficiently by keeping track of complaints, ensuring complaints are dealt with by the appropriate process or forum, and regularly reviewing its performance. Purpose: To give the community and participating organisations confidence in the office and to ensure the office provides value for its funding. Effectiveness Underlying principle: The office is effective by having an appropriate and comprehensive jurisdiction and periodic independent reviews of its performance. Purpose: To promote community confidence in the office and ensure that the office fulfils its role. 39

5.

6.

Clearly, complaints systems can form part of a more comprehensive dispute management system. However, complaints systems are more likely to focus on risk management and dispute avoidance. As noted above, if a complaint becomes a dispute, it may be referred to an external dispute system. Approaches to complaints handling stress the following basic principles: 40 • A consumer has a right to complain and to have complaints handled in an appropriate manner. • Complaints provide feedback on experiences. • Complaints give organisations an opportunity to maintain confidence. 39

See 4 March 2015 Release, available on, http://www.treasury.gov.au/PublicationsAndMedia/ Publications/2015/benchmarks-ind-cust-dispute-reso.

40

See Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014) p 6.

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In the context of system requirements (that are explored in more detail below) a complaints management system should: • promote policies and processes to deal with complaints as part of an overall product and services continuous quality improvement program; • • • • •

be accessible, easy to use and encourage feedback; respond promptly and sensitively to complaints; assess all complaints to determine appropriate responses; resolve complaints and investigate in a complete and fair manner; manage information so that relevant facts and decisions are communicated while confidentiality and personal privacy are protected;

• record all complaints to review cases, identify trends and risks, and report on improvements; and • use complaints information to improve complaints services and regularly evaluate the performance of the complaints system (for example, to ensure that it is functioning in a responsive manner and meeting criteria).

Leadership and responsiveness [5.25] As with dispute system design (discussed in Chapter 13), an essential part of any complaints system relates to the culture of the organisation and the leadership approach to complaints handling. It is also essential from a risk management and quality control perspective that leaders within organisations become involved and are responsible for complaints management systems.

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For complaints to be taken seriously, a positive attitude towards consumers and complaints must be fostered 41 and complaints professionals should have a people-focused and pro-active approach to seeking and receiving feedback and complaints. 42 Furthermore, the AS/NZS 10002:2014 includes guidelines which ensure that no detriment should be suffered by the complainant for making a complaint. 43 In the past, complaints may have been viewed by organisations as an unjustified or unwelcome challenge. Barlow notes that: Complaining has never had a positive meaning. It comes to us through the Latin verb plangere, and it originally meant to “hit” metaphorically to “beat one’s breast”. 44

Promoting positive attitudes to consumer feedback, including complaints, is crucial in ensuring that a complaints system works effectively. Responding appropriately to complaints is important in preventing a grievance from escalating into a dispute and also in restoring trust. Lack of acknowledgment of complaints and lack of follow-up are among the most common areas of dissatisfaction with complaints processes. Often, consumers may be reluctant to express dissatisfaction and need to be encouraged to provide feedback, including complaints. The first step in establishing an effective complaints system is to ensure that all staff promote consumer-focused processes and are committed to improving quality. This can occur when: • organisational leaders promote and are responsible for consumer-focused processes and complaints processes; • there are policies on effective communication and complaints management that are understood and used by staff; • staff are trained, resourced and supported when handling complaints; • it is easy for clients to complain and information is made available on complaints processes; • assistance is provided to consumers who need it and encouragement given to those who might not otherwise complain as a result of culture or health status; and • feedback is actively sought from complainants and staff. A key factor in effective complaints systems is the involvement, commitment and support of those in authority within the organisation as they can have a significant impact upon staff attitudes. Leaders in health care services need to “walk the talk”, that is, they need to take responsibility for complaints 41

See International Organization for Standardization, ISO 10002–2004: Quality Management – Customer Satisfaction – Guidelines for Complaint Handling in Organizations (2004).

42

See Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014) p 6. See Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014) p 6.

43 44

J Barlow and C Moller, A Complaint is a Gift; Using Customer Feedback as a Strategic Tool (Berrtt–Koehler, United States, 1996) p 1.

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management, treat complaints seriously, promote complaints processes, and be prepared and willing to act on complaints. In addition, in larger organisations clear reporting structures need to exist so that systemic and important issues can be addressed. 45

Complaints policy [5.30] Effective complaints handling systems emphasise joint problem solving and communication rather than a more narrow focus only on investigation and advice. This emphasis enables complaints to be resolved as early as possible and can save staff time and cost. Having a clear policy on complaints management is essential to: • encourage feedback and complaints; • assist in the handling, investigation and referral of complaints; • resolve complaints; and • ensure that risk management and reporting takes place. Some organisations also use a statement of values to help promote a positive approach to feedback, for example: Consumer feedback is important because it helps us to learn how to improve. If you have a concern or are not satisfied, discuss it with one of our staff or send us a note so that we can put things right.

However, for a policy to be effective it needs to be backed up by procedures that are understood and used by staff. Staff dealing with complaints need to be trained and supported. Importantly, they also require: • easily accessible complaints handling procedures and reference material; • a good complaints handling environment (interview facilities and a private space); • adequate work tools – telephone, computer, fax machine, printer and copier; • secure facilities to record and store information on complaints; and • access to all levels of an organisation that may be necessary to resolve the complaint. Staff responsible for complaints management may (especially in large organisations) have specialist expertise and skills in conflict resolution. For example, a complaints manager needs to: • have skills in assessing a complaint, gathering information, managing the process, communicating, negotiating and being impartial; • be ethical – in promoting the service, eliciting information, ensuring participation, exhibiting a lack of bias, and maintaining confidentiality and impartiality; 45

Complaints systems often differ from dispute systems in that the focus on risk assessment and analysis may be greater. [5.30] 169

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• have a good cooperative approach to communication with all relevant staff and the complainant, and be able to identify and acknowledge concerns, show understanding by use of listening and questioning skills, and use language and terminology appropriately; • be readily accessible, well-organised and consistent; • have sufficient authority and be in a position senior enough to ensure cooperation and address issues; and • report to senior management on a regular basis.

Accessibility [5.35] According to the Benchmarks for Industry-based Customer Dispute Resolution Schemes, the underlying principle of the accessibility benchmark is that: The scheme makes itself readily available to customers by promoting knowledge of its existence, being easy to use and having no cost barriers. 46

The Australian Competency and Ethical Framework explicitly states that it acknowledges that: … good complaint handling systems save time, money and relationships. 47

Furthermore, … effective complaint handling requires systems, processes and people oriented towards the responsive, respectful and meaningful resolution of issues. 48

The benchmarks incorporate practices relating to: • awareness of the scheme; • entry into the scheme; and • cost and other barriers within the scheme. Issues about access to a complaints scheme vary according to the industry sector. For example, in the healthcare sector, family members and others who care for a consumer are responsible for a large proportion of complaints. In one study in the United Kingdom, carers made up 40 per cent of complainants. 49 In Australia, carers are thought to make up at least 20 per cent of complainants to health care services. This means that for a health care complaints system to be effective, it must provide a range of access opportunities. 46

47

See discussion about original benchmarks discussed in detail at http://ccaac.gov.au/2013/04/24/ review-of-the-benchmarks-for-industry-based-customer-dispute-resolution-schemes/. The updated 2015 benchmarks can be found at http://www.treasury.gov.au/PublicationsAndMedia/Publications/ 2015/benchmarks-ind-cust-dispute-reso. Society of Consumer Affairs Professionals in Australia and the Australian Centre for Justice Innovation, Australian Competency and Ethical Framework For Complaint Professionals (Framework, SOCAP & ACJI, 2014) p 4.

48

Society of Consumer Affairs Professionals in Australia and the Australian Centre for Justice Innovation, Australian Competency and Ethical Framework For Complaint Professionals (Framework, SOCAP & ACJI, 2014) p 4.

49

See L Mulcahy, Disputing Doctors – The Socio-Legal Dynamics of Complaints About Medical Work (Open University Press, Berkshire, 2003) p 83.

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There is also evidence that only a minority of aggrieved consumers complain. 50 For example, in the health care sector consumers may not complain because they: • feel loyalty towards a practitioner or service; • want to put an unpleasant experience behind them or avoid confrontation; • do not think that complaining will do any good; • do not know how to complain or what processes are available; and • fear it could impact upon future treatment or the availability of treatment. 51 Complaint systems therefore need to be made available to anyone who could make a complaint about goods or services. This could include consumers, carers, family, staff, volunteers and others (for example, visitors). A system should also enable anonymous complaints to be made – this can be done by ensuring that complainants understand that giving their name is optional. An evaluation of complaints systems will explore whether there are any reporting trends – for example, are some client or consumer groups not making complaints? And if so, is this because the system is too hard to use?

Encouraging feedback [5.40] A complaints system needs to be well promoted to consumers, staff and others so that all complainants feel comfortable about raising concerns, are assured that private information will remain private, and that the processes and outcomes will be appropriate. Strategies to encourage consumer feedback and complaints will vary according to the type and size of an organisation. For example, larger organisations may have a designated telephone number and may also have consumer advocates. In acknowledgment of the reality that small organisations might receive few complaints and might have limited resources to set up and maintain a complaint management system, AS/NZS 10002:2014 provides guidance about how these organisations can focus their attention to achieve maximum effectiveness and efficiency in their systems. In general, active communication can be encouraged by: • ensuring that information about the complaints system is presented in clear, uncomplicated large-print form on how, when, where and to whom complaints can be made; • ensuring that there are simple and accessible arrangements for lodging complaints; • ensuring that staff are responsive and treat all complaints seriously; • promoting and advertising the complaints scheme and providing information for consumers; • asking for feedback when talking with consumers and their families (or using a suggestion/improvement box); 50 51

T Sourdin, “An Alternative For Who? Access to ADR Processes” (2007) 10(2) ADR Bulletin 26. See L Mulcahy, Disputing Doctors – The Socio-Legal Dynamics of Complaints About Medical Work (Open University Press, Berkshire, 2003) pp 85-88. [5.40] 171

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• having verbal complaints forms as well as written complaints forms available; • training staff to be proactive, cooperative, non-tactical and to listen to complaints; and • ensuring that any information provided is simple and easy to understand. Consumers need to be informed about how and to whom to complain. Different strategies may be required for different client groups and organisations. Diverse client groups might need to have information about the complaints system available in a range of formats such as: • brochures and signage in a range of languages; • audio-tapes (for those who may have difficulty reading information) as well as DVD and other material (both online and offline); • specially trained staff who may support different client groups.

Responsiveness [5.45] Some core indicators of a responsive complaints system are:

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• where an organisation promptly acknowledges all complaints received and assesses and advises the complainants about processes and timelines, and gives appropriate priority in accordance with the urgency of the complaint; 52 • all staff can recognise consumer concerns and complaints and can assist in avoiding or minimising disputes; • complaints handling is the responsibility of everyone in the organisation; • all complaints that are not resolved at the point of service are acknowledged within 48 hours and complainants are told about the system, what to expect and given external referral information; • complaints are resolved within reasonable time frames that are set out in the policy; and • complaints are tracked and complainants informed about what is going on. The first step in establishing a responsive complaints management system is to consider how concerns and complaints are currently communicated and what it is that complainants experience. 53 Some organisations code or grade the level of complaints to promote greater responsiveness. For example, there may be three levels of complaints handling: 1. 2. 3.

informal – simple, straightforward matters that frontline staff can resolve on the spot; formal – more complex matters that may need to be referred to a supervisor or complaints manager for assessment; external review and notification – complex or unresolved complaints that may be referred to external mediation, or complaints that raise serious legal or regulatory issues that need to be referred to an external body.

For a complaints system to work, all staff need to be able to: • listen; • • • •

use clear language and avoid inflammatory language; have appropriate interpersonal skills; give and receive feedback; and act on a complaint and know how to report and refer it.

As noted in AS/NZS 10002:2014, in order to implement these practices, staff should also be supported by policies and procedures to ensure their health and safety and should be empowered in relation to their role. 54 In general, responsive communication requires: • an attentive, friendly and respectful manner; 52 53 54

See Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014). G Knox and R van Oest, “Customer Complaints and Recovery Effectiveness: A Consumer Base Approach” (2014) 78(5) Journal of Marketing 42. See Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014). [5.45] 173

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• methods of communication that are appropriate to the complainant. Written communication (social media, email and other forms) needs to be clear and simple, and telephone calls and face-to-face follow-up meetings can be important in clarifying and conveying information; • an understanding that different clients have different needs. More challenging clients may require additional contact and flexibility; and • prompt acknowledgment of concerns.

Time frames and tracking complaints [5.50] A major cause of dissatisfaction with consumer complaint handling relates to the long time frames that can be involved and not providing information about what is happening to those persons concerned with the complaint. Responsive complaints handling systems have clear policies on time frames. For example, in the past time frames included that: • all complaints not resolved at the point of service will be acknowledged within 48 hours; • information is provided about the next steps, who to contact and what to do if the complainant is not satisfied within 48 hours; • 80 per cent of complaints will be resolved within six weeks – the time frames adopted will usually be based on existing approaches and what is reasonable and appropriate for the relevant sector and consumers; • 90 per cent of complaints will be resolved within three months; • any letters will be acknowledged within five working days; • telephone calls and email will be responded to within three working days; • complainants and staff who have not had contact with the complaints system for two weeks (for example, if an investigation is being carried out) will be updated about what is happening by a letter or telephone call. However these response times are arguably not appropriate in the context of new technological developments. Some large complaints handling organisations may for example have benchmarks that include responding to 97 per cent of social media complaints within five minutes. 55 Others have noted that in large business, complaints handling needs to be done “around the clock” and that many complainants now expect fairly immediate responses. 56 Keeping complainants informed – even when there is “no news” or “no change” – is an essential part of responsiveness. According to AS/NZS 10002:2014, complainants should be advised as soon as practicable, where the organisation is unable to

55 56

Jo Boundy, “Connecting Passengers – A New Route for Qantas” (Presentation at SOCAP Symposium, Sydney, 19 August 2015). See R Sprung on “4 Examples of Excellent Twitter Customer Service”, Social Media Examiner (1 August 2013), available on http://www.socialmediaexaminer.com/exceptional-customer-service-ontwitter/.

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deal with either part or all of their complaint. 57 This requires a system to record and track the progress of a complaint, which may involve: • a simple complaints form; • a complaints book or computer-based system, from a simple Excel spreadsheet to a much more evolved system; • a secure filing system to ensure that all records are properly maintained. Using tracking sheets enables complainants and staff to be updated quickly about what is happening with a complaint. This is important in large organisations, which may manage many complaints, as well as smaller organisations where staff may work part-time or frequently change-over.

Assessing complaints [5.55] Assessment enables complaints to be managed effectively and ensures that internal or external referral takes place where appropriate. Initially, a decision needs to be made about whether the complaint can be dealt with at the point of service, what process should be used or if further review or investigation is required. An organisational complaints policy should have criteria that set out the types of complaints that can be dealt with at point of service and those that require further action. To assess how to deal with a complaint, staff need to: • be attentive and try to understand the problem (sometimes a minor complaint may mask a more serious complaint); • assess the risk, severity and complexity of the complaint – see the severity assessment matrix in Chapter 13 at [13.115]; • identify the issues and how many people are involved; • be informed about what processes are available, what the time frames are likely to be and what the complainant wants or whether they have a capacity to negotiate. To understand the complaint, staff need to: • listen – initially identify themselves and hear and record details; • acknowledge – confirm what has been said; • empathise – be attentive and courteous rather than defensive or blaming others; • set a timetable – explain the next steps and do not promise what cannot be delivered; • agree on the next steps – resolve the complaint or commit to ensuring that it receives attention; • confirm – check whether the complainant is satisfied with the process. If a complaint has been received in writing, the same steps can be followed. The response should be provided promptly and in writing. Risk assessment 57

See Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014). [5.55] 175

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approaches are critical in complaints handling (see Chapter 13). The Australian Standard AS 4608–2004 specifies how risk assessment can take place. 58 The Australian Competency and Ethical Framework includes a “checklist” item which requires that they have knowledge of the “legal ramifications and other risk factors that may be present in the complaint process”. 59 The Framework also requires complaints professionals to undergo continuing professional development in all areas of knowledge, skills and ethics and, necessarily, this includes competencies around risk factors.

Handling the complaint [5.60] How complaints can be effectively handled has been the subject of increased attention within Australia. 60 In the health care setting, for example, a set of guidelines and a handbook have been prepared to assist health care providers to manage complaints. These materials are the result of research and stakeholder consultation in the 2003 project Turning Wrongs into Rights: Learning From Consumer Reported Incidents, prepared by the author of this book: The first steps in complaint handling are to ensure that risk management recording and referral (including reporting the complaint to external organisations if necessary) takes place. The preventive approach to incident monitoring is reflected in the former Australian Council for Safety and Quality in Health Care’s definition of “incident”: an event or circumstance which could have, or did lead to unintended and/or unnecessary harm to a person, and/or a complaint, loss or damage. 61

The Australian/New Zealand standard on risk management (AS/NZ 4360–2004: Risk Management) sets out numerous processes to assist with assessment of risk, and to determine the likelihood of recurrence and level of investigation required following an incident. Another important risk assessment tool is the Severity Assessment Code or risk assessment matrix as set out in Chapter 13 at [13.115]. Risk management is important in a range of different settings. For example, in the health care setting in the United Kingdom, evidence from government 58

See Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014).

59

Society of Consumer Affairs Professionals in Australia and the Australian Centre for Justice Innovation, Australian Competency and Ethical Framework For Complaint Professionals (Framework, SOCAP & ACJI, 2014) p 17.

60

See the former Australian Council for Safety and Quality in Health Care (now Australian Commission for Safety and Quality in Health Care), Complaints Management Handbook for Health Care Services (Handbook, Commonwealth of Australia, 2005), available on http://www.safetyandquality.gov.au. The author prepared much of this handbook.

61

Australian Council for Safety and Quality in Health Care, Turning Wrongs into Rights: Learning from Consumer Reported Incidents – A Literature Review (Review, ACSQHC, 2003). The former Australian Council for Safety and Quality in Health Care ceased its activities on 31 December 2005 and the Australian Commission for Safety and Quality in Health Care assumed responsibility for many of the former council’s documents and initiatives. See Australian Commission on Safety and Quality in Health Care, Former Council Terms and Definitions for Safety and Quality Concepts, available on http://www.health.gov.au/internet/safety/publishing.nsf/Content/former-pubs-archive-definitions. The definitions were published in (2006) 184(10) Medical Journal of Australia.

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inquiries “suggest that patient complaints can provide vital red flags when quality and risk management systems fail to operate effectively”. 62 The specific aims of risk management in this field include improving patient safety, reducing error, and complying with government and professional requirements. Identifying and managing risk effectively prevents complaints from arising and ensures that issues are identified and analysed promptly: There are lots of different datasets which help us to identify poor quality services: mortality rates; confidential surveys of doctors; clinical and medical audit; post operative infection rates and rates of re-admission. Complaints are a unique source of data because they are patient-initiated attempts to reveal mishap. Patients may be the only ones who know that a clinician is likely to have made a mistake; that they are in pain longer than anticipated; that they have not had their wound dressed or medication administered or indeed that the dosage is erratic. The views of family and friends can be just as important. 63

Often the complaint can be resolved at the point of service. If so, complaint information may still need to be recorded and a risk assessment undertaken. According to AS/NZ 4360–2004 approaches, if a complaint is not resolved at the point of service it needs to be: • recorded and assessed for risk; • referred on; and • acknowledged promptly 64 (in many settings, this means within 48 hours). The complainant should also receive: • information about how long the process is expected to take; and • the name and contact phone number of the person who can keep them informed of progress.

Resolving complaints [5.65] For complaint information to be used effectively, there needs to be: • useful information captured about complaints; • an assurance that the information is of high quality; and • an assessment made about the value of the information. Complaints can be resolved through the various processes outlined in Chapters 2, 3, 4 and 6 of this book. These include: • negotiation using problem-solving approaches; • assisted negotiation using problem-solving approaches that may involve an internal or external facilitator (for example, mediation, conciliation); 62 63 64

See L Mulcahy, Disputing Doctors – The Socio-Legal Dynamics of Complaints About Medical Work (Open University Press, Berkshire, 2003) p 90. See L Mulcahy, Disputing Doctors – The Socio-Legal Dynamics of Complaints About Medical Work (Open University Press, Berkshire, 2003) pp 94-95. See, for example, Victoria Ombudsman, Good Practice: Ombudsman Victoria’s Guide to Complaint Handling for Victorian Public Sector Agencies available on http://www.ombudsman.vic.gov.au. [5.65] 177

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• advisory processes – may involve investigation and advice (for example, referral to another medical expert for advice); • decision-making by someone outside the dispute (for example, senior internal staff, external arbitration, panel hearing or trial). Processes used to resolve complaints can include: • communication and negotiation (including conflict coaching); 65 • apology (where appropriate); 66 • referral to alternative dispute resolution (external, including mediation, conciliation and arbitration); 67 • investigation and advice; and • referral and decision-making. According to the AS/NZS 4360–2004: Risk Management and the Australian Competency and Ethical Framework, whatever process is used to resolve the complaint, it should be: • conducted in a fair, impartial and even-handed way; • transparent and timely; and • equitable – attention needs to be paid to any power imbalance that might exist. Fairness requires: • ensuring that the complainant and any staff have an opportunity to be heard and respond; • that policies and guidelines are followed; • that any relevant material is requested; • that everyone involved with a complaint knows what the next steps are and the processes involved, and has been informed about the outcomes of any investigation; • a clear understanding of confidentiality and privacy issues; and • that reasons for any decision be made available to all those concerned. Often complaints processes will require investigation and review as well as the more facilitative dispute resolution approaches outlined in Chapter 3. The type of review or investigation process will vary according to the size of the organisation. Smaller organisations will have a designated senior staff member who is involved in reviewing and investigating complaints. Larger organisations may have dedicated quality managers, complaints coordinators and managers 65 66 67

Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014), Appendix G. Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014), Appendix G. Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014), Appendix G.

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involved in an investigation and review process. It is important that the process is clear, has some time frames and that complainants and staff can follow it. Investigating a complaint is a process of: • collecting facts relevant to the complaint – from all those concerned as well as any documents involved; • assisting the complainant to identify interests and issues; • • • • •

analysing the information; investigating and dealing with gaps in information; making findings as to what occurred; determining the underlying causes of the complaint; and developing and/or considering any corrective strategies, including systemic change options as well as any alternatives; • making decisions about resolution, where possible. 68 In addition, there may be requirements that are linked to privacy and disclosure issues. For example, one particular issue in relation to health care complaints concerns the amount of disclosure that a health care provider can make. This issue was specifically addressed in 2003 when the Open Disclosure Standard guidelines were produced. 69 The Open Disclosure Standard clarifies what information may be disclosed to a consumer in a health care setting and also supports a range of approaches for responding to complaints (for example, the standard supports the making of expressions of regret and the sharing of information about medical procedures). Privacy obligations may also apply to personal information collected and used for the purpose of investigating and resolving a complaint. Privacy only applies to personal information that identifies or could identify an individual. The key elements of privacy relevant to managing complaints records are: • keeping complete, accurate and up-to-date records; • collecting only the information that is needed for a complaint in complaint files; • keeping records secure and confidential; • destroying the records once they are no longer required; • informing a complainant at the outset about how their personal information is likely to be shared with others. 70 After an investigation has taken place, it is important to ensure that the results of the investigation are communicated to the client and staff in an appropriate, 68

Society of Consumer Affairs Professionals in Australia and the Australian Centre for Justice Innovation, Australian Competency and Ethical Framework For Complaint Professionals (Framework, SOCAP & ACJI, 2014) p 10.

69

See former Australian Council for Safety and Quality in Health Care (now Australian Commission for Safety and Quality in Health Care), Open Disclosure: Health Care Professional Handbook, available on http://www.health.gov.au. See Office of the Federal Privacy Commissioner, Guidelines on Privacy in the Private Health Sector, available on http://www.privacy.gov.au.

70

[5.65] 179

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clear and effective way. In larger organisations, the person who “investigates” may be different from the person who communicates the results of the investigation. The results of an investigation process can be communicated in writing as well as in a meeting. Often, following an investigation a negotiation will take place. It may be that information about “what happened” is sufficient to resolve the complaint. Other options could include an apology, reassurance, a payment or refund, or ensuring that processes or services are changed. If sensitive information needs to be discussed with the complainant during or after an investigation, the staff member involved should be: • known to the complainant already; • familiar with the facts; • senior and credible; • trained in any relevant open disclosure and privacy policies; and • able to communicate well and able to offer reassurance and feedback.

Gathering and using information [5.70] Extensive and even basic information is not ordinarily retained in many dispute resolution processes that are conducted on an external basis to an organisation. In fact, many mediators have a practice of destroying their notes. However, complaints information is handled differently and is usually recorded so that: • complete records are kept of individual complaints; • progress in the investigation of a complaint can be tracked; • any necessary follow-up action or referral is recorded; • serious complaints can be identified, reported and referred; • trends and patterns can be identified and reported to staff, management and the community; • lessons from complaints can be learned and the impact of recommendations evaluated; and • the complaint system can be monitored. Complaints information can be used to improve organisations. This creates some tensions when compared with dispute resolution processes that are often predicated upon confidential processes. To promote quality assurance and risk assessment, complaint information is ordinarily recorded, reported, reviewed and monitored. The type of reporting that takes place will vary according to the size of an organisation. In smaller organisations, reporting may involve summarising complaints information in staff meetings. In larger organisations, complaints data may be incorporated into annual reports or stand-alone reports. AS/NZS 10002:2014 recommends the assembly of an Information Systems Design (ISD) team whose role is to review the accuracy, timeliness and 180 [5.70]

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accessibility of information about its products, services and systems. 71 An important part of any reporting process is to record improvements that have taken place as a result of the complaints process.

A complaints system will ordinarily record: • • • •

the number of complaints; seriousness and risk management information; the organisational level at which the complaint was dealt with; the issues raised;

• timeliness – how long it took before the complaint was resolved or referred on; • how the complaints were resolved; • what action was taken by the organisation (see “Monitoring and improvement” at [5.75]); • for larger organisations, demographic data (for example, where do complaints come from? what age groups complain – are these disproportionate to the client population? etc). An effective complaints system will enable systemic reporting about: • identified case studies; • statistics on complaint trends; • how changes have been implemented; • what impact changes have had; 71

Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014), Appendix O. [5.70] 181

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• risks and action taken. Collating and analysing complaints will reveal issues that are not evident if complaints are only dealt with at the individual level. Complaint issue coding can be useful in determining trends and strategies to reduce complaints and problems. For example, apart from seriousness, coding can also be undertaken to identify trends in complaints (for instance, to determine how many complaints arise out of communication or access difficulties). Issue coding can be particularly useful in large organisations. AS/NZS 10002:2014 highlights the importance of systemic reporting as including provision of context of the analysis done with an explanation of the purpose of the analysis and data collection methodologies used, formatting of reports as required by particular audiences, automation of reporting, inclusion of quotes and themes, and adherence with reporting timelines as deemed appropriate. 72 It further recommends the establishment of a Root Cause Analysis (RCA) team whose role it is to provide reports to management. 73 Issues could include complaints about: • communication – for example, staff attitude and rudeness; • information – for example, inadequate or incorrect information (including misleading information); • consent – for example, inadequate consent procedures, failure to provide sufficient information, failure to warn, or a failure to consult in decision-making; • financial consent – for example, inadequate information about costs and charges; • costs and fees – for example, billing practices, overcharging, errors or private/public status decisions; • professional conduct – for example, failure to provide certificates or reports, sexual assault, inappropriate relationship, dishonesty, incompetence, or failure to maintain adequate and accurate records.

Monitoring and improvement [5.75] An essential component of complaints handling is monitoring. Complaints have the capacity to improve organisational approaches if: • leaders and senior staff use complaints information in planning, quality improvement and to inform professional development; • senior management is quickly notified of all complaints with significant or severe risk and involved in assessing what action is taken; • policies and practices on complaints are regularly reviewed with consumers to ensure that they are effective; 72

Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014), Appendix C.

73

Standards Australia, Australian Standard AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations (2014), Appendix K.

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• complainants are satisfied with the process; • the complaints process works and it is monitored and audited against criteria; and • consumers and staff are involved in the design of the service. Regular monitoring of a complaints system using pre-determined criteria can assist in ensuring that the system works effectively and fairly, whether timelines in the complaints policy are being met and whether recommended action has been taken. It is important that qualitative information is collected about the complaints system. This involves collecting information from the users of the system to assist in the evaluation of the system. In larger organisations, this should be conducted by way of regular external evaluations with qualitative surveys, and even focus groups, every two years. In smaller organisations, evaluations can be conducted internally but survey results should be correlated and available for independent audit and review.

Skills to manage and deal with complaints [5.80] Apart from the systems and processes used in complaints handling there is an increasing focus on the skills and approaches of complaints handlers. In 2015, a certification framework was released to apply to those that work in the complaints sector. The Australian Competency and Ethical Framework introduced in 2015, was developed by SOCAP and the Australian Centre for Justice Innovation (ACJI). It was produced following senior level consultations with more than 120 participants who work in the complaints handling sector. 74 It was clear that the emotional intelligence and attitudes of complaints handlers was perceived to be critical in the context of ensuring that complaints would be dealt with effectively. 75 What Makes a Great Complaints Handler? Fairness Communication skills Emotional Intelligence Impartiality Likes people Open-minded Problem solving skills Systems thinking Root cause identification

Empathy Confidence Flexibility Independence Maturity Outcome focused Negotiation skills Tenacity

Analytical skills Diplomacy Honesty Integrity Natural curiosity Patience Resilience Tolerance

Common sense Efficiency Humility Knowledgeable Objectivity Proactive Wisdom Tone

74

Society of Consumer Affairs Professionals in Australia and the Australian Centre for Justice Innovation, Australian Competency and Ethical Framework For Complaint Professionals (Framework, SOCAP and ACJI, 2015) p 4.

75

Social skills are seen as increasingly important in a range of environments – see Harvard Business Review, Research: Technology is Only Making Social Skills More Important, available on https://hbr.org/ 2015/08/research-technology-is-only-making-social-skills-more-important?utm_campaign= Socialflow&utm=Socialflow&utm=Tweet. [5.80] 183

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Another central theme in the Framework is an emphasis on effective relationship management, cooperation, good communication and negotiation techniques, 76 rather than advisory and investigatory processes. In addition to the identification of various competencies, skill sets and areas of knowledge required of these professionals, the publication sets out requirements for continuing professional development, 77 to ensure the highest possible standards of procedural fairness, 78 ethics and services are achieved in relation to all complaints. The essential attributes of the Framework were focused on: • • • •

How to Start a Complaint Process The Information Provided by the Complaint Professional The Meaning of Impartial Practice Confidentiality Issues

• • • •

Procedural Fairness The Knowledge, Skills and Ethical Understandings Required Managing Inter-Professional Relations Terminating the Complaint Process. 79

The knowledge, skills and ethical understandings that are provided under the Framework signify an increasing understanding that the work of complaints professionals is both complex and important. Poorly handled complaints can not only cost time and money, but may also have a significant impact on reputation and may also have other adverse consequences. The Framework provides for initial certification and ongoing professional development in the following areas: • KNOWLEDGE, in areas including, but no limited to: • The principles, stages, and functions of the complaint process • The roles and functions of a complaint professional • Communication styles and negotiation techniques, particularly in the context of complaints • How to begin, conduct and terminate a complaint process • Procedural fairness • Language and cultural differences that may affect the complaint process 76

Society of Consumer Affairs Professionals in Australia and the Australian Centre for Justice Innovation, Australian Competency and Ethical Framework For Complaint Professionals (Framework, SOCAP and ACJI, 2015) p 10.

77

Society of Consumer Affairs Professionals in Australia and the Australian Centre for Justice Innovation, Australian Competency and Ethical Framework For Complaint Professionals (Framework, SOCAP and ACJI, 2015) p 8.

78

Society of Consumer Affairs Professionals in Australia and the Australian Centre for Justice Innovation, Australian Competency and Ethical Framework For Complaint Professionals (Framework, SOCAP and ACJI, 2015) p 15. Information about the certification scheme which was launched in August 2015 is available at SOCAP, SOCAP Australia Complaints Professional Certification Scheme, available on http://www.socap.org.au/ html/s02_article/article_view.asp?art_id=1185&nav_cat_id=413&nav_top_id=112.

79

184 [5.80]

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• The needs of disadvantaged or vulnerable persons • Mental distress and its effect on behaviour • Power imbalance and its effect on negotiations • The internal rules, products and systems of the professional’s organisation and how the complaint process relates to internal structures • Referral options, pathways and process alternatives • Case management, reporting, and data capture techniques that track complainants, complaints and systemic issues of the organisation • The legislative, regulatory and industry frameworks that govern complaints • Legal ramifications and other risk factors that may be present in the complaint process • SKILLS, in areas including, but not limited to: • Communication, including listening, questioning, reflecting and summarising • Tone of voice and demeanour • Connecting with customers and colleagues • Problem solving • Flexibility with process • • • • • •

Analysis and systems thinking Issues diagnosis and identifying “root” causes and interests Resourcefulness Negotiation Matching a complainant with effective referrals and pathway options Responding appropriately to those who speak different languages, the disadvantaged and the vulnerable

• Identifying when a complainant may intend harm to self or others • Recognising when the complainant or the organisation is acting in bad faith • When and how to terminate the complaint process • Self-awareness and self-management, social management (that is, emotional intelligence)

awareness

and

social

• Resilience and self-care • Respect for self and others • Patience • ETHICAL UNERSTANDINGS in areas including, but not limited to: • Neutrality and impartiality • Transparency and fairness • Conflicts of interest and bias • Balancing the needs of the customer with those of the organisation • Cultural differences and the vulnerable and disadvantaged • Confidentiality, privacy and reporting obligations [5.80] 185

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• Withdrawal from and termination of the complaint process • Anonymous complaints Unethical or illegal conduct of the professional’s organisation is considered as part of the Australian Competency and Ethical Framework, 80 as mentioned above. SOCAP 81 has also developed a mandatory ethics program for complaints handlers with the St James Ethics Centre that forms part of the new certification requirements. One continuing education aspect of the Framework is its provision of clarity around the knowledge, skills and ethical requirements that complaints professionals must achieve and then continually develop. 82

RESEARCH ABOUT COMPLAINTS [5.85] There is an increasing body of research on complaints processes however there is little research into complaints via social media or consideration of “obsessive” complainants (see Chapter 15). Most research relates to schemes that may be required to have independent reviews as a result of ASIC requirements (where they exist). There has been some limited research on the question of the impact on customer loyalty where complaints are not handled well 83 and this is a phenomenon that is increasingly important in the context of “viral” complaints that emerge in the social media forum. 84 Research conducted into external dispute resolution (EDR) schemes, 85 as well as research into consumers’ experiences in resolving their credit disputes at Consumer Affairs Victoria (CAV) and the Victorian Civil and Administrative Tribunal (VCAT), 86 found that consumers can be very satisfied with the dispute resolution services offered by each of these schemes. 80

81 82

83

Society of Consumer Affairs Professionals in Australia and the Australian Centre for Justice Innovation, Australian Competency and Ethical Framework For Complaint Professionals (Framework, SOCAP & ACJI, 2014). See http://www.socap.org.au/html/s01_home/home.asp. Society of Consumer Affairs Professionals in Australia and the Australian Centre for Justice Innovation, Australian Competency and Ethical Framework For Complaint Professionals (Framework, SOCAP & ACJI, 2014) p 6. See for example, L Ang and F Buttle, “Customer Retention Management Process; a Qualitative Study” (2006) 40 European Journal of Marketing 83; M Divett, N Crittenden and R Henderson, “Actively Influencing Consumer Loyalty” (2003) 20(2) Journal of Consumer and Marketing 109; M Fojt, “Calculating the Return on Quality” (1995) 9(3) The Journal of Services Marketing 1; S Lam, V Shankar, K Erramilli and B Murthy, “Customer Value, Satisfaction, Loyalty, and Switching Costs: an Illustration from a Business-to-Business Service Context” (2004) 32(3) Journal of the Academy of Marketing Science 293.

84

See C Varla-Neira, R Vazquez-Casielles and V Iglesias, “Explaining Customer Satisfaction with Complaint Handling” (2010) 28(2) International Journal of Bank Marketing 88 and C Wu, “The Study of Service Innovation for Digiservice on Loyalty” (2014) 67(5) Journal of Business Research 819.

85

J Elix and T Sourdin, Review of the Financial Industry Complaints Service 2002 – What are the Issues? (Issues Paper, Community Solutions, La Trobe University and University of Western Sydney, 2002), available on http://www.endispute.com.au/wpdl/ficsreview.pdf. The Dispute Resolution Processes for Credit Consumers was a research project conducted by the author of this book, available at University of Queensland UQ eSpace on http:// www.endispute.com.au/wpdl/Credit%20Consumers%20Evaluation%202007.pdf.

86

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For the most part, the research findings suggest that consumers were mostly satisfied with the amount of time taken by schemes to resolve complaints disputes, and often perceived the bodies as efficient, unbiased and procedurally fair. However, in the research reports referred to above, some systemic issues associated with access to ADR schemes in the financial services area were identified. One of consumer views 87 suggests that the following are key elements in successful internal complaints handing schemes: • People need to be acknowledged and feel heard. When receiving complaints, it is imperative that staff are trained in listening skills and are able to empathise, show compassion and be non-judgmental. • Organisations need to improve their response time when dealing with a complaint, ensure staff have adequate authority and improve their customer care procedures. • Processes for complaints handling need to be consumer and satisfaction driven rather than complaint driven. Efficient and competent contact with consumers leads to loyalty and advocacy. • 73 per cent of consumers feel more loyal to a company if their complaint is handled satisfactorily. • Consumers do not want “retribution” but the way in which their complaint is dealt with determines whether they become anxious and enraged or are satisfied. • 85 per cent of consumers would be less likely to recommend a company where they had no satisfaction from a complaint. • Embracing the internet and understanding that consumers want immediate responses to their complaints will contribute to alleviating losing business and negative sentiments. • Consumers do not want automated answering systems – human interaction is vital. • Companies need to understand the cost of losing customers due to poor complaint procedures. • A complaints department needs to be viewed by an organisation as a revenue-making area where consumer reactions and feedback support the profits of the organisation. 88 Some recent research suggests that organisations should be mindful of two issues when dealing with complainants. First, managers need to understand that 87

88

In December 2010, a national consumer sentiments study was undertaken by Competitive Edge: see http://competitiveedge.com.au/429/. Surveying 666 respondents located across Australia, the survey compares a 15-month comparison of consumer sentiments and considers the role of social media, complaint handling processes and procedures and suggests insights for better complaint handling in the future. See also Society of Consumer Affairs Professionals Australia (SOCAP) on http:// www.socap.org.au/html/s01_home/home.asp to access a survey overview. See Competitive Edge on http://competitiveedge.com.au/429/. [5.85] 187

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any measures that they take to appease a situation are translated by the consumer according to their own “justice perceptions” or perceptions of fairness. 89 Second, organisations need to understand that the response they offer will not be thought of as a one-off response. The response affects every “justice dimension”. Fast responses can ensure that a consumer understands that the organisation is concerned about them and often an apology has the ability to stop a complaint from escalating into a dispute. 90 However, despite consumer research into complaints, there is a general lack of background and empirical research into the reasons why consumers simply decide to “give up” or which avenues consumers explore prior to lodging a complaint or dispute with an internal dispute resolution (IDR) or EDR scheme. The fragmented nature of the complaints system means that such issues have often been unexplored or reported upon. While each complaints system may collect information about access and behaviour, there is no central collection of information which may reveal significant access and related issues. There is, however, a great deal of general literature which refers to consumer behaviour. 91 This relates to concepts of “learned helplessness” and the need to have complaints mechanisms in place that are empowering. Clearly, consumers may not take action if they think that they cannot do so – a complaints mechanism may be “too hard” to access, consumers may not be aware that they have a “right” to complain, or they may be unable to access dispute resolution services because of a disability or some other limitation. Other research relating to complaints suggests that there is often a tendency for organisations and systems to use “advisory” processes, “shuttle” negotiation and other forms of dispute settlement that may also disempower consumers by limiting their opportunities to negotiate directly and acquire skills in complaint resolution.

89 90 91

K Gelbrich and H Roschk, “A Meta-Analysis of Organizational Complaint Handling and Customer Responses” (2011) 14 Journal of Service Research 24. K Gelbrich and H Roschk, “A Meta-Analysis of Organizational Complaint Handling and Customer Responses” (2011) 14 Journal of Service Research 24. See, for example, the early work by M La Forge, “Learned Helplessness as an Explanation of Elderly Consumer Complaint Behavior” (1989) 8(5) Journal of Business Ethics 359; J Lee and H SoberonFerrer, “An Empirical Analysis of Elderly Consumers’ Complaining Behavior” (1999) 27(3) Family and Consumer Sciences Research Journal 341; C Su and Y Bao, “Student Complaint Behavior Based on Power Perceptions” (2001) 22(3) Services Marketing Quarterly 43; C Kim, S Kim, S Im and C Shin, “The Effect of Attitude and Perception on Consumer Complaint Intentions” (2003) 20(4) Journal of Consumer Marketing 352; D Crié, “Consumers’ Complaint Behaviour. Taxonomy, Typology and Determinants: Towards a Unified Ontology” (2003) 11(1) Journal of Database Marketing and Consumer Strategy Management 60; Evalue Pty Ltd and Psychologica, SOCAP Consumer Emotions Study 2003 (Report, SOCAP, 2003).

188 [5.85]

Chapter 6 Advisory and determinative processes [6.05] [6.10]

Introduction..................................................................................................................... 189 Advisory processes ........................................................................................................ 190 [6.10] Conciliation – often defined as facilitative .................................. 190 [6.20] Evaluative processes – expert reporting, expert appraisal, neutral evaluation and case appraisal .......................................... 193 [6.50] Using dispute triage processes ...................................................... 197 [6.60] Determinative processes ............................................................................................... 198 [6.65] Expert determination and expert referral .................................... 198 [6.75] Dispute resolution boards .............................................................. 202 [6.85] Arbitration and determination ...................................................... 204 [6.95] Hybrid processes .............................................................................. 212 [6.110] Objectives and skills in advisory and determinative processes ............................................................................................ 214 [6.115] Decisional and advisory processes ........................................................................... 215 [6.120] Adjudicative and judicial decision-making ................................. 216 [6.125] Decision-making approaches ......................................................... 217 [6.130]

[6.175]

A decisional model ...................................................................................................... 219 [6.135] Stage One – information gathering .............................................. 220 [6.145] Stage Two – analysis ....................................................................... 226 [6.150] Stage Three – making the decision ............................................... 227 [6.155] Stage Four – communicating the decision .................................. 229 [6.160] Concurrent evidence and related approaches ............................ 231 [6.165] Natural justice and bias .................................................................. 232 [6.170] Personal qualities of the decision-maker ..................................... 235 Conclusions ................................................................................................................... 236

INTRODUCTION [6.05] As discussed in Chapter 1, the National Alternative Dispute Resolution Advisory Council (NADRAC) has noted that dispute resolution processes can be classified as facilitative, advisory or determinative: 1 • Facilitative processes involve a third party, often with no advisory or determinative role, who provides assistance in managing the process of dispute resolution. These processes include mediation and facilitation. 2 1

Adopting the terminology used in National Alternative Dispute Resolution Advisory Council (NADRAC), Dispute Resolution Terms (Paper, AGPS, 2003) p 5, available on http://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Pages/NadracPublicationsByDate.aspx; see also originating Australian Standard AS 4608 – 1999: Guide to the Prevention, Handling and Resolution of Disputes (1999).

2

NADRAC, Dispute Resolution Terms (Paper, AGPS, 2003) p 5, available on http://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Pages/NadracPublicationsByDate.aspx. [6.05] 189

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• Advisory processes involve a third party who investigates the dispute and provides advice on the facts and possible outcomes. These procedures include investigation, case appraisal and dispute counselling. • Determinative processes involve a third party who investigates the dispute, which may include a formal hearing, and the making of a determination that is potentially enforceable. These processes include adjudication and arbitration, 3 and may be binding or non-binding. This chapter focuses on advisory and determinative processes. Although collaborative processes (Chapter 4) and complaints handling (Chapter 5) may have advisory components, these have been dealt with as separate topics (in part because they may involve distinct hybrid techniques). This chapter does, however, include adjudicatory processes, such as expert determination and arbitration, and non-adjudicatory and hybrid processes that may involve mediation and med–arb (an amalgam of mediation and arbitration). 4 In addition, concurrent evidence and related processes are discussed within the context of decisional dispute resolution, and managerial and facilitative judging and arbitration. The way in which decisions are made and the neurobiology of decision-making is also explored. This topic is of relevance to all ADR practitioners and it can assist ADR practitioners and others to understand disputant decision-making processes.

ADVISORY PROCESSES Conciliation – often defined as facilitative [6.10] In different jurisdictions there are different definitions of conciliation processes. 5 In some tribunals and courts, the conciliation process may be regarded as the same process as mediation. Notable ADR expert Sir Laurence Street regards the conciliation and mediation processes as substantially the same. 6 NADRAC has recently noted that: “[M]ediation” is a purely facilitative process, whereas “conciliation” may comprise a mixture of different processes including facilitation and advice. NADRAC considers that the term “mediation” should be used where the practitioner has no advisory role on the content of the dispute and the term “conciliation” where the

3

Adopting the terminology used in NADRAC, Alternative Dispute Resolution Definitions (Paper, AGPS, 1997) p 5, available on http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/ NadracPublicationsByDate.aspx.

4

M Cappelletti, “Alternative Dispute Resolution Processes within the Framework of the World Wide Access-to-Justice Movement” (1993) 56 Modern Law Review 282.

5

H Astor and C Chinkin, Dispute Resolution in Australia (2nd ed, LexisNexis Butterworths, Sydney, 2002) p 113. See Sir Laurence Street, Report on a Model of Conciliation for the New South Wales Workcover Scheme (Report, Attorney-General’s Department, Australian Government, July 1996). See also G Leiderman, “A Dangerous Interloper” (1994) 29(8) Australian Lawyer 21.

6

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practitioner does have such a role. NADRAC notes, however, that both “mediation” and “conciliation” are now used to refer to a wide range of processes and that an overlap in their usage is inevitable. 7

Clearly, in many jurisdictions, conciliation is regarded as an evaluative process, in which the conciliator may express a view on the likely outcome. In that context, conciliation may describe a blended process such as med–arb (being a mix of mediation and evaluation or arbitration). Many mediators also view the conciliation process as being more “rights” focused than pure mediation (akin to evaluative or substance-oriented mediation) – rather than including a broader focus on needs and interests. Conciliation is also perceived as a potentially advisory process. There are few legislative definitions of conciliation that provide guidance to conciliators and, in many instances, courts or tribunals have issued their own process definitions and guides. 8 In most instances, the conciliator is an employee or officer or member of a court or tribunal (rather than an independent person, as is often the case with mediators and arbitrators) and is required to report as to outcome or progress towards outcome. This report may extend to reporting as to whether the parties “bargained in good faith”. 9 Conciliation has a long history in the industrial area and the model adopted in that area may be relatively idiosyncratic. Prior to the establishment of recent “fair work” arrangements, the Conciliation and Arbitration Act 1904 (Cth) provided a framework for the establishment of a court (and later a commission) where encouragement was to be given to “settling disputes”. 10 However, as noted in Chapter 1, arbitration emerged as the primary system of dispute settlement after support from various High Court decisions. 11 Many courts and tribunals have provision for a conciliation conference as part of their legislative framework. In practice, the process varies greatly. For example, in New South Wales, the Civil and Administrative Tribunal (NCAT) members may use a variety of facilitative techniques in relation to a matter. They will be linked to a hearing process in which a different member will then go on to determine the dispute (if it does not resolve), while in the Administrative Appeals Tribunal (AAT), the conciliation process is a separate process 7

8

9 10 11

NADRAC, Dispute Resolution Terms (Paper, AGPS, 2003) p 3; Glossary of ADR Terms. See also NADRAC, Legislating for Alternative Dispute Resolution; A Guide for Government Policy – Makers and Legal Drafters (Guide, NADRAC, 2006). NADRAC considers that “mediation” should be used where the practitioner has no advisory role on the content of the dispute (the process is purely facilitative) and the term “conciliation” used where the practitioner does have such a role. See also the 2012 NADRAC Users Guide, available on http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/ NadracPublicationsByDate.aspx. See, for example, Administrative Appeals Tribunal (Cth), Conciliation Process Model, available on http://www.aat.gov.au; or NSW Civil and Administrative Tribunal (NCAT), Conciliation Process, available on http://www.ncat.nsw.gov.au/Documents/ccd_factsheet_conciliation.pdf. See Chapter 11 at [11.25]. See Industrial Relations Act 1996 (NSW), s 134(4). Conciliation and Arbitration Act 1904 (Cth), s 20. D Plowman and G Smith, “Moulding Federal Arbitration: Employers and the High Court 1903–1935” (1986) 11(2) Australian Journal of Management 203. [6.10] 191

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(disengaged from the tribunal member who may deal with the dispute if it does not resolve) and will not involve the active engagement of a tribunal member in settlement discussions. Conciliation was once widely used in the Family Court of Australia. The term “conciliation counselling” previously described hybrid processes used by counsellors in the Family Court to assist parties to settle disputes concerning children. Conciliation is also widely used to settle disputes in the workers compensation, health care and aged care sectors. Again, the conciliation models may not be well defined; however, in many instances these processes more closely resemble mediation or advisory or evaluative mediation. In some instances conciliation can also be differentiated from processes such as mediation because no private meetings take place between the conciliator and the disputants. In the NSW Workers Compensation Commission for example, conciliation may have taken place via a telephone conference with no private meetings and if the matter did not resolve the same member would have a face-to-face conciliation and then arbitration on another day. 12

Description: Conciliation [6.15] The Australian Standard AS 4608–2004: Dispute Management Systems defines “conciliation” by reference to the NADRAC description, as follows: “Conciliation” is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the conciliator), identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role. The conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach an agreement.

Note: There are wide variations in meanings for “conciliation”, which may be used to refer to a range of processes used to resolve complaints and disputes including: • informal discussions held between the parties and an external agency in an endeavour to avoid, resolve or manage a dispute; and

12

See New South Wales Workers Compensation Commission, Conciliation Conference, available on http://www.wcc.nsw.gov.au/Resolving-your-dispute/How-the-process-works/Pages/ConciliationConference.aspx.

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• combined processes in which, for example, an impartial party facilitates discussion between the parties, provides advice on the substance of the dispute, makes proposals for settlement or actively contributes to the terms of any agreement. 13

The Administrative Appeals Tribunal (AAT) defines “conciliation” as follows: A process in which the parties to a dispute, with the assistance of a Tribunal member, officer of the Tribunal or another person appointed by the Tribunal (the conciliator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The conciliator has no determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process of conciliation whereby resolution is attempted, may make suggestions for terms of settlement and may actively encourage the participants to reach an agreement which accords with the requirements of the statute. 14

Evaluative processes – expert reporting, expert appraisal, neutral evaluation and case appraisal [6.20] Evaluative processes are usually related or linked to court and tribunal processes and may be defined in legislation that varies and governs different jurisdictions and court-related procedures. 15 Where the evaluative processes are “opt in”, they can be used at any stage in the lifecycle of a dispute and there is no requirement for proceedings to have commenced. In other circumstances they may be scheduled by a court and may even be conducted by a magistrate (as in the Magistrates Court of Victoria where early neutral evaluation is now a permanent option following two pilot programs in 2010 and 2011). 16 Evaluative procedures include processes such as early neutral evaluation (ENE) and case appraisal, although the term “expert reporting” has now replaced these process terms in the Federal Court of Australia. Evaluation and expert reporting in all of their forms involve the giving of an opinion, by an evaluator, as to a set of questions, the impact of substantive issues or the likely outcome of a dispute should it fail to resolve. In reality, the evaluation may not be “early” and, in many instances, the term “evaluation” is used rather than “early evaluation”. Many Australian legislative models do not fully set out the role of the evaluator, the extent to which the evaluator may be involved in the settlement of 13

NADRAC, Dispute Resolution Terms (Paper, AGPS, 2003) p 5 available on http://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Pages/NadracPublicationsByDate.aspx.

14

See Administrative Appeals Tribunal (AAT), Conciliation Process Model, available on http:// www.aat.gov.au/steps-in-a-review/alternative-dispute-resolution/conciliation-process-model.

15

Specific legislative examples include: Federal Court of Australia, Federal Court Rules 2011 (Cth), Pt 23 (court experts); Civil Proceedings Act 2011 (Qld), ss 41, 45 (case appraisal).

16

See Magistrates Court of Victoria, Practice Direction No 7 (2012). [6.20] 193

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the dispute, or the extent to which the evaluator is to use facilitative processes. 17 The New South Wales Law Society guidelines attempt to clarify the role and have emphasised a facilitative model. 18 The AAT has also promulgated process models in relation to evaluative and appraisal processes that emphasise a facilitative component. 19 In New South Wales, the evaluation process will usually only bind the parties to the outcome if the parties agree to be bound. 20 For example, the Land and Environment Court Act 2007 (NSW) makes provision for the Land and Environment Court to refer matters for neutral evaluation without the consent of the parties. “Neutral evaluation” is defined as follows: Neutral evaluation is a process of evaluation of a dispute in which an impartial evaluator seeks to identify and reduce the issues of fact and law in dispute. The evaluator’s role includes assessing the relative strengths and weaknesses of each party’s case and offering an opinion as to the likely outcome of the proceedings, including any likely findings of liability or the award of damages. 21

In other models, the view expressed by the evaluator may bind the parties if they do not object to the evaluator’s decision. 22 In one model, it is suggested that if there is no acceptance of a recommendation then hefty costs penalties should apply in respect of the costs of any subsequent litigation or arbitration. 23 These variations provide a different approach to the definition expressed in Australian Standard AS 4608–2004: Dispute Management Systems and by NADRAC (see definition below). Case appraisal is widely used in Queensland. The view of the case appraiser may be determinative (see 4.1) and can bind the parties if they do not object in the same way as a court judgment. This approach varies from the descriptions of “case appraisal” that appear below (at [6.40] and [6.45]). Another variation in the case appraisal process is described as “expert appraisal”. In expert appraisal, an agreed expert may give a view on one aspect of a dispute (see “expert determination” at 4.1) and the parties may be bound in relation to this aspect 17 18

19 20 21

22 23

See R Charlton, Dispute Resolution Guidebook (Lawbook Co, Sydney, 2000) p 8 for a discussion relating to process models. In the NSW Law Society model, the evaluator is expected to chair discussions after furnishing an opinion to the parties. This model can be contrasted with the model adopted by the New South Wales Bar Association where the evaluator gives a view or opinion of the likely outcome and then closes the conference (see Appendix B of this book). See AAT, Case Appraisal Process Model, available on http://www.aat.gov.au/steps-in-a-review/ alternative-dispute-resolution/case-appraisal-process-model. For example, this is the case in many New South Wales courts. See NSW Land and Environment Court, Neutral Evaluation, available on http:// www.lec.justice.nsw.gov.au/Pages/resolving_disputes/neutral_evaluation.aspx and Pt 6 r 6.2(2) and (3) of the Land and Environment Court Rules 2007 (NSW). For example, in the Supreme Court of Queensland. See Civil Procedure Act 2011 (Qld), s 41 (Case Appraisal). Australian Commercial Disputes Centre, Independent Expert Recommendation, available on https:// disputescentre.com.au/knowledge-resources/independent-expert-recommendation/.

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only. For example, a medical expert may provide advice on the medical prognosis of a party and this view can be binding. A similar process called a “mini trial” can operate in a range of jurisdictions with the consent of disputants. In this process, a retired judge may act as an expert, hear a dispute (in an abbreviated form) and provide a non-binding decision. The mini trial can be used as an advisory process to “test” whether a corporation should commence litigation. The judicial mini trial is more common in Canada and the United States than in Australia. 24 In the United States, a range of independent parties as well as retired judges may provide their views to the disputants. A variation of the judicial mini trial involves a jury mini trial where a mock jury is empanelled to assist in determining litigation prospects and strategies. Another variation of this process can be used within the court system and involves a judge (rather than a retired judge or ADR practitioner) conducting the mini trial – if the matter does not resolve and a further trial follows, another judge will preside over it. 25 In Australia, as discussed below, a model of expert referral where a binding outcome may be produced by experts may be used. This model also operates in the United Kingdom. 26

Description: Expert appraisal [6.25] The Australian Standard AS 4608–2004: Dispute Management Systems defines “expert appraisal” by reference to the NADRAC descriptions, as follows: “Expert appraisal” is a process in which a dispute resolution practitioner, chosen on the basis of their expert knowledge of the subject matter (the expert appraiser), investigates the dispute. The appraiser then provides advice on the facts and possible and desirable outcomes and the means whereby these may be achieved. 27

The Federal Court dictionary defines expert and expert report in the following ways: “expert” means a person who has specialised knowledge based on the person’s training, study or experience.

24

See, for example, CEB Blog, When You Can’t settle Consider a Mini-Trial, available on http:// blog.ceb.com/2015/07/31/when-you-cant-settle-consider-a-mini-trial/.

25

Commonwealth Law Bulletin, “Mini Trial Could Ease Courts’ Overload” (October 1994) p 1476. This model is used in British Columbia and may be referred to as the “judicial mini trial”. See also Canada Department of Justice, Dispute Resolution Reference Guide, available on http://www.justice.gc.ca/ eng/rp-pr/csj-sjc/dprs-sprd/res/drrg-mrrc/05.html. The City Disputes Panel (CDP) in the United Kingdom, which operates in respect of banking and financial sector disputes, is one such example: see http://www.citydisputespanel.org/. NADRAC, Dispute Resolution Terms (Paper, AGPS, 2003) p 5, available on http://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Pages/NadracPublicationsByDate.aspx.

26 27

[6.25] 195

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“expert report”means a written report that contains the opinion of any expert on any question in issue in the proceeding based wholly or substantially on that expert’s specialised knowledge, including any report in which an expert comments on the report of any other expert. 28

Description: Early neutral evaluation [6.30] The Australian Standard AS 4608–2004: Dispute Management Systems defines “early neutral evaluation” by reference to the NADRAC descriptions, as follows: “Early neutral evaluation” is a process in which the parties to a dispute present, at an early stage in attempting to resolve the dispute, arguments and evidence to a dispute resolution practitioner. That practitioner makes a determination on the key issues in dispute, and most effective means of resolving the dispute without determining the facts of the dispute. 29

Description: Neutral evaluation [6.35] The AAT defines “neutral evaluation” as follows: An advisory process in which a Tribunal member, officer of the Tribunal or another person appointed by the Tribunal, chosen on the basis of their knowledge of the subject matter, assists the parties to resolve the dispute by providing a non-binding opinion on the likely outcomes. Neutral evaluation is used when the resolution of the conflict requires an evaluation of both the facts and the law. The opinion may be the subject of a written report which may be admissible at the hearing. 30

Description: Case appraisal (Australian Standards) [6.40] The Australian Standard AS 4608–2004: Dispute Management Systems defines “case appraisal” by reference to the NADRAC description, as follows:

28 29 30

Federal Court Rules 2011 (Cth), Sch 1 (Dictionary). NADRAC, Dispute Resolution Terms (Paper, AGPS, 2003) p 5, available on http://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Pages/NadracPublicationsByDate.aspx. Administrative Appeals Tribunal (AAT), Neutral Evaluation Process Model, available on http:// www.aat.gov.au/steps-in-a-review/alternative-dispute-resolution/neutral-evaluation-process-model.

196 [6.30]

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“Case appraisal” is a process in which a dispute resolution practitioner (the case appraiser) investigates the dispute and provides advice on possible and desirable outcomes and the means whereby these may be achieved. 31

Description: Case appraisal (AAT) [6.45] The AAT defines “case appraisal” as follows: An advisory process in which a Tribunal member, officer of the Tribunal or another person appointed by the Tribunal, chosen on the basis of their knowledge of the subject matter, assists the parties to resolve the dispute by providing a non-binding opinion on the facts and the likely outcomes. The opinion is an assessment of facts in dispute. The opinion may be the subject of a written report which may be admissible at the hearing. 32

Using dispute triage processes [6.50] In many dispute resolution and management schemes, there has been an increasing focus on how to support the effective use of ADR processes. This requires disputants to consider and be matched with the most appropriate dispute resolution process and to ensure that the process can be adapted to meet the needs of the particular disputant. Traditionally, lawyers and others acted as “gatekeepers” to assist disputants make process choices. However, it has increasingly been recognised that lawyers may have a limited understanding of dispute resolution processes. Providing disputants with web-based information can assist some disputants to make decisions; however, in more complex disputes more assistance will be required. Dispute advice and counselling is a process that can be used by ADR practitioners, government and ADR organisations to support parties determine what dispute resolution procedure or approach can be adopted to assist in the resolution of a dispute, conflict or other set of issues. Dispute counselling may not involve a face-to-face meeting but can instead involve telephone or other contact (for example, email contact). The growth in mandatory pre-litigation ADR strategies, obligations and protocols may mean that in future dispute counselling (or, in the commercial area, “conflict analysis”) may become a more important process area. The dispute counsellor may investigate the dispute or issues, contact other parties (such as government agencies) and act as an 31

NADRAC, Dispute Resolution Terms (Paper, AGPS, 2003) p 5, available on http://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Pages/NadracPublicationsByDate.aspx.

32

NADRAC, Case Appraisal Process Model, available on http://www.aat.gov.au/steps-in-a-review/ alternative-dispute-resolution/case-appraisal-process-model. [6.50] 197

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advocate on behalf of a party who seeks access to services or processes. The dispute advisory process is advisory in that it can involve advice about issues and process options. Dispute counselling may be an “intake process” that is used in a multi-door or ADR referral system (see Chapters 8 and 9). In this respect, dispute triage work may only involve one party in a dispute. Another term that is used to describe this role is a “dispute resolution adviser” or “DRA” (see a process model at [13.45]) 33. Many dispute systems that are designed for workplaces and large-scale dispute resolution may include reference to a DRA. It has increasingly been recognised by governments that there may be a requirement in many disputes to activate this type of “triage process”.

Description: Dispute resolution advisor and counsellor [6.55] NADRAC has described “dispute counselling” as follows: “Dispute counselling” is a process in which a dispute resolution practitioner (the dispute counsellor) investigates the dispute and provides the parties or a party to the dispute with advice on the issues which should be considered, possible and desirable outcomes and the means whereby these may be achieved. 34

DETERMINATIVE PROCESSES [6.60] NADRAC has categorised determinative processes as processes whereby a decision is made by a third party and the decision may be internally enforceable, externally enforceable, or neither internally or externally enforceable.

Expert determination and expert referral [6.65] As well as case appraisal and evaluation processes that may require an evaluator to furnish a non-binding or binding opinion to the parties in a dispute, there is also an increasing tendency, particularly in Australian commercial courts, to refer all or part of a dispute to a referee, expert or panel (see also [6.20] “Evaluative processes”). The referee may determine the dispute or issues in dispute in such a manner as is appropriate, but having regard to the rules of natural justice. There are many legislative examples of referee or expert determination schemes in Australia. 35 33

The author is the Dispute Resolution Advisor in respect of NBN industry disputes – see https:// nidra.endispute.com.au/.

34

NADRAC, Dispute Resolution Terms (Paper, AGPS, 2003) p 5, available on http://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Pages/NadracPublicationsByDate.aspx.

35

Civil Procedure Act 2011 (Vic), s 65M; Court Procedures Rules 2006 (ACT), r 1531; Uniform Civil Procedure Rules 2005 (NSW), r 20.14; Supreme Court Act (NT), s 26; Supreme Court Act 1935 (SA), s 67; Supreme Court Rules 2000 (Tas), r 574; ; Supreme Court Act 1935 (WA), s 50.

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One of the best known examples of this type of referral is referred proceedings in the New South Wales Supreme Court. In that court for more than two decades, referral to a referee has taken place in a variety of jurisdictions (it was previously limited to commercial and construction disputes) without the consent of the parties. In New South Wales, in Park Rail Developments Pty Ltd v RJ Pearce Associates Pty Ltd, 36 Smart J stated that when deciding whether to refer a question to a referee, the matters that will generally require consideration are: (a) (b) (c) (d) (e)

the suitability of the issues for determination by a referee and the availability of a suitable referee; the delay before the court can hear and determine the matter and how quickly a suitable referee can do so; the prejudice the parties will suffer by any delay; whether the reference will occasion additional costs of significance or is likely to save costs; the terms of any reference including the issues and whether they should be referred for determination or inquiry or report. 37

Although the New South Wales Supreme Court “has power to appoint a referee against the wishes of both parties”, Smart J said “it is understandably cautious in doing so”. 38 The report of a referee, who need not be legally qualified (referees have included quantity surveyors, architects and engineers), is referred back to the referring court and may be accepted, varied or rejected. In other jurisdictions, parties who are in dispute may decide that they will seek a binding or non-binding expert report (see [6.20]). Under such circumstances, there are issues about how such a report can be impugned and what processes must be followed following receipt of the report. 39 The Federal Court also has a legislative power, introduced in 2009, to refer proceedings and questions to referees. Under s 54A of the Federal Court of Australia Act 1976 (Cth), the Federal Court may refer “a proceeding … or one or more questions arising in a proceeding … to a referee for inquiry and report”. Rule 28 of the Federal Court Rules 2011 (Cth) provides that the court may refer “… one or more questions or issues arising in a proceeding, whether of fact or law or both, and whether raised by pleadings, agreement of parties or otherwise”. 40 In the second reading speech introducing s 54A, the then federal AttorneyGeneral said that the reform would: “… enable the court to more effectively and efficiently manage large litigation”: 36

Park Rail Developments Pty Ltd v R J Pearce Associates Pty Ltd (1987) 8 NSWLR 123.

37 38

39

Park Rail Developments Pty Ltd v R J Pearce Associates Pty Ltd (1987) 8 NSWLR 123 at 130. Park Rail Developments Pty Ltd v R J Pearce Associates Pty Ltd (1987) 8 NSWLR 123 at 129. See also New Price Retail Services Pty Ltd and Anor v David Hanna [2014] NSWSC 553 in relation to procedural fairness. M Jacobs, “Impugning Expert Determinations in Australia” (2000) 74 Australian Law Journal 858.

40

Federal Court Rules 2011 (Cth), r 28.61. [6.65] 199

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It will be particularly useful in many cases, such as those involving complex technical issues or where detailed examination of financial records is necessary to assess damages. It will also be of assistance in native title matters where a judge could be assisted by an inquiry into a particular aspect of the claim. The procedural flexibility with which a referee can deal with a question–along with their technical expertise–will allow a referee to more quickly get to the core of technical issues and reduce the cost and length of trials for litigants. 41

In addition, the Federal Court of Australia can also appoint assessors under Pt VA (ss 37A – 37L) of the Federal Court of Australia Act 1976 (Cth). Assessors can also be used in State systems to support dispute resolution in specific areas. 42 They are widely used to deal with costs issues; that is, it is now common in most Australian jurisdictions for costs assessors to determine issues relating to legal costs and disbursements. Such assessors are clearly not appointed as “experts”. They may make determinations but may not act in an advisory capacity to a court. Other models involving experts focus on assisting the adjudicative processes of courts and tribunals by modifying traditional adversarial approaches. For example, in the model first adopted by the Australian Competition Tribunal (ACT) experts were required to submit written statements to the tribunal, which they could freely modify or supplement orally during the hearing. The examination of evidence was conducted more in the manner of a panel discussion between counsel, experts and tribunal members, as compared to the more usual one-on-one (adversarial) practice of cross-examination. This process has been referred to as a “hot tub” or the “concurrent evidence” approach (these processes are referred to in more detail at [6.160]). The main benefit said to be derived from the process is that: … at the end of the exercise the Tribunal knows what the economists [as the experts invariably are] perceive as being the real issues, and areas of agreement and disagreement. 43

Many courts have now introduced concurrent evidence approaches which may be used in respect of medical issues 44 and in relation to other areas where experts are used (for example, in construction and commercial cases). Courts and tribunals can also use expert advisers who consult with a court or tribunal on general questions within their field. This process resembles a “referee” process; 41

Commonwealth, Parliamentary Debates, House of Representatives, 3 December 2008, 12296 (The Hon R McClelland).

42

The Pitjantjatjara Land Rights Act 1981 (SA) and the Maralinga Tjarutja Land Rights Act 1984 (SA) (Pt IV of each Act) provides for the appointment by the Minister of Aboriginal Affairs (SA) (with the approval of Anangu Pitjantjatjara or Maralinga Tjarutja) of a tribal assessor to hear appeals by any traditional owner aggrieved by a decision of the body corporate (Anangu or Maralinga Tjarutja) that holds the title to the land. See Australian Law Reform Commission (ALRC), Review of the Adversarial System of Litigation: Federal Tribunal Proceedings, Issues Paper No 24 (ALRC, Sydney, June 1998) at para 7:11 referring to Lockhart J Memorandum to Registrar of the Federal Court 21 April 1998 appended to Heerey J’s Submission 49. An outline of the procedure is provided in Re Queensland Independent Wholesalers Ltd (QIW) [1995] ATPR 41-438 at 40,925. See, for example, Wei Fan v South Eastern Sydney Local Health District (No 2) [2015] NSWSC 1235.

43

44

200 [6.65]

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however, an adviser might also sit through proceedings or assist a court or tribunal to reach a decision. There are many examples of tribunal panels with expert advisers who sit as part of the tribunal. As previously discussed, another adjunct to court determinative processes has been to appoint an expert witness (rather than expert advisers) who gives evidence or reports to a court or tribunal about an issue. 45 The benefits of appointed expert witnesses are said to include that: • the expert is not being paid by any one party and therefore is more likely to be impartial; • if the expert reports to the court tribunal early in the proceedings, this may result in an early resolution of the dispute; • expert witnesses will not be placed in an adversarial role and the tribunal will not be forced to choose between two opposing experts; • time and money will be saved by the reduction in the number of experts, the reduction in time spent giving expert evidence and the fact that the court has some control over experts’ fees. 46 Changes to court processes in a number of jurisdictions provide that experts who are retained by parties are required to comply with a code of conduct and thereby assist the court or tribunal with the overall determinative function. 47 Legislation may establish bodies of experts to contribute to dispute resolution and decision-making in particular areas. For example, some State courts, tribunals and commissions have experts and expert panels, which have been established under workers’ compensation legislation. 48 These panels are intended to provide independent medical review and assessment of injury and impairment, including at the request of courts or tribunals in the course of proceedings. Reports or certificates from the panels are admissible as evidence in proceedings and, in some cases, may constitute conclusive evidence. 49 In addition to court referral to an expert, parties may also agree to expert determination as part of their contractual arrangements. The enforceability of clauses dealing with expert determination are specifically considered in Chapter 11 in the context of obligations to use ADR. It may be that such 45 46

47 48

49

See, for example, Uniform Civil Procedure Rules 2005 (NSW) reg 31.20. G Davies and S Sheldon, “Some Proposed Changes in Civil Procedure” (1993-1994) 3 Journal of Judicial Administration 121 and R Scott, “Court-appointed Experts” (1995) 25(1) Queensland Law Society Journal 87. See, for example, Supreme Court Act 1970 (NSW), Sch K, Pt 36, r 13C(1) and Pt 39, r 2(1). For example, non-binding medical expert determination can operate pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) at the request of the court or the Workers Compensation Commission of New South Wales or a party. Binding medical expert determination is required pursuant to s 65 for the purposes of the Workers Compensation Act 1987 (NSW) in respect of all s 66 permanent impairment compensation claims if the parties are unable to reach agreement. The Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 274 provides for the constitution of medical panels to which questions may be referred under legislation including the Accident Compensation Act 1985 (Vic), s 45. For example, Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 128. [6.65] 201

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arrangements will become more widespread in the future. Courts have considered this issue in relation to external ombudsman determinations as well as in other arenas. 50 For example, the recent case of Lipman Pty Ltd v Emergency Services Superannuation Board 51 considered a determination by experts appointed under a dispute resolution clause of a building contract, and found that the determination was final and binding and could not be re-agitated through litigation. The Court of Appeal endorsed the approach adopted in relation to the construction of dispute resolution clauses in a number of recent decisions such as Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd, Fiona Trust & Holding Corporation v Privalov and Comandate Marine Corporation v Pan Australia Shipping Pty Ltd, 52 which found that the expert’s determination was binding.

Description: Expert determination [6.70] The Australian Standard AS4608 –2004: Dispute Management Systems defines “expert determination” by reference to the NADRAC description, as follows: “Expert determination” is a process in which the parties to a dispute present arguments and evidence to a dispute resolution practitioner, who is chosen on the basis of their specialist qualification or experience in the subject matter of the dispute (the expert) and who makes a determination. 53

Dispute resolution boards [6.75] Dispute resolution boards (DRBs) are mainly used in the construction sector (see discussion also at [4.100]). 54 They can assist those involved in complex construction disputes in a number of ways: 1.

They assist parties to avoid disputes by initially working with parties to identify potential issues in a construction as well as potential “hotspot” areas (including cost overrun areas) and may therefore work in a facilitative and collaborative way.

2.

They provide prompt expert advice during a construction that can inform the participants, and which may be binding.

50 51

See Patersons Securities v Financial Ombudsman Service Ltd [2015] WASC 321 (28 August 2015). Lipman Pty Ltd v Emergency Services Superannuation Board [2011] NSWCA 163.

52

Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; Fiona Trust and Holding Corporation v Privalov [2007] UKHL 40 and Comandate Marine Corporation v Pan Australia Shipping Pty Ltd [2006] FCAFC 192. NADRAC, Dispute Resolution Terms (Paper, AGPS, 2003) p 5, available on http://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Pages/NadracPublicationsByDate.aspx.

53 54

A video about the process is located at https://www.youtube.com/watch?v=0pQeZFaJH_4.

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Dispute resolution boards have only been used in a limited number of construction projects within Australia; and their use internationally has been widespread. 55 They differ from expert advisory processes in a number of ways, the primary difference being that they are involved in a project before any dispute has arisen and are proactive in identifying potential areas of conflict. They also approach the construction process as a collaborative team who work with the various contracting parties to support early resolution of any issues. In this sense, their role is similar in some respects to the role played by collaborative practitioners (see Chapter 4) in that DRBs will hold regular meetings and site visits and identify areas of tension between the contracting parties to support collaborative negotiation behaviour.

Description: Dispute Resolution Board [6.80] Gerber and Ong describe a DRB as follows: A DRB is comprised of a panel of three independent third-party experts who are jointly appointed by the contracting parties at the commencement of the project. The DRB members are made up a mix of members who have technical expertise in the type of construction being performed, in addition to having expertise in resolving issues of contractual interpretation and dispute resolution. Naturally, DRB members have tended to be a mixture of engineers, project managers and construction lawyers. The DRB is required to engage in regular site visits and meetings with key project personnel, so that it can remain up to date with project developments. Given the DRBs collective expertise, it can proactively assist the parties identify potential sources of disputes and help them avoid, manage and resolve any disputes that arise throughout ALL stages of construction. If a conflict cannot be resolved, and a formal dispute follows, the DRB arranges an informal hearing in the form of a site-meeting rather than a trial. It is conducted swiftly so that the dispute can be resolved in “real-time”, before either party’s position becomes firmly entrenched. Unlike other dispute resolution methods, such as expert determination, arbitration, and litigation, where the parties must educate third-party fact finders about the project and dispute, long after construction has been completed, the DRB members are already very familiar with the project, and will know and understand the circumstances leading up to the dispute. 56

55

56

P Gerber and B Ong, “21 Today! Dispute Resolution Boards in Australia: Past, Present, Future” (2011) 22 Australian Dispute Resolution Journal 180. The authors of this article note that DRBs have been used internationally in more than 2000 projects worth more than 100 billion dollars, but that their use in Australia has been far more limited. See a broader discussion at P Gerber and B Ong, Best Practice in Construction Disputes: Avoidance, Management and Resolution (LexisNexis, Sydney, 2013) and P Gerber, “Alliances and Dispute Review Boards: Best Friends or Worst Enemies?” (2012) 10(1) Australian Journal of Civil Engineering 57. See See P Gerber and B Ong, Best Practice in Construction Disputes: Avoidance, Management and Resolution (LexisNexis, Sydney, 2013). [6.80] 203

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Arbitration and determination [6.85] Arbitration is the dispute resolution process that most closely resembles litigation 57 and was widely supported by Western legal and political institutions throughout the 20th century. While litigation procedures have become more flexible in the way in which procedure can be matched to different sorts of cases, there have been arguments that arbitration has not been as flexible – partly because arbitrators have lacked the power in the past to deal with interlocutory issues and respond to any overarching objectives of the arbitral process. Initially, one of the most commonly cited advantages of arbitration was that parties had greater freedom to mould the procedure to suit their particular dispute and needs. However, by 2008 many commentators agreed that arbitration in the commercial arena had lost much of that flexibility and as a result extensive amendments were made in 2010 58 to support a more flexible arbitration environment. The legislative amendments are intended to ensure that in commercial arbitrations and under certain circumstances, an arbitrator can adopt inquisitorial processes, arbitrate without pleadings, or arbitrate on documents alone without a hearing. Essentially, the reforms were intended to reduce costs and time spent in arbitration. 59 In addition, the reforms were undertaken to ensure that Australia continued to play a role in the international arena with the then federal Attorney-General noting: “This represents the most significant reform to international commercial arbitration in more than 20 years and will help make Australia a significant player in the booming international commercial dispute resolution market”. 60 Arbitration has been used as a form of dispute settlement for more than a century within Australia. 61 It remains a preferred form of dispute resolution in some areas and must be used to resolve a variety of commercial disputes outside the court system. 62 These more formal models of arbitration operate in different States and Territories 63 under legislation such as their domestic Commercial Arbitration Acts. These Acts have as their agreed “core” the Model Bill created 57 58

59

See Australian Law Reform Commission (ALRC), Review of the Adversarial System of Litigation: ADR – Its Role in Federal Dispute Resolution (Issues Paper No 25, ALRC, 1998) p 25. The International Arbitration Amendment Act 2010 (Cth), came into effect on 6 July 2010 and is available at http://www.austlii.edu.au. Background to the legislation and submissions and amendments are available at Reforms to the International Arbitration Act 1974 on http:// www.ag.gov.au/consultations/pages/ReformstotheInternationalArbitrationAct1974.aspx. See also International Chamber of Commerce (ICC), Controlling Time and Costs in Arbitration, ICC Report (Report, ICC, 2012) available on http://www.iccwbo.org/Data/Policies/2012/ICC-ArbitrationCommission-Report-on-Techniques-for-Controlling-Time-and-Costs-in-Arbitration,-2012/.

60

Federal Attorney-General, The Hon R McClelland, Press Release (17 June 2010).

61

The Australian Constitution contains provisions relating to conciliation and arbitration for the prevention of industrial disputes: s 51(xxxv).

62 63

See, for example, the Commercial Arbitration Act 1984 (NSW). See Commercial Arbitration Act 1986 (ACT) and the Commercial Arbitration Act 1984 (NSW).

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by the Standing Committee of Attorneys-General (SCAG) that is reflected in the amended International Arbitration Act 1974 (Cth) (amended in 2010). 64 Commentators suggest that the new legislation will do much to support the regime applying to arbitration in Australia, 65 and that it clarifies a number of “concern” areas such as uncertainty relating to the confidentiality of arbitral proceedings (see also Chapter 12). 66 Not all States and Territories have adopted the legislation. The first State to adopt the amendments was New South Wales, and, to encourage commercial arbitration, a new Australian International Dispute Centre 67 was been set up. In addition, under the International Arbitration Act, where the normal process for appointing an arbitrator breaks down, an “appointing authority” can appoint an arbitrator to the dispute. The International Arbitration Regulations 2011, which commenced on 2 March 2011, make the Australian Centre for International Commercial Arbitration (ACICA) the sole appointing authority for the purposes of the Act. 68 In these arbitral models of commercial dispute resolution, arbitration usually operates pursuant to agreement between parties and courts can only intervene in an arbitration under very defined circumstances (see s 5 of the Commercial Arbitration Act 2010 (NSW)). Some of the changes in the new law that are based on the Commonwealth agreed model law are as follows: • As in many State civil procedure laws, an overarching objective of the legislation has been set out – to enable commercial disputes to be resolved in a cost effective manner, informally and quickly (s 1C). • The 2006 amendments to the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (1985) have been adopted (s 2A). • A party must raise any objection to non-compliance without delay or the right to object is waived (s 4). • If there is an agreement to arbitrate, a court must refer the matter to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being acted on (s 8). • There must be a real danger of bias to create a doubt regarding the impartiality or independence of an arbitrator, and any concerns must be raised within 15 days of becoming aware of the grounds otherwise the arbitrator can continue with the proceedings (ss 12 and 13). 64 65

See full text of International Arbitration Act 1974 (Cth) at http://www.comlaw.gov.au/Details/ C2011C00342. See R Garnett and L Nottage, The 2010 Amendments to the International Abitration Act: A New Dawn for Australia? (Research Paper No 10/88, Sydney Law School, 2010), available on http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=1676604.

66 67

D Jones, Commercial Arbitration in Australia, (Thomson Reuters, Sydney, 2011) pp 340–361. See http://www.disputescentre.com.au.

68

See http://www.acica.org.au/. [6.85] 205

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• An arbitral tribunal has significant powers to conduct arbitral proceedings (Pt 5), order interim measures and make orders with respect to security for costs, discovery of documents and interrogatories, and giving of evidence by affidavit (s 17). • Parties must not disclose confidential information in relation to the arbitral proceedings unless they “opt out” or the Act provides otherwise (ss 27E – 27I). This reverses Esso Australia Resources Ltd v Plowman. 69 • There are now limited grounds for setting aside an award (ss 34 and 34A). (See also discussion in Chapter 11 at [11.40].) • A right of appeal is only available if both parties agree or “opt in” – leave of a court is still required (s 34A). All Australian States and Territories, Commercial Arbitration Acts are similar in their content, govern commercial arbitration and follow the model law. The amendments to the commercial arbitration regime support a whole of jurisdiction approach. The aim of the previous laws is to promote a healthy environment for arbitration, without the excessive intervention or complicated procedures that were making arbitration into an expensive and inefficient process, and to “recognise and respect party autonomy in choosing a tribunal and procedure suitable for the resolution of their dispute”. 70 However, it is questionable whether past models of commercial arbitration achieved these aims. The amendments aim to support these broader objectives. The New South Wales version of the legislation (Commercial Arbitration Act 2010 (NSW)) 71 is referred to in more detail below, and has been used to discuss the amended regime. The Commercial Arbitration Acts are intended to support commercial agreements to resolve current or future disputes by arbitration. 72 In keeping with the aim of the Acts to respect the autonomy of the parties so far as possible, many sections may be excluded if the parties agree to do so and if this supports the overarching objective of the new commercial arbitration process to “facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense”. There are legislative presumptions that the arbitration agreement provides for one arbitrator, 73 and that that arbitrator should be jointly appointed by both parties, 74 although there is now provision for appointment by other means – the new International Arbitration Regulations 2011 (Cth) specify that the Australian Centre for International Commercial Arbitration (ACICA) is the sole competent 69

Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10.

70

H Astor and C Chinkin, Dispute Resolution in Australia (2nd ed, LexisNexis Butterworths, Sydney, 2002) pp 300–301. Available on http://www.austlii.edu.au/au/legis/nsw/consol_act/caa2010219.

71 72

73

Commercial Arbitration Act 2010 (NSW), s 1C(2)(a) notes that the new paramount objective (referred to above) is achieved by “enabling parties to agree about how their commercial disputes are to be resolved (subject to subsection (3) and such safeguards as are necessary in the public interest)”. Commercial Arbitration Act 2010 (NSW), s 10.

74

Commercial Arbitration Act 2010 (NSW), s 11.

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authority to perform the functions set out in Articles 11(3) and 11(4) of the UNCITRAL Model Law on International Commercial Arbitration. ACICA is now one national peak body for international commercial arbitrators in Australia. 75 In addition, the Federal Court of Australia has made special provision to deal with international arbitration and has designated judges and processes to support arbitration disputes. 76 The Commercial Arbitration Acts are directed at supporting certainty by emphasising the finality, formality and enforceability of arbitral awards. Awards of commercial arbitration conducted under the Acts are intended to be final (see discussion at [11.40]). 77 The Acts also stipulate that awards must be made in writing and signed, and contain reasons stated for making the award (unless agreed). 78 One of the major changes in the new legislation is that parties can now apply to an arbitrator for interim awards. Parties can ask the arbitrator to order temporary or interim measures to preserve assets or evidence pending the issue of a final award by the arbitrator. 79 An interim measure will be recognised and enforced by Australian courts irrespective of the country where it was issued, unless it falls within narrow exceptions. 80 Interim measures can also apply to procedural measures. For example, under s 17(3)(g) of the Commercial Arbitration Act 2010 (NSW), an arbitrator may take a number of measures to manage the arbitration including: “dividing, recording and strictly enforcing the time allocated for a hearing between the parties (a ‘stop clock’ arbitration)”. Parties cannot obtain preliminary orders from the arbitrator on an ex parte basis. 81 One significant and contentious change is in the commercial arbitration area related to the ability of arbitrators to adopt a med–arb model. To some commentators, a combined med–arb model enables disputants to have the “best of both worlds”. 82 The amendments to the domestic Commercial Arbitration Acts created a new section that is not contained in the UNCITRAL Model Law on International Commercial Arbitration, which is intended to enable med–arb processes to be used by consent. The new s 27D has, however, proved to be controversial and there has been considerable discussion about removing it. An 75

76 77 78

See International Arbitration Regulations 2011, Explanatory Statement, available on http:// www.austlii.edu.au/au/legis/cth/num_reg_es/iar2011n10o2011468.html; also Norton Rose, Australia: The New Australian International Arbitration Regime in Practice – Less Court Intervention, Greater Enforceability, Lower Costs, available on http://www.mondaq.com/australia/article.asp?articleid= 127342. Federal Court of Australia, Arbitration & International Arbitration, available on http:// www.fedcourt.gov.au/case-management-services/ADR/arbitration. Commercial Arbitration Act 2010 (NSW), ss 34 and 34A. Commercial Arbitration Act 2010 (NSW), s 31.

79

Commercial Arbitration Act 2010 (NSW), s 17.

80

Commercial Arbitration Act 2010 (NSW), s 17I. See however discussion relating to enforceability in Chapter 11 at [11.40].

81

This is also the approach taken in Hong Kong, Singapore, and the United Kingdom.

82

A Limbury, “Getting the Best of Both Worlds with Med–arb” (September 2010) 48(8) Law Society Journal 62. [6.85] 207

Alternative Dispute Resolution

issues paper on this topic prepared by the previous Standing Committee of Attorneys-General (SCAG) in 2011 83 has noted: The consultation model Bill permitted an arbitrator to act as a mediator in proceedings relating to a dispute if the arbitration agreement provided for this or both parties consented in writing. Mediation is generally a dispute resolution process that involves the mediator having separate, private meetings with the parties. Two issues were raised relating to this, both concerning the situation where the alternative mechanism fails to resolve the dispute and the arbitration proceedings recommence. Stakeholders raised concerns about the potential for abuse of natural justice and the risk of bias. 84

SCAG decided to retain the med–arb provision in s 27D, noting that: Ministers noted that submissions to consultation on section 27D of the model Commercial Arbitration Bill 2010 expressed different views on the formulation of the section. Ministers agreed to clarify that consent to an arbitrator resuming arbitration following mediation should be obtained after the termination of the mediation in the form contained in the NSW Commercial Arbitration Act 2010. 85

There is now extensive literature regarding international commercial arbitration and some discomfort relating to its use (see Chapter 15). It has been noted by Justice Rares of the Federal Court that there are limited circumstances in which Australian courts permit challenges to arbitral awards and which include the following: • the agreement was not valid under its governing law; • the challenging party was under a legal incapacity at the time that the original agreement was made, was not given proper notice of the arbitration or was not able to present his, her or its case in it; • the composition of the arbitral panel or its procedure did not comply with the agreed governing law; • the award was not yet binding on the parties or had been set aside or suspended by a competent authority in which, or under the law of which, the award was made; • the domestic Australian law does not permit such a dispute to be resolved by arbitration; or

83

84

85

SCAG has been superseded by the Law, Crime and Community Safety Council (LCCSC), see http:// www.ag.gov.au/About/CommitteesandCouncils/Law-Crime-and-Community-Safety-Council/Pages/ default.aspx. SCAG, Reform of the Uniform Commercial Arbitration Acts – Section 27D Mediation Clause, available on http://webarchive.nla.gov.au/gov/20140212163817/http://www.sclj.gov.au/sclj/standing_council_ consultations/standing_council_pastconsultations/standing_council_reform_sec27d_clause.html? svPersistant_Default_CurrentFontMultiplier=37. Attorney-General for Australia – The Hon Robert McClelland MP, Communique: Standing Committee of Attorneys-General (SCAG decision of 21–22 July 2011).

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• the enforcement of the award would be contrary to public policy, for example, because the award had been induced or affected by fraud or corruption, or a breach of the rules of natural justice occurred in connection with the making of the award. 86 Other forms of arbitration take place pursuant to a number of other legislative instruments within Australian courts 87 and tribunals. The process used may closely resemble traditional litigation and is sometimes not regarded as an ADR process. The major variables in arbitration are the degree of formality in the proceedings and the extent of appeal rights. Some domestic forms are discussed below. Where arbitration proceedings operate within courts and tribunal structures, referral to arbitration is usually directed by a court official or judicial officer. In such models, arbitration is conducted by appointed expert lawyers who may carry out the arbitration on court premises. 88 For example, arbitrations that have operated pursuant to the Arbitration (Civil Actions) Act 1983 (NSW) or under Pt 5 of the Civil Procedure Act 2005 (NSW) (which replaced the 1983 Act) have led to the resolution of thousands of common law Supreme and District Court actions in New South Wales over the past 15 years. However, these processes have been used much less frequently over the past five years. Arbitration has been the subject of criticism in a number of reports where party perceptions of the process were often reported to be unfavourable. 89 The concerns related primarily to the way in which parties were involved and participated in the process. The common concerns were that litigants did not feel that they were respected or felt pressured to settle. Arbitration has also been widely used in the workers compensation jurisdiction in New South Wales. In workers compensation disputes, a conciliator/arbitrator will ordinarily conduct a telephone conference with all parties to attempt to resolve a dispute. If the matter is not resolved, it is set down for a conciliation and arbitration hearing (usually within three weeks). The New South Wales Workers Compensation Commission has established a model for the conciliation/arbitration process to be conducted by arbitrators, much of which is set out in the Commission’s 2011 guidelines entitled The Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission. 90 86

87 88

89 90

See S Rares, “The Modern Place of Arbitration – Celebration of the Centenary of the Chartered Institute of Arbitrators” (April 2015), paper available at http://www.fedcourt.gov.au/publications/ judges-speeches/justice-rares/rares-j-20150422. For example, provision exists under Pt 5 of the Civil Procedure Act 2005 (NSW). Examples of that process may operate pursuant to legislation such as the Arbitration (Civil Actions) Act 1983 (NSW) or the later Civil Procedure Act 2005 (NSW) Pt 5 – for example, personal injury arbitrations in the Supreme Court and District Court of New South Wales. See, for example, T Sourdin and T Matruglio, Evaluating Settlement Week (La Trobe University, Melbourne, 2004). See Workers Compensation Commission, The Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission, available on http://www.wcc.nsw.gov.au. [6.85] 209

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The blended conciliation/arbitration process (see [6.95] “Hybrid processes” below) has been specifically considered in decisions of the New South Wales Workers Compensation Commission. In DP World Sydney Ltd v Kelly, 91 the question of whether an arbitrator should disqualify themself from conducting an arbitral hearing on the basis of apprehended bias after conducting a conciliation through a teleconference was explored. Significantly, arbitrators in this scheme do not have private conversations with either party as part of the conciliation process. In rejecting the appeal, the Deputy President noted that: Section 355(1) of the 1998 Act provides that an Arbitrator is not to make an award or otherwise determine a dispute referred to the Commission for determination “without first using the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement acceptable to all of them” [emphasis added]. That is, an Arbitrator has a statutory obligation to attempt to bring the parties to a settlement before making an award or otherwise determining a dispute. That obligation is a continuing one, but is primarily discharged at the conciliation stage of the proceedings. Section 355(2) provides that no objection may be taken to the making of an award or the determination of a dispute by an Arbitrator on the ground that the Arbitrator has previously used his or her best endeavours to bring the parties to a settlement. 92

The New South Wales Workers Compensation Commission arbitrators have diverse qualifications and expertise. While all are legally qualified, many hold qualifications or accreditation in alternative dispute resolution and all have experience working within the New South Wales workers compensation scheme. The Commission has established a professional training and development program in order to support its arbitrators. The Workplace Injury Management and Workers Compensation Act 1998 (NSW) requires arbitrators to use their best endeavours to bring the parties to a settlement that is acceptable to all of the parties. Only when this cannot be achieved will the arbitrator proceed to make a determination. The arbitrator has broad, flexible powers to determine the best way to resolve a dispute. The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as it sees fit (s 354(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)). The Evidence Act 1995 (NSW) does, however, provide a guide for the Commission as to the types of evidence that are relevant and reliable. Proceedings are to be conducted with as little technicality and formality as the proper consideration of the matter permits to ensure natural justice (s 354(3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)). Proceedings need not be conducted by way of a formal conference between the parties and may be determined on the papers provided. A question of law arising in proceedings before an arbitrator may, with leave of the President of the Commission, be referred by the arbitrator for the opinion of the President (s 351(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)). This may be at the request of a party or the 91

DP World Sydney Ltd v Kelly [2011] NSWWCCPD 43.

92

DP World Sydney Ltd v Kelly [2011] NSWWCCPD 43 at [100].

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arbitrator’s own motion. The President is not to grant leave for the referral unless the question involves a “novel or complex” question of law. The New South Wales Workers Compensation Commission’s Annual Review for 2014 93 shows that there were 8,002 applications to resolve a dispute lodged in 2014. Of the applications dealt with, there were 7,388 telephone conferences, 4,222 conciliation/arbitration proceedings and 4,439 medical assessments. In total 9,344 matters were finalised. There were 114 appeals against arbitrator’s determinations lodged with the Commission. The Commission also appoints medical experts who provide certificates that assist to resolve disputes, as well as mediation services that are used and stand apart from the combined conciliation/arbitration model that operates. 94 The Commission’s appeal and percentage settlement rates mentioned above are considerably different to those previously experienced in the arbitration system conducted in the New South Wales Supreme, District and Local Courts. The difference is said to primarily relate to the blended conciliation/arbitration function used at the Commission. With the exception of international arbitration provisions (where the parties have already agreed to use arbitration) and other pre-existing agreements, the arbitration provisions of the Federal Court have always been based on consensual referral to arbitration. Most of these provisions were inserted by the Courts (Mediation and Arbitration) Act 1991 (Cth) at the same time that the first arbitration provisions were inserted in the Family Law Act 1975 (Cth). 95 The Federal Court Rules 1979 (Cth) contain provisions about arbitration procedure, court termination of arbitration, and appointment of arbitrators. 96 These provisions have not been used by the Federal Court except in the admiralty and maritime jurisdictions. A model of arbitration has also been introduced into the family dispute setting. 97 It is still unclear what models of arbitration will operate in different settings, but, broadly speaking, a system of private arbitration where awards can be registered with the Family Court has been adopted. Referrals are only by consent 98 and awards are subject to review only on questions of law. 99 The Family Law Act 1975 (Cth) was amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). This amendment Act introduced a 93

See New South Wales Workers Compensation Commission’s Annual Review for 2014, available at http://www.wcc.nsw.gov.au/Policies-and-Publications/Documents/Annual%20Review/WCC_Annual_ Review_2014.pdf.

94

See New South Wales Workers Compensation Commission’s Annual Review for 2014, available at http://www.wcc.nsw.gov.au/Policies-and-Publications/Documents/Annual%20Review/WCC_Annual_ Review_2014.pdf.

95 96 97

Sections 53A(2), 53AA and 53AB were inserted by the Law and Justice Legislation Amendment Act (No 1) 1995 (Cth). Federal Court Rules 2011 (Cth), Div 28.2. Division 28.5 deals with international arbitration. Provisions are contained in ss 10L – 10P of the Family Law Act 1975 (Cth).

98 99

Family Law Act 1975 (Cth), s 13E and div 4 (ss 10L – 10P). Family Law Act 1975 (Cth), s 13G. [6.85] 211

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definition of arbitration in s 10L(1), and renumbered and rearranged the various sections of the Family Law Act 1975 dealing with arbitration. Changes in 2006 to the arbitration framework have been described as a positive development, particularly in view of the procedural changes introduced by the new Div 12A in relation to children’s cases: Unless parties agree to apply the same principles to their spousal maintenance and property case, the likelihood is that there will need to be two hearings using differing jurisprudential approaches. Arbitration for financial matters is a very real alternative to economically separate the different processes involved in the two types of cases. 100

Description: Arbitration [6.90] The Australian Standard, AS 4608 – 2004: Dispute management systems, defines “arbitration” by reference to the NADRAC description as follows: “Arbitration” is a process in which the parties to a dispute present arguments and evidence to a dispute resolution practitioner (the arbitrator) who makes a determination. 101

Hybrid processes [6.95] A vast array of hybrid processes operate within the Australian dispute resolution environment. Many of these operate in the workers compensation jurisdiction and involve blended conciliation and arbitral models (see the discussion of the NSW Workers Compensation Commission at [6.85] above), or blended conciliation and advisory models. 102 Other models operate in the commercial setting and vary according to the needs of the parties. There are a few examples of bespoke dispute resolution design. 103 For example, Sir Laurence Street has developed a “Senior Executive Appraisal” model, a variation on the mini trial process. This process draws on a mediation model and is intended to be consensus-based. 104 Other examples are present in the tribunal area where blended facilitative and adjudicative models may operate. In addition, there are dispute resolution bodies that sit outside both courts and tribunals. For example, the Takeovers 100 101 102

M Bartfeld, Family Law Arbitration, Conference Paper (12th National Family Law Conference, Perth, 22–26 October 2006) p 2. NADRAC, Dispute Resolution Terms (AGPS, 2003) p 5, available on http://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Pages/NadracPublicationsByDate.aspx.

103

See S Cibau, “ADR for the Long Haul – a Progressive Model of Conciliation in Action” (2009) 11(2) ADR Bulletin Article 3, available on http://www.epublications.bond.edu.au/adr/vol11/iss2/3. See Endispute on http://www.endispute.com.au.

104

L Street, “Senior Executive Appraisal” (1989) 6 Australian Construction Law Newsletter 9.

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Panel 105 deals with corporate takeover issues. Under s 659B of the Corporations Act 2001 (Cth), private parties to a takeover no longer have the right to commence civil litigation, or seek injunctive relief from the courts in relation to a takeover, while the takeover is current. 106 The Takeovers Panel has clearly replaced the courts as a principal forum for resolving takeover disputes under the corporations regime. The panel is intended to conduct proceedings in an “informal” manner and without “excessive legalism”. 107 The processes used are intended to be a blend of expert appraisal, conciliation and adjudication, and the panel is expressly required (under reg 13 of the ASIC Regulations 2001 (Cth)) to ensure that its proceedings are: • • • •

as fair and reasonable, and conducted with as little formality, and in as timely a manner, as the requirements of the legislation governing the Panel, and a proper consideration of the matters before the panel permit. 108

Proceedings are primarily determined on written submissions. However, the sitting panel may convene a conference to assist it to make determinations. The Takeovers Panel has published Procedural Rules (made under s 195 of the Australian Securities and Investments Commission Act 2001 (Cth)) that govern panel proceedings. One of the most commonly mentioned models of dispute resolution is known as “med–arb”. This model is an amalgam of mediation and arbitration models. In the med–arb model, a dispute resolution practitioner uses mediation techniques and makes recommendations at the end of the process. 109 Other hybrids include “fac–med”, a facilitative form of mediation. It is expected that process variations will continue to emerge. One argument against defining processes too rigidly is that more flexible definitions enable useful hybrids to develop.

Description: Hybrid and combined processes [6.100] NADRAC has described hybrid processes as follows: “Combined or hybrid dispute resolution processes” are processes in which the dispute resolution practitioner plays multiple roles. For example, in conciliation and in conferencing, the dispute resolution practitioner may facilitate discussions, as well as provide advice on the merits of the 105

See Takeovers Panel, available on http://www.takeovers.gov.au/.

106

See Takeovers Panel, available on http://www.takeovers.gov.au (accessed 27 August 2011).

107

Corporate Law Economic Reform Program, Takeovers, Corporate Control: A Better Environment for Productive Investments, Paper No 4 (Commonwealth of Australia, Canberra, 1997) p 37. See Takeovers Panel, Process Information, available on http://www.takeovers.gov.au.

108 109

See also Agricultural and Veterinary Chemicals Code Act 1994 (Cth). This legislation may provide for a med–arb model to operate. See also T Altobelli, “ADR Legislation: Some Recent Developments” (1996) 3(1) Commercial Dispute Resolution Journal 1. [6.100] 213

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dispute. In hybrid processes, such as med-arb, the practitioner first uses one process (mediation) and then a different one (arbitration). 110

[6.105] Clearly, there is considerable diversity in the definitions that are used in respect of ADR processes. Some can be categorised as “decisional”. Others, such as “mediation”, are usually perceived to be facilitative. However, many processes continue to evolve and involve decisional as well as facilitative characteristics – essentially a blending of elements. As noted above, this “blending” is seen as being at odds with the requirement that ADR processes be better defined, adopted and promoted as part of mainstream dispute resolution and legal practice. Many of the concerns about the need to institutionalise ADR stem from a concern that definitional and other support is required to ensure that existing participants in the broad dispute resolution system understand, accept and support ADR processes. However, proposals to institutionalise and better define and categorise ADR processes are perceived by many who work in the ADR area as inappropriate. The concerns raised include the following: • Institutionalisation could promote a lack of experimentation or adaptation of ADR processes so that such processes fail to respond to changing requirements or to match the individual characteristics of the dispute or conflict (which would involve channelling all dispute and conflict into one or more strictly defined types of process), • Institutionalisation is driven by a “legal” agenda and strict categorisation can mean that processes are “captured” by those who hold defined qualifications. Future reforms and changes to ADR and related process definitions will be determined in part by broader changes to society and the legal system, as well as cultural and other changes. Potential changes and reforms are discussed further in Chapters 10 and 15 and may involve the development of processes that are not “face-to-face” and are online, for example, e-mediation – as well as the establishment of clearer guidelines, explanations of processes and practitioner qualification frameworks.

Objectives and skills in advisory and determinative processes [6.110] As noted in Chapter 1, it is possible to articulate shared objectives in the general sense of applying objectives to our dispute resolution system. It is also possible to describe some shared skill sets that exist in respect of facilitative, advisory and determinative processes (see Chapter 7). However, there has been little focus by many in the ADR area on advisory and determinative processes and the additional skills that are required in such processes. Where determinative processes are involved, arguably different criteria or objectives should operate in respect of transparency and fairness. This is 110

NADRAC, Dispute Resolution Terms (Paper, AGPS, Canberra, 2003) p 5; available on http:// www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/NadracPublicationsByDate.aspx.

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primarily because a determination in the ADR setting may be enforceable under some circumstances and not be the subject of an agreement. In addition, the personal characteristics and approach of the decision-maker may have a greater impact on the outcome in determinative processes than in facilitative or advisory processes where ultimately the choice of outcome is left to the parties. This means that the requirements for justice and fairness in decisional and advisory processes (objective 2 as noted in Chapter 1 at [1.85]) will require attention to additional sub-criteria. The balance of this chapter focuses on the development of decision-making skills and the particular objectives of advisory and determinative processes.

DECISIONAL AND ADVISORY PROCESSES [6.115] As noted previously, most disputes within society are resolved without any requirement for a third party to make a decision. Parties either negotiate an outcome, give up, or, increasingly, use facilitative processes that involve a third party or a protocol assisted regime to help the disputants to resolve disputes. Clearly, there has been an increasing emphasis in recent years on facilitative processes and the models used in mediation and other facilitative processes. The increased use of facilitative process within and without courts has also led to significant changes in the way that hearing processes are used in some courts. Restorative processes, for example, as well as problem-solving courts are now used extensively within Australia and overseas (these courts are discussed in more detail in Chapter 8). Courts in the family area (which include Childrens Courts) are also more inquisitorial and facilitative, and use very different methods of gathering evidence and managing communication than in the past. 111 Essentially, these changes mean that decisional or determinative models of dispute resolution are increasingly being blended with restorative and facilitative processes. Facilitative skills (which are explored in Chapter 7) have therefore become increasingly important in the adjudicative setting. In fact in some instances judges can mediate, conduct conferences and engage in other forms of ADR (see [8.105]). 112 However, whilst there has been interest in judges as mediators, there has been little interest in the development of better decision-making models (particularly in the adjudicative setting) and in the context of blended process models. This section focuses on the processes that can be used in respect of advisory and determinative processes by a third party and the role of these processes in 111

See, for example, the growth in less adversarial trial (LAT) processes in the family area: Family Court of Australia, http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/aboutgoing-to-court-and-court-processes/if-your-case-is-in-the-family-court-of-australia/lessadversarial-trial-in-parenting-cases.

112

See also T Sourdin and A Zariski, The Multi Tasking Judge (Thompson Reuters, 2013). [6.115] 215

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dispute resolution. The section also examines issues about the communication of decisions and the analysis and reasoning used in decision-making. 113 In the managerial setting, there is considerable emphasis placed on decisionmaking, although the emphasis is largely on evaluating options through the use of a “balance sheet” (where the decision-maker summarises gains and losses and the “acceptability” of an option) and the role of personality and other factors in making a decision. 114 This approach can be contrasted with decision-making in traditional adjudicative settings. There, the emphasis is placed on how evidence or information is gathered and the role of other decisions and precedent. Judicial decision-making processes and approaches have an impact on all ADR determinative processes such as arbitration and other blended models. Recent thinking and the adaptation of approaches in the judicial decision-making area is therefore relevant in the broader ADR setting. In addition, exploring the processes involved in judicial decision making can assist in understanding the process of decision making more generally.

Adjudicative and judicial decision-making [6.120] Most decision-making in the judicial setting has been considered from the perspective of the analysis of presented material. There are a few significant cases that guide judges in terms of this aspect of their decision-making. The leading Australian case in this area is Markarian v R, 115 which considered whether judges making sentencing decisions should use an instinctive approach. Justice McHugh referred to two main approaches to decision-making in sentencing as follows: By two-tier sentencing, I mean the method of sentencing by which a judge first determines a sentence by reference to the “objective circumstances” of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier. By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence. The two-tier sentencer contends that using the instinctive synthesis is inimical to the judicial process and is an exercise of arbitrary judicial power, unchecked by the giving of reasons. … 116

It was this form of decision-making that was supported by the majority of the High Court, although the majority in Markarian v R rejected the notion that 113 114 115 116

See also T Sourdin and T Davies, “Educating Judges About ADR” (1997) 7 Journal of Judicial Administration 22 and T Sourdin and A Zariski, The Multi Tasking Judge (Thompson Reuters, 2013). R Burns, Psychology for Effective Managers: Understanding and Managing Human Behaviour in the Workplace (Business and Professional Publishing, Sydney, 1997). Markarian v R [2005] HCA 25. Markarian v R [2005] HCA 25 at [51]–[52].

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instinctive synthesis means that judges do not have to give transparent reasons. Some commentators have suggested that the High Court decision in Markarian v R means that: … from a neurobiological perspective, the court’s preferred consciously considered and articulated methods of sentencing decision-making are those most likely to result in rational and well reasoned, yet humane, sentences. All information is initially sorted and prioritised at an unconscious level, a process of sorting reliant upon attaching emotional significance to information on the basis of the previous experience of the judge. Without this ranking system, the brain would become overloaded with indistinguishable information. Once this prioritising has taken place, however, the judge is able to consider the individual case in the context of all relevant legal, social, and personal considerations. Irrelevancies may be excluded and feelings and emotional reactions scrutinised for appropriateness. 117

Despite the emphasis placed on instinctive synthesis by the High Court in Markarian, it is clear that the court considers that decision-making involves both an intuitive as well as a careful sorting of all of the relevant information and other factors. In view of this approach, it may be that decision-making that takes place either in the shadow of the court and tribunal system or within courts and tribunals could also be improved by reference to managerial decision-making processes and the analytical processes that have been explored in that domain (see [6.125]). There are other relevant factors that are also relevant in the context of decision-making that can be linked back to the overarching objectives of decision-making. For example, objectives that relate to conventional adjudication emphasise the importance of precedent setting and the development of law. These objectives can be contrasted with broader justice system objectives: whether the decision will be effective (complied with) or whether the decision promotes respect for the legal system. It may be that “blended” adjudicative processes can meet these objectives more readily than traditional adjudicative processes because there is an active consideration of issues relating to how the decision is made and communicated (rather than only considering whether the decision is “right”). These factors also can have an impact on the pace and processes used in decision-making.

Decision-making approaches [6.125] It has been suggested that the classic approach to decision-making involves five key phases. Adair has outlined these in a “classical managerial approach” to decision-making. 118

117

H Bennett and GA Broe, “Judicial Neurobiology, Markarian Synthesis and Emotion: How can the Human Brain Make Sentencing Decisions?” (2007) 31 Criminal Law Journal 75, 90.

118

J Adair, Decision Making and Problem Solving (Institute of Personnel and Development, London, 1997) p 10. [6.125] 217

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This approach assumes a great deal of flexibility in the actual processes as well as the outcomes that may be reached. However, where a decision is reviewable the options that can be produced (or outcomes) may need to be reduced to monetary terms and the “relevant” information may only be that presented by the parties (rather than other information which may be “relevant” or important). As determinative decision-making in Australia is mostly based on an adversarial model, the “decision-maker” may be restrained in terms of what can be considered or the options that can be produced. 119 Where “adversarial decision-making” operates, there are a number of restrictions on the decision-making process. As noted by the Australian Law Reform Commission (ALRC), the adversarial system of litigation is credited with having a number of counter-productive or inefficient consequences. For example: • The system, due in large part to its emphasis on the final hearing, is about winning and losing – each party has responsibility for advocating its own case and attacking the other party’s case; this puts an emphasis on confrontation. • The lawyer’s role is partisan. Although a lawyer has certain important ethical countervailing duties to the court, the lawyer has a duty to represent the interests of their client and may not be ethically accountable for the client’s goals or the legal means used to attain them. • The judge is responsible for ensuring that the proceedings are conducted fairly – this makes judges sensitive about limiting the issues and arguments raised by parties and putting other controls on proceedings in case that is considered biased or unfair. • The judge is not responsible for how much evidence is collected, how many different arguments and points are put to the court, or how long the proceedings take.

119

See also T Sourdin, “Judicial Management and Alternative Dispute Resolution Process Trends” (1996) 14(3) Australian Bar Review 206 and T Sourdin and A Zariski, The Multi Tasking Judge (Thompson Reuters, 2013).

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• The judge adjudicates questions of fact and questions of law submitted to the court, but is not responsible for discovering the truth or for settling the dispute to which those questions relate. 120 Where determinative ADR processes are concerned, these problems may also arise. For example, arbitration is probably the most common example of a “parallel” system that can operate on the fringe of the litigation system but is said to mirror the problems caused in the adversarial system, such as excessive costs and delays, and the adoption of a positional approach by the parties at hearing. 121 There are also other issues that impact upon decision-making processes which are related to our conventional litigation system. For example, in most determinative decision-making there is a reluctance to use panels of decisionmakers (this is due to the fact that the solo decision-maker is seen as the norm). Arguably, in complex matters a panel approach may be cost-effective and enable issues to be managed more effectively. The movement towards appointing experts, referees and assessors is an attempt to remedy these deficits as litigation and dispute resolution has become more complex.

A DECISIONAL MODEL [6.130] Adjudicative and advisory decision-making need not follow an adversarial model (unless this is prescribed by legislation or other relevant authority). One model that operates in respect of decisional ADR as well as court based hearing processes, and which can operate within the instinctive synthesis approach referred to previously, could be described as a four-stage decisional model, detailed below. The model stages involve: 1. Information gathering; 2. Analysis; 3. Making the decision and 4. Communicating the decision.

120 121

ALRC, Rethinking the Federal Civil Litigation System, (Issues Paper No 20, ALRC, 1997). The recent State and Territory Commercial Arbitration Act reforms are intended to support more procedural flexibility. [6.130] 219

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Stage One – information gathering [6.135] The stages involved in the decision making approach are as noted above. However, it is the emphasis applied to each stage and the involvement and skills used by the parties, their representatives (if present) and the decision-maker or adviser that will vary. For example, in gathering information, the processes used can vary according to the circumstances and can involve a decision-maker adopting a facilitative stance and using many of the techniques of introduction, understanding and questioning that are referred to in Chapter 7. However, in addition, in most introductory stages of determinative processes there is a greater focus on the technical requirements, such as the available review processes, onus of proof and legislative requirements. There may also be reference to the way that written material is to be used, and an explanation of the physical setting may include references to microphones and transcripts. Notably, many experienced judges indicate that in complex matters the information-gathering stage that occurs prior to any actual hearing process is essential in terms of managing process and assisting to ensure that outcomes are determined promptly. 122 There may also be ways in which the information-gathering stage can be improved and support the decision-maker in the analytical stage. Initially, for example, most decision-makers are benefitted by a preparation stage where the issues are mapped out and critical questions are formulated. In addition, in a hearing, concurrent evidence processes (discussed at [6.160]) can assist in decision making in judicial as well as ADR determinative and advisory processes. Justice McClellan, Chief Judge at Common Law of the New South Wales Supreme Court, has described the impact that concurrent evidence processes can have on the information-gathering stage and has suggested that 122

Justice N Owen, Dispute Resolution: Idle Musings on the Eristic, Extispicy and the Exegesis, Conference Paper (presented at the Institute of Arbitrators and Mediators National Conference, Western Australia, 12 April 2008).

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these processes can be used to reduce levels of tension in some circumstances. His Honour said that when the processes are used: Within a short time of the discussion commencing, you can feel the release of the tension which normally infects the evidence-gathering process. Those who might normally be shy or diffident are able to relax and contribute fully to the discussion. 123

Neurobiology and information gathering [6.140] The information-gathering stage in any dispute resolution process involves all parts of the brain and is a complex process. Recent research on neurobiology and neuro-awareness suggests that information gathering and decision-making are likely to be governed by different parts of the brain and may be influenced by factors that are neither rational nor logical. Naturally, the way in which disputants gather information in ADR processes is also influenced by neurobiological factors. There are many different brain areas that are involved in decision-making and information gathering. We constantly sort, ignore and add information before analysing that information. Our analytical processes are also individual and linked to brain structure and processes. The areas of the brain involved in the broad decisional process are set out below (summarised by Bennet and Broe): 124 Table 6.1: Decision-making and the brain Brain area Prefrontal regions, particularly orbitobasal/ventromedial and dorsolateral cortices Limbic system Amygdala (part of limbic system) Ventromedial region

Function Enable humans to make multi-attribute decisions based on explicit deliberation and integration of information from a wide range of sources. 125 Integral to neurological decision-making Essential to processing emotion 126 Associated with ability to see future consequences of decisionmaking, and also with instinctive and non-conscious decisionmaking.

123

P McClellan, “Concurrent Evidence”, Effectius Newsletter (Issue 14, 2011) p 5, available on http:// www.effectius.com.

124

H Bennett and GA Broe, “Judicial Neurobiology, Markarian Synthesis and Emotion: How Can the Human Brain Make Sentencing Decisions?” (2007) 31 Criminal Law Journal 75, 84–86.

125

H Bennett and GA Broe, “Judicial Neurobiology, Markarian Synthesis and Emotion: How Can the Human Brain Make Sentencing Decisions?” (2007) 31 Criminal Law Journal 75, 84–86, referring to D Krawczyk, “Contributions of the Prefrontal Cortex to the Neural Basis of Human Decision-making” (2002) 26 Neuroscience and Biobehavioural Reviews 631. H Bennett and GA Broe, “Judicial Neurobiology, Markarian Synthesis and Emotion: How Can the Human Brain Make Sentencing Decisions?” (2007) 31 Criminal Law Journal 75, 84-86, referring to R Wiener, B Bornstein and A Voss, “Emotion and the Law: A Framework for Inquiry” (2006) (Apr–Jun) Law and Human Behaviour (online issue).

126

[6.140] 221

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Brain area Dorsolateral cortex (DLC)

Function Involved in working memory, thus plays a key role in: • reasoning and deliberating • making complex decisions from multiple sources of information • comparing alternatives • integrating input from previously learned and stored knowledge together with externally derived information

Ventromedial cortex (VMC)

Involved with processing emotion and feelings and the relationship of those states to reason and decision-making. Particularly involved in processing stimuli that have a personal, social or moral focus, to the extent that the VMC can associate incoming stimuli with appropriate emotional reactions and feelings. One theory is that the VMC automatically activates previously learned information whenever a person is presented with a situation similar to a previous experience, and also activates the emotional disposition associated with the experience. This allows activated facts to be recalled together with feelings, and can be either conscious or unconscious. When unconscious, the emotional association can act as a biasing element. This process facilitates logical reasoning by allowing certain outcomes to be rapidly assessed and rejected, also allowing relevant and selected information to be available for further higher level processing by the DLC. According to Damasio, 127 without this element of “bias” (instinctive/gut reaction) people would not be able to make any decisions at all. Once the DLC takes over the process of reasoning, the feelings that arose from the somatic/emotional state are available to cognitive awareness. This allows for deliberate rejection or suppression of a particularly inappropriate “emotionally charged” choice, as long as attention is given to the fact that it was in conflict with the knowledge of legal requirements. 128

There are many matters that can influence the effectiveness of the informationgathering stage. It is clear the way that in which the human brain works can influence decision–making, and the structure and processes of the brain are influenced by a person’s innate characteristics and their environment. It may be, for example, that less well-developed orbitobasal/ventromedial areas of the brain may mean that it is difficult to choose between alternatives or make a decision when information is incomplete. In addition, decision-making can be influenced by factors that may not only be related to brain structure. For example, the following factors can impact upon information gathering as well as the overall decision-making process: • when and what a person has eaten; 129

127

128 129

H Bennett and GA Broe, “Judicial Neurobiology, Markarian Synthesis and Emotion: How Can the Human Brain Make Sentencing Decisions?” (2007) 31 Criminal Law Journal 75, 84–86, referring to A Damasio, Descartes’ Error: Emotion, Reason, and the Human Brain (Quill, New York, 1984). Table prepared by C Carter, Project Officer, Judicial College of Victoria 2011 as part of a working project. See J Tierney, “Do You Suffer From Decision Fatigue?”, New York Times, 17 August 2011, available on http://www.nytimes.com/2011/08/21/magazine/do-you-suffer-from-decision-fatigue.html?_r= 2&pagewanted=1, referring to a study of parole board decision-making reported in S Danziger, J Levav, L Avnaim–Pesso. “Extraneous Factors in Judicial Decisions”, Proceedings of the National Academy of Sciences of USA (2008) 108(17) 6889.

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• the time of day; 130 • how many other decisions a person has made that day (decision fatigue); 131 • personal values; 132 • unconscious assumptions; 133 • reliance on intuition; 134 • emotion; and, 135 • how people present (social factors).

136

To ensure that a decision-maker considers the relevant material required to make a decision, questions need to be asked at each stage of the decisional process. Within the formal litigation system, some aspects of the information-gathering process may be governed by practice and procedure as well as rules of evidence. However, it is increasingly the case that even within the litigation system judges can vary the way in which they gather information. One particular issue in information gathering is related to how we may ignore, distort or reject information because of conscious or unconscious bias. To reduce or eliminate bias in the information-gathering stage, Feigenson and Park suggest a four-step process: 137 1. 2. 3.

Be aware of the unwanted influence. Be motivated to correct the bias. Be aware of the magnitude and direction of the bias.

4.

Be able to adjust the response accordingly.

130

See J Tierney, “Do You Suffer From Decision Fatigue?”, New York Times, 17 August 2011, available on http://www.nytimes.com/2011/08/21/magazine/do-you-suffer-from-decision-fatigue.html?_r= 2&pagewanted=1.

131

See J Tierney, “Do You Suffer From Decision Fatigue?”, New York Times, 17 August 2011, available on http://www.nytimes.com/2011/08/21/magazine/do-you-suffer-from-decision-fatigue.html?_r= 2&pagewanted=1. R Chisholm, Unstated Values and Assumptions in Judicial Cases, Unpublished Paper, National Judicial College Conference, Judicial Reasoning – Art or Science 2009 see http://www.njca.anu.edu.au/ Professional%20Development/programs%20by%20year/2009/Judicial%20Reasoning %20Conference.pdf. K Mason, “Unconscious Judicial Prejudice” (2001) 75 The Australian Law Journal 676, 680. M Kirby AC CMG, “Judging: Reflections on the Moment of Decision” (1999) 18 Australian Bar Review 4.

132

133 134 135 136

137

H Bennett and GA Broe, “Judicial Neurobiology, Markarian Synthesis and Emotion: How Can the Human Brain Make Sentencing Decisions?” (2007) 31 Criminal Law Journal 75, 84–86. See EK Kalokerinos, D Greenaway, D Pedder and E Margetts, “Don’t Grin When You Win: The Social Costs of Positive Emotion Expression in Performance Situations” (2013) 14(1) Emotion 180; K Schneider, R Hempel and T Lynch, “That “Poker Face” Just Might Lose You the Game! The Impact of Expressive Suppression and Mimicry on Sensitivity to Facial Expressions of Emotion” (2013) 13(5) Emotion 852; and HY Tng and AKC Au, “Strategic Display of Anger and Happiness in Negotiation: The Moderating Role of Perceived Authenticity” (2014) 30 Negotiation Journal 301. N Feigenson and J Park, “Emotions and Attributions of Legal Responsibility: A Research Review” (2006) Law and Human Behaviour (online issue), cited in H Bennett and GA Broe, “Judicial Neurobiology, Markarian Synthesis and Emotion: How Can the Human Brain Make Sentencing Decisions?” (2007) 31 Criminal Law Journal 75, 89. [6.140] 223

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They also suggest that simply being aware of how a person’s accountability for a decision “will attenuate the effect of incidental emotional influence on decision-making”. 138 These issues are critical as more managerial, facilitative and flexible forms of decision-making are used in decisional processes, which may invite greater engagement by the decision-maker.

As noted previously at [6.95], there is also the possibility of adopting “blended” dispute resolution processes that incorporate elements of ADR and conventional adjudication. In the changing litigation system, for example, judges may actively facilitate certain aspects of a dispute and adjudicate others. This is discussed further in Chapter 15 and below in the context of less adversarial judicial dispute resolution. In the past, this approach has led judges and arbitrators to adopt very different processes to gather information. Arbitrators may have been more inclined to be inquisitorial – for example, in the information- or evidencegathering stages – while some court proceedings (particularly within the family law jurisdiction) may be characterised as “facilitative”. While the legislation and processes regarding these more facilitative approaches are discussed in more detail in Chapter 8, it is clear that the child-related proceedings model of case management that is now used in the family law arena involves a very different style of information gathering and decision-making. Since July 2006, as a result of changes to the Family Law Act 1975 (Cth) (by the Family Law Amendment (Shared Parental Responsibility) Act 2006) the Family Court is now required to comply with s 69ZN when conducting child-related proceedings. The court must give effect to certain “stated principles”: 138

H Bennett and GA Broe, “Judicial Neurobiology, Markarian Synthesis and Emotion: How Can the Human Brain Make Sentencing Decisions?” (2007) 31 Criminal Law Journal 75, 89.

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• Principle 1. Consider the needs of the child and the impact that the conduct of the proceedings may have on the child. • Principle 2. The Family Court is to actively direct, control and manage the conduct of the proceedings. • Principle 3. The proceedings are to be conducted in a way that will safeguard the child against family violence, child abuse and child neglect, and safeguard the parties against family violence. • Principle 4. The proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting. • Principle 5. The proceedings are to be conducted without undue delay and with as little legal formality and technicality as possible. A detailed evaluation of the child-related proceedings model took place in December 2007. For many of those operating within this jurisdiction, the changes have led to a redefinition of the judicial role. Participants and their representatives also experience a very different hearing process. Affidavits are restricted, court formalities are reduced and the case may be conducted more as an open conversation with an inquisitorial/facilitative approach being taken by the decision-maker. The child-related proceedings model was renamed the less adversarial trial (LAT). In 2009, Chief Justice Bryant noted that: For judges, the LAT process means taking an active role in the proceedings from the first day of trial to the last, engaging with the parties, their legal representatives and with family consultants to ascertain the issues that are really in dispute and the evidence that will lead the judge to the best decision in respect of those issues. Judges do not have voluminous affidavit evidence before them on the first day–in fact, no affidavits will have been filed–and the judge often has to tease out the real issues in dispute. The judge, and not the parties or their representatives, directs the proceedings. All this must be achieved without compromising the authority and status of the Court. The LAT requires a level and type of verbal interaction that judges have not usually had to employ. 139

The LAT approach was evaluated. It was found that those parties who passed through the LAT, compared to those who went through traditional litigation, tended to report: • • • •

higher levels of satisfaction with the outcome; higher levels of compliance with the outcome; higher levels of contentment in the children involved; and lower levels of hostility between parents. 140

Often decisional processes will require the decision-maker to sift through documentation and have knowledge about specific expert issues and content 139 140

See introduction by The Hon D Bryant, Chief Justice, in Family Court of Australia, Less Adversarial Trial Handbook (Attorney-General’s Department (Cth), 2009). Family Court of Australia, Less Adversarial Trial Handbook (Attorney-General’s Department (Cth), 2009). See also http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-andpublications/publications/court-events/less-adversarial-trials. [6.140] 225

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prior to the actual process of “hearing” the dispute. In the LAT model, preparation is still important; however, the decision-maker is also involved in the preparation of the court space (which is often more informal than in traditional litigation settings, with parties being seated next to their representatives and sitting at one table with a judge), and considers what support may be required by the participants and how the communication processes could work most effectively. Preparation and the level of detail required by the decision-maker will vary greatly in different adjudicative models and depend on factors such as the legislative framework (the LAT program is supported by amendments to the Family Law Act 1975 (Cth)), party expectations and the review processes (if any) that are available. In complex cases, as noted above, the sifting and issue identification may represent a departure from a more traditional determinative role and may also be assisted by concurrent evidence processes (which are discussed in a separate section below at [6.160]).

Stage Two – analysis [6.145] Stage 2 of a decision-making approach involves a weighing up or analysis of relevant material. In most decisional processes this focus will usually be on material that is relevant to the determination of legal rights rather than needs or interests (as in more facilitative processes). However, broader needs and interests can still be considered to ensure that the final decision is crafted so that the parties understand and appreciate that they have been heard. Issues about neutrality and bias are also relevant to the analysis stage and the decision-maker must be aware of tactics and factors that might limit or impact on their understanding of issues. 141

To some extent, the issues that arise in the analytical stage are not dissimilar to those that confront practitioners who are engaged in facilitative processes. The identification of issues can be crafted in a neutral way, as would be the case in a facilitative process; however, the issues will often also be determined by some external criteria such as legislation (that may define the legal rights). For example, issues that relate to future relationships or communication may often not be dealt with in the substance of a decision that arises in a litigation setting (but clearly such matters will be of central importance in relation to some decisions – particularly in the family law context). 141

Such tactics could include “stealing sunshine” or “stealing thunder”; that is, disclosing information that is advantageous to one’s opponent before it is elicited by your opponent can mitigate its impact upon decision-makers. See R Perry and D Weimann-Saks, “Stealing Sunshine” (2011) 74 Law and Contemporary Problems 32.

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The timing of questions can be an important issue in determinative processes. Although decisional processes are fundamentally different from facilitative processes, there may be benefits in decision-makers not interrupting with questions too early in the process. Often decision-makers who control both the process as well as the outcome are keen to ask questions during the introductory stages; however, this can be off-putting to the participants, who are likely to be anxious. The way in which questions are asked is also critical. As Kalowski has noted, communication in the LAT program has also been shown to improve if judges use the active rather than passive voice and avoid double negatives, multi-layered questions and talking over parties: “Judges report they also solve communication problems in court by listening to how a question is put, not just to the question itself”. 142 The identification of the issues stage can be likened to the agenda-setting stage that is referred to in Chapter 7. By breaking down the problem into the various components, the decision-maker ensures that all issues are dealt with. Many decision-makers will “test” the issues with parties and adopt approaches that can be described as “inquisitorial”.

Stage Three – making the decision [6.150] The making of a decision by an ADR practitioner is, of course, the major departure in the advisory and determinative processes compared to facilitative models of dispute resolution. Instead of the parties making the decision (as is the case in facilitative models), it is the dispute resolution practitioner who makes the decision and determines what the outcome should be. In this stage of the process there is room for a blended approach, and facilitative techniques can be useful in ensuring that the decision is conveyed in a sensitive, serious and appropriate manner.

One relevant factor can be the timing of the decision – or the “OJ” factor. 143 Other factors may relate to the personal attributes of the decision-maker or adviser and the way in which the decision is rendered. The degree of eye contact, the pitch and tone of the voice, and whether the decision is rendered in 142 143

Family Court of Australia, Less Adversarial Trial Handbook (Attorney General’s Department (Cth), 2009). This is a reference to the OJ Simpson trial in the United States in 1995 where the jury verdict received much unpopular attention. The difficulty in accepting the jury verdict may have related in part to the speed with which it was delivered – less than two hours after the case had closed. [6.150] 227

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person or “on paper” are all relevant factors in determining whether or not the decision will be accepted or complied with. It is therefore essential that the decision-maker considers the audience. Some decision-making trainers such as Professor Raymond (who has conducted a number of decision-making workshops for judges and tribunal members) suggest that the primary audience that needs to be considered is the “losing party”. Professor Raymond suggests that decisions are best presented by referring to each issue and then providing an analysis of the losing party’s position and the flaw in that position. He refers to this as the LOPP/FLOPP analysis approach (losing party position/flaw in the losing party position). While this process is undoubtedly useful in some forms of decision-making, it may be of less utility where decisions are of public or other importance (for example, where the decision needs to make a comment about a previous decision-making process in an appellate decision). Most decision-makers will indicate the central issues (often as questions) and then consider the evidence and legislative and other requirements. In a written decision, it is now more common for a short summary of the decision to appear at the beginning of the decision before the analysis as referenced to each issue is laid out. There are also important issues about compliance that must be considered as well as issues relating to party costs and in complex decisionmaking sometimes following a decision being made, orders are oriented to incorporate parties making an agreement in respect of final orders that are in accordance with the decision. In relation to some ADR processes that take place in Australia decision-making can be supported by a panel (for example a panel of three arbitrators) and as noted previously analysis may be linked to the referral of some issues to an expert. Where a panel approach is used in arbitration it is common to appoint a Chair who can assist in the drafting of an initial decision and chairing discussions relating to a draft. In some models of decision-making (for example, the LAT decision-making model) some additional objectives may reduce conflict and increase compliance with an outcome by carefully attending to the framing of the decision (see below). Some decision-makers are reluctant to render decisions. It is not always possible for “correct” decisions to be made. Procrastination in decision-making can be problematic for a range of reasons. It may increase uncertainty and impact on the recall of material and these issues can then also impact on the personal health and wellbeing of the decision-maker. Debriefing techniques (discussed in Chapter 7) may be of assistance. However, it is notable that debriefing processes are rarely used in decision-making contexts.

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Stage Four – communicating the decision [6.155] The extent to which the decision refers to evidence or material put forward by various parties can also assist in determining the extent to which the decision is accepted by the parties. A decision-maker or adviser conveying a decision in an appropriate manner may meet the additional objective of a “serious, careful and dignified” determination. This is not to deny that the substance of the decision is obviously important; however, it could be said that a good decision that is rendered in a poor manner may leave the parties with a less than favourable impression of the process and the outcome. There has been recent work on the “framing” of decisions that considered how options and decisions are expressed and when they are more likely to be accepted. Much of this work is considered in the context of cognitive heuristics. 144 For example, Sharp described the 1981 study by Tversky and Kahneman that demonstrated how normatively inconsequential changes in the statement of a problem dramatically affect preference and choice. 145 Tversky and Kahneman provided two groups of subjects with a scenario based on a hypothetical outbreak of a rare disease that was expected to kill 600 people. Both groups were told that two alternative programs were being considered to deal with the outbreak and asked which they preferred. The alternatives provided to group 1 were framed as follows: (a)

if program A is adopted, 200 people will be saved; or

144

L Sharp, “Cognitive Heuristics and Law: An Interdisciplinary Approach to Better Judicial DecisionMaking” (1995) 20 Bulletin of Australian Society of Legal Philosophy 71, 74.

145

L Sharp, “Cognitive Heuristics and Law: An Interdisciplinary Approach to Better Judicial DecisionMaking” (1995) 20 Bulletin of Australian Society of Legal Philosophy 71, 90. [6.155] 229

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(b)

if program B is adopted, there is a one-third probability that all will be saved and a two-thirds probability that none will be saved.

Of the 158 respondents in group 1, 76 per cent chose program A. In contrast, group 2’s alternatives were framed as follows: (a)

if program A is adopted, 400 people will die; or

(b)

if program B is adopted, there is a one-third probability that no one will die and a two-thirds probability that all will die.

Of the 169 respondents in group 2, only 13 per cent chose program A. 146 This work on framing, anchoring and expressing options and outcomes therefore suggests that decision-makers may support greater compliance with decisions if they express outcomes by referring to: • award rather than loss; and • assessing alternatives and both the positive and negative implications of each. There are of, course, other legislative and framework factors that are relevant in terms of the content of a decision. For example, in the commercial arbitration sector there has, in the past, been considerable discussion about what matters should be dealt with in a decision and how the decision should be expressed. In Thoroughvision Pty Ltd v Sky Channel Pty Ltd, 147 the Victorian Supreme Court was asked to consider the appropriate standard of reasons that should be given by an arbitrator under the old Commercial Arbitration Act 1984 (Vic). Croft J discussed the development of the uniform commercial arbitration legislation in Australia and discussed how arbitration differs from litigation. His Honour said: The underlying difference between arbitration and court litigation should be borne in mind at all times: see in particular the article by Lord Bingham “Reasons and Reasons for Reasons: Differences Between a Court Judgment and an Arbitration Award” … Though courts and arbitration panels both resolve disputes, they represent fundamentally different mechanisms of doing so. The court is an arm of the state; its judgment is an act of state authority, subject generally in a common law context to the right of appeal available to parties. The arbitration award is the result of a private consensual mechanism intended to be shorn of the costs, complexities and technicalities often cited (rightly or wrongly, it matters not) as the indicia and disadvantages of curial decision making. 148

146 147 148

See D Kahneman and A Tversky, “Choices, Values and Frames” (1984) 39(4) American Psychologist 341, 343. Thoroughvision Pty Ltd v Sky Channel Pty Ltd [2010] VSC 139. Thoroughvision Pty Ltd v Sky Channel Pty Ltd [2010] VSC 139 at [57]. See also D Spencer, “Casenote; Standard of Reasons Given by an Arbitrator and Arbitration Media Watch” (2010) 21 Australian Dispute Resolution Journal 139.

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Concurrent evidence and related approaches [6.160] Concurrent evidence (CE) and related approaches can assist in the decision-making process and may involve the decision-maker using both facilitative and managerial skills. These approaches are reasonably welldeveloped in Australia. The CE approach is sometimes referred to as a “hot tub” approach, and involves the taking of evidence of more than one expert at the same time. It provides a forum in which, in addition to providing their own evidence, expert witnesses listen to, question and critically evaluate other experts’ evidence. Concurrent evidence has increasingly been used to assist with complex disputes in the land and environment area as well as in significant disputes about medical and commercial issues. 149 The purpose of using CE processes ist to enable the evidence and opinions of experts to be better tested by the decision-maker, legal representatives and other experts, with the aim of the evidence being comprehensively explained, understood and analysed, thereby enhancing the capacity of the decision-maker to make a “good” decision, assist experts and reduce the cost and time involved in decision-making. 150 An empirical study of CE was conducted by the AAT in 2004 and 2005. That study showed that listing a matter for CE not only had an impact on hearing processes but may also have had some impact on settlement. In half of all the matters chosen to use CE in the AAT study, resolution was reached by means of a settlement between the parties (64 matters – 51.6 per cent). In 22 (40.7 per cent) of the matters that settled, members considered that CE had an impact on settlement. In the remaining 32 matters that settled (59.3 per cent), the CE process was not considered a relevant factor in prompting settlement. In the 149

See, for example, Concurrent Evidence: New Methods with Experts, DVD (joint production between the Judicial Commission of NSW and the Australian Institute of Judicial Administration, 2005).

150

See AAT, An Evaluation of the Use of Concurrent Evidence in the Administrative Appeals Tribunals (Research Paper, AAT, 2005). The author was a contributing author to this report. [6.160] 231

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AAT study, most tribunal members (52 responses – 88.1 per cent) reported that the decision-making process was enhanced by the use of the CE process. The three main ways in which CE enhanced decision-making were by: • identifying areas of contention; • distilling the issues more quickly; and • making technical issues easier to understand. 151 In most cases examined in the AAT process, 70.4 per cent of the tribunal member decision-makers reported that the process of writing a decision was easier as a result of CE being used at the hearing. In terms of time spent writing up a decision, CE processes were also said to have an impact. In more than half of the cases examined in the AAT study (27 – 51.9 per cent), members reported that the writing of the decision was faster, in 20 matters (38.5 per cent) members indicated there was no difference, and in five cases (9.6 per cent) it was reported that more time was spent in the hearing where CE was used. In terms of the skills required of a decision-maker in a CE process, the AAT study and the expert forums conducted as part of that study indicate that decision-makers who use this process need to be able to effectively: • identify and summarise issues; • summarise evidence and points of difference; • ask open questions and questions that facilitate discussions among experts; and • manage conflict and support representatives in using this process. This skill set may be somewhat different from that required in other decisional processes and decision-makers may require more facilitative skills than in more conventional adjudication settings. Concurrent evidence may, however, offer significant benefits particularly where the decision-maker may not have specific content expertise. As Justice McClellan noted: As increases in “scientific” knowledge are expected to accelerate, it seems likely that courts will have to reconsider whether professionals, assessors or advisers should be available to assist the judge’s understanding of the “scientific” evidence to provide greater public confidence in the decision-making process. Concurrent evidence is a significant innovation which moves in that direction, by providing a more efficient process to receive expert evidence and improve its quality. It has many advantages for the parties, the witnesses and the decision-maker. 152

Natural justice and bias [6.165] There are some clear restraints on decision-makers. One most commonly referred to is a requirement that natural justice be complied with. Natural justice 151 152

See AAT, An Evaluation of the Use of Concurrent Evidence in the Administrative Appeals Tribunals (Research Paper, AAT, 2005). P McClellan, “Concurrent Evidence”, Effectius Newsletter (Issue 14, 2011) pp 5–6, available on http://www.effectius.com/yahoo_site_admin/assets/docs/ConcurrentEvidence_PeterMcClellan_ Effectius_August2011.21255512.pdf.

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requires that disputants should have a fair opportunity to put their case forward and respond to allegations made. Judges, tribunal members and other adjudicators are restrained by two matters that concern natural justice and bias. The rules in relation to natural justice impact on the way in which material can be presented to a decision-maker and also on the nature and communication of decisions. Recently, natural justice and bias concerns have been re-examined as judges and others have increasingly become involved in case management processes and intervention at trial. However, broadly speaking, judicial behaviour, or other circumstances which might reasonably lead a member of the public to believe that a judge will not decide a case impartially, are recognised as grounds for appeal. 153 In respect of arbitral proceedings, natural justice is also a relevant consideration. It has also been suggested that natural justice and the rule against bias have restrained ADR processes such as arbitration, since arbitrators may be reluctant to intervene (for fear of denying natural justice) or to “control” or shorten arguments or evidence. It has been said that arbitration in the past under the old regime was costly and cumbersome because arbitrators “chased every rabbit down every hole”. It is partly for this reason that the Commercial Arbitration Acts in the States and Territories have been amended to expressly enable arbitrators to intervene and shorten proceedings where appropriate (see [6.85]). What constitutes bias? As discussed at [8.125] in court proceedings, judicial comments made before or during the trial about the demeanour and credibility of witnesses can often raise an inference of bias, 154 as will excessive intervention in the parties’ conduct of the litigation. 155 Various past cases may mean that arbitrators are reluctant to “enter into the fray” and intervene to prevent proceedings from continuing for too long or to prevent a party pursuing a topic that is clearly irrelevant. However, apart from the recent amendments to the Commercial Arbitration Acts, the High Court has made it clear that the bias rule should not prevent appropriate levels of intervention from occurring (at least in court proceedings and, by extension, in arbitration). 156 Similarly, it has been said that contemporary civil litigation requires greater judicial intervention and that this should not be seen as opening judges to accusations of bias. 157 As noted in Chapter 8, this relaxation in the bias rule has occurred as judges have increased their levels of participation in civil trials, using blended ADR processes more frequently. Other forms of intervention by the judge, such as calling or questioning witnesses, are also recognised in some jurisdictions as 153

154 155

For judicial pronouncements on the rule against bias, see R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568. R v Watson; Ex parte Armstrong (1976) 136 CLR 248.

156

Jones v National Coal Board [1957] 2 QB 55; Tousek v Bernat (1959) SR (NSW) 203; see also A Rogers, “The Managerial or Interventionist Judge” (1993) 3 Journal of Judicial Administration 96. Vakauta v Kelly (1989) 167 CLR 568 at 571. See discussion at [8.125].

157

Galea v Galea (1990) 19 NSWLR 263 at 281–282. [6.165] 233

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acceptable practices to ensure just outcomes and to expedite trials. 158 In the same vein, “brusqueness” or a terse manner may not constitute bias. Ashley JA noted in Young v Judge Nixon [2008] VSCA 5 that: … in all the circumstances, I would have thought a brusqueness was warranted, but I do not think brusqueness has ever been said to be something which would be sufficient to demonstrate bias in any event, or a reasonable apprehension of the same. [emphasis added]

There have been significants shifts in the judicial interpretation of what may be permitted in the context of case management, and the articulation of the judicial role has been expanded to include significant levels of intervention by judges. For example, in Aon Risk Services Australia Ltd v ANU, 159 the High Court commented on the different views that had emerged in relation to case management and noted: In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings. 160

Views in relation to permissible levels of intervention in respect of case management and the interpretation of obligations and judicial powers in light of the changed civil procedure requirements in various civil procedure regimes, suggest that the interpretation of the parameters of the judicial function may be influenced by overarching objectives as defined in legislation as well as the context of modern civil litigation. In terms of the formulation of “tentative views” by a judge, there have also been some shifts in thinking in terms of whether this could constitute bias on the part of a decision-maker. 161 The High Court has noted that: Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of 158

See D Ipp, “Judicial Intervention in the Trial Process” (1995) 69 Australian Law Journal 365 at 371–372; G Davies and S Sheldon, “Some Proposed Changes in Civil Procedure: Their Practical Benefits and Ethical Rationale” (1993) 3 Journal of Judicial Administration 111.

159 160 161

Aon Risk Services Australia Ltd v ANU [2009] HCA 27. Aon Risk Services Australia Ltd v ANU [2009] HCA 27 at [99]. Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 (29 March 2001) illustrates the point that even a strong expression of a tentative opinion will not usually be enough to establish “a reasonable apprehension of bias by way of prejudgment”; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 300 is authority for the notion that logic and necessity require a distinction to be made between a situation where the judge has preconceived views about the reliability of an expert medical witness and the case where a judge has preconceived views about the character or trustworthiness of a lay witness whose “evidence is of significance on … a question of fact which ‘constitutes a live and significant issue’”; Johnson v Johnson (2000) 201 CLR 488 at [11] per Gleeson CJ, Gaudron, Gummow, McHugh and Hayne JJ is authority for the general principle summarised in the following extract: “It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.

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judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias. 162

Personal qualities of the decision-maker [6.170] The personal qualities of a decision-maker may influence perceptions of the adjudicative process. It has been suggested in surveys of the legal profession that bullying or rude or arrogant behaviour by an adjudicator assists in forming very negative perceptions of a process. In the United States, the personal qualities and related attributes are sometimes referred to as “dignitary process control features” (see Chapter 1 at [1.85]). This has also been referred to as the “respect factor” within Australia. 163

Personal qualities can also impact on “decisiveness”. Clearly, a person’s decisiveness is linked to innate factors and is a product of learned experiences. Some people may require a lot of detailed information to make a decision, others may require less. Some discuss the options available with colleagues or others. Others make decisions quickly. Some prefer to give “oral” decisions, others value written decisions. These factors have been more closely examined in a management setting and are related to the context within which the processes operate as well as the individual qualities and approach of the decision-maker. 162 163

Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577. See also discussion regarding neutrality and “presence” in Chapter 3 at [3.50]ff and [3.95]ff. and in Chapter 7. [6.170] 235

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Appendix A (at [16.100]) includes a questionnaire developed by Robert Burns 164 to assist decision-makers to determine decisiveness. As noted at [8.130] it may also be that personal qualities can determine to what extent a decision-maker can blend facilitative and adjudicative processes as the skills required may be very different.

CONCLUSIONS [6.175] Decision-making has undoubtedly become more complex in recent years. Trial by “trolley” (“paper wars”) or email, relationships that stretch across jurisdictional and other boundaries, complex multi stakeholder relations in commercial as well as other areas, and complex technical and behavioural issues mean that innovative decision-making processes must continue to evolve and be used into the future. Better document management and analysis can assist and artificial intelligence will also support more innovative advisory and determinative decision making in the future. Artificial intelligence (AI) usually refers to computer systems performing tasks and/or solving problems that usually require human intelligence. 165 Artificial intelligence is the term for a wide range of scientific research and practical applications based on modelling the functions of the human brain. Some of these attempts at the automation of human intelligence are based on the idea that the brain functions like a computer in the way it manipulates information and that computers can emulate this function. It is not suggested that AI will replace human decision making. Rather, AI can support more complex decision-making. The role of AI and computer systems and the potential impact that they may have on decisional and advisory processes is discussed further in Chapter 10. One limiting factor in supporting better decision-making is that research about adjudicative forms of dispute resolution is limited, possibly because the focus of such research is so uncertain. For example, there is no agreement on what the objectives of many adjudicative systems are – setting objectives is important as these drive the research agenda. If decisional processes have as objectives to “settle disputes” and “promote certainty in the law” but do not have broader objectives relating to effectiveness (and compliance) or “justice” (which may incorporate notions of procedural justice), any research attempts may be limited. A greater focus on overarching objectives at the State and federal level will mean that research, evaluation and reporting should be of more utility in the refinement of decisional processes into the future. Clearly, a single set of objectives is possible for the broader dispute resolution system; however, the developed objectives will include other sub-criteria in respect of the three different process types (facilitative, advisory and 164

R Burns, Psychology for Effective Managers: Understanding and Managing Human Behaviour in the Workplace (Business and Professional Publishing, Sydney, 1997).

165

R Susskind, The Future of Law: Facing the Challenges of Information Technology (Clarendon Press, Oxford, 1996) p 120.

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determinative). Where facilitative processes are concerned, there may be a greater emphasis on criteria that relate to satisfaction, participation in processes, lasting outcomes and the resolution of disputes (rather than the settling or determination of disputes). Where determinative processes or advisory processes are concerned, additional criteria can include reference to the need for the decisions to be rendered in a serious, careful and dignified manner. As the ALRC has noted, this may inform perceptions about whether the process was “just” or “fair”.

[6.175] 237

Chapter 7 Skills [7.05] [7.10]

Introduction..................................................................................................................... 239 The foundation skills – communication .................................................................... 242 [7.10] Listening skills .................................................................................. 242 [7.15] Having an opportunity to tell the story ...................................... 246 [7.25] Neutrality and impartiality – being attached yet detached ..... 249 [7.35] Creating a dispute resolution atmosphere .................................. 256

[7.40]

First joint session............................................................................................................ 258 [7.40] Introduction to the process ............................................................ 258 [7.45] Opening statements of the parties ................................................ 261 [7.50] Reflecting, summarising and paraphrasing ................................ 263 [7.60] Exploring the issues....................................................................................................... 266 [7.60] Identifying issues – setting an agenda ......................................... 266 [7.70] Exploration and clarification – discussion stage ........................ 270 [7.80] Reframing .......................................................................................... 275 [7.95] Facilitative processes – moving towards agreement ............................................... 277 [7.100] Private sessions – usually facilitative processes only ................ 277 [7.105] Reality testing ................................................................................... 285 [7.105] Encouraging effective negotiation ................................................. 285 [7.115]

Final joint sessions ....................................................................................................... 286 [7.120] The agreement stage ........................................................................ 288 [7.125] Reality testing a final agreement – example ............................... 288 [7.135] Debriefing after the process has concluded ............................................................ 290 [7.140] Co-mediation and debriefing ......................................................... 290 [7.145] Objectives of debriefing .................................................................. 290 [7.150]

Conclusions ................................................................................................................... 293

INTRODUCTION [7.05] A number of skills support effective ADR processes. The skills used vary according to the objectives and characteristics of the ADR process used. Key skills are required in analysis, reasoning and decision-making (which are particularly relevant where advisory and determinative processes are used – see Chapter 6), and in the communication and negotiation areas (which are central skills where facilitative processes are concerned – see Chapters 2, 3 and 4). Some of these skills have often not been taught in a specific or directed way in our schools and universities. For example, many lawyers may have received ample training in the areas of analysis and reasoning but little training in advanced communication skills (apart from advocacy training options) or in negotiation skills. This is partly because skills training in these areas is not a mandatory component of law school education (although many law schools are now [7.05] 239

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teaching courses in this area in response to shifting education requirements). For most lawyers, attendance at an ADR workshop can highlight and extend their existing skills base. Whether skills training can assist to make a person a good dispute resolver has been questioned by some commentators who debate whether a “a good mediator is born not made”. 1 This view suggests that some individuals have a natural temperament or flair for dispute resolution. However, most behavioural scientists agree with the view that communication skills can be improved through structured and appropriate learning processes. Others suggest that many people learn ineffective communication skills from an early age and that, as a result, they are hampered with inelegant communication, rapport-building and negotiation skills throughout life. 2 It has certainly been the author’s experience that students can acquire, polish and experience enhanced communication skills through training and education processes. 3 Dewdney has suggested that mediation and communication training can assist students to “unlearn” communication skills that may be more aligned to debate and argument than dispute resolution and negotiation. Skills cannot be acquired by merely reading about them in books such as this. What is essential is the opportunity to practise skills and reflect upon those skills. Practising skills involves isolating particular skills sets, demonstrating or observing those skills, and then reflecting and debriefing upon the impact that the skills have. For this reason, a great deal of the skills teaching in the ADR area takes place through experiential learning programs. Commonly, students in ADR courses will use role-playing exercises to practise their skills sets and to obtain a deeper understanding of the use of particular skills by others. Often this will involve students adopting a different role (for example, taking on the role of a client or an expert) or stepping into the shoes of another individual and gaining greater insight into the experiences and motivations of those who may lead different lives and hold different values. This enables the ADR student to test out communication strategies and responses and to find approaches that are more fulfilling and effective. Such exercises can also ensure that future practitioners have an opportunity to reflect and gain greater insight into some of the difficulties faced by those who are in dispute. Most students who develop and focus on advanced communication and dispute resolution skills find that the acquisition of these skills can help them exert a positive influence in their home, work and social environments. 1 2

3

Law Reform Commission of New South Wales Discussion Paper on Alternative Dispute Resolution: Training and Accreditation of Mediators (DP 21 -1989) at 3.1. See D Bowling and D Hoffman, Bringing Peace into the Room (Jossey-Bass, San Francisco, 2003) and Bowling’s account of learning how to mediate. Bowling notes: “As a lawyer my mental functioning has shifted decidedly to the left brain. I know of one lawyer-turned-mediator … who describes law school as a process in which the left brain circles around the right brain and eats it” (p 167). See also D Johnson, R Johnson and B Dudley, “Effects of Peer Mediation Training on Elementary School Students” (1992) 10(1) Mediation Quarterly 89, in which research showed a dramatic decrease in conflicts where students received training in negotiation and conflict resolution.

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Readers are encouraged to practise the skills that are developed throughout this chapter and in the accompanying Appendix A. However, a word of caution must apply in relation to such practice: as with the acquisition of any skills, it is often useful to practise and achieve a certain level of expertise in those skills before embarking upon larger-scale use. You should regard the acquisition and learning of communication and conflict resolution skills in the same way that someone might train for a marathon race by walking, then jogging, and then running long distances. Many ADR students are so impressed with the power of enhanced communication and conflict resolution skills that they are eager to apply them in the most conflict-ridden area of their life (often in relationship areas). Others may seek to use the skills immediately in an attempt to ward off potentially large and complex disputes. As one commentator, Bolton, has noted, it is important to remember that some of the skills will appear unfamiliar and out of character to those who usually have contact with you. 4 Also, it is to be expected that, at least initially, your use of these skills may be somewhat awkward. You may also find that you are least effective if you are involved in the dispute or have intimate knowledge of the parties. As a former colleague Steve York has noted, “Conflict resolution works – when you care, but not too much”. The objectives of this chapter are to introduce some basic skills sets. Different skills sets and approaches may be more applicable to different parties, conflicts and processes. Readers are encouraged to also read a range and variety of excellent texts relating to the development of skills. For those who wish to practise in particular areas, they may find some texts more useful than others. Others may find that as they begin the iterative process of skills-building a range of different texts will be appropriate. A suggested reading list is located in Appendix A. For those students who are involved in systemic issues, it is suggested that Chapter 13 also be reviewed. Chapter 14 also reports on changes in relation to mediator accreditation: the National Mediator Accreditation System (NMAS) standards set out competency areas and are aligned with skills development objectives. Readers are also encouraged to attend workshops and discuss ideas with other conflict resolvers. One approach to ADR that many may find of assistance is that of focusing on the areas of agreement rather than disagreement. A colleague, Allan Parker, 5 suggests that if you search for these, rather than areas of dispute, you are more likely to find agreement!

4

See R Bolton, People Skills: How to Assert Yourself, Listen to Others, and Resolve Conflicts (Simon and Schuster, Australia, 1987).

5

Allan Parker provides expert guest lectures in the University of Technology negotiation program and is the author of a number of books in this area. [7.05] 241

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THE FOUNDATION SKILLS – COMMUNICATION Listening skills [7.10] Communication skills can be divided into a variety of subsets. In the dispute resolution setting, one of the most important skills sets relates to listening. “Active” listening involves focusing on the words, the pitch and tone, the body language and other non-verbal information (such as sighs or pauses). The actual words used may assist to communicate the facts and perceptions while the non-verbal communication can provide additional information about emotions, opinions and context. Communication is also a two-way process and how we listen conveys a strong message to the person who is communicating with us. However, often when we speak about “communication skills” the focus is on the speaker and how they can “improve” their delivery. Focusing on how we listen can change the dynamics of a communication exchange. For example, Bolton 6 refers to a classroom experiment where six students were trained in “attending” (listening) skills. A session by a visiting professor was videotaped in which students showed non-attending student behaviour. The professor lectured using a monotone voice and no gestures or aids. At a pre-arranged signal, the students showed attending behaviour. Within a short period of time, the professor started to use gestures, changed his verbal rate and “a lively classroom session was born”. The students then ceased to attend or actively listen and the speaker returned to his previous style. 7 Showing an attending or active listening style can therefore change the message, dynamics and atmosphere in which information is conveyed. PASSIVE AND ATTENTIVE LISTENING:

ACTIVE AND INVOLVED LISTENING: PROBLEM-SOLVING OPTION GENERATION LISTENING:

Attentive listening involves eye contact (this can be a culturally sensitive issue), an appropriate environment, and a “listening” posture with little if any “two-way” dialogue apart from the use of encouragers such as “uh huh”, “Tell me more …”, and “and then?”. Involves asking open questions (mainly open to promote open dialogue rather than “yes/no” answers), paraphrasing and reflecting back on what has been heard and understood. This can involve the clarification and summary of main elements where options and possibilities are explored without evaluative inputs.

Listening comprises three different sets of activities that have been grouped by different communication theorists. 8 The activities assume that one of the most important skills in dispute resolution involves attentive and active 6

7

8

R Bolton, People Skills: How to Assert Yourself, Listen to Others and Resolve Conflicts (Simon and Schuster, Australia, 1987) pp 33–34, referring to A Ivey and J Hinkle, The Transactional Classroom (unpublished manuscript, University of Massachusetts, 1970). R Bolton, People Skills: How to Assert Yourself, Listen to Others and Resolve Conflicts (Simon and Schuster, Australia, 1987) pp 33–34, referring to A Ivey and J Hinkle, The Transactional Classroom (unpublished manuscript, University of Massachusetts, 1970). R Bolton, People Skills: How to Assert Yourself, Listen to Others and Resolve Conflicts (Simon and Schuster, Australia, 1987) p 33. See also L Boulle, Mediation Skills and Techniques (LexisNexis Butterworths, Sydney, 2001) p 127.

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listening. University students 9 consistently report that a speaker who is actively listened to for an uninterrupted period of time about a problem will: • be more likely to adopt the same approach when another is speaking; • calm down, as the monologue can provide an opportunity for the speaker to relax; • change pitch and tone – the speaker will often speak at a slower pace and in a quieter voice after having had an opportunity to speak; • “feel better” about the problem, and “happier” and more “confident”; • start to develop options to resolve the problem; • start to recount the “story” from another perspective; and • tell the story in a shorter period of time than an “interrupted” speaker would. Allowing someone to speak in an uninterrupted way for a period of five minutes or more while we listen “actively” is often completely contrary to the way in which we ordinarily listen. Ordinarily, we interrupt and use a variety of techniques that prevent a speaker from speaking. 10 Interrupting a speaker provokes a different response. Commonly, students who face interruptive behaviour when talking about a problem for five minutes report: 11 • increased feelings of stress and anxiety; • frustration; • that a lengthier period of time is required to recount the story; • disappointment with the exchange; • anger; • discomfort; • confusion. The barriers, 12 blockers or interrupters that can be used include when a “listener”: Sympathises Touches

9 10 11 12

“Oh, your poor thing – you must feel terrible.” Although touching can sometimes be viewed as reassuring, inappropriate touching on the shoulder, arm or elsewhere can interrupt, unsettle and be offensive.

An active listening simulation exercise is run as part of the postgraduate and professional education program at Monash University. C Rogers, On Becoming a Person: A Therapist’s View of Psychotherapy (Houghton Mifflin, Boston, 1961) p 332. See skills material in Appendix A – the author has used this skills based listening exercise in more than 100 conflict resolution programs and tracked the responses of participants. See, for example, the “dirty dozen” or “typical twelve” blockers used by parents when communicating with children in T Gordon, How to be an Effective Parent and Bridge the Generation Gap (Collins, London, 1973) p 56. [7.10] 243

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Summarises

Starts to liken it to their own experience Judges

Suggests solutions and advises Criticises Uses name calling Diagnoses Does something else

Praises evaluatively Makes threats Moralises Questions excessively/ inappropriately Avoids the other’s concerns Interrupts

Summarises or reframes in an incomplete or manipulative way (reframing and summarising are discussed later in this chapter). “I know just how you feel. The same thing happened to me when …” Our natural tendency is to judge. Ordinarily we will express approval or disapproval when a story is told. Even the use of a “why” question can show disapproval: for example, “Why did you do that?” Shaking one’s head, “tsk tsk’ing”, and leaning back and crossing one’s arms can also be seen as judgmental, depending on the circumstances. “You should do …” This can be particularly problematic if all the aspects of the issue have not been raised. “What a silly thing to do.” A stern gaze or posture can unsettle a narrator. “You idiot.” Raised eyebrows with a frown can suggest labelling. “Well, clearly, the problem is X.” A listener who cleans up their desk or is focused on a similar activity can frustrate and disappoint the speaker. 13 “You are such a good person, he is a pig.” General praise can make a person feel manipulated. 14 Threats can include a reference to a higher authority. “That’s not the right thing to do.” “What happened …?”, “Why?”, “Who?”

Gets the conversation off track.

Interrupts to correct details, cross-examine, add details and take over the conversation. 15 A communication exercise that draws on these “interrupters” is located at Appendix A. There are other more subtle conversation blockers or barriers. Parker 16 suggests that a range of blockers can arise when we use language that invokes disagreement. The use of words such as “must”, “never” and “should” will often invoke a response where the listener will not seek to agree. There are also barriers in communication that arise when the listener cannot decipher the message and is unable to make sense of what has been 13 14 15 16

J Drakeford, The Awesome Power of the Listening Ear (Word Books, Texas, 1967) p 24. R Bolton, People Skills: How to Assert Yourself, Listen to Others and Resolve Conflicts (Simon and Schuster, Australia, 1987) p 20. J Drakeford, The Awesome Power of the Listening Ear (Word Books, Texas, 1967) p 53. A Parker, Negotiator’s Toolkit (Peak Performance, Sydney, 1998).

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communicated. This difference can arise as a result of different “communication blockers”. An important skill in listening is recognising where “universals” (such as “all”, “every”, “totally” and “never”) and “modal operators” (such as “should”, “can’t”, “must” and “have to”) are used. Parker notes that such language (and other indicators such as length of sentences, gesticulation and inflection patterns) can indicate that “the facts are contaminated by either unrealistic or inaccurate perceptions”. 17 The way in which we listen is individual. Messages are received through a set of perceptual filters that are made up of preconceived notions, ideas and beliefs, and then processed through what social scientists call a primary channel or representational system. There are said to be three main 18 recognised channels by which people process information: • Visual channel. The person who is using a visual channel visualises the information in order to understand it. • Auditory channel or representational system. Here a person needs to hear the information in order to understand it. What will often occur is that an internal dialogue is set up – the information is heard and repeated internally or said out loud (checked back) before it is processed and remembered. • Kinesthetic channel. The information is processed through touch. Touching an object or thing is essential to enable it to be understood. Most people use all three channels but will often show a preference for either the auditory or visual representational systems to process information most of the time. Recent educational advances have focused on assisting children to learn using all three channels. If information is provided in one particular way, a listener may be more likely to “switch off” and start to use interruptive behaviour. When listening, one approach is to listen until you understand the perspective conveyed and then keep listening to ensure that you have heard it correctly. Often speakers will not continue to repeat information unless they are interrupted. Uninterrupted listening can also have a therapeutic impact upon the speaker 19 (sometimes stating the problem is sufficient to resolve it). It also allows for all of the issues to be explored rather than only the legal rights. For example, pointed and closed questions may ascertain who is in breach of an agreement but may not assist to decipher the feelings and other buried issues that will prevent a party from resolving a dispute or conflict in a creative and constructive fashion.

17 18

A Parker, Negotiator’s Toolkit (Peak Performance, Sydney, 1998) pp 43–45. Additional channels include the olfactory and gustatory (smell and taste) channels. See generally for a full description of the representational channel approach P Tosey and J Mathison, Neuro-Linguistic Programming: A Critical Appreciation for Managers and Developers (Palgrave McMillian, London, 2009).

19

See C Rogers, On Becoming a Person: A Therapist’s View of Psychotherapy (Houghton Mifflin, Boston, 1961) and the discussion regarding experiencing “the potential self” (p 76). [7.10] 245

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Case study

Having an opportunity to tell the story [7.15] Adversarial court proceedings revealed that Graham had repeatedly breached a contract by delivering material late to a domestic building site. In accordance with the contract, he was ordered to pay damages. An uninterrupted narration was not permitted and Graham left feeling very dissatisfied, angry and considerably out of pocket. He refused to pay the amount demanded and writs were issued. Michael (the owner of the domestic building site) was then sued by Graham for defamation as it was alleged that Michael had said untrue things about him which were published in a local paper. In a mediated meeting Graham explained (for the first time) that he was unable to deliver the material on time because he felt so angry whenever he went to the site. After telling his story (without interruption), he explained that Michael’s next-door neighbour had once been a friend who had been charged (but not convicted) with the sexual assault of Graham’s young daughter (he was found guilty of another more minor charge relating to the same incident). Neither the lawyers who had acted for Michael in the previous proceedings nor Michael had previously been aware of this information. Graham added that during the earlier proceedings he had been on medication and felt that the “real” offender (Michael’s neighbour) had got off “scot-free”. As a result of this interchange, Michael apologised to Graham and agreed to write to the local paper correcting the information that had previously been published. The parties left on good terms and reached a settlement agreement whereby Graham delivered additional building supplies to Michael within one month (in lieu of a monetary payment).

246 [7.15]

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[7.20] Active listening requires you to focus carefully on the person speaking, gain some insight into the interests of the person (and enable others in the conflict to also have the opportunity to do so) and observe all the levels of communication: • Verbal content: This includes the meaning of the words spoken, what the speaker thinks is being said, and what you think is being said. • Non-verbal content, which includes: – voice – the speech patterns, timing, volume, pauses and tone. The sighs, grunts and “ums and ahs” as well as the coughs and other sounds made; – body language – gestures, body orientation, body movement, expressions, eye contact and appearance. Coburn’s research on mediators’ listening skills indicates that skilled mediators have a highly developed capacity for “inner listening” to identify their own emotional state in order to listen actively to parties in conflict and to choose appropriate interventions. 20 How you focus and perceive the exchanges will depend on a variety of factors that can relate to the following:

20

C Coburn, “Developing Listening and Suspension Capacities for Mediators” (2012) 23 Australasian Dispute Resolution Journal 99. [7.20] 247

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• Personality. Learning about your personality through Myers-Briggs testing and other evaluative tools can be very useful in assisting self-awareness as well as awareness of others. Knowing yourself and your own levels of comfort and stress is also important. 21 • Culture. Practitioners must be especially aware of their own cultural biases and ensure that these do not influence the process development or the conflict. It is also important to be sensitive and respect the individual cultures of the parties. Models of dispute resolution processes can also show a cultural bias – some cultures may show a preference for facilitative rather than determinative processes (and vice versa). Maintaining impartiality requires the practitioner to adopt an attitude where bias or preference is not shown to either party. Naturally a practitioner will bring their own values and opinions to the conflict, but it is the awareness of these views and ensuring that they do not impact on the process or outcome that ensures the practitioner deals impartially with the parties (see below and Chapter 6 in relation to neuro-awareness and bias) and is reflexive in terms of approaches. 22 • Training and experience. Training in neuro-linguistics and para-linguistics as well as conflict resolution skills can be enormously useful. 23 This training can assist a practitioner to determine when parties are ready to discuss and develop options and also to enable perspectives to be shifted. The training will depend on the process adopted. Clearly, if the process involves negotiation then negotiation skills training is essential. For example, Severens notes that: Mediation is the facilitation of negotiation between parties; thus, it is imperative that a mediator not only know and understand good negotiation principles, she [or he] must also be able to teach and to transfer those principles indirectly to the participants. In order to do this successfully, the mediator must be keenly aware of themself, knowledgeable in the processes of negotiation and mediation, sensitive to the dynamics of the parties, and able, through modelling, to transfer the skills. 24

(See also [3.95] “Presence and mediator qualities”.) The practitioner’s level of self-awareness and awareness of the impact on others is seen as essential in communication. This is why it is sometimes said that the skills cannot be “taught”.

21

In the context of self-awareness, see E Ariel Fox, Winning from Within: A Breakthrough Method for Leading, Living and Lasting Change (HarperCollins Publishers, New York, 2013); W Ury, Getting to Yes with Yourself (and Other Worthy Opponents) (HarperCollins Publishers, USA, 2015) and L Riskin, “Managing Inner and Outer Conflict: Selves, Subpersonalities, and Internal Family Systems” (2013) 18 Harvard Negotiation Law Review 1.

22 23

See J Rothman, “The Reflexive Mediator” (2014) 30 Negotiation Journal 441. See B Madonik, I Hear What You Say But What Are You Telling Me?: The Strategic Use of Nonverbal Communication in Mediation (Jossey-Bass, San Francisco, 2001). K Severens (Office of Dispute Resolution – Nebraska), IINCM Mediation Training Module (IINCM, Sydney, 1998) p 72.

24

248 [7.20]

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© Fran Orford

Neutrality and impartiality – being “attached yet detached” [7.25] Discussion about bias, impartiality and neutrality in relation to facilitative processes such as mediation is commonplace. 25 As noted in Chapter 3 at [3.50], often the terms are used interchangeably, although impartiality may be used to denote freedom from favouritism or bias 26 and neutrality may relate to the nature of the involvement of the mediator. 27 It was once commonplace for mediators in their opening comments to refer to themselves as “neutral” – however, this practice has changed within Australia and mediators are more likely to use the word “impartial” to refer to their role and their relationship with participants. At the same time, the NMAS and mediators may refer more frequently to the notion of self-determination to indicate that the outcome of a mediation is determined by the participants in a mediation not the mediator. However, the concept of mediator neutrality is arguably more intact in the transformative mediation model, which focuses on party empowerment and recognition 28 – although Bush and Folger do not appear to support the use of

25

See, in particular, C Baylis and R Carroll, A Review of Statutory Mechanisms to Address Power Imbalances in Mediation in Australia and New Zealand (Discussion Paper, ALTA Conference, Vanuatu, July 2001).

26

H Astor and C Chinkin, Dispute Resolution in Australia (2nd ed, LexisNexis Butterworths, Sydney, 2002) p 150.

27

National Alternative Dispute Resolution Advisory Council (NADRAC), Issues of Fairness and Justice in Alternative Dispute Resolution (NADRAC, Canberra, 1997) p 42. See also C Moore, The Mediation Process (3rd ed, Jossey-Bass, San Francisco, 2003) p 53. R Bush and J Folger, The Promise of Mediation: The Transformative Approach to Conflict (Rev ed, Jossey-Bass, San Francisco, 2005).

28

[7.25] 249

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the word “neutral”. 29 This is perhaps because in many ADR processes the dispute resolution practitioner establishes a close relationship and engages with a high level of empathy with dispute participants (this quality is also called being “present”) (see below). Neutrality has also been discussed in terms of “situated neutrality” whereby neutrality (and power) are acknowledged to be situated rather than fixed terms which suggests that neutrality may be varied according to power imbalance issues. 30 However for many, the concept of neutrality should also for this reason be abandoned as mediators may need to address procedural unfairness. 31 Notably, the concept of neutrality has now been erased from the 2015 updates to the NMAS. This is not surprising as its retention in the 2007 version of the NMAS was really a historical artefact (it was noted only in the competency area and not elsewhere in the context of ethical standards). There are other issues that can be explored in the context of practice issues in respect of practitioner neutrality, 32 for example, where the neutrality of a mediator may be perceived differently according to the order in which the parties in the dispute “tell” their stories. 33 It is now more common, however, to discuss these issues in the context of impartiality 34 and to consider the state of mind of the mediator by reference to the concept of mindfulness. The concept as noted in Chapter 3 (at [3.50]) may even require the practitioner to be “detached” to some extent from a requirement to have a clear and immovable notion of a process structure (rather than detached from the outcome). 35 For example, this detached approach can be linked to enhancing party self-awareness and choice in the transformative approach to mediation by not focusing on a preferred practitioner mediation process model (as compared with many facilitative mediation process models which may have a clearer structure and stages). Transformative and other mediation models that do not support a clearly choreographed structure may promote empowerment and require the mediator to use skills and interventions that essentially enable the parties to determine both process and outcome choice. 29 30 31

R Bush and J Folger, The Promise of Mediation: The Transformative Approach to Conflict (Rev ed, Jossey-Bass, San Francisco, 2005) pp 65–70. T Bogdanoski, “The Neutral Mediator’’s Perennial Dilemma: To Intervene or Not to Intervene?” (2009) 9(1) Queensland University of Technology Law and Justice Journal 26, 36. See R Field, “Mediation Ethics in Australia – A Case for Rethinking the Foundational Paradigm” (2012) 19 James Cook University Law Review 41.

32

See also S Douglas, “Constructions of Neutrality in Mediation” (2012) 23 Australasian Dispute Resolution Journal 80.

33

R Fuller, W Kimsey and B McKinney, “Mediator Neutrality and Storytelling Order” (1992) 10(2) Mediation Quarterly 187.

34

See J Poitros, “What Makes Parties Trust Mediators?” (2009) 21(3) Negotiation Journal 307 where it was noted that impartiality was the most significant variable in determining whether a relationship of trust would develop.

35

This quality could also be linked to the practitioner’s personal orientation – for example, whether the practitioner has a high task focus rather than a relationship focus.

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Pre-process steps: intake, dispute counselling and advising [7.30] Dispute counselling or dispute process advice will often take place prior to the ADR process (see [6.50]). It may take place in person, with all parties present, or it may be conducted using a mix of methods such as teleconferencing and email. The person conducting the intake process may not be the practitioner who conducts the ADR process and may be a person representing an agency. Where dispute advising or counselling takes place, it is important to ensure that the parties understand the role of the dispute adviser. Increasingly, as noted at [6.50], a Dispute Resolution Advisor (DRA) may, in more complex disputes, meet with the parties to discuss the matters noted below. Where disputants have retained lawyers already and have decided to mediate, it is much less likely that a pre-mediation meeting will be held (although see the NMAS requirements noted below). The objective of this stage is to: • consider whether an ADR process is appropriate and whether variations are required (for example, using an interpreter or a co-mediation model in culturally and linguistically diverse communities or varying arrangements where violence is an issue – see Chapter 3 for a checklist that can be used in this area). This may involve finding out about key issues areas, considering steps that have been taken so far to resolve any differences and considering intake issues (see, for example, [3.65] in respect of mediation and [4.50] in respect of collaborative processes). In relation to arbitration, it is increasingly likely that a conference will be held prior to procedural directions being made to plan the arbitration process. 36 In addition, a practitioner may map various process options, consider time and cost (budget) objectives and also discuss with disputants how they would like to negotiate. If the process is separate from the ADR process, the DRA may discuss not only the process options but also the practitioners who may be able to deal with the dispute; • assist the parties to prepare for the process. This could involve a mini-Harvard Project seven-element preparation model; for example, asking each party in turn about their interests, other party interests, their options, other party options, their alternatives, other party alternatives and any other information that may be required (including how to seek that information), as well as what communication or process strategies could be used. Parties who are prepared and have received relevant advice are in the best position to make an informed decision when negotiating (see Chapter 2 for a more detailed review); • ensure that every participant has a clear idea of roles and the process and discuss who will attend. This discussion may involve questions relating to the role of lawyers, support people and others as well as considering how procedural fairness can be maintained. In the context of support people, at 36

See para 25 of International Chamber of Commerce (ICC), Controlling Time and Costs in Arbitration, ICC Report (Report, ICC, 2012) available on http://www.iccwbo.org/Data/Policies/2012/ICC-ArbitrationCommission-Report-on-Techniques-for-Controlling-Time-and-Costs-in-Arbitration-2012/, which refers to case management conferences. [7.30] 251

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times they may be present and actively engaged through the process. At other times they may have a limited role (for example, they may contribute only in the context of opening comments, or may be seated behind the disputant and contribute only in the context of private meetings. At other times they may be present at the venue but not in the ADR process). Other questions that arise may include whether the practitioner is part of an agency, how they might interrelate to other agencies, whether information is kept about the dispute, and so on; • check whether any information needs to be exchanged and how this can be done and what needs to be brought along to the ADR process. Where arbitration and advisory forms of ADR are used, there may be considerable focus on timetables relating to the exchange of information; • settle preliminary procedural issues, for example, what documents/notes will be kept by the dispute practitioner? 37 Will the process be confidential? If it is an internal process, what reporting will take place? Will the parties have authority to negotiate? • clarify any agreement or guidelines or other resources that relate to entry into the process and any confidentiality considerations (in many facilitative processes there will be an agreement that includes information about participation, confidentiality, good faith, liability and fees and other matters – see Chapters 11 and 12 and Appendix B (sample agreements)). Where processes are conducted through a government scheme or a statutory scheme there may be different relevant information that can be exchanged and discussed. Where mediation is used, the practitioner should refer to the NMAS and the ethical guidelines (this is commonly referred to in any agreement). In advisory and determinative processes, practice notes and procedural guidance information may be exchanged; • settle venue and timing issues; • clarify how any outcome might be dealt with (for example, whether a court or other agency is involved). 38 The dispute intake process is essential to ensure that the parties have a clear expectation and understanding of the process as well as have had an opportunity to vary the process should it be required. The practitioner adopts an approach that can be regarded as follows: • Attentive. Using “encouragers” can be particularly important. Encouragers include short questions such as “Tell me more …” or “Uh huh?” • Friendly. A friendly disposition is an important part of encouraging disputants to talk. 37

For example, there is considerable variation in approaches taken in relation to keeping mediator notes – some mediators destroy all notes (except agreements) – while others keep notes. The Practice Standards (September 2007) s 6(8) provide that a mediator may keep or destroy notes (see Appendix E). There are cogent arguments for each of these approaches: see S Pettersson, “To Keep or Not to Keep?” (2004) 6, ADR Bulletin 9, available on http://epublications.bond.edu.au/adr/vol6/ iss9/3/.

38

This may for example include a discussion about how and what information about the dispute might be made public.

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• Respectful. Showing respect is one of the most important ways of ensuring that parties understand that you are interested and that you will support a respectful conversation. Dispute counselling and advising is often used in an intake process to assist in determining what dispute resolution processes could be of most assistance or to provide assistance in negotiation or negotiation preparation. At this point in multi-door court systems, issues about referral strategies may be explored; for example, single-issue disputes may be appropriately referred to case conferences while multi-issue disputes may be referred to mediation (see Chapter 6). This stage can be very important as people can form some of their basic assumptions, which are often hard to change, about their dispute and the processes available to them. In collaborative processes, the initial intake stage is also used to ensure that disputants are not fixed into positions that can prove to be untenable (once more information becomes available) and which may inhibit interest based negotiation. In terms of mediation, the NMAS Australian National Mediation Standards: Practice Standards state that mediators must have specific competencies in conducting a dispute intake process. 39

The NMAS states the following in Part III, Practice Standards: 3

Conducting mediation: Preliminary conference or intake

3.1

In the preliminary conference or intake the mediator must ensure that participants are provided with the following: (a)

a description of mediation and the steps involved including the use of joint sessions, separate sessions and shuttle negotiations;

(b)

information on how to provide feedback or lodge a formal complaint in relation to the mediator.

The preliminary conference or intake may be conducted by a person other than the mediator. 3.2

39

The preliminary conference or intake includes: (a)

assessing whether mediation is suitable and whether variations are required (for example, using an interpreter or a comediation model in culturally and linguistically diverse communities or introducing safeguards where violence is an issue).

(b)

explaining to participants the nature and content of any agreement or requirement to enter into mediation including confidentiality, costs and how they are to be paid.

(c)

identifying who is participating in the mediation and to what extent participants have authority to make decisions.

NMAS Australian National Mediator Standards: Practice Standards (July 2015): see Appendix E. [7.30] 253

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(d)

advising participants about the NMAS and how it can be accessed.

(e)

assisting participants to prepare for the mediation meeting including consideration of any advice or information that may need to be sought and/or exchanged.

(f)

referring participants, where appropriate, to other sources of information, advice or support that may assist them.

(g)

informing participants about their roles and those of advisors, support persons, interpreters and any other attendees.

(h)

advising participants about how they or the mediator can suspend or terminate the mediation.

(i)

confirming each participant’s agreement to continue in the mediation.

(j)

deciding venue, timing and other practical issues.

This type of information noted above may be communicated through an intake process or in some other way. It is probable that many mediators who are involved in court-related mediation either do not consider that the intake process is important or may consider that party representatives will prepare their own clients, or may only raise an intake issue with the mediator if it is significant. There may also be concerns about the cost of intake processes and a “culture” of “no intake” may operate in some mediation environments. Notably pre-mediation processes can play a significant role in clarifying and exploring parties’ process expectations and may also have an impact on outcomes. 40 This stage can also be referred to as a “triage” stage (see [6.50]). That is, outside the court system it may involve a broad ranging discussion about which dispute resolution process or processes would be most effective and how the process can be adapted to meet participant needs. In addition, timing, venue and logistical matters can be explored. Once again, effective communication and listening skills assist not only to build trust but also to ensure that the parties feel comfortable with the process. Even if the practitioner thinks that they know what the problem is, it is important that the parties have an opportunity to explain it. If the parties are present in person or over the phone, it is also important that an opportunity is provided for a person to speak without interruption and then to hear the problem summarised with parts of the dialogue paraphrased by the DRA or practitioner. 40

Interestingly, in research conducted in one court-connected mediation scheme, less than half the mediators surveyed conducted an intake or pre-mediation session. In focus group discussions, it was suggested that some mediators considered intake or pre-mediation sessions to be an essential part of the mediation process while others considered that such sessions had little or no utility: see T Sourdin, Mediation in the Supreme and County Courts of Victoria, (2009) p iv, report available at Social Science Research Network (SSRN) on http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1395550.

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Working out what processes may assist with a dispute can be difficult. For this reason, DRAs are often those who are experienced in a variety of dispute resolution processes and understand the processes and their respective benefits. Dispute advising can sometimes be undertaken by experienced mediators who provide advisory services when they are not mediating or conciliating. Creating a referral checklist is also a difficult process and some of those difficulties are discussed further in Chapter 13 (at [13.55]). Appendix A includes a crude sample checklist that is included as a discussion aid. Additional information that can be provided to disputants includes selfdiagnostic material to ensure that information and other needs are identified. In addition, material and information can be provided that support principled negotiation strategies. For example, the originating Australian Standard on dispute resolution 41 (discussed in detail in Chapter 13) notes that negotiation strategies can include a self-evaluation process and reflecting on the circumstances of the dispute (at [13.110]). In relation to preparation for negotiation, the Standard notes that a number of key questions can be asked. The questions include reference to determining goals and priorities, what the best or worst case scenario is if the matter does not resolve (the WAM, BAM, BATNA, WATNA or RATS – see later in this chapter at [7.105]), whether interests can be met, whether the parties have been realistic, whether any external objective criteria can be used to “test” a view, whether further information is required, and whether there is anything that can prevent additional disputes from arising. A DRA may further assist by indicating the benefits of a process. For example, the benefits of mediation could include savings of cost and time, convenience, confidentiality, access to other options if the matter is not resolved, effectiveness of process and differences from other processes such as court proceedings. Reframing and other skills may also be used in dispute advisory processes (see [6.50]). Dispute advisory processes can also be used to ensure that issues that are relevant to process variables are explored. One issue that arises in dispute advisory processes relates to the amount of information that is to be provided by the parties. At times, dispute advisory processes can be used to replace a pre-mediation or pre-facilitation session. If this occurs, in some models parties are asked to provide issue or other statements. This approach can sometimes lead to a hardening in the positions 42 expressed by the parties and can assist to further fuel a dispute as inflammatory positional information may be exchanged. However, exchanging some material may be useful as this may assist parties to prepare and more fully understand their own perspective (particularly where a participant is a large government or corporate entity and where preparing pre-mediation information may assist to clarify issues from an internal organisational perspective). There may also be issues about the confidentiality of these processes (see Chapter 12). 41 42

Standards Australia, Australian Standard AS 4608–1999: Guide to the Prevention, Handling and Resolution of Disputes (1999). See L Boulle, Mediation Skills and Techniques (LexisNexis Butterworths, Sydney, 2001) p 61. [7.30] 255

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Creating a dispute resolution atmosphere [7.35] Creating an atmosphere where parties can negotiate and communicate is important in any ADR process. Ordinarily when people are in dispute or conflict, high levels of anxiety exist. Alien and uncomfortable surroundings can heighten the anxiety levels as well as promote and exacerbate conflict. At times, the atmosphere can be damaged if pressure is placed on making a decision “too early” rather than focusing on clarifying the past and allowing the disputants to talk and “vent”. Comfortable surroundings can assist in ensuring that individuals share views about issues as well as values. Comfort can also involve locating a neutral venue with natural light, a view (or, at least, a window), tea and coffee-making facilities, and adequate soundproofed rooms or spaces for parties to discuss issues in private. Having familiar but neutral 43 surroundings can also help. In native title mediation, discussions often occur outside. In more formal commercial disputes, office boardrooms are used. Often a circular table, rather than a desk or triangle-shaped area, will promote more relaxed dialogue. 44 This also relates to the way that the dispute resolution practitioner is positioned as a speaker. Your positioning as a practitioner can indicate when your attentiveness ceases and also when you have personal views about the situation (for example, if you are offended by what you have heard, you may push your chair backwards). A round table often provides the best listening opportunities. If more that one speaker is present, it does not create a hierarchy and provides better opportunities for all parties to experience eye contact. Round tables are also said to promote problem-solving approaches – all parties feel as though they are part of a team rather than two or more opposing teams or sides if a table with straight sides is used.

43

It is often useful not to hold mediations and other ADR processes “on site” where there may be privacy and confidentiality issues and the process may become a focal point. In addition, although the venue should suit the formality preferences of the participants it is ordinarily better to try and hold conversations in a neutral space which may not trigger discomfort for the participants (for example, holding a mediation in an office boardroom in the workplace may mean that a participant feels disempowered).

44

R Bolton, People Skills, How to Assert Yourself, Listen to Others and Resolve Conflicts (Simon and Schuster, Australia, 1987) p 38, refers to experiments conducted in doctors’ surgeries where desks separated the patient from the doctor – 10 per cent of patients were “at ease” when a desk separated the parties, compared to 55 per cent who were at ease when no desk separated the individuals (referring to G White, Reforming Metropolitan Governments; A Bibliography (New York, Garland, 1975)).

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Another very important part of creating an atmosphere that is conducive to dispute resolution relates to how disputants are welcomed and introduced. In most ADR processes, a third party (or ADR practitioner) will introduce the dispute resolution process and set an appropriate “tone” or atmosphere that encourages participants to talk and find agreement. This is usually done by the practitioner outlining the procedures to be followed and checking to ensure participants’ understanding. However, in some processes this involves the practitioner seeking information about how the parties would like to be addressed and considering how the process can be conducted. The introductory statement of the practitioner is generally fairly brief (no more than about five to 10 minutes). Disputants are often too anxious and nervous to listen to a lengthy statement. This is also an important time to build trust 45 and the impressions made in the opening statement can be essential in assisting the parties to contribute and negotiate effectively.

45

Building an appropriate ADR environment requires that practitioners carefully consider how trust can be built in the ADR session. For a study showing how acts of trust can reciprocally generate a positive collaborative interaction, see D Ferrin, M Bligh and J Kohles, “It Takes Two to Tango: An Interdependence Analysis of the Spiraling of Perceived Trustworthiness and Cooperation in Interpersonal and Intergroup Relationships” (2008) Organizational Behavior and Human Dimension Proccesses 107, 161–178. [7.35] 257

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FIRST JOINT SESSION Introduction to the process [7.40] The following discussion relates to the basic matters that are usually raised in the opening statement of a dispute resolution practitioner in a facilitative process. 46 A sample opening statement in a facilitative process context (such as facilitative mediation) is located at Appendix A. 47 The opening can be adapted for other ADR processes and it is likely that it may be briefer in determinative processes. 48 It is also possible that a facilitative ADR practitioner will have met the parties separately before any actual negotiation or mediation through an intake process or preliminary stage. If that is the case, it is often useful to reiterate what may have been said in those meetings and refer to the meetings that have been held. Throughout the process, it is essential that a practitioner maintain a non-judgmental and receptive attitude. It is also important for the participants to have received information about the process beforehand – perhaps in a pre-conference meeting or through emails, DVDs or written material (including the NMAS Australian National Mediation Standards, which have been reproduced in Appendix E) – that enables the participants to have a basic prior understanding of the process. 49 The way in which the opening statement is delivered is also important. If the practitioner has a tendency to speak too quickly, there is a danger that the parties could feel rushed or nervous. Slowing down or inserting more pauses in your dialogue may provide parties with a better opportunity to understand what you have said. Hearing yourself speak and making sure that your pitch and tone are appropriate is also important. Often lowering your voice (especially if you are a woman) and speaking in a softer voice will result in the parties following the statement and also leaning forward to listen. The opening statement is an opportunity for the practitioner to model the behaviour that will assist the parties to have a constructive conversation and move towards agreement. If a co-practitioner model is used, generally both practitioners will divide up the introductory phase of the process (see Appendix A at [16.70] for a suggested break up of co-mediation roles). There are various ways to approach this – for many practitioners, this will involve preparing with the co-practitioner in relation to process model and style. 50 As a practitioner, your opening statement will usually cover the following: 46

47 48 49 50

For an opening conversation in a transformative style, see R Bush and J Folger, The Promise of Mediation: The Transformative Approach to Conflict (Rev ed, Jossey-Bass, San Francisco, 2005) pp 133–136. See also L Boulle and N Alexander, Mediation: A How to Guide (Lexis Nexis, Australia, 2015) pp 116–118. Notably, in the transformative mediation approach, the opening stage is referred to as an “opening conversation” signifying that this stage is interactional and parties have control over the process. A summary of information including a diagram, a discussion about roles and expectations can also be helpful. See R Charlton and M Dewdney, The Mediators Handbook (2nd ed, Lawbook Co, Sydney, 2004) for an excellent discussion of the co-mediation process and mediator skills in general.

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1.

greeting and introductions – parties, representatives, others and the practitioner;

2.

explanation of the process – if a mediation agreement and related agreements (such as stand alone agreements in respect of confidentiality) are being used, it is often helpful to quickly discuss aspects of those agreements. Explaining the process includes: • defining and discussing mediation or the process being used. Generally, this will include a discussion of the steps in the process. The summary of process provided by a practitioner in a facilitative mediation would usually include reference to the parties’ statements, the summary and reflection stage, how issues and an agenda will be identified, the topics or issues discussion and exploration stage, the use of private sessions and other sessions to develop options, the evaluation of those options, and the reaching of agreement (including a reference to the writing up of the agreement if necessary). Some mediators and facilitators map the process on a white board or use a visual aid to help explain the process; • explaining the role of the practitioner. For example, in a mediation: “My role is not to determine your dispute and make a decision about who is right or wrong; instead, my role is to help you make a decision about how you would like to deal with this matter into the future”. Many mediators also explain that they are impartial, have not met the parties previously (or may only have met them socially – see also discussion relating to neutrality in Chapter 3 at [3.50]), will not gain from the outcome (whether or not an agreement is reached), and that their role is not to give legal or other advice. Some mediators may explain that the practitioner is in charge of the process, but not the outcome; • explaining and exploring the roles of the parties, their representatives (see also below) and any other participants (for example, support people and experts). For example, in a facilitative process a mediator could say: “Your role is to help us understand more about your views. This is usually done most effectively if you tell us what has happened in your own words. Normally having one person speaking at a time and avoiding insults, even if you feel strongly about something, can help”. You may also ask parties whether they want any guidelines for the mediation discussion. A mediator might say: “In my experience, negotiations may not work well if too many insults are traded”. The extent to which it will be necessary to explain or explore any guidelines will depend very much on the process used, the parties and their relationships. Possible guideline areas that can be explored include discussing how support people will be involved in the conversations and how interruptions might be dealt with. 51 It is sometimes useful to reflect with all participants on how difficult it can be dealing with a dispute and the stress that accompanies it, and that “because we are all individuals, we are likely to see the dispute differently”;

51

See C Moore, The Mediation Process (3rd ed, Jossey-Bass, San Francisco, 2003) pp 219–220. [7.40] 259

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• establishing the objective – for example, to resolve the dispute or to make smart decisions about the future. Ensure that the parties formulate, understand and agree on what the objective of the process is if this has not already taken place. If the objective is not to resolve the dispute but to manage some aspect of it, it is important that this is understood from the beginning. It may also mean that facilitative processes may only assist to “reality test” a position adopted by a party; • establishing authority. Do all parties have the authority to resolve the dispute? If not, why not? If someone else needs to be consulted, who are they? Should the process be dealt with on another day? Is the approving person available by phone? Is video-conferencing possible if they are overseas or interstate? Without adequate authority there may be issues about proceeding with an ADR process and there may also be good faith issues (see Chapter 11); • confidentiality. In a mediation there is often a discussion about confidentiality and admissibility and that the mediation is usually intended to be kept private and confidential (see Chapter 12). In addition, where private meetings are held there may need to be a specific discussion about confidentiality (see below). Some mediators indicate that although the mediator may take notes, they will be thrown away at the end of the session. The parties may also sign a confidentiality agreement (see Appendix B). There can be particular issues with reporting in some jurisdictions and “insider” mediators such as human resources staff conducting internal mediations and even court staff may need to raise and address any additional confidentiality concerns. There may be applicable legislation that further defines confidentiality within the ADR process; • private sessions or “caucuses”. Private sessions are separate meetings called by the practitioner where one or more of the parties (and any representatives and support people) will meet privately with the practitioner in the absence of the other party and their team. Often these meetings are “private” in that the mediator will not ordinarily convey something to other parties unless there is clear consent. In the United States, these meetings are often referred to as a “caucus”. A private meeting may or may not be needed depending on the circumstances, but should be briefly introduced at this time (many mediators consider that private sessions are an essential element in mediation 52). In some ADR processes, private sessions may not be permitted (for example, in some conciliation processes that are an adjunct to a hearing or other determinative process – see, for example, discussion at [6.85]); • time to be spent and breaks. Discuss the length of the session and ensure that there are no time constraints, such as parking, childcare deadlines, 52

Many mediators consider that private meetings enable the participants to carefully consider any options and be more refreshed when facing the decision-making stages. See [7.100] for further discussion about private sessions.

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etc. It is also useful to explain that either the participants or the practitioner can request a break. It is often the practitioner who will decide the best time for a break. Often breaks can be useful for the practitioner to review issues and options and to ensure that all parties have an opportunity to carefully consider any proposals. At times, a break may mean that parties will talk to their support group and become convinced about the “righteousness” of their position. For this reason, parties often need to be reminded (before a break) that this can occur and that if they are only discussing matters with their supporters, they are only likely to hear a favourable view or perspective; • role of lawyers or other experts. Where lawyers are present, it is important to ensure that their advising role is understood. Some lawyers expect to play an advocacy role in mediation and seek to provide an opening statement. Where possible, this should be discouraged as it will usually mean that the issues are framed only in terms of legal rights (rather than interests) and can lead to a protracted mediation. Providing an explanation that ensures that lawyers and other experts are welcome in the process and highlighting the very different advocacy role can be helpful. The practitioner may also need to point out that the process is designed to have the parties directly speak for themselves and that this ensures that interests are considered (not just the legal rights). It is often helpful to ask lawyers to speak after their clients (the parties) and to ensure that the parties have an opportunity to discuss relevant issues with their lawyers. Generally addressing questions to the parties, not their lawyers, and having the parties seated closer to the ADR practitioner will assist in ensuring that participants clearly understand the intention of the process (to enable the parties to speak and engage in the process); • payment. If there is a payment required for the process that has not been taken care of ahead of time, it should be explained. Many mediation schemes and private mediators will require parties to lodge an upfront payment for four to five hours of mediation time. If additional payment is required should the session proceed, this should be referred to; conclusion of introduction – the practitioner checks with all participants about understanding what has been said. Parties can also be asked whether they have any questions and if they are ready to proceed.

Opening statements of the parties [7.45] When the parties begin to speak, it is the practitioner’s opportunity to practise active listening skills. Usually the person who initiated the process should start first and each party should be asked: “Can you briefly tell us about what has brought you here today?” or “Tell me how you see the issues (or dispute)?” 53 In evaluative and determinative processes, a different form of 53

In transformative mediation, the parties determine who should speak first and early interruptions are expected: see R Bush and J Folger, The Promise of Mediation: The Transformative Approach to Conflict (Rev ed, Jossey-Bass, San Francisco, 2005) p 142. [7.45] 261

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words might be used; for example, the opening comments by the disputants or their representatives may be confined to a summary of arguments and relate to legal issues only. In facilitative processes, the focus is on the parties. The practitioner or any other participant will generally not interrupt the opening statement. If one participant continually interrupts another, it can be worthwhile to restate any ground rules and advise that concerns and questions can be noted down. It is important to ensure that parties understand that one of the benefits of many facilitative processes is that there will be ample opportunity to ask questions at a later time. Where there are many parties or a very complex dispute, emphasising the need to be brief and summarise the salient points can be helpful. For practitioners, there is a need to convey interest in what is being said, but not agreement. Sometimes nodding and smiling can be misconstrued by one party. 54 As a practitioner, it is also important for you to ensure that your legal or other background does not colour the way in which you take in information – for example, listening for feelings and values is important as it is often obstacles in these areas that will either prevent agreement from occurring or prevent the development of options. Many practitioners lean forward to show interest and avoid taking too many notes. 55 Note-taking is a particular skill area and many practitioners develop their own approach rather than adopting any fixed strategy. One approach that can assist in ensuring that, as a practitioner, you focus on all issues (not just the legal ones) is included in Appendix A. Noting down a few relevant verbatim comments can also assist parties to understand that the practitioner has understood what has been said and provide the practitioner with an opportunity to reflect, paraphrase or re-state comments (where appropriate). Eye contact with all parties is essential so that reactions can be noted as well as ensuring that the practitioner is not perceived as favouring one party or another. Some gestures can be misconstrued as agreement, and many practitioners find it useful to practise their listening skills approach in role-plays with video playback and with similar other self-reflective tools. There are particular issues that are likely to arise. As a practitioner, you may: • be offended by what is said; 56 • reach a conclusion about what is right and what is wrong; 54

55

56

Some mediators may indicate in their opening statements that they may nod and say “yes” when a party is speaking but that this does not mean that they are agreeing with what has been said – rather, it is indicating understanding. Parties in a mediation may watch a practitioner taking notes and wonder why the practitioner has not noted down some matters and has noted down others. They may assume that the mediator has judged some information as being of higher importance than other information and this can lead to perceptions of bias or create misunderstandings about the mediator role. See W Ury, Getting Past No – Negotiating with Difficult People (Random House, Australia, 1991) p 26. Ury notes that it is essential to know your “hot buttons” – what makes you “see red”.

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• be tired or stressed – your full attention is required if agreement is to be reached and if you are going to support an effective dispute resolution process; • wish to jump in if there is a long pause or silence – usually a speaker will fill the gap if required; being comfortable with silence is a difficult skill to learn for many who assume silence is uncomfortable; • find that someone is very angry or very confronting – this can cause you to react in a particular way, and may also have an impact on the parties and the process adopted (for example, under such circumstances a “shuttle” model, co-mediation or counselling approach may assist). Becoming aware that these issues are likely to arise and thinking about how you will deal with them is essential. One approach detailed by Ury is to “go to the balcony”; that is, adopt a mental attitude that is somewhat detached. 57 Similarly, Parker also speaks of moving to the “third position” to think more effectively about the processes and individuals, particularly where your own reactions as a practitioner could impede the negotiations. 58

“Reflecting”, summarising and paraphrasing [7.50] An important part of active listening involves showing understanding and ensuring that the speaker understands that they have been heard. In most mediation models, this is often referred to as the “reflective” or “summary” stage. This involves the practitioner “mirroring” what has been said directly to each party. After each party has spoken, the practitioner “plays back” what has been said. In this stage, the practitioner uses reflected speech to: • show the parties in the dispute and any other participants that the practitioner has listened to them and understood what has been said; • assist the parties to gain clarity and understanding about their own perspective; • ensure that the other party has heard what has been said. (Often parties in dispute are unable to “hear” what has been said as they are angry, distracted or focused on what they are about to say. Hearing a practitioner summarise the dispute may be the first time that what has been said by the other party “sinks in”.) The extent to which the practitioner’s speech is a full reflection (or a summary) of what has been said by a party depends on the process being used. For example, in transformative and narrative mediation, a full and accurate reflection of what has been said is given; facilitative approaches generally provide for a combined reflection and summary of what has been said; and evaluative practitioners may provide a brief summary. Many non-facilitative 57

W Ury, Getting Past No – Negotiating with Difficult People (Random House, Australia, 1991) p 17.

58

A Parker, Negotiator’’s Toolkit (Peak Performance, Sydney, 1998). [7.50] 263

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ADR processes support the use of a brief practitioner summary rather than direct reflection at this stage of the process (although sometimes a combination of both can be used). Summarising is also an active listening technique, which can be used with each party after their opening comments and throughout most ADR processes. Summarising and paraphrasing are interventions that can pull together important facts and assist in generating discussion. In a facilitative mediation model, when a summary is used the practitioner may adopt an attitude and approach that is “unconditionally constructive”. Fisher and Brown outlined six factors that promote unconditionally constructive negotiation, which are: • • • • •

striking a balance between emotion and reason; being understanding; inquiring, consulting and listening; being reliable; being open to persuasion and being persuasive;

• accepting the other as worth dealing with and learning from. 59 In most ADR approaches, when you summarise as a practitioner you adopt a stance that is “unconditionally constructive”. In some mediation models, the mediator reflects or summarises after each party has spoken. In other models, the mediator reflects or summarises what each particpant has said after all participants have finished speaking. Essentially, regardless of which alternative is chosen, in most models, the approach is to reflect directly only to each party rather than attempting to provide a mutual summary. The mediator also uses reported speech devices – that is, the mediator may say, “I think you said …?” or “Then you went on to say…”. Using conversational tags such as “you said” and “I think you went on to say ...” ensures that the participants understand that you are reporting back on what was said rather than agreeing with its content. It is important that the mediator does this in a tentative way as it may be that a participant will seek to correct what has been said. This stage is critical in a mediation as it helps participants to “hear one another”. Often when one person is speaking they may be focussed on what they are about to say, or an earlier comment and may miss part or all of what has been said. Many mediation models encourage not only reflection but also the paraphrasing of part of the parties’ opening statement and even the reframing of some issues or positions (described in [7.80]), as set out below:

59

R Fisher and S Brown, Getting Together – Building a Relationship that Gets To Yes (Business Books, Great Britain, 1991) p 38.

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Example [7.55] Garth is a party in a mediation process. He explains that he planned extensive renovations to his home. He is very angry during the mediation session and points to the other party, the builder, and says: “You have ruined my life”. He then goes into great detail about what has gone wrong with the renovations and the ongoing problems. He says he wants thousands of dollars from the builder. The mediator summarises what Garth has said in the following way: Thank you, Garth. As I understand it, Garth, you said that you planned extensive renovations to your home in late 2009 and first met with Bob the builder in January 2010. I think you said that you wanted to build a “dream home” (REFLECTION) and you said that you feel very angry (REFLECTION) that the renovation has not gone according to plan since the building work started. You went on to say that your working life had been “impossible” (REFLECTION) with the number of delays on the project and that you had contacted Bob at least once a month since that time (PARAPHRASE). This is a particular problem for you as you work from home. So when Bob did not phone you back you interpreted that as a “lack of interest” (REFLECTIVE). You also raised specific concerns about the waterproofing of the upstairs balcony and whether or not the timber used for the flooring was of the correct grade. You also said that payment of money could be an option to resolve the dispute (REFRAME). The mediator then goes on to reflect and summarise what Bob the builder has said using some direct and “reported” speech. (Note: Ignoring a position statement (for example, “I want $20,000”) in an opening is often useful. Alternatively, you may indicate that a range of options will be discussed in the process or reframe the demand (for example, “You seem very concerned about the ongoing costs.”) Reflection can be used frequently throughout an ADR process. At times, parties can also be asked to state what they understood the other party to say. Asking a party to tell the other party how they felt can also be important in establishing whether there may be other issues that may prevent agreement from being reached. Reflecting is particularly useful to ensure that some of the underlying emotional material has surfaced. It also ensures that the speaker knows that you have heard their concerns. A typical reflective question would be: “I think you said that when Bob asked you to pay for additional tiling work, this led to you emailing him late at night?” or “You were very concerned when you had the first big thunderstorm and in your words ‘the garden flooded’. Can you tell us a bit more about how that impacted on the house?”

[7.55] 265

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EXPLORING THE ISSUES Identifying issues – setting an agenda [7.60] Setting an agenda or creating a list of topics for discussion is a useful exercise in most ADR processes. 60 In this stage of an ADR process, the issues in dispute are recognised and the dispute is broken down into parts or “chunks” 61 so that the issues are dealt with and discussed, and agreement can be reached. Many mediators and facilitators use whiteboards or flipcharts to note down agenda items or issues. 62 In determinative and advisory processes, this visual agenda setting is seldom done. Writing down the issues or topics to be discussed on a whiteboard or flipchart has a number of advantages, which include: • objectifying the issues – they become a joint “plan of attack”; 63 • summarising the issues that have been raised in a visual rather than auditory manner; • ensuring that no issues are “missed” and that parties can “tick off” issues as they are resolved; • showing that all parties have been heard; • changing the room dynamics and ensuring that the participants can focus on the issues; • addressing issues rather than positions ensures that the broadest possible options can be developed. A survey of mediators involved in the 2002–2003 New South Wales Settlement Scheme 64 found that many lawyer mediators were reluctant to use visual aids. Thirty-one of the 83 mediators (37.3 per cent) who responded to a question about using visual aids reported that they used a whiteboard during the mediation process. Eight reported using butcher’s paper. Most mediators (47 – 56.6 per cent) reported that they did not use either method of visual presentation during

60

An agenda is not usually created in a transformative model although summary is used: see R Bush and J Folger, The Promise of Mediation: The Transformative Approach to Conflict (Rev ed, Jossey-Bass, San Francisco, 2005) pp 145–150.

61 62

A Parker, Negotiator’s Toolkit (Peak Performance, Sydney, 1998) p 140. The extent to which practitioners use whiteboards and visual aids may be related to their professional backgrounds and preferences: see T Sourdin and T Matruglio, Evaluating Mediation – The NSW Settlement Scheme (La Trobe University and the Law Society of New South Wales, Melbourne, 2004) p 44. This can also be used as a method for ensuring that any “homework” or preparation which needs to be done by a party before a next mediation session can be referred back to (perhaps where the “homework” has subsequently not been done) as an agreed agenda item, in an objective, sensitive and “face saving” way. Helen Shurven writes about this, as well as using the agenda in multi-sided disputes as an “action checklist” in H Shurven, “Agenda Setting in Mediation: A Contradiction in Terms?” (2012) Paper presented at National Mediation Conference (Sydney, 10–13 September 2012). T Sourdin and T Matruglio, Evaluating Mediation – The NSW Settlement Scheme (La Trobe University and the Law Society of New South Wales, Melbourne, 2004) p 44.

63

64

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the mediation process. 65 Notably, there was no difference in the resolution rates of mediations in which visual aids were or were not used (however, the sample size was relatively small). Figure 7.1 – 2002–2003 New South Wales Settlement Scheme – visual aids used

Many industry models 66 and publications 67 concerning the mediation process outline the importance of using a visual “map” in mediation because visual aids assist disputants to understand and “track” the progress of discussion. Furthermore, agenda listing is often considered as integral to the identification of issues, which is referred to in the NMAS description of the mediation process. 68 In the 2008 study on mediation in the Supreme and County Courts of Victoria, 69 91 per cent of mediators did not use any visual aids, such as a whiteboard or butcher’s paper. However, in 32 per cent of mediations, mediators reported listing issues, topics, common ground or an agenda – this was usually noted on paper, but not displayed for the parties on a whiteboard or butcher’s paper. It is not clear how most of the surveyed mediators identified the issues that needed to be addressed in the mediation session. Setting the agenda often occurs after the reflection and summary stage. As a practitioner, you may have noted down specific areas of concern as well as 65 66

Most mediation training stresses the importance of using a visual “map” in mediation. See, for example, the Administrative Appeals Tribunal, Mediation Process Model, available on http://www.aat.gov.au/LawAndPractice/AlternativeDisputeResolution/ MediationProcessModel.htm.

67 68

For example, L Boulle, Mediation: Principles, Process, Practice (Butterworths, 2001). NMAS Australian National Mediator Standards: Practice Standards (July 2015) p 5: see Appendix E.

69

T Sourdin, Mediation in the Supreme and County Courts of Victoria (Report, Department of Justice, 2009) p iv, report available at SSRN on http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1395550. [7.60] 267

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common ground. Establishing “common ground” can be useful as identification of concerns can mutualise interests. Examples of common ground could include: • “Want to resolve the dispute today.” • “Children need a stable and comfortable lifestyle.” Setting the agenda (or listing topics, issues, interests or concerns) is done by assessing the underlying interest areas and ensuring that they are framed in neutral, mutual language. For example, if the issues relate to barking dogs the issue could simply be framed as “sound”. When identifying the issue, it is important to check back with the parties: “So, Suzy, for you the issue is how the noise level impacts upon you when you are trying to sleep after the night shift. And Bill, you are concerned about the police attending when the dogs bark. Is it fair, then, to say that the issue is ‘sound’?” Reframing is an important part of the issue identification process – you are trying to find out what the issues are and starting to determine whether areas of agreement can be found, or whether narrow positions can be framed in the context of more general interests. For example, “The dogs have to go!” becomes “You seem to be very concerned about the sound level when you are trying to sleep”. 70 The way in which the issues are framed is important for other reasons. For example, “breach of contract” may be an issue for one party but not both, or, framed in that manner, may assign blame or limit discussion. Framing an issue as “obligations under agreement” or more simply “agreement” can present a more neutral agenda item, and also reminds the parties that, at some stage, there was an agreement. Most practitioners find the agenda setting difficult at first. Some practitioners attempt to note in separate columns the different issues of each party and may attempt to do this to “reflect” what has been said (in the author’s experience, this can polarise the conflict further as participants are focused on their areas of difference). Many practitioners struggle to find “neutral” terminology. Appendix A provides a list of more “neutral words” that could be used by a mediator in constructing a list of topics. The basic notion is that each issue or topic should be broad enough to encourage discussion in the exploration stage (see below at [7.65]) and enable the parties to have a full conversation and understanding of the issues. The objective of this stage is not to limit conversation – but to encourage the conversation and understanding of party perspectives in the next stage of the process. In some ADR models, this part of the process involves the practitioner formulating questions that need to be discussed by the parties. 71

70

This example is used by K Severens (Office of Dispute Resolution – Nebraska), IINCM Mediation Training Module (IINCM, Sydney, 1998) p 96.

71

In the view of the author of this book, this approach is potentially disempowering and may lead to a focus on practitioner, rather than party, concerns.

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Beginner practitioners 72 can sometimes either rush to develop options at this stage or will seek to separate the parties – this is usually premature and can result in the parties adopting positional negotiation styles (avoid, submit, compete). An early focus on options can unravel the discussions and damage rapport building. 73 At this stage, parties will tend to focus on their positions, rather than their interests. However, if options are raised it is useful to take a separate note as such offers will often indicate a hidden interest area. Moving to separate sessions is also unhelpful as this means that the participants are not able to obtain clarification, understanding or information about each other’s (and their own) underlying interests. An early break to separate sessions will often generate more competitive or compromissory styles of negotiation (rather than constructive or interest-based negotiation). A sample agenda [7.65] The agenda is usually written up on flipchart paper or a whiteboard and is not numbered (since what may be a high priority issue for one party may not be of high priority to another):

The discussion of issues sometimes begins as they are noted down. However, in many disputes (particularly complex disputes) it can assist to ensure that the agenda setting, as distinct from agenda discussion, is dealt with as a separate stage. It is also important to stress that the list of issues can be expanded as the process continues – not all issues will be apparent following the introductory comments. When discussion about the issues begins, it may be best to start with the easiest issue first – this may be an issue for which there appears to be obvious or mentioned solutions. Another strategy is to start with the most important issue. This stage of a mediation in which a conversation about how and in what order a discussion about the listed issues will take place can be difficult; sometimes, however, if it is clear that an issue will continue to emerge unless dealt with early on, it may be useful to start the discussions with that issue. Another approach is to separate long- and short-term issues. For example, “What happens at Sarah’s birthday party next weekend?” may be discussed 72 73

See discussion in L Riskin, “Decision-Making in Mediation: The New Old Grid and the New New Grid System” (2003) 79(1) Notre Dame Law Review 1, 30. A Parker, Negotiator’s Toolkit (Peak Performance, Sydney, 1998). [7.65] 269

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before longer-term issues about the continuing care of Sarah. It is also important that sufficient time is allocated to enable discussion to take place: where mediations are staggered over a number of sessions, dealing with the short-term issues can often be appropriate. Other approaches include either party taking turns to choose which issue they would like to talk about, or the parties agreeing on the order suggested by the practitioner, or the parties deciding on the order themselves. Some practitioners 74 find it helpful at this stage to attempt to determine the causes of the conflict. Do they relate to incorrect information or data, incomplete communication, or are they related to organisational structures or other features? Developing a conflict theory can be helpful in ensuring that all relevant issues are discussed and that interests and issues, rather than positions, are explored.

Exploration and clarification – discussion stage [7.70] Following the opening, summary and the initial setting of the agenda or list of topic stages, the practitioner will usually seek to clarify and explore the issues raised and assist the parties to better understand each other. This is also an important time for the parties to begin to ask questions of each other and is often the point at which discussion of the agenda items or topics for the session can begin. Detailed discussion of each agenda topic enables the parties to respond to matters that have been raised, gain more information and indicate where emotional issues may be present. Participants can clarify their own perspective and that of others and more fully understand why they are in dispute. In facilitative processes such as mediation, a critical component of this stage is to encourage the parties to talk with one another and to facilitate the conversation that takes place. There are four major interventions used by ADR practitioners in the discussion stage: • • • •

silence summary reflection questioning

The practitioner may initially ask either party to “tell me more about …”, or attempt to restate or reframe an issue to better understand what the concerns are. Over time the practitioner is more likely to ask participants to “tell us ...” and then at some point will suggest that a participant “tell [the other party]” in an attempt to support direct participant conversation rather than the conversation being mediator – participant directed. Some mediators will support this direct dialogue by looking at the person who is not speaking to encourage more direct communication by the participants. In any restatement of an issue, it is important to avoid evaluating the issue in any way. Paraphrasing and summary throughout each stage of the process can assist to ensure that the primary concerns are not lost. Many mediators will summarise after each topic has been 74

See L Boulle and N Alexander, Mediation: A How to Guide (LexisNexis, Sydney, 2015) pp 85-86.

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explored and highlight areas of disagreement and agreement before checking if there are any other matters that are important. In the context of facilitative processes, the practitioner is supporting interest identification and consideration of facts, emotions and perceptions. One of the most important tasks in this stage is to support the participants in reflecting and focusing on the topics in the agenda that assist to break the dispute and information into “chunks” 75 or pieces. This is done by asking questions, making sure that everyone has a “fair go” at speaking and providing non-verbal encouragement (this can include the practitioner remaining silent). Where parties are concerned with the “truth” and who is “in the right”, it might be useful to indicate that some processes are better suited to the determination of rights. 76 In facilitative processes such as mediation, the search is not for the “truth” but for understanding, and the process is generally concerned with exploring underlying interests and concerns before creating future and current options. Evaluative and determinative processes may be more appropriate if the parties are seeking a determination or an externally imposed outcome. The participants will have an opportunity to consider and ask each other questions about what might happen within any rights-based framework; however, this is not a primary focus at this stage of a facilitative process. Some theorists 77 suggest that options can be developed at this stage of the process however many industry models suggest that in facilitative processes option development can more usefully take place following private meetings. In these models, an ADR practitioner may “park” an option. That is, if an option emerges, the practitioner may restate it and take a note of the option indicating that the option can be discussed in the later negotiation stages of the process. The rationale behind this approach is that such an approach may reduce the likelihood that positional bargaining will take place before all information is on the table. In addition, the private sessions (see below) can support the development of options and can also encourage more constructive negotiation behaviour (as participants may consider the various interests more clearly and will more carefully consider if they wish to put an idea forward and how this might be done most effectively). The later development of options may also mean that a premature focus on evaluation of options does not take place and will prevent the participants being “stuck” on one option that may not meet their interests or needs. This approach is also consistent with negotiation approaches which emphasise that having a solid understanding of the problem is useful before considering options and may be more likely to support an agreement that is “wise”. 75

Parker speaks of “chunking”: see A Parker, Negotiator’s Toolkit (Peak Performance, Sydney, 1998) p 140.

76

See K Severens (Office of Dispute Resolution – Nebraska), IINCM Mediation Training Module (IINCM, Sydney, 1998) p 72.

77

See L Boulle and N Alexander, Mediation: A How to Guide (Lexis Nexis, Australia, 2015) pp 140–141. [7.70] 271

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A range of questions can be asked in the clarification and exploration stage. In determinative and advisory processes, closed questions are often asked (see following paragraph). This is partly because these processes often mimic aspects of adversarial trial processes. The difference in processes also occurs because in facilitative processes the objectives are, at this stage, to enlarge the discussion. However, in determinative and advisory processes the focus is often on narrowing the discussion. These differences are illustrated by Figure 7.2. Figure 7.2 – Different approaches in facilitative processes, determinative and advisory processes

Closed questions will usually have a “yes” or “no” answer. They may make a disputant feel defensive 78 and will usually mean that limited information is given. In facilitative processes closed questions are ordinarily not used except to clarify or ensure that something is understood. Closed questions are used widely in evaluative and determinative processes as they can support a greater focus on what is important to the evaluator and arbitrator (rather than the parties). This style of questioning can mimic cross-examination, and may be used somewhat unconsciously by lawyers who have been trained to ensure that open-ended questions are used sparingly. Open questions encourage a flexible wide-ranging response. A typical example would be: “And how did that happen?” A “how” question will usually elicit a great deal of detail. In facilitative processes nearly 78

See K Severens (Office of Dispute Resolution – Nebraska), IINCM Mediation Training Module (IINCM, Sydney, 1998) s 7, referring to direct questions.

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all questions will be open in the early stages of the process, and there may be a particular focus on “how” and “what” questions. The so called “journalists” questions – who, what, when, where, how and why – are all useful in clarifying what has been said and in seeking additional information. However, “why” questions can sometimes elicit a reaction whereby the disputant feels that blame is being directed at them. Questions such as: • “Can you tell me more about …?” • “How did that happen?” • “What did you think about that?” will usually elicit a response that provides a great deal of information. However, it is often useful in the clarification stage for the practitioner in facilitative processes to resist the temptation to take over the questioning. Remaining silent (within reason) and attentive can allow the parties to raise issues in a “safe” environment. Anticipating what is about to be said and then saying it can stifle the communication and prevent relevant issues from emerging. The extent to which intervention is appropriate depends on the individual dispute and the individuals involved. The questions that parties ask each other often form part of the “argument” that is put forward at this initial stage of a process. They are often not asking clarifying questions but rather they may be seeking to justify and repeat an earlier point (no doubt following Napoleon Bonaparte’s advice about successful rhetoric: “repetition, repetition, repetition”). For example, a typical question put by a disputant could be as follows: “So, after you didn’t turn up, didn’t ring, and cashed my cheque, you thought you were entitled to another payment?” Such questions can sometimes be dealt with by the practitioner repeating the proposition to ensure that the speaker understands what has been said and seeking clarification. The practitioner may also reframe the question: “Are you asking about that letter that requested payment and seeking information about it?” Maintaining an “unconditionally constructive” approach can ensure that information that promotes understanding emerges. When seeking clarification it is important in most facilitative processes that the parties feel able to fully discuss the situation and express their emotions and understand each other’s perspective. Often in clarifying matters, the feelings of the parties become clear and acknowledging those feelings is important – for instance, using the example above: “You said you were very disappointed in the way that the situation was handled?” In facilitations and multi-party situations, it is often difficult to ensure that the participants are “clarifying” rather than restating a position. One technique that was adopted by a group involved in a facilitation was to ensure that after each statement or option was put forward, there would be 10 minutes of clarification questions, 10 minutes of “warm” feedback and 10 minutes of “cool” feedback. Edward De Bono also speaks of using the PNI techniques – participants are required to provide structured feedback that is “positive, negative and [7.70] 273

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interesting”. 79 These techniques are often of assistance when options to resolve issues are being evaluated (in the final stages of a facilitative agreement). In this exploration and clarification stage, the objective is not agreement – rather, it is to promote understanding. During this phase, the parties begin to gain a greater appreciation and understanding of each other’s perspective and the underlying needs and interests. One possible defining characteristic of facilitative exploration is that the conversation progresses so that it takes place between the parties rather than being more practitioner-focused. It is at this stage that a facilitative practitioner must be comfortable with the level of ambiguity that exists at the table – essentially this involves the practitioner holding two (or more) contradictory thoughts in the mind simultaneously. 80 At this point, the practitioner role will vary according to whether the process is facilitative, advisory or determinative. In most facilitative and transformative processes, the role will involve limited practitioner interventions – these will usually consist of reflection and summary. The prime task in the facilitative process is to encourage the parties to explain to each other how they view aspects of the dispute. This can be done by the practitioner remaining silent and ensuring that parties have an opportunity to fill the silence. In addition, direct communication can also be encouraged by initially using mediator-directed questions – “Ella, can you tell me more about …?” before moving on to “other directed” questions: “Ella, can you explain to Ashley why this is important to you?” This approach assumes that the parties in the first opening stages of a facilitative process are often in first-person mode – that is, they may be self-focused, emotionally charged and almost incapable of understanding another perspective. Acknowledgment and reflection in the opening stages of the process will encourage movement toward a second-person perspective – that is, essentially where a participant is better able to understand their own perspective and also that of another party. Second-person shift questions that could be asked in this stage of the process could include: • “What did you understand Ella to say?” • “How do you think Ella sees this issue?” In most facilitative processes, the practitioner will move through the topic areas, ensuring that each area can be discussed (rather than agreed upon). In advisory and evaluative processes, the exploration process is often truncated. At this stage, the focus in these advisory or determinative processes is necessarily on what the practitioner regards as relevant and the objective is not to promote party understanding but to narrow the areas of dispute. There can be many variations in the exploration stage of an ADR process. For example, in the family area, child-inclusive or child-focused processes may 79

E De Bono, Serious Creativity: Using the Power of Lateral Thinking to Create New Ideas (Harper Business, New York, 1992). This approach is sometimes labelled “plus, minus, interesting”.

80

D Hoffman, “Paradoxes of Mediation” in D Bowling and D Hoffman (eds), Bringing Peace into the Room (Jossey-Bass, San Francisco, 2003) p 167 (referring to Zen Buddhism).

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operate. In these ADR processes, there may be special arrangements made to “hear the voice of the child”. This could involve having a psychologist who has previously met with a child attending the exploration stage of the process to talk about how the child is feeling and perceiving any ongoing conflict between the parents (see discussion at [3.85]). Emotion and communication [7.75] In most dispute resolution contexts, it is at this stage in the discussions where those in dispute may experience a range of emotions that can have an impact on their capacity and ability to discuss issues. Understanding what happens when core emotions are stimulated is critical in a practitioner determining how best to facilitate the discussion. The extent to which emotions are revealed can depend on the particular circumstances of the dispute, the temperaments of those involved as well as how participants may challenge one another in the conversation (this can also be linked to cultural factors). 81

Reframing [7.80] Reframing is probably the most controversial of the skills used in ADR processes. Charlton and Dewdney define reframing as involving: … changing the construction of a statement to give it another focus or to make it more mutually acceptable by removing the “toxicity”, converting it to a positive focus, neutralising it. Can involve paraphrasing or reflecting what a party has said, such as “so you felt disadvantaged”. 82

Reframing can assist in neutralising emotional language and in identifying an issue. For example, “He is just a mean bastard, he wouldn’t give a cent to anyone” becomes “Gerry is not giving you the money that you feel is due. Is that what you are saying?” 83 This type of reframe is sometimes referred to as a person-to-problem reframe. Leonard referred to the characteristics of good reframing as those that assist the disputants by identifying their real needs and interests rather than their positions. He notes that good reframing is often future-oriented and will usually articulate future interest – by doing so, it opens up a solution or possibility. 84 Reframing is sometimes viewed as controversial as some commentators are concerned that it can alter the meaning of a statement. Others consider that effective reframing can assist all parties in a dispute to better identify the various parts of the dispute from different perspectives. 81

See G Van Kleef, E van Dijk, W Steinel, F Harinck and I van Beest, “Anger in Social Conflict: Cross-situational Comparisons and Suggestions for the Future” (2008) 17(1) Group Decision and Negotiations 13, available on http://www.springerlink.com/content/0926-2644/17/1.

82

See R Charlton and M Dewdney, The Mediators Handbook (Lawbook Co, Sydney, 1995) p 173. Reframing is defined as a specific mediator intervention.

83

Adapted from an example provided in K Severens (Office of Dispute Resolution – Nebraska), IINCM Mediation Training Module (IINCM, Sydney, 1998) p 72.

84

S Leonard, Mediation: The Book (Evanston Publishing, Illinois, 1994) p 102. [7.80] 275

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Moore referred to Mayers’ approach to reframing as one consisting of three levels: • detoxification – changing the verbal presentation to remove toxic components; • definitional – for example, redefining a problem in a jointly acceptable way; • metaphorical – finding a new metaphor to describe a situation. 85 While practitioners are often careful about the extent to which they detoxify any message, many practitioners will use definitional and metaphorical reframing to aid party understanding of another perspective (for example, by restating an issue or comment expressed using auditory language, using visual language or stressing similarity or difference according to preference). 86 In one sense, the dispute is often “reframed” by the fact that an ADR process is taking place and a practitioner is present. The environment, colours, seating, space and cultural requirements, coffee, food, “flags” on the day (for example, in an estate mediation: “Will someone bring a photo of the deceased?”) will all assist to reframe the dispute and the parties’ perspectives. No matter how self-reflective and aware a practitioner is, they will verbally and non-verbally reframe the dispute and the perspectives of those present at the ADR process just by being present. 87 The reframing can significantly alter the messages being sent if the practitioner is relatively unconscious about their operating and language styles. Reframing can have a range of impacts: it is potentially manipulative, can prevent interest areas from emerging, may influence outcomes and it certainly may contradict any notion of practitioner neutrality. However, there may be additional ways of perceiving reframing. Perhaps one approach would be to regard reframing as part of a clarification and questioning approach process not directed at detoxifying, redefining or re-contextualising: rather it is directed at using a range of questions to assist the parties gain greater clarification. It is also useful to consider the way in which we think about matters and make decisions. It is clear that the way in which information is presented can sometimes have an impact on whether an option is accepted (see Chapter 6). Reframing in this broader context can include asking questions designed to elicit information about: • past, present, future needs and interests: “The situation in the past sounded difficult – how is it for you now?” 85 86

C Moore, The Mediation Process (3rd ed, Jossey-Bass, San Francisco, 2003) pp 237–239. For a comprehensive discussion of these approaches, see B Madonik, I Hear What You Say But What Are You Telling Me?: The Strategic Use of Nonverbal Communication in Mediation (Jossey-Bass, San Francisco, 2001).

87

Note that in transformative mediation practitioners are encouraged to reflect on the level of intensity shown by the parties to ensure that reframing is minimised. Inclusive reflection is encouraged in transformative approaches, that is, “without editing, softening or filtering”: see R Bush and J Folger, The Promise of Mediation: The Transformative Approach to Conflict (Rev ed, Jossey-Bass, San Francisco, 2005) p 146.

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• other or own perspectives – first, second and third person shift questions: “Ella, you said that you didn’t like it when Ashley told you off (REFLECTIVE). What do you think Ashley was thinking? … How do you think someone else would describe that situation?” • “onion skinning”: “Ella, after you did that, what did Ashley do then?”

Example [7.85] During a mediation, one of the parties says: “Bob is the worst male chauvinist pig I have ever met”. The practitioner may decide to reframe the statement in a variety of ways: • using neutral language: “So you consider that the way Bob is perceiving you as a woman is having an effect on this problem?” • as an issue: “How you’re treated as a woman is an important issue?” • as an interest: “It’s important that you’re treated with respect.” 88

[7.90] In reframing, the issues that have been raised are not being ignored. Rather, the issues are clarified so that what is causing the concern or reaction can be better understood. Questions that seek specific information about what has made the person feel that way can also assist (see [7.70]).

FACILITATIVE PROCESSES – MOVING TOWARDS AGREEMENT [7.95] The analytical and reasoning skills and processes used in determinative and evaluative processes are discussed in Chapter 6. This section focuses on facilitative process skills.

Private sessions – usually facilitative processes only [7.100] Before moving towards agreement through the development of options, many facilitative processes include reference to a “private session” where a practitioner meets with each party and their team in turn following the full discussion of all issues. The private session is usually confidential and a practitioner will generally check confidentiality issues at the beginning and end of each session (see Chapter 12). In the private session, there are often four main objectives: • checking in and underlying issue exploration; • reality testing – assessing the alternatives – and what would happen if agreement did not occur; • option generation – ideas that could be considered to resolve issues; and • negotiation development and support. 88

K Severens (Office of Dispute Resolution – Nebraska), IINCM Mediation Training Module (IINCM, Sydney, 1998) s 8. [7.100] 277

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These objectives can also be achieved in joint sessions; however, joint sessions can stall where there are hidden issues. Discussion about confidential issues and reality testing of the alternatives can be difficult in joint session and this may hamper the development of principled or constructive negotiation strategies. Most mediators use the mediation model noted in Appendix B and consider that mediation cannot consist of a series of private meetings and is critical that a substantive and full joint session takes place. One suggested process for private sessions is noted in Figure 7.3. Figure 7.3 – The Four Elements of a Private Session

Private sessions are viewed as a critical step in most mediations as they may support compliance with outcomes because people have an opportunity to carefully consider options and alternatives. However, one recent study of family mediators suggested that private meetings can raise a range of ethical concerns, particularly in respect of coercive practice. 89 One mediator interviewee in this study noted that separating parties and offering disputants the opportunity to talk privately with the mediator on the basis that there may be things they don’t want to say in front of the other party, created an element of distrust. 90 However, the study ultimately highlighted positive consensus from interviewees 89

D Bowen, “A Critique of Private Sessions in Family Mediation” (2013) Sage Open Journals, available on http://sgo.sagepub.com/content/3/1/2158244013478950.

90

D Bowen, “A Critique of Private Sessions in Family Mediation” (2013) Sage Open Journals, available on http://sgo.sagepub.com/content/3/1/2158244013478950.

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as to the benefits of private sessions and the crucial function that they play 91 in supporting the objectives noted above. A particular concern raised by some mediators in the United States is that caucus or private sessions can be used to replace joint meetings as some mediators may feel more comfortable with private “one on one” meetings. 92 However, can play an important role in facilitative processes. They can provide an opportunity to explore whether there are hidden interests, and the participants will usually start to develop options at this stage. A mediator may also work with the parties to ensure that there is a reasonable understanding of each participants perspective and to ensure that blocks to negotiated outcomes are considered and appropriate strategies are discussed before a joint session resumes. In addition, the private session provides the participants with an opportunity to have a break before engaging in negotiations. Some practitioners suggest that the exploration stage is past focused, the private session stage is “present” and “future” focused and the end negotiation stages are “future focused”. In some situations, it can be clear to a practitioner that an impasse is likely to occur and private sessions can assist to better understand why. There may be many reasons why the participants may be “stuck”, such as: a disputant may not be ready to make a decision; a disputant is so engaged in a dispute that it is difficult to consider their longer term goals; that the ending of the dispute may signify that a relationship is ending; or there may be psychological barriers or unmet interests that are present (see broader discussion at [7.115]). Dewdney and Charlton developed a series of strategies that can be used to prevent impasse development in private meetings. These include: • role reversal – where either the parties or the representatives are asked about how the other party perceives a situation or option; • encouraging the use of a validation – this can include an apology or concession; and • raising the fact that before the process concludes, a gap may occur that is difficult to close. This can assist in normalising the responses. 93 At the beginning of a private session, it is useful to discuss confidentiality so that everyone is clear about how the information is to be treated. There are essentially two approaches to this: • On the one hand, the practitioner can say: “As we discussed earlier, the information that you tell me in this session will not be repeated to the other party unless you tell me that it is OK to do so”. 91

D Bowen, “A Critique of Private Sessions in Family Mediation” (2013) Sage Open Journals, available on http://sgo.sagepub.com/content/3/1/2158244013478950.

92

See L Bassis, “Face to Face Sessions Fade Away. Why is Mediation’s Joint Session Disappearing?” (2014) 21(1) Dispute Resolution Magazine 30, available on http://www.adrservices.org/pdf/ LB%20Article.pdf.

93

R Charlton and M Dewdney, The Mediator’s Handbook (2nd ed, Lawbook Co, Sydney, 2004) Chapter 9, pp 146-148 and 161-166. Charlton notes that the “gap” can be raised in the preliminary conference. [7.100] 279

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• On the other hand, the practitioner could say: “Unless you expressly tell me otherwise, I will assume that none of our conversation is confidential”. The second approach is generally a preferred option as it means that there is less likelihood of a communication being inadvertently revealed as anything confidential must be specifically flagged. Private sessions can be used to ensure that feelings about being treated unfairly can be raised and discussed. Feeling unfairly treated can influence the process and outcome in a mediation. A range of questions can be asked, such as: • “Can you tell me if you think anything else is going on?” • • • •

“Do you think it is possible that something else is going on here?” “I’m sensing that you’re thinking …” “What did you think when Nina talked about …?” “Do you have an idea about what Nina is thinking about in terms of…?”

If it is clear that some information that has not been revealed in the open meeting is relevant in terms of option generation (it may limit choice or extend options) then parties may be asked what the impact on the negotiations might be if that information is not revealed. Options can also be developed with the parties in this stage and it can be useful to discuss these in terms of the issues or as problem statements or questions. An example might be: “Are you looking for an option that would mean that the windows of the house were fixed and … Is that right?” De Bono as well as a number of other commentators talk about brainstorming as a way of promoting options. Learning brainstorming techniques can be of great assistance. 94 Brainstorming will usually mean that the parties are encouraged to develop a range of options without evaluating them. Options can also be developed from a joint perspective later in the mediation process or in private meetings: “How can you both …?” or “What else could Gerry do?” Reaching agreement can be difficult where parties are unable to perceive an issue in a way that allows options to be developed or discussed. Strategies to overcome such difficulties can include using hypotheses 95 and exploring whether defence mechanisms are present. 96 There may also be psychological factors that create obstacles in the context of option generation (see discussion in Chapter 15).

Reality testing [7.105] Reality testing can be used in a variety of ways – to test alternatives (what would happen if the dispute did not resolve?) and to test options (would this 94

The parallel thinking approach of the Six Hats system is an example of a more advanced brainstorming process: see E De Bono, New Thinking for the New Millennium (Penguin, Australia, 1999).

95

See L Fong, “New Paradigms in Mediation: Thinking About Our Thinking” (1992) 10 Mediation Quarterly 210, 211.

96

G Tillett, Resolving Conflict (Sydney University Press, Sydney, 1991) pp 91–103. Tillett refers to mechanisms such as denial, repression, projection, diversion, displacement, rationalisation, intellectualisation, fixation, minimisation, hostility and conversion.

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idea to reach agreement work? How could it be improved?). Essentially, reality testing can recontextualise options, alternatives and possible outcomes. It can assist parties to ensure that they understand enough to make a “smart” decision by encouraging alternatives and options to be tested. A party’s understanding of their alternatives to agreement supports them to reach an agreement that is “just” or “fair” in the context of standards, laws and potential outcomes. 97 Often, as an ADR practitioner, you are initially assisting the parties to explore the alternatives to settlement. Testing possible alternatives should the dispute not resolve is important. This means that the process (usually mediation, although reality testing can be used in all ADR processes) fulfils a dual objective: assisting the parties to reach agreement and ensuring that they are informed about their alternatives if they do not. Reality testing in this context abounds with acronyms: WAM BAM RATS BATNA WATNA MLATNA

Worst Alternative to Mediation 98 Best Alternative to Mediation 99 Realistic Alternatives to Settlement (“letting out the RATS”) Best Alternative to a Negotiated Agreement Worst Alternative to a Negotiated Agreement Most Likely Alternative to a Negotiated Agreement

Often, “letting out the RATS” means ensuring that the parties have considered what will happen should the matter not resolve or proceed to litigation. At this stage, the parties will often individually provide information about their alternatives. Legal and other expert advice can be necessary to ensure that the alternatives outside the ADR process are understood. Somewhat surprisingly, many participants in mediation have often not considered these “what ifs” in much detail before attending the process, and the questions and answers provided by participants and their expert advisers ensure that the parties are well informed. Although lawyers may have given advice about alternatives prior to an ADR session, it may also be the case that this advice has not been well understood or fully considered. When ADR practitioners ask these types of questions they need to ensure that their approach is diplomatic and that the participants consent to the process of reality testing.

97 98

See B Batagol and T Brown, Bargaining in the Shadow of the Law: The Case of Family Mediation (Themis Press, Annandale, 2011) p 54. T Sourdin and B Chenoweth, 2006.

99

T Sourdin and B Chenoweth, 2006. [7.105] 281

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An ADR practitioner might for example say: “Can I ask you some questions about what you think would happen if the matter did not resolve – would that be OK? I would intend to ask similar questions of the other side – really just to make sure everyone understands what would happen if you could not reach an agreement here.” The intent of “what if” questions is to encourage participants to think about the following matters: • What could happen if the dispute does not resolve by agreement? • What could the costs of any litigation be? • How long could it take? • How likely is each participant to “win”? (a percentage chance or rating of success is useful) • Could they lose money even if they “win”? Is it clear how much that would be? • What could happen if they lose – what is the worst- and best-case scenario? • How much time could each participant personally, and those in their organisations, have to spend seeing lawyers and getting the case ready? Could the other side pay/stop doing an action, etc, even if they win? • Could it be hard to enforce a judgment? • Could the case be publicised? • Can you tell me a bit more about any stress and other health costs? (Often when participants are asked about stress, it becomes clear that the dispute has caused a great deal of stress. This is particularly so as most disputes will involve an attack on their personal credit.) 282 [7.105]

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• How about the relationship that you have with [the other party]? (Maintaining a relationship with the other party can be very important particularly where there is some form of continuing relationship – in a workplace, family, business, neighbourhood or organisation. The nature of the relationship can be more important than other outcomes.) The practitioner will not provide advice in facilitative processes about these issues but may ask directed and reality testing questions. A mediator may ask questions about the possible alternative scenarios with lawyers and parties providing detailed information, and may sketch the scenarios up on the whiteboard (and remove these if necessary when another party re-enters the room). Where parties indicate that it is the “principle” of the matter that is their chief concern, then it may be that they are better off taking or continuing with litigation or dealing with the dispute in a different way (often the “principle” can relate to unmet procedural and psychological interests). However, having a clear understanding of what they expect to achieve in litigation, and what the costs are likely to be, as well as how the time and other factors (such as stress) may affect them, ensures that if litigation is adopted to deal with the dispute, then that choice is an informed choice. The testing also ensures that options are considered against a realistic backdrop. Sometimes, a dispute becomes “a matter of principle” when there is an attack on personal pride and it is possible that options can be developed that address this. In evaluative and determinative processes, the practitioner may provide some of the answers to the questions posed above. Sometimes reality testing in a determinative process may involve the practitioner providing a preliminary view about the likely outcome should a matter proceed (see [6.145]). Brainstorming and developing options can occur after this reality testing stage. There are many reasons why a disputant may not accept advice from their own representative or from an advisory or determinative ADR practitioner, and one of the primary issues may be that they have an emotional barrier that is preventing them from considering the advice. 100 Reality testing of options that have been generated can also take place in private and joint sessions. Exploring why options could work (or won’t work) assists in expanding the range of available options. The parties can “test” options that are developed and alternatives that are present should agreement not be reached, as well as options that may be quickly dismissed. Where options are quickly dismissed, there is often an opportunity to find out why a person is adopting a particular view: “Can you help me understand why that option won’t work?” or “What could make this option work?” More information can help the parties craft an elegant solution that can work. Many mediators voice concerns about the way in which they can be involved in option generation and ask the question: “Can the mediator suggest an option?” (This issue is discussed in Chapter 3, [3.10].) Regardless of the view 100

See see F Gino and M Schweitzer, “Blinded by Anger or Feeling the Love: How Emotions Influence Advice Taking” (2008) 93(5) Journal of Applied Psychology 1165. [7.105] 283

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taken, it is likely that practitioner-generated options will result in agreements that are less likely to be complied with. They are also contrary to facilitative processes and enhance the likelihood of action being taken against the practitioner: “It was all her idea”; “She suggested it”. The mediation description adopted by National Alternative Dispute Resolution Advisory Council (NADRAC) suggests that the mediator does not proffer any opinion or advice and that an advisory process is more appropriately described as conciliation. The NMAS Practice Standards state that: “A mediator does not evaluate or advise on the merits of, or determine the outcome of, disputes”. 101 The NMAS also states that where an ADR practitioner uses a “blended process”, 102 for example, a process that is both facilitative and evaluative, the practitioner must have suitable insurance or indemnification and must have obtained the parties’ consent to provide any advice. The NMAS attempts to ensure that mediators have considerable flexibility in terms of what they can do within a mediation process. According to the NMAS Practice Standards, 103 mediation is: ... a process that promotes the self-determination of participants and in which participants, with the support of a mediator: (a)

communicate with each other, exchange information and seek understanding

(b)

identify, clarify and explore interests, issues and underlying needs

(c)

consider their alternatives

(d)

generate and evaluate options

(e)

negotiate with each other; and

(f)

reach and make their own decisions. 104

The Standards also state that parties should be encouraged to consider “any advice or information that may need to be sought and/or exchanged … And that they should be referred, ‘where appropriate’, to other sources of information, advice or support that may assist them”. 105 Interestingly, in a small Supreme and County Court sample of mediators from Victoria, 106 seven of the 20 surveyed mediators (35 per cent) expressed views to 101

NMAS, Australian National Mediator Standards: Practice Standards (July 2015) Part 111 at 2.2; see Appendix E.

102 103

NMAS Australian National Mediator Standards: Practice Standards (July 2015) 10.2: see Appendix E. NMAS, Australian National Mediator Standards: Practice Standards (July 2015) Part 111 at 2.2; see Appendix E. See also T Sourdin, Accrediting Mediators – The New National Mediation Accreditation Scheme (Australia) (Report, 2007), available on http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 1134622 (accessed 29 August 2011). NMAS Australian National Mediator Standards: Practice Standards (July 2015) s 2(1): see Appendix E. See also T Sourdin, Accrediting Mediators – The New National Mediation Accreditation Scheme (Australia) (Report, 2007), available on http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1134622.

104

105 106

NMAS Australian National Mediator Standards: Practice Standards (July 2015) s 9(6): see Appendix E. T Sourdin, Mediation in the Supreme and County Courts of Victoria, (2009) p iv report available on http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1395550.

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the parties regarding what they considered would be the likely outcome if the matter was litigated. The survey did not ask whether mediators who provided advice obtained the consent of the parties to do so, and it is unclear whether those who provided advice did so in accordance with the NMAS Practice Standards in “a manner that maintains and respects the principle of selfdetermination”. 107 Reality testing can be used in the final stages of an ADR process to test an agreement (see below at [7.120]). For example, some expert facilitators, such as Parker, suggest that options, once generated, should be assessed by the parties. Using Parker’s terminology, only those options that promote reasonable mutually beneficial outcomes (RMBOs) should be retained. 108

Encouraging effective negotiation [7.105] Ensuring that the parties can negotiate is an important aspect of most facilitative processes. Parties can sometimes use unhelpful language or unconsciously adopt an unhelpful style when negotiating. For example, a party in a negotiation could open the negotiation process with an option expressed in these terms: Party: Well, I can’t stand to sit in the same room as you any longer, you bastard, so I will give you X.

Ensuring that parties have an opportunity to rehearse negotiation strategies prior to “trying them out” can often mean that the negotiation has more chance of succeeding. Using the above example, in a private session a mediator might say: Mediator: Do you think Ashley will accept your offer if you put it like that?

or: Mediator: In what other ways could you put the offer? You still seem to be very angry at Ashley. Party: I suppose I could try. I find it hard to keep negotiating because I am still really angry and upset about what happened. However I want to resolve this once and for all, so …

Other strategies can include teaching some basic negotiation strategies. Talking about the success of the Harvard Project interest-based negotiation strategies and referring to the increased likelihood of reaching agreement if an unconditionally constructive approach 109 is adopted can be helpful. Telling the Orange story can also assist (see Chapter 2 at [2.15]) and some mediators use metaphor or other devices including role reversal (“How would you like the other side to negotiate with you? How would you want them to raise an option? How would you ask for that?”) to explore negotiation approaches. 107

NMAS Australian National Mediator Standards: Practice Standards (July 2015) s 2(7): see Appendix E.

108 109

A Parker, Negotiator’’s Toolkit (Peak Performance, Sydney, 1998). See R Fisher and S Brown, Getting Together – Building a Relationship that Gets to Yes (Business Books, Great Britain, 1991) p 38. [7.105] 285

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Most training courses in ADR processes include an examination of negotiation theory and practice and an introduction to negotiation “games” to introduce negotiation variations (see [2.15]). Practitioners also need to be prepared to cope with the high emotional states that can arise as a result of the conflict. This requires self-awareness and the use of skills that assist in ensuring that the practitioner is not adversely affected by the conflict and is able to support those who are in dispute. 110 In some situations, it may also be that the negotiation process will involve a disputant saying “no” rather than “yes”. Under such circumstances, there is considerable risk that this assertion will impact adversely on the relationship between those who are in dispute. Discussing how to be polite, assertive and respectful may assist, as well as a close consideration of how to decline to accept a suggestion. 111

FINAL JOINT SESSIONS [7.115] In most facilitative ADR processes, the parties meet together to discuss issues and possible agreement options following any private sessions. This may not occur in some high conflict situations. Some practitioners use “shuttle” negotiation strategies – partly because they have a preference and familiarity with such processes (see Chapter 3 at [3.30]), and also because the participants may be tempted at this stage to ask the practitioner to be a messenger. However, shuttle negotiation can have an impact upon the outcomes of the process. If the mediator communicates the options then many of the nuances of expression and timing may be lost. In addition, the parties, by not communicating directly with each other, may reach an impasse more readily, miss the opportunity to build on an existing relationship (this is particularly important in business and family disputes), and may not comply with any outcome (as they may not consider that they “own” it). The final joint session is more likely to be effective in producing an agreement if the exploration phase of the process has enabled the parties to have a good understanding of the problem and each other, and will usually start with the practitioner making some opening remarks, for example: Thank you for spending some time with me discussing the alternatives and possible options that you think could work in this matter. As I indicated at the beginning of this mediation, this part of the mediation is about moving toward any decisions that you may want to make. Does anyone have any questions or matters that they would like to raise before we start? OK, who would like to go first in terms of raising any options?

If the practitioner chooses the starting point for the negotiation, they can have an impact on the outcomes (particularly where there may be overlapping options)

110

See, in particular, A Parker, Negotiator’s Toolkit (Peak Performance, Sydney, 1998) pp 169–171.

111

See W Ury, The Power of a Positive No (Bantam Books, New York, 2007).

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so it is important that the participants choose their own starting points. 112 In facilitative processes, the final joint session can often be interrupted by a series of private sessions to enable parties to reflect on how they might want to respond or build on suggested options. Parties are often tired in the closing session of a mediation process and practitioners need to be careful to respond to party needs. There may also be a temptation to keep the parties in the process “until they reach an agreement”. However, this approach raises issues about party capacity, compliance with any outcomes and could raise allegations that the parties were “pressured” into reaching an agreement (see also Chapter 6 at [6.140] in relation to decisionmaking and decision fatigue). At this stage of the process, parties may also reach an impasse. One term for an impasse that occurs in the family area is called the “Garfield” (named after the family cat) – when all other matters appear to be resolved, this is the final “sticking point” that may relate to something that a practitioner perceives as relatively unimportant. An impasse may arise for a range of reasons for example, it may signify that: • a disputant does not want to let go of a dispute or a relationship; • a party is feeling rushed or pressured; • an issue needs to be further explored; or • a party wants to reconsider an option. Practitioners use a range of strategies to deal with an impasse. These include: • remaining silent; • summarising; • changing the venue; • • • •

taking a break; using a private session to explore issues; encouraging the parties to have something to eat or drink; getting advisers or experts to discuss impasse issues separately;

• using reframing, such as future projection: “If, in two years’ time, you were to look back, how important would this issue be?”; • changing negotiation teams following discussion; • • • •

blind bidding; using additional processes; putting an issue to one side; role reversal: “Ashley, what do you understand Ella is saying about this issue?”; • visually mapping progress made in the process so far. 112

For an interesting discussion on “starting points” see A Rosette, J Abbott, and S Kopelman, “Good Grief! Anxiety Sours the Economic Benefits of First Offers” (2014) 23(3) Group Decision Negotiations 629. [7.115] 287

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In some cases, the “agreement” reached may be a decision by the parties, or one party, to proceed with litigation or pursue some other path to deal with the dispute. The role of the practitioner is to ensure that any decision reached is as informed (“smart”) as possible and that the implications of the decision are considered.

The agreement stage [7.120] Once agreement is reached, it is important to reality test the agreement. It must be capable of implementation by the parties and questions must be asked about what would happen if parts or all of the agreement were not complied with – would the parties contact each other or is there another mechanism that should be used? Another important issue once agreement has been reached relates to how those outside the mediation will hear about the settlement and what will be said. Identifying a mutual approach to information about the agreement can be important in many disputes. In other contexts, it is likely that a disputant’s “cheer squad” (the disputant’s supporters, such as their spouse, children, parents, friends, neighbours and colleagues) may provide negative feedback on the agreement: “Why did you settle for that? You could get twice that amount. I read about a bloke in the paper who got …”. It is important that those who are reaching agreement understand that, at times, others will seek to judge the agreement. Discussing these aspects and noting that as those supporters were not present, it is unlikely that they will understand the options or the range of outcomes that exist, can be important in ensuring that agreements reached are complied with. Questions at this stage are more likely to be probing and may even be “closed” in contrast with earlier questioning approaches. However if the practitioner is “testing” an agreement in this way it is critical that the parties understand this role and that they “own” the agreement. Mediation assists parties to reach an agreement that they are willing and able to implement themselves and should be designed by the parties, not the mediator. Example

Reality testing a final agreement [7.125] Ashley and Ella have agreed to resolve their consumer dispute about a fence between their properties. Ella is to provide Ashley with the wood for the new fence and Ashley has agreed to build the fence and will also personally apologise to Ella's mother for the way in which he spoke to her. Reality testing questions in this context could include: To both: • How will you know where the fence will go? • Tell me more about how you see the fence? How high will it be? Will it be the same as the fence on the other side of the property?

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• Which side will the railings be on? • While the fence is being built, you both said that there were issues about how children and pets went into each of your gardens – how would you like to deal with that? • If there was an issue with delivery of materials or it rained or something happened that had an impact on building how might you deal with this? To Ella: • When do you think the wood can be delivered? • Are there different types of wood? • When you say you will buy the wood, do you mean all the construction materials? What type of construction materials would be necessary? • What could happen if there is a delay? • Would you ring or contact Ashley? • What do you understand by an apology? • What would it sound like? • When would it happen? • Would you like to make a time? • What could happen if something goes wrong and you can't keep to that time? To Ashley: • Ashley, what would you think about that? • Have you had experience in building a fence? • Are there any matters that could prevent you building a fence? • Are there any times that are better for you in terms of contact? • What would happen if there was another problem in the future? • Is that something that you think you could talk over? To both Ella and Ashley: • Do you feel OK about having contact with each other in this way?

[7.130] In some areas, particularly where mediation processes are connected to the court system, practitioners may also be required to report to a court or other body. 113 Such reporting can extend to a report about whether an agreement was reached or even whether the parties participated in a “bona fide” manner (see Chapters 8 and 11) or whether the behaviour of parties was “reasonable”. Most practitioners have concerns about the impact of such reporting and the issue has not yet been ventilated in the court system. The concerns are most acute where facilitative processes are concerned, as it may mean that practitioners are required to evaluate the proceedings in some way and this may be inconsistent with the definition of the process (see Chapter 3). 113

For example, Supreme Court of Queensland Act 1991 (Qld), s 108. [7.130] 289

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DEBRIEFING AFTER THE PROCESS HAS CONCLUDED [7.135] Many practitioners do not currently have an adequate opportunity to debrief following the conclusion of an ADR process. Those who work with another practitioner (for example, in a co-mediation model and in the collaborative area) are able to discuss the various aspects of the process and learn from each other.

Co-mediation and debriefing [7.140] In most co-mediation models there are many other advantages apart from debriefing that include providing the parties with the opportunity to have a gender, age or cultural balance in the mediation team. In co-mediation each practitioner can take specific roles. In a co-mediation model, ordinarily both mediators would share the introduction phase while taking different roles in the early stages of mediation (one mediator may, for example, take a lead role in summarising and reflecting back while the other focuses more on topic identification). Usually both mediators will jointly conduct the exploration in both private and later sessions (for a breakdown of roles see [16.65]). Debriefing following co-mediation has the “advantage of directness and immediacy where both parties have participated in the same process”. 114 Through debriefing, mediators and trainees can engage in a “detailed discussion of the specific skills, techniques, interventions, and methods used in mediations”. 115 Debriefing should not be personally critical or demeaning and mediators and trainees should feel safe in discussing their performance and thoughts in any debriefing process. 116

Objectives of debriefing [7.145] Debriefing following any dispute resolution process involves ensuring that the conflict, the individuals, the process used and the practitioner style and approach are critically examined to determine what has been learnt and experienced, and to identify where further processes, support (for the practitioners and parties), training and skills may be required. Debriefing often takes place immediately after the process has concluded, but there can also be benefits in scheduling additional debriefing opportunities on a regular basis. Debriefing is a clear stage in collaborative processes but is less well developed in mediation processes and little used in advisory or determinative processes. The National Mediation Accreditation System (NMAS) makes provision for debriefing and recognised mediation accreditation bodies (RMABs) are required to provide opportunities to “engage in professional debriefing, peer consultation 114 115 116

D Spencer and M Brogan, Mediation Law and Practice (Cambridge University Press, New York, 2006) p 76. S K Erickson and M S McKnight, The Practitioner’s Guide to Mediation: A Client-Centered Approach (John Wiley and Sons, 2001) p 169. SK Erickson and MS McKnight, The Practitioner’s Guide to Mediation: A Client-Centered Approach (John Wiley and Sons, USA, 2001) p 169.

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and mentoring of less experienced mediators”. 117 Section 8.8 of the Practice Standards provides that: “A mediator should, where possible, engage in professional debriefing, peer consultation and mentoring of less experienced mediators.” The previous NMAS Practice Standards (2008) also stated that: Mediators should seek regular professional debriefing. The purpose of debriefing is to address matters relating to skills development, conceptual and professional issues, ethical dilemmas, and to ensure the ongoing emotional health of mediators. Debriefing can take place following a solo mediation, a co-mediation, in groups or through independent sessions with another experienced mediator.

It is clear that debriefing is used far more frequently by some professions rather than others. For example, the process of debriefing is often used in psychology or in emergency services for purposes such as Critical Incident Stress Management (CISM) 118 to deal with the physical, emotional and behavioural symptoms arising from the traumatic event, as well as to reduce and limit the harmful impacts of psychological stress on the practitioner. However, as Buchan 119 has noted, the process is rarely used by lawyers. Newberry suggested that debriefing following mediation has four major purposes for the mediator, which are: 1.

disowning the conflict;

2.

improving skills;

3.

quality control; and

4.

confidentiality. 120

Boulle suggested that: Debriefing (a)

allows mediators to deal with their own emotional circumstances arising from the mediation.

(b)

encourages mediators to develop self-awareness as a basis for improvement and development.

(c)

assists with quality control by providing information to supervisors within the mediation service.

(d)

constitutes a structured form of mediator accountability and provides a basis for responding to complaints by consumers.

117

See NMAS Australian National Mediator Standards: Approval Standards (July 2015) s 3(5)(c): see Appendix E.

118

In recent years there has been a shift from Critical Incident Stress Debriefing (CISD) to management. One process has been explored in some detail: see JW Pennebaker and JF Evans, Expressive Writing: Words that Heal (Idyll Arbor, Washington, 2014). See also http://expressivewriting.org/.

119

J Buchan, “Enhancing Legal Practice Through Debriefing” (2000) 4 Macarthur Law Review 147.

120

M Newberry, Experiential Learning, Critical Reflection and Debriefing for Mediators (Paper presented at the 5th National Mediation Conference, Australia, 2000). [7.145] 291

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(e)

provides, subject to confidentiality constraints, a store of information on mediation for use in relation to matters such as success rates, research, funding, and continuing training requirements. 121

Each of these statements suggests that debriefing can be related to quality control and supervision processes. The NMAS does not, however, link debriefing to supervision. The consultations and framework adopted in the NMAS reflect that the primary objectives of debriefing within that framework are related to skills development, emotional health, and resolving conceptual and ethical issues. This approach responds to the vast differences in terms of the ways in which mediators currently debrief across Australia. Many do not debrief at all, while others access in-house debriefing services. Mediators in “in-house” programs may debrief as part of ordinary practice at the end of a mediation session and the function may be linked to quality assurance and accountability. For example, organisations in the family sector may incorporate a supervisory or auditing function in the debriefing process while organisations such as the New South Wales Community Justice Centres (CJCs) and the Dispute Settlement Centre of Victoria (DSCV), which utilise a co-mediation model, require mediators to spend time at the end of each mediation debriefing about the process, issues, their skills and what they have learnt. De-briefing is also associated with “reflective practice”, in that it requires the mediators to enact principles and practices including engagement with other practitioners or “experts” (rather than reliance on the self as the “expert”) and continual self-reflection, reliance on theory to guide practice, and openness to new information. 122 Boulle, 123 Buchan 124 and Newberry 125 suggested that the general aims of debriefing include: • dealing with emotional circumstances arising from the mediation (see above – the work of Pennebaker may suggest that non- debriefing activities may be more supportive); 126 and • improving mediator skills and performance for the future. Apart from keeping a journal which may assist in the context of building skills and a new “narrative”, the types of questions that can be used in debriefing for practitioners can include: 121 122 123 124 125 126

L Boulle, Mediation: Principles, Process, Practice (Butterworths, Sydney, 1996) p 112. MD Lang and A Taylor, The Making of a Mediator: Developing Artistry in Practice (Jossey-Bass, San Francisco, 2000) p 254. L Boulle, Mediation: Principles, Process, Practice (Butterworths, Sydney, 1996) p 112. J Buchan “Enhancing Legal Practice Through Debriefing” (2000)(4) Macarthur Law Review. M Newberry, Experiential Learning, Critical Reflection and Debriefing for Mediators (5th National Mediation Conference, Australia, 2000). In recent years there has been a shift from Critical Incident Stress Debriefing (CISD) to management. One process has been explored in some details – see JW Pennebaker and JF Evans, Expressive Writing: Words that Heal (Idyll Arbor, Washington, 2014). See also http://expressivewriting.org/.

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• What did you like about the way you handled the session or particular interventions? How was this effective? • Could you have responded differently at any point in the mediation? • How is this conflict similar to others that you have dealt with, and how is it different? • What have you learnt from this session that may be helpful in future mediations? • How did you feel about the participants? • Is there anything that you could do differently? In terms of quality improvement, evaluating the processes with the use of questionnaires and other survey tools can also be useful, and this can be done within the framework of the process objectives (see Chapters 1 and 13).

CONCLUSIONS [7.150] Skills development is a very relevant component of ADR practitioner learning. However, Bowling and Hoffman suggested that it is only one part of the learning process. The three stages of learning also need to be considered by ADR practitioners. These stages are: 1. 2. 3.

learning about technique such as active listening, reframing and diagnosis; more deeply understanding how and why processes such as mediation work through a process of intellectual inquiry and discussion; and becoming aware of how our personal qualities influence the process, sometimes referred to as “mindfulness”. 127

It is questionable whether the learning stages could ever be regarded as discrete, separate or necessarily iterative. For most ADR practitioners, the initial learning necessarily involves a close examination and exploration of their own personal qualities. Many who work in the ADR field bring with them existing and useful skills sets and qualities of “mindfulness”. However, Bowling and Hoffman suggested that achieving personal qualities – such as self-awareness, presence, authenticity, congruence and integration – takes time and intention and that they are qualities that can be learned but not taught. 128

127 128

D Bowling and D Hoffman, Bringing Peace into the Room (Jossey-Bass, San Francisco, 2003) pp 15–16. D Bowling and D Hoffman, Bringing Peace into the Room (Jossey-Bass, San Francisco, 2003) p 44 (paraphrasing Oscar Wilde). [7.150] 293

Chapter 8 Court-based ADR [8.05] [8.10]

[8.60]

[8.70] [8.95] [8.100]

[8.140]

Introduction..................................................................................................................... 295 State court and tribunal systems................................................................................. 298 [8.15] New South Wales ............................................................................ 298 [8.30] Queensland ....................................................................................... 305 [8.35] Victoria ............................................................................................... 307 [8.50] Western Australia ............................................................................. 314 [8.55] Other States and Territories ........................................................... 317 Federal schemes ............................................................................................................. 318 [8.65] Federal Court of Australia ............................................................. 320 [8.70] Family Court of Australia .............................................................. 330 [8.75] Federal Circuit Court of Australia ................................................ 325 [8.80] Administrative Appeals Tribunal .................................................. 327 [8.85] National Native Title Tribunal ....................................................... 329 New Zealand .................................................................................................................. 330 Other legislative schemes ............................................................................................. 333 Key issues...................................................................................................................... 334 [8.105] Judicial involvement in ADR ......................................................... 335 [8.135] Mandatory ADR ............................................................................... 345 Conclusions ................................................................................................................... 348

INTRODUCTION [8.05] Discussing ADR processes within courts and tribunals is difficult, as such a vast range of processes operates across jurisdictions and these have often been introduced to achieve different objectives (for example, many processes have been introduced to assist in case management). Many ADR processes and systems that are related to courts operate outside the court and tribunal system and are staffed by those external to the courts and tribunals (for example, barristers, solicitors and other professional independent mediators), while other processes operate within the court and tribunal system and are often staffed by court employees, members, judges, officers or other staff (such as registrars). 1 In any discussion of court-related processes, it must also be emphasised that most disputes are resolved before entry into the court and tribunal system (see discussion in Chapter 1 at [1.60]). The increasing growth in mandatory ADR before court and tribunal filing (see Chapter 9), a focus on pre-filing or pre-litigation requirements to attempt to resolve disputes (see Chapter 11) and other initiatives (such as the Legal Service Directions, the growth in collaborative practice and a greater focus on quality in the ADR sector) are continuing to reduce the number of disputes entering the court and tribunal system within 1

T Sourdin and A Zariski, “Judicial Dispute Resolution – A Global Approach” in Global Legal Issues Vol 3 (Korean Legislation Research Institute, Seoul, 2012). [8.05] 295

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Australia. Those disputes that end up in the litigation system form a very small minority of the overall number of disputes in our society (see Chapter 9 that focuses on ADR outside the court system). As noted in Chapter 1, once within the litigation system, traditional trial processes account for the determination of a small number of disputes. It is unclear how “small” that number is, however research in 2014 and 2015 suggests that only one per cent or less of civil cases filed in higher courts in Australia end up in a full hearing with judicial determination. 2 While in a sizable proportion of disputes there may be significant court activity (with multiple interlocutory court hearings) most disputes end up settling or in a default judgment process (if ever defended). Increasingly, matters that are “settled” within the litigation system are finalised with the use of some type of ADR processes. These processes may be used without the specific knowledge of the relevant court or tribunal, or may be used after active referral by a court or tribunal. There is some evidence that trials are reducing and that private forms of ADR may now be viewed as more attractive than court processes by some disputants. 3 One reason for introducing court-related ADR is a perception that it can enhance disputants’ participation in and satisfaction with court proceedings generally. 4 Partly to address concerns that some forms of ADR might be more attractive than litigation, courts have changed the way that they operate. For example, in 2002 it was reported that the Queensland Supreme Court was prepared to “compete for more business” by offering to fast-track large commercial cases. 5 Such “fast-track” resolution, usually supported by a managing judge, is also available in the Federal Court, 6 and a similar expedited system for commercial cases now exists across a number of jurisdictions. 7 Despite some degree of yearly fluctuation in the statistics available, there is some evidence that the Australian court workload (both civil and criminal) is 2

3 4 5 6 7

The Australian Centre for Justice Innovation (ACJI) is conducting research into civil disputes – see ACJI, About the Australian Centre for Justice Innovation, available on http://www.monash.edu/law/ centres/acji/about-acji. See also T Sourdin, “Resolving Disputes Without Courts?” (2013) 32(1) The Arbitrator & Mediator 25, 29. T Sourdin, “The Role of the Court in Alternative Dispute Resolution” (2013) Asian Journal on Mediation 80, 93. “Current Developments Section” (2002) 5(1) ADR Bulletin 16 referring to the Brisbane Courier Mail (16 April 2002). Federal Court of Australia, Practice Note CM 8 (Fast Track), available on http://www.fedcourt.gov.au/ pdfsrtfs_p/practice_notes_cm8.rtf. For example, the Commercial Court in the Supreme Court of Victoria (Practice Note 1 of 2010 provides that “proceedings will be handled with expedition unless there is good reason to the contrary”: at [2.3]); the Expedited Cases Division of the Commercial List in the County Court of Victoria (Practice Note No PNCI 5–2010: Operation and Management of the Expedited Cases Division provides that cases will be heard in this Division “where it is appropriate that the proceeding receive an expedited hearing and/or be subject to more intensive case management”: at [1]); the Commercial List and Technology and Construction List in the Supreme Court of New South Wales, Equity Division (Practice Note No SC Eq 3 provides for the “just, quick and cheap disposal of proceedings”: at [4]).

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declining – despite population increases. 8 This is somewhat surprising as throughout the 1980s it had been predicted that a massive litigation increase was due to occur. A decline in litigation filings in some States of Australia can be attributed to a range of factors, including: • shifts in jurisdiction (many disputes are now dealt with at lower-level courts and tribunals, or litigation is limited altogether in some types of actions) and increased costs in pursuing litigation (this can be linked to court fees and also professional costs); • an increase in larger, more complex litigation, which may mean that some litigation is not “counted” (class actions, for example, may be counted as one matter when they may previously have been counted as many); • an increase in the use of intensive and judge-managed “docket” systems aimed at facilitating statutory objectives such as the “just, quick and cheap resolution of the real issues in the dispute or proceedings”. 9 This may mean that cases need to be “nearly ready” when filed and this factor may prompt earlier pre-filing resolution; and • an increase in the use of ADR processes within Australia. 10 This chapter attempts to summarise some of the main referral and ADR processes operating within Australian civil courts and tribunals. 11 However, some quite complex processes operating within individual jurisdictions have not been summarised. Systems and processes that are situated outside courts and tribunals are more closely examined in Chapter 9. The incorporation of ADR systems and processes into court and tribunal systems raises many issues. There are concerns in regard to the institutionalisation of ADR (see Chapter 13), the training and accreditation of practitioners (neutrals or “skilled helpers” – adopting the NADRAC terminology: see Chapter 14), as well as issues about the role of the court and tribunal system and how it may relate to a larger and more informal ADR system. One 8

9

10

11

See the latest comparative figures representing distribution of court lodgments in the Productivity Commission’s Report on Government Services (2015) Chapter 7, available on http://www.pc.gov.au/ research/recurring/report-on-government-services/2015/justice/courts/rogs-2015-volumecchapter7.pdf. See s 56(1) of the Civil Procedure Act 2005 (NSW), which applies generally to all New South Wales courts (see Sch 1 for application to various courts); see also the Victorian Civil Procedure Act 2010 (Vic), which applies generally to all Victorian Courts, and has a similar objective in the “just, efficient, timely and cost-effective resolution”: s 1(c). See, for example, the large study of family law reforms that is discussed in greater detail in Chapter 11. See R Kaspiew, M Gray, R Weston, L Moloney, K Hand, L Qu and Family Evaluation Team, Evaluation of the 2006 Family Law Reforms, Report (Australian Institute of Family Studies, December 2009), available on http://www.aifs.gov.au/institute/pubs/fle. The study found that: “Specifically, the overall number of such applications declined by 22% from 18,752 in 2005–06 to 14,549 in 2008–09” …. The number of applications to the [Family Court] declined by 72% from 7,479 to 2,086 over this period and the number to the [Federal Magistrates Court] increased by 17% from 9,405 in 2005–06 to 10,987 in 2008–09 and the number of applications to the [Family Court of Western Australia] decreased by 21% from 1,868 to 1,476. See p 17 of the Summary Report. Increasingly, ADR processes are being adopted in criminal jurisdictions as an adjunct to sentencing and conferencing programs. [8.05] 297

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significant and developing area relates to how information about ADR systems and processes is disseminated by courts and tribunals.

STATE COURT AND TRIBUNAL SYSTEMS [8.10] State court and tribunal systems deal with large numbers of litigated cases in comparison to federal courts and tribunals. For example, although the Federal Circuit Court of Australia deals with many thousands of disputes, Local Courts throughout Australia deal with a vastly greater number and array of civil, family-related and criminal matters.

New South Wales [8.15] Civil litigation processes (including ADR processes) in the New South Wales Supreme, District and Local Courts (as well as the Dust Diseases Tribunal, Industrial Relations Commission and Land and Evironment Court) are covered by the Civil Procedure Act 2005 (NSW), 12 which commenced operation in June and August 2005. The aim of this legislation is to provide for greater uniformity and compatibility in civil litigation in New South Wales. As in the Victorian and the federal jurisdictions, the legislation creates overarching objectives for the courts, litigants and representatives that support the use of ADR processes. In 2011, legislative amendments to the Civil Procedure Act 2005 were introduced (and then postponed and then repealed 13), which sought to require litigants who wished to commence court proceedings in New South Wales courts (subject to some exceptions) to file a statement setting out what steps they had taken to attempt to resolve the dispute before commencing proceedings in the court. 14 The postponed amendments included requirements to take “reasonable steps” to resolve disputes, or to clarify or narrow the issues involved in dispute. 15 These amendments are specifically considered in Chapter 11 in the context of more recent inquiries where there has been support for their reactivation. 16 The repealed amendments included requirements to take “reasonable steps” to resolve disputes, or to clarify or narrow the issues involved in dispute 17 that could include: 18 notifying the other person of the issues in dispute and making an offer to discuss and resolve them; responding to any such notifications; exchanging information and documents necessary to reach an 12 13 14

Civil Procedure Act 2005 (NSW): see Sch 1 for application to various courts. In 2013 the amendments were repealed by the Courts and Other Legislation Further Amendment Act 2013 (NSW). Civil Procedure Act 2005 (NSW), s 18E(1) (now repealed).

15

Civil Procedure Act 2005 (NSW), s 18E(1) (now repealed).

16

See discussion in T Sourdin, “Reforming Civil Procedure and Alternative Dispute Resolution (ADR)” in M Kumar and M Legg (eds), Ten Years of the Civil Procedure Act 2005 (NSW): A Decade of Insights and a Guide to Future Litigation (Thomson Reuters, Sydney, 2015).

17

Civil Procedure Act 2005 (NSW), s 18E(1) (now repealed).

18

Civil Procedure Act 2005 (NSW), s 18E(2) (now repealed).

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agreement; or taking part in some form of ADR, which could include mediation, expert determination, early neutral evaluation, conciliation or arbitration. 19 The repealed amendments to the Civil Procedure Act 2005 were also intended to allow the making of regulations that set out “pre-litigation protocols”. The protocols were intended to set out reasonable step requirements in a more detailed manner, as they could apply to particular types of civil dispute. 20 Supreme Court of New South Wales [8.20] The concept of mandatory referral to an ADR process conducted by an external practitioner is not a new concept in New South Wales, and in the past 25 years many civil disputes have been referred to arbitration processes in the District and Supreme Courts of New South Wales. 21 The Supreme Court’s Practice Note No SC Gen 6 (Supreme Court – Mediation), issued on 10 March 2010, sets out the basis on which the Supreme Court will consider ordering mediation in civil matters. 22 The Civil Procedure Act 2005 (NSW) contains the framework for mediation 23 and arbitration 24 of civil matters in New South Wales courts, including the Supreme Court of New South Wales. Courts can make an order for a matter to be referred to mediation with or without a party’s consent. 25 The parties to the proceedings are required to participate “in good faith” in the mediation. 26 The legislation also provides a framework to deal with other important mediation issues relating to costs, 27 confidentiality 28 and mediator liability. 29 These are discussed in more detail in Chapter 12. In addition, it seems clear that the previous position of the court on mediation was to support and foster the growth of ADR processes. Former New South Wales Chief Justice, the Hon James Spigelman AC QC, referred to the adoption of a formal Declaration of Principles on Court-Annexed Mediation by the Council of Chief Justices, which included the following: • Mediation is an integral part of the court’s adjudicative processes and the “shadow of the court” promotes resolution. 19 20

Civil Procedure Act 2005 (NSW), s 18A (now repealed). Civil Procedure Act 2005 (NSW), s 18C (now repealed).

21

See Supreme Court of New South Wales, Mediation, available www.supremecourt.justice.nsw.gov.au/supremecourt/sco2_mediationinthesc.html.

22

23 24

Supreme Court of New South Wales, Practice Note No SC Gen 6 (Supreme Court – Mediation): available on http://www.lawlink.nsw.gov.au/practice_notes/nswsc_pc.nsf/pages/516; see also Civil Procedure Act 2005 (NSW), Pt 4. Civil Procedure Act 2005 (NSW), Pt 4. Civil Procedure Act 2005 (NSW), Pt 5.

25

Civil Procedure Act 2005 (NSW), s 26(1).

26 27 28

Civil Procedure Act 2005 (NSW), s 27. Civil Procedure Act 2005 (NSW), s 28. Civil Procedure Act 2005 (NSW), s 31.

29

Civil Procedure Act 2005 (NSW), s 33.

on

http://

[8.20] 299

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• Mediation enables the parties to discuss the differences in a cooperative environment where they are encouraged, but not pressured, to settle so that cases that are likely to be resolved early in the process can be removed from that process as soon as possible. • Consensual mediation is highly desirable but, in appropriate cases, parties can be referred where they do not consent, at the discretion of the court. • The parties should be free to choose … they should pay their own mediator provided that, when an order is sought for such mediation, the mediator is approved by the court. • Mediation ought to be available at any time in the litigation process but no referral should be made before litigation commences. • In each case, referral to mediation should depend on the nature of the case and be at the discretion of the court. • Mediators provided by the court must be suitably qualified and experienced. They should possess a high level of skill, which is regularly assessed and updated. • Mediators must have appropriate statutory protection and immunity from prosecution. • Appropriate legislative measures should be taken to protect the confidentiality of mediations. Every obligation of confidentiality should extend to mediators themselves. • Mediators should normally be court officers, such as registrars or counsellors, rather than judges. However, there may be some circumstances where it is more appropriate for a judge to mediate. • The success of mediation cannot be measured merely by savings in money and time. The opportunity of achieving participant satisfaction, early resolution and just outcomes are relevant and important reasons for referring matters to mediation. 30 Mediations have been conducted in the New South Wales Supreme Court for many years. A large number of Supreme Court matters, for example, were mediated in the Law Society of New South Wales’ settlement scheme programs in 1991, 1992, 1993 and, more recently, in 2002 and 2003. From 1991, matters were mediated by way of referral from the (previous) Commercial Division of the Supreme Court. Since that time, many parties have opted to take advantage of the Law Society’s mediation program and privately conducted mediation without necessarily informing the court of that intention. In addition, matters are now increasingly referred on a mandatory basis. Currently at the Supreme Court, parties can choose their own external mediator (private mediation) or can request to be appointed a court mediator by the court (court-annexed mediation). The internal process is free, but involves a one- to six-week waiting period. In 2013, eight of the Supreme Court’s registrars 30

J Spigelman, “Mediation and the Court” (2001) 39 Law Society Journal 63.

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were qualified mediators able to conduct internal mediation. 31 The court made 1088 referrals to mediation, of which approximately 62 per cent were mandatory referrals to court-annexed mediation conducted by the court’s Registrars. 32 It is not clear how many matters have progressed to private mediation in the absence of a referral order. If the Victorian situation is any guide, the number of matters that have actually been mediated may be double the number (that is, more than 2000) where referral orders are in place (these self-referrals are normally not reported). Spigelman, speaking as the Chief Justice of the Supreme Court of New South Wales (as he then was), also recognised that compulsory mediation may be appropriate under certain circumstances. In this regard, he said that he did not anticipate that the compulsory referral power would be exercised frequently. 33 The frequency of referral may depend in part on the preferences of individual judges, their understanding of ADR and the characteristics of the dispute. His Honour also said that judges will no doubt seek to ensure that no party is disadvantaged by the mediation process. In this regard, there was a concern amongst the New South Wales judiciary that there should be no mandatory wholesale referral of disputes to mediation following the introduction of mandatory mediation referral powers. There have now been a number of judgments in New South Wales that have dealt with the issue of mandatory mediation referral. For example, Hamilton J referred to common perceptions of mandatory referral and highlighted important benefits. His Honour stated: Perhaps the parties’ initial reluctance results from a perception that willingness to engage in mediation may be regarded as weakness. In any event, about 80 per cent of mediations I have ordered over initial resistance have succeeded. I have ordered a second mediation, where the first had failed: Unconventional Conventions Pty Ltd v Accent Oz Pty Ltd (in liq). 34 This second mediation succeeded. 35

In 2010, Spigelman CJ (as he then was) perceived the way in which mediation referrals – both compulsory and voluntary – had occurred were largely positive, and that diverting cases to court-annexed and private mediation had led to lower legal costs for parties to dispute, and more rapid settlements. 36 The current Chief Justice, the Hon Tom Bathurst of the Supreme Court of New South Wales also recently endorsed the success of ADR within the court: Despite the initial reluctance of some, involvement in mediation prior to the commencement of litigation, or at least shortly after its commencement, has 31

Supreme Court of New South Wales, 2013 Annual Review 2013 (2013) p 18.

32 33

Supreme Court of New South Wales, 2013 Annual Review 2013 (2013) p 61. J Spigelman, “Mediation and the Court” (2001) 39 Law Society Journal 63, 66.

34 35

Unconventional Conventions Pty Ltd v Accent Oz Pty Ltd (in liq) [2004] NSWSC 1050. J Hamilton, “Thirty Years of Civil Procedure Reform in Australia: A Personal Reminiscence” (2005) 26 Australian Bar Review 258, 265.

36

C Merritt, “Mediation in NSW Supreme Court works: Spigelman”, The Australian, 1 October 2010, available on http://www.theaustralian.com.au/business/legal-affairs/mediation-in-nsw-supremecourt-works-spigelman/story-e6frg97x-1225932539482. [8.20] 301

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provided significant benefits. … The success of ADR has reduced the personal, financial and public costs of litigation by allowing parties to: maintain civil relationships while settling a dispute; settle disputes faster; narrow the issues in dispute even where settlement fails; and avoid placing unnecessary stress on the court system. 37

His Honour also noted, however, that the way in which the court system and ADR will relate and interact in future is “less clear”, and expressed the view that efforts should be made to substantially integrate ADR into court processes: The trend towards legislating to increase reliance on ADR makes it clear that ADR will continue to play a prominent role in dispute resolution into the future. The future relationship between ADR and the court system is less clear. There is no doubt that the ever-rising cost of litigation will make out-of-court dispute resolution mechanisms increasingly attractive. It remains to be seen whether this trend leads to a system of justice that competes with the court system, or a system of justice that is integrated into the court system. It is my sincere hope that the legal community – including mediators, lawyers and judges – makes every effort to ensure that ADR is integrated into court processes such that it represents Additional and Appropriate (rather than Alternative) dispute resolution. 38

In this regard, His Honour has expressed specific concerns relating to pre-litigation or pre-filing requirements to use ADR, which are explored further in Chapter 11. The scope and purpose of the mandatory referral power in respect of internal or external mediator appointment was briefly discussed in Thomas v Yates, 39 where Simpson J refused to order a court mediation while private mediation could still be successful (although Her Honour did not rule out making a referral order if the private mediation proved to be unsuccessful). At the same time, Practice Note No SC Gen 6 (Supreme Court – Mediation) provides an alternative to a referral “without consent”. Apart from consensual referral, the practice note provides that parties can be referred to a registrar to discuss the advantages and appropriateness of mediation. Given the possibility of mediation referral, it is feasible to assume that some parties may prefer to commence their own mediation and avoid the likelihood of a court referral (which has certainly been the case in Victoria where mandatory court referral is now far less likely). In relation to the mediation information sessions that can be provided, it is noted that the registrar may set a time and place and that the information sessions will take no more than 15 to 30 minutes. The parties, as well as their representatives, must attend the session. Apart from mediation, the Supreme Court has long supported other ADR processes. For example, arbitration was in frequent use in common law matters 37

38

39

Chief Justice of New South Wales, the Hon T Bathurst, Opening Address (Presented at 2011 Advanced Dispute Resolution Workshop, Sydney, 13 August 2011) p 4, available on http://www.austlii.edu.au/au/ journals/NSWJSchol/2011/26.htmlhttp://www.austlii.edu.au/au/journals/NSWJSchol/2011/26.html. Chief Justice of New South Wales, the Hon T Bathurst, Opening Address (Presented at 2011 Advanced Dispute Resolution Workshop, Sydney, 13 August 2011) p 4http://www.austlii.edu.au/au/journals/ NSWJSchol/2011/26.html. Thomas v Yates [2008] NSWSC 282.

302 [8.20]

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for more than 25 years and can be ordered in certain circumstances. 40 Arbitration following a court referral is generally a relatively informal process, in that no transcript is taken, the parties may contribute directly, the setting is usually in a conference room, and expert evidence is not usually presented (except where reports on statements are concerned). Use of arbitration in the court greatly declined from 58 referrals in 2002 to zero in 2005 and one in 2006. As of 2013, no further referrals to arbitration had been made. 41 One reason for this is that most typical matters are now either mediated or arbitrated at the District Court level (whose jurisdiction expanded to include most of the work that was previously typically arbitrated in the Supreme Court). 42 The Supreme Court’s positive view of arbitration as a dispute resolution mechanism is also reflected in its use of special reference procedures, which provide, in effect, an expedited, supervised, commercial arbitration process with minimal “re-review” potential (see Chapter 6 where these approaches are explored in more detail). 43 Processes that include status conferences and settlement conferences have also been used for many years. Other New South Wales courts [8.25] Other courts in New South Wales are increasingly using mediation and other ADR processes. 44 For example, for a number of years, the Land and Environment Court has had a registrar-based mediation system that has successfully resolved numerous disputes (with the exception of its criminal jurisdiction) and at no cost to the parties. In addition, many matters that involve disputes at the local council or other level are resolved by way of mediation prior to entry into that court system. There is also capacity for external referral to mediation on referral from the court, but the parties are responsible for the costs. The court also offers neutral evaluation as an alternative to litigation. It has recently moved towards a multi-door system of dispute resolution that is referred to in Chapter 13. The District Court has also indicated that it will seek to use arbitration and mediation more widely. From June 2001, the court established a mediation pilot scheme whereby the court provided some funds to refer matters to external mediators. Positive feedback led to the expansion of the program and the court’s Civil Business Committee has noted at that time that “at least 50% of cases referred to the Assistant Registrars are being resolved as a result of the mediation”. 45 In 2014, 543 matters were referred to mediation (83 were referred 40

See Civil Procedure Act 2005 (NSW), s 38.

41 42

Supreme Court of New South Wales, 2013 Annual Review 2013 (2013) p 37. Supreme Court of New South Wales, 2013 Annual Review 2013 (2013) p 37.

43 44

This is generally done pursuant to r 20.14 of the Uniform Civil Procedure Rules 2005 (NSW). See Chapter 6 at [6.65]. In respect of the Land and Environment Court, see NSW Land and Environment Court, Resolving Disputes, available on http://www.lec.justice.nsw.gov.au/Pages/resolving_disputes/resolving_ disputes.aspx. See also for example, the Local Courts (Civil Claims) Act 1970 (NSW), s 21L.

45

District Court of New South Wales, Annual Report 2006 (2006) p 11. [8.25] 303

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to court provided mediation) and 1,709 matters were referred to settlement conferences. 46 It is now part of District Court practice that all appropriate cases are referred to mediation under the Civil Procedure Act 2005 (NSW). 47 ADR processes are also used in the Local Court. In that area, increasingly, matters are referred to mediators through a variety of statutory and other schemes. For example, the Community Justice Centres program assists in resolving disputes that commence in the Local Court and is also a service that can be used before court proceedings begin. 48 The wide range of programs that are allied to the Department of Family and Community Services, the juvenile justice area, and the Family Dispute Resolution program also assist in dispute resolution in respect of disputes that might otherwise progress through the New South Wales Local Court or tribunal systems. The New South Wales Civil and Administrative Tribunal (NCAT) commenced in 2014 as an amalgamation of over 20 pre-existing tribunals and bodies. 49 The purpose was to provide a more efficient and effective dispute resolution process and executive action review mechanism. 50 NCAT is legislatively required to facilitate the just, quick and cheap resolution of the real issues in proceedings. 51 Parties, lawyers and other representatives are under a duty to co-operate with NCAT to give effect to that goal. 52 NCAT may use or require parties to use “resolution processes”. 53 Resolution processes are defined as any process, including alternative dispute resolution, “in which parties to proceedings are assisted to resolve or narrow the issues between them in the proceedings”. 54 NCAT offers a range of dispute resolution options including conciliation, mediation, conclave, preliminary sessions and directions hearings. NCAT also conducted an online dispute resolution pilot in relation to consumer disputes from August 2014 to November 2014. 55 46

47

48

See District Court of New South Wales, Annual Review 2014 (2014), available on http:// www.districtcourt.justice.nsw.gov.au/Pages/alternative_dispute_resolution/alternative_dispute_ resolution.aspx. For example, see District Court of New South Wales Practice Notes: Practice Note DC (Civil) No 1 (ss 3, 5 and 5.9) at Section 10 it is noted “10.1 Court will refer all appropriate cases for alternate dispute resolution under Part 4 of the Civil Procedure Act”. The parties must have instructions about suitability for mediation, arbitration or other alternate dispute resolution when they ask for a hearing date. Parties should note that the Court’s power to order mediation does not depend on the consent of the parties.

49

See the New South Wales Local Courts Website information on ADR, available on http:// www.localcourt.justice.nsw.gov.au/Pages/adr/adr.html,c=y.aspx. New South Wales Civil and Administrative Tribunal, 2014 Annual Report (NCAT, 2014) p 4.

50 51

New South Wales Civil and Administrative Tribunal, 2014 Annual Report (NCAT, 2014) p 4. Civil and Administrative Tribunal Act 2013 (NSW) s 36(1).

52 53

Civil and Administrative Tribunal Act 2013 (NSW) s 36(3). Civil and Administrative Tribunal Act 2013 (NSW) s 37(1).

54 55

Civil and Administrative Tribunal Act 2013 (NSW) s 37(2). See New South Wales Civil and Administrative Tribunal, NCAT to Trial Online Dispute Resolution for Consumer Claims, available on http://www.ncat.nsw.gov.au/Pages/about_us/news_events/20140801_ ncat_to_trial_online_dispute_resolution.aspx.

304 [8.25]

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In the Tribunal’s Consumer and Commercial Division, NCAT is authorised to use the same member to conciliate and hear a matter, especially if the matter is heard in a regional area. 56 There is some mandatory pre-action ADR in relation to matters that might otherwise be commenced at NCAT. For example, retail lease disputes that are discussed in Chapter 9 are (subject to limited exceptions) required to be mediated before proceedings can be commenced at NCAT or elsewhere.

Queensland [8.30] Alternative dispute resolution is also used in the civil jurisdiction of the Supreme, District and Magistrates Courts in Queensland. 57 The Supreme Court of Queensland Act 1991 (Qld), Pt 8 and the District Court of Queensland Act 1967 (Qld), Pt 7 establish dispute resolution processes in the Supreme Court and the District Court respectively. It has been said that it is “virtually compulsory for the parties to participate”. 58 The two primary forms of dispute resolution in use there are mediation and case appraisal (see discussion in Chapter 6 at [6.20]). The Supreme Court of Queensland Act 1991 (Qld) and District Court of Queensland Act 1967 (Qld) enable referral orders to be made either by consent or without the consent of a party. If a party does not consent, it can object to a referral order and argue as to why an order should not be made before the court. 59 There are a number of cases that have dealt with this power. 60 In 2005–2006 in the Supreme Court, there were 126 court referrals to mediation by consent and 86 without consent. Of all the mediations in that reporting year, 239 were certified as settled and 133 did not settle the dispute. There were only two referrals to case appraisal, both without consent. 61 (There is no current information about ADR use in the Supreme Court of Queensland. 62) The District Court of Queensland has an ADR Registrar but does not report on the number of matters progressing to ADR. 63 It has been said that in Queensland, courts will order ADR without consent where the parties have not voluntarily arranged ADR and the filing of an application to the court may trigger referral to an ADR process. The costs of mediation and case appraisal are 56 57

New South Wales Civil and Administrative Tribunal, NCAT Consumer and Commercial Division Procedural Direction 3, available on http://www.ncat.nsw.gov.au/Documents/ccd_pd3_conciliation.pdf. Queensland Civil and Administrative Tribunal, 2014 Annual Report (NCAT, 2014) p 21.

58 59

BC Cairns, Australian Civil Procedure (6th ed, Lawbook Co, 2005) p 63. Uniform Civil Procedure Rules 1999 (Qld), rr 319 and 320.

60 61

See Witcombe v Jordin [1998] QSC 117; Barrett v Queensland Newspapers Pty Ltd [1999] QDC 150. The last statistics available on referrals from the Supreme Court of Queensland are those contained in Supreme Court of Queensland, Annual Report 2005–2006 (2006) pp 36–37.

62

See the 2014 Annual Report which does not mention ADR (this may be partly explained because of requirements to use ADR before commencing proceedings – see Chapter 9), available on http:// www.courts.qld.gov.au/__data/assets/pdf_file/0018/345402/sc-ar-2013-2014.pdf. See the District Court of Queensland’s 2014 Annual Report, available on http:// www.courts.qld.gov.au/__data/assets/pdf_file/0018/345402/sc-ar-2013-2014.pdf.

63

[8.30] 305

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either borne by the parties or the court (there are also free services available through the Dispute Resolution Branch and the Dispute Resolution Centre). 64 The Uniform Civil Procedure Rules 1999 (Qld) have also provided a framework for mediation and other ADR processes that is similar to the “overarching obligations” more recently seen federally and in Victoria and New South Wales (the Victorian obligations are more extensive – see Chapter 11). 65 The objective of these Rules is to “facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”. 66 Parties to court proceedings also face an implied undertaking “to the court and to the other parties to proceed in an expeditious way”. 67 The Rules also make explicit the court’s pre-existing power to sanction a party who does not comply with the Rules or an order of the court. 68 There is also provision made for “directions conferences” in the Magistrates Court, 69 which are aimed at resolving matters or narrowing issues that remain to be determined at trial. 70 At these conferences, the possibility of settling the proceeding without a hearing, or by referring it to mediation, is generally considered. Prior to 2009, mediation processes were common in the Magistrates Court, with compulsory mediation being ordered in non-tenancy small claims matters. In the 2007–2008 reporting year, of the 581 matters referred to mediation in the Small Claims Tribunal in Brisbane only 167 resulted in a contested hearing. 71 (There is no current information about ADR services in Annual Reports about the Magistrates Court.) The Queensland Civil and Administrative Tribunal (QCAT), which commenced operation on 1 December 2009, replaced 29 tribunals and many matters that might otherwise have proceeded in the Magistrates Court or in a small tribunal are now filed at QCAT. One of the “defining features” of QCAT’s jurisdiction is the use of compulsory conferences – a hybrid process of mediation and case management. 72 In the 2013–2014 reporting period, 61 per cent of compulsory conferences resulted in a finalised outcome. 73 The Department of

64

See information available on https://www.qld.gov.au/law/legal-mediation-and-justice-of-the-peace/ setting-disputes-out-of-court/mediation/.

65 66 67

Uniform Civil Procedure Rules 1999 (Qld), Ch 9, Pt 4. Uniform Civil Procedure Rules 1999 (Qld), r 5(1). Uniform Civil Procedure Rules 1999 (Qld), r 5(3).

68 69

Uniform Civil Procedure Rules 1999 (Qld), r 5(4). Uniform Civil Procedure Rules 1999 (Qld), Ch 13, Pt 9, Div 3.

70

Queensland Courts, Directions Conferences, available on http://www.courts.qld.gov.au/__data/assets/ pdf_file/0009/91935/m-fs-directions-conferences.pdf. Queensland Magistrates Court, Annual Report 2006–2007 (2006) p 10.

71 72

Queensland Civil and Administrative Tribunal, Annual Report 2009–2010 (2011), p 9.

73

Queensland Civil and Administrative Tribunal, Annual Report 2013–2014 (2014), p 28.

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Justice in Queensland also runs an extensive ADR scheme that assists people who are in dispute and who might otherwise be engaged in court or tribunal proceedings. 74 As with the Supreme Court of New South Wales, lists of mediators and evaluators (case appraisers) were kept by the Queensland courts. Lists also provide details about fees, areas of expertise and the occupations of the practitioners. 75 The National Mediation Accreditation System (NMAS) (see Appendix E) is relied on by the Department of Justice in terms of basic requirements for mediators who participate on panels. 76 More recently, however and probably as a result of the widespread use of the NMAS, there has been an increasing focus on parties choosing their own mediator or case appraiser. 77

Victoria [8.35] Victoria has the oldest and most well established court connected ADR programs in Australia. There have also been a number of recent changes to the way in which civil dispute resolution takes place in Victoria which further supports ADR. For example, the Civil Procedure Act 2010 (Vic) has imposed overarching and specific conduct obligations on various participants to court proceedings 78 (see also discussion in Chapter 11). The Act applies to proceedings in the Victorian Supreme Court, the County Court and the Magistrates’ Court. Initially, and when first introduced, the legislation also required parties to take “reasonable steps” to resolve disputes by agreement before litigation. However, this part of the legislation was repealed in early 2011 although the changes that were made meant that courts can still make rules relating to pre-litigation requirements. The requirements to take certification steps have meant that there are some remaining requirements. The Civil Procedure Amendment Act 2012 (Vic) also made minor amendments to the overarching and proper basis certification requirements. (Pre-litigation obligations are discussed in greater detail in Chapter 11.) The Civil Procedure Act 2010 (Vic) also enhanced the courts’ case management powers. In addition to existing powers, it enables courts to “make any order or give any direction it considers appropriate to further the overarching purpose in relation to pre-trial procedures”, 79 which includes the “power to order the use of 74 75 76 77

See generally http://www.qld.gov.au/law/legal-mediation-and-justice-of-the-peace/setting-disputesout-of-court/. Uniform Civil Procedure Rules 1999 (Qld), Ch 9, Pt 4. See also http://www.qld.gov.au/law/legal-mediation-and-justice-of-the-peace/setting-disputes-outof-court/. See http://www.courts.qld.gov.au/courts/supreme-court/alternative-dispute-resolution/steps-tofollow.

78

The obligations are imposed on parties, legal practitioners or other representatives, legal practices, expert witnesses (where relevant) and any person who provides financial or other assistance to any party, insofar as that person exercises any direct control, indirect control or any influence over the conduct of the civil proceeding or of a party in respect of that civil proceeding.

79

Civil Procedure Act 2010 (Vic), s 48(1). [8.35] 307

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appropriate dispute resolution to assist in the conduct and resolution of all or part of the civil proceedings”. 80 Both the County Court and the Supreme Court of Victoria have well-developed ADR programs, and ADR is used throughout the Victorian jurisdiction. The County Court of Victoria has one of the most extensive referral systems within Australia. Most of the referrals have been to external ADR practitioners; however, some internal mediation and even judicial dispute resolution takes place in the Supreme and County Courts of Victoria. As Judge Shelton noted, “mediation is now an accepted step in civil litigation with virtually all cases in the County Court automatically being referred to mediation”. 81 In domestic partnership disputes and testators’ family maintenance claims, the County Court also offers case conferences “as a substitute for private mediation”. 82 One of the platforms of the County Court’s Civil Initiative (Order 34A) is said by the court to be: … that each case is subject to a directions hearing held subsequent to the filing of an appearance of the defendant. Mediation is encouraged in the great majority of cases, on occasions ordered without the consent of the parties, at the first directions hearings. 83

The court provides a list of those agencies that can refer parties to mediators. To support mediation, the Supreme Court has also established a mediation centre. This approach has also been supported by the Victorian Department of Justice. The court has provided accommodation for some mediations and provides for referral of matters to private mediators. The Supreme Court (General Civil Procedure) Rules 2005 (Vic) 84 provide that mediation can be ordered without the parties’ consent. However, in common with some other courts, the Supreme Court does not have the power to order arbitration without the consent of the parties. 85 Not unlike the Supreme Court of New South Wales, it also has power to refer a dispute to a special referee without the consent of parties. 86 The Supreme Court of Victoria established the Portals scheme in 1995 to promote a more developed mediation referral scheme. 87 Since that time there has been a continued focus on mediation, with “virtually no civil case going to trial without at least one round of mediation”. 88 In 2009, a Supreme Court ADR Committee was reconstituted, to discuss various forms of ADR (ranging from 80 81

Civil Procedure Act 2010 (Vic), s 48(2)(c). County Court of Victoria, Annual Report 2008–2009 (2009), p 24.

82

County Court of Victoria, Annual Report 2008–2009 (2009), p 25.

83 84 85

See County Court of Victoria, Mediation, available on https://www.countycourt.vic.gov.au/mediation. Supreme Court (General Civil Procedure) Rules 2005 (Vic), O 50.07. Supreme Court (General Civil Procedure) Rules 2005 (Vic), O 50.08.

86

Supreme Court (General Civil Procedure) Rules 2005 (Vic), O 50.01.

87

JH Phillips, “The Role and Function of Mediation and Supreme Court Litigation” (1997) 101 (Winter) Victorian Bar News 25, 27.

88

Supreme Court of Victoria, Annual Report 2009–2010 (2010), p 46.

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mediation to early neutral evaluation and arbitration). 89 A rule was also added in 2005 enabling associate judges (previously referred to as masters, until December 2008) to mediate disputes internally on a range of matters, including appellate matters. 90 The publication of Practice Note No 2 of 2012 – Judicial Mediation Guidelines increased awareness of judicial mediation. 91 In the 2012–2013 reporting period, 193 mediations were conducted by associate judges, with 68 per cent resulting in settlement. 92 This represents a dramatic increase from 2006 and 2007, when the then Victorian Attorney-General, the Hon Rob Hulls, noted: between October 2005 and July 2007, 94 Supreme Court cases were referred to mediation, 59 per cent of which were resolved at or after master-assisted mediations. This saved 311 sitting days, or more than a year’s worth of court time. 93

The importance of mediation in the Victorian Supreme Court was emphasised by the Chief Justice of the Supreme Court, the Hon Marilyn Warren on 4 March 2008: The Victorian Supreme Court has led the way in the use of mediation as a litigation tool for over 20 years. Nowadays virtually no civil case goes to trial in the Supreme Court without one round of mediation. Currently, as a national leader we have regular mediations in appeals, introduced by the President of the Court of Appeal in January 2007. 94

This emphasis on mediation was reiterated in the Chief Justice’s comments at the Supreme and Federal Court Judge’s Conference, on 27 January 2010: In the Victorian Supreme Court, save in exceptional cases, no civil trial or appeal proceeds to hearing without at least one round of mediation, mostly before specialist members of the Bar or the profession, sometimes before retired judges. Mediation as part of the litigation process has been extraordinarily successful. Without it, courts would have faced intolerable difficulties. 95

The Supreme Court has always considered that the Victorian Bar and the profession are the primary source for mediators and their services. The main function of the Court’s associate judges is to hear and manage cases. However, there are special times when court-annexed mediation is essential, which are: • when the parties cannot afford a private mediator; 89 90 91 92

Supreme Court of Victoria, Annual Report 2009–2010 (2010), p 47. Supreme Court (General Civil Procedure) Rules 2005 (Vic), O 50.07.1. Amendments that apply to judges are discussed below. Supreme Court of Victoria, Annual Report 2012–2013 (2013), p 39. Supreme Court of Victoria, Annual Report 2012–2013 (2013), p 39.

93

Comments made at the opening of the Victorian Supreme Court Mediation Centre on 4 March 2008.

94

See Supreme Court of Victoria, Remarks of the Hon Chief Justice on the Opening of the Supreme Court Mediation Centre (Speech presented at the Opening of the Supreme Court Mediation Centre, Melbourne, on 4 March 2008) available on http://www.supremecourt.vic.gov.au.

95

The Hon M Warren AC, Chief Justice of Victoria, Should Judges be Mediators? (Paper presented at the Supreme and Federal Court Judges’ Conference, Canberra, 27 January 2010) available on http:// www.supremecourt.vic.gov.au. [8.35] 309

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• when a trial is running and the judge thinks an urgent mediation may help the parties; and • other special cases. The court introduced court-annexed mediation on a pilot basis in October 2005 and it has been said that: Mediation is an entrenched part of the administration of justice in the Supreme Court. 96

These comments by Chief Justice Warren follow those of a previous judge, Chief Justice Phillips who said: The time has come for the organised involvement of mediation in all Victorian courts.

Former Chief Justice John Harber Phillips had previously noted: It should be stressed that mediation is not an inferior type of justice. It is a different type of justice. All studies of dispute resolution show that people greatly value quick resolution of disputes and the opportunity to put their case in the presence of a neutral person. Mediation satisfies both these requirements. 97

The Magistrates’ Court of Victoria issued a practice direction in 2010, Practice Direction No 5 of 2010 – Civil Procedure Act 2010, which outlines the practices and procedures of the court in relation to certification requirements. The practice direction outlines the steps parties need to take to comply with the overarching obligation provisions of the Civil Procedure Act 2010 (Vic). The direction also outlines the consequences of non-compliance. The Magistrates Court of Victoria also has a well-developed early neutral evaluation (ENE) program (see [6.20]) where magistrates conduct evaluations. 98 Research into Victorian mediation [8.40] The Victorian Supreme and County Court Mediation Scheme was reviewed by the author in 2008. 99 Some of the key findings in the 2009 research report were: • Parties who had their dispute finalised by mediation reported moderate to high levels of satisfaction on most variables. • The mediation processes led to the settlement of disputes particularly in some of the more intractable and difficult disputes (by reference to age of dispute and number of court events). 96

97

98 99

See Supreme Court of Victoria, Remarks of the Hon Chief Justice on the Opening of the Supreme Court Mediation Centre (Speech presented at the Opening of the Supreme Court Mediation Centre, Melbourne, on 4 March 2008) available on http://www.supremecourt.vic.gov.au. JH Phillips, “The Role and Function of Mediation and Supreme Court Litigation” (1997) 101 (Winter) Victorian Bar News 25, 27; see also Supreme Court of Victoria, Mediation, available on http:// www.supremecourt.vic.gov.au. See Magistrates Court of Victoria, Practice Direction No 7 (2012). T Sourdin, Mediation in the Supreme and County Courts of Victoria (Report, Department of Justice, 2009), available on http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1395550.

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• Information concerning mediation, case type outcome and dispute duration needs to be coupled with an understanding of what occurred in mediation. In focus groups it was noted that many “mediations” in personal injury matters had the following characteristics: • the process was of a short duration – often less than 2 hours • the plaintiffs were often not involved in the conference at all • the negotiation could be described as compromissory or competitive. • The case outcomes also suggested that a form of abbreviated conferencing was used mainly in personal injury matters and called “mediation”. Mediators and others considered that these processes could not and should not be described as mediation. Such forms of conferencing are less effective than models of mediation where there are continuing relationships and the forms of mediation that may be used in property, probate and business matters where the settlement rates are much higher. • Less than half of the mediators (considering all case types) appeared to have followed any industry standard mediation model. Very few used visual aids, a significant proportion did not hear from the parties at all (only their representatives) and many appeared to have quickly broken into a shuttle negotiation after a relatively short joint session. These findings suggest that in reality, many “mediations” could more properly be characterised as conciliations, conferences or evaluations. • Responses to questions raised about participation suggest that some of those involved in mediation did not consider that they were able to adequately participate in the process. This finding is linked to the type, and at times, variable quality of mediation services that were provided. Many of those involved in mediation had positive perceptions. • The research indicated that litigants from lower income occupations are more likely to use mediation to finalise their dispute, suggesting that affordability may play a role in determining the processes accessed by litigants. • Self represented litigants were less likely to access mediation services. • The resolution rates of the mediation processes were at least 45 per cent (using court file data where mediators returned their reports) and may have been as high as 65 per cent (using sample survey data). The resolution rates are lower than has been recorded in a number of comparable surveys and this may be a result of the age of the dispute, the costs already incurred as well as factors relating to the quality of the mediation processes. • In the Supreme Court, the median number of days from when a matter was filed in court to the first mediation was 324 days. In the County Court, the median number of days from the day the matter was filed in court to the day of the first mediation was 260 days. This is quite late in proceedings and can lead to increased costs. • Litigant costs were reduced as a result of mediation and the median litigation costs incurred were $30,500 (which was less than the costs in all other finalisation types). Disputants who finalised their dispute as a result of a mediation believed they saved $30,000 in legal costs, those who finalised at [8.40] 311

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negotiation believed they saved $40,000, and those who finalised their dispute at a conference believed they saved $25,000. • Mediators believed that in 82 per cent of mediated cases, the process helped to save parties costs. The median amount saved by mediating was perceived by mediators to be $50,000, with the smallest amount of money saved believed to be $20,000 and the highest amount of money saved believed to be $250,000. • In contrast to the findings of previous studies, 56 per cent of mediation clients advised that either they or the other party were successful, with only 29 per cent believing that both sides were successful. • Although mediation clients were generally satisfied, there were no significant differences in levels of satisfaction between mediation and “all other dispute resolution processes”. • The courts currently collect little information about disputants or disputes that assists to inform either referral decisions or which informs courts about court connected mediation. Mediators routinely do not report when a mediation has been held (in up to 50 per cent of matters, mediators do not report when a mediation has been held). 100 The evolution of Victorian ADR [8.45] Victoria embraced mediation as a form of dispute resolution in respect of civil cases throughout the 1990s and discussed issues relating to standards at an earlier time than many States. 101 It was also one of the first states to trial judicial dispute resolution. While mediation is carried out by associate judges in the Supreme Court and by private practitioners, since 2009 Victoria has also supported the use of judicial dispute resolution by judges in both the Supreme and County Courts. The changing role of judges in respect of the settlement, rather than the adjudication, of disputes, and the introduction of judicial conferencing processes as well as ENE at the Magistrates Courts, has been supported by budgetary allocations, legislation and policy. 102 The issues associated with judicial involvement in ADR are explored further in Chapter 12. Victoria has developed an extensive ADR evaluation program to support many recent changes and ensure that the quality of its court-related mediation services is high and to ensure that these processes are meeting objectives. The Magistrates Court of Victoria also provides for referral of matters to mediation (a number of pilot programs involve compulsory mediation). 103 Its

100

T Sourdin, Mediation in the Supreme and County Courts of Victoria (Report, Department of Justice, 2009) pp ii-ix, available on http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1395550.

101 102

See Standards for Court Connected Mediation in Victoria (Victoria Law Foundation Project, 1994). See Supreme Court Act 1986 (Vic), Ch 5, which makes specific reference to judicial resolution conferences and supports this judicial role. The Courts Legislation Amendment (Judicial Resolution Conference) Act 2009 (Vic) supports this extension of the judicial role. Magistrates’ Court Act 1989 (Vic), s 108.

103

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“Diversion to Mediation” program and the pilot programs are examples of ADR being used and targeted at particular cases. 104 There are also examples of restorative court programs in Melbourne which are directed at creating multi disciplinary approaches to social issues and which function in both criminal and civil areas. The problem solving court has also developed as a “Neighbourhood Justice Court” concept within Australia as well as overseas. One example of a Neighbourhood Justice Centre (NJC) is a three year pilot project of the Victorian Department of Justice, aiming to enhance community involvement in the justice system. 105 The NJC is located in Collingwood, within the culturally diverse municipality of Yarra and provides “a court, on-site support services for victims, witnesses, defendants and local residents, mediation and crime, prevention programs for the City of Yarra and community meeting facilities”. 106 Its aims are to hear low-level criminal cases such as theft, property damage and some drug-related offences. 107 The NJC was allocated a budget of $23.7 million over four years and received much support from the then Attorney General, the Honourable Robert Hulls, who stated: The Neighbourhood Justice Centre will drive down the local crime and re-offending rates, increase civic participation and community renewal and become a flagship for driving innovative change in the way justice is dispensed. 108

The Victorian Civil and Administrative Tribunal (VCAT) makes use of mediation and conferencing processes, and may refer a proceeding to mediation with or without the consent of the parties. 109 The VCAT has an extensive mediation program and provides guides and online videos that support its program. 110 The VCAT determined that it wished to become an ADR centre of excellence in 2009 and has a mediation centre, training rooms and is a recognised mediator accreditation body (RMAB) under the NMAS. The VCAT’s Practice Note – PNVCAT4 – Alternative Dispute Resolution (ADR) sets out the practices and procedures relating to ADR. 111 For example, the Practice Note stipulates that an agreement made by a party who is not legally represented is subject to a mandatory cooling-off period of two business days 104

See Magistrates’ Court of Victoria, Mediation, available on http://www.magistratescourt.vic.gov.au/ jurisdictions/intervention-orders/mediation.

105 106 107

Media release from the Office of the then Attorney General (22 August 2005). Media release from the Office of the then Attorney General (22 August 2005). Media release from the Office of the then Attorney General (22 August 2005).

108 109

Media release from the Office of the then Attorney General (22 August 2005). Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 88(1) and (2).

110

See Victorian Civil and Administrative Tribunal, Mediation, available on http://www.vcat.vic.gov.au/ hearings/adr-compulsory-conferences-and-mediations. Victorian Civil and Administrative Tribunal, Practice Note – PNVCAT4 – Alternative Dispute Resolution (ADR), available on http://www.vcat.vic.gov.au/system/files/practice_note_vcat_4_alternative_ dispute_resolution_effective_1_october_2014_0.pdf.

111

[8.45] 313

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(subject to certain exceptions). 112 Mediations may be conducted by mediators who are also Tribunal Members, while compulsory conferences will always be conducted by a Tribunal Member. 113 The Tribunal Member may conduct private meetings during mediation and compulsory conferences. A distinction is made in conferencing processes which are viewed as potentially advisory or evaluative so that a member presiding over a compulsory conference (rather than a mediation) may voice their opinion as to the strengths, weaknesses and likely success of each party’s case. 114 In 2013-2014, a number of mediations in Victoria were conducted by VCAT panel mediators and the tribunal’s Annual Report notes that 619 cases were finalised as a result of mediation. 115 This represents a decline from the previous year, in which 704 matters were finalised through mediation. 116 In 2013–2014, the mediation settlement rates across the various lists in VCAT ranged from 48 to 100 per cent, with an average mediation settlement rate of 62 per cent. 117 The overall settlement rate was 57 per cent, which represented a marginal increase from 56 per cent in the preceding 2012–2013 reporting period. 118 VCAT also has a form of “short mediation” that it piloted in 2010, which is being extended to a range of areas involving small matters at VCAT.

Western Australia [8.50] In Western Australia, the Supreme Court has an ADR scheme that provides for the mediation of disputes by registrars of the court and others. 119 The District Court has a well developed pre-trial scheme. The District Court Rules 2005 (WA) outline the mediation processes used in the court, specifying that mediation can also serve as a pre-trial conference. 120 The schemes operating in Western Australia were the subject of review and comment in late 1999. The Law Reform Commission of Western Australia at that time recommended that there be a greater focus on ADR processes within the 112

Victorian Civil and Administrative Tribunal, Practice Note – PNVCAT4 – Alternative Dispute Resolution (ADR), available on http://www.vcat.vic.gov.au/system/files/practice_note_vcat_4_alternative_ dispute_resolution_effective_1_october_2014_0.pdf.

113

Victorian Civil and Administrative Tribunal, Practice Note – PNVCAT4 – Alternative Dispute Resolution (ADR), available on http://www.vcat.vic.gov.au/system/files/practice_note_vcat_4_alternative_ dispute_resolution_effective_1_october_2014_0.pdf.

114

115

Victorian Civil and Administrative Tribunal, Practice Note – PNVCAT4 – Alternative Dispute Resolution (ADR), available on http://www.vcat.vic.gov.au/system/files/practice_note_vcat_4_alternative_ dispute_resolution_effective_1_october_2014_0.pdf. Victorian Civil and Administrative Tribunal, Annual Report 2013–2014 (2014) p 17.

116 117

Victorian Civil and Administrative Tribunal, Annual Report 2013–2014 (2014) p 20. Victorian Civil and Administrative Tribunal, Annual Report 2013–2014 (2014) p 17.

118 119

Victorian Civil and Administrative Tribunal, Annual Report 2013–2014 (2014) p 17; Victorian Civil and Administrative Tribunal, Annual Report 2012–2013 (2013) p 20. See Supreme Court Act 1935 (WA), s 69. In 2000, the definition of a “mediator” was extended to include “a person agreed by the parties”. Prior to that date, it included registrars and “approved persons”.

120

See District Court Rules 2005 (WA), rr 35 and 35A.

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civil and litigation system. 121 The Commission noted that in District Court proceedings, 30 per cent of matters were resolved after assistance by a registrar trained in ADR. 122 The Commission recommended that systems and guidelines be developed within courts to determine ADR suitability, 123 and that there should be a presumption in favour of ADR. 124 A failure to use ADR should be considered in assessing costs. 125 Other recommendations related to the relationship between funding and court-ordered ADR and the need to develop a Mediation Act. In September 2005, an early mediation scheme was introduced into the District Court of Western Australia and is used for a small number of cases. 126 In 2013, the District Court held 2835 pre-trial alternative dispute resolution conferences, including 229 longer mediation conferences. 127 It was also noted that: Civil litigation is managed through an extensive program of case management and alternative dispute resolution. The success of the program is measured by the very few civil cases that actually proceed to a trial in the District Court. Of the 4,243 civil cases finalised in 2013, 57 (1.4%) proceeded to trial in 2013. 128

The Supreme Court of Western Australia has both a civil and criminal program. The criminal case conferencing program was introduced in 2006. The Protocol for Voluntary Criminal Case Conferencing governs these conferences, which are designed to resolve issues in trials speedily and avoid the need for a trial altogether in some cases. The court has noted that: Results of this initiative have been encouraging, and the court has decided to widen the program’s scope by engaging the services of a second mediator, and extending mediation forward to the period prior to the committal of an accused. Mr Ron Cannon has now been joined as a mediator by his Honour Kevin Hammond, the recently retired Crime and Corruption Commissioner. The two mediators … operate in tandem. It may well be that in some matters, case conferences will be conducted by the two mediators together. The courts offer of mediation services at the committal stage will encourage case conferencing at the time of prosecution disclosure under s 42 of the Criminal Procedure Act [2004]. Importantly, this is the period during which the defence first

121 122 123

Law Reform Commission of Western Australia (LRCWA), Review of the Criminal and Civil Justice System (Report, 1999) p 84, available on http://www.lrc.justice.wa.gov.au. Law Reform Commission of Western Australia (LRCWA), Review of the Criminal and Civil Justice System (Report, 1999) p 84, available on http://www.lrc.justice.wa.gov.au. Law Reform Commission of Western Australia (LRCWA), Review of the Criminal and Civil Justice System (Report, 1999) p 84, available on http://www.lrc.justice.wa.gov.au.

124

Law Reform Commission of Western Australia (LRCWA), Review of the Criminal and Civil Justice System (Report, 1999) p 84, available on http://www.lrc.justice.wa.gov.au.

125

Law Reform Commission of Western Australia (LRCWA), Review of the Criminal and Civil Justice System (Report, 1999) p 84, available on http://www.lrc.justice.wa.gov.au. Costs are dealt with in r 35(5) and (6) of the District Court Rules 2005 (WA). See District Court of Western Australia, Annual Review 2006 (2006) p 18.

126 127

District Court of Western Australia, Annual Review 2013 (2013) p 4.

128

District Court of Western Australia, Annual Review 2013 (2013) p 22. [8.50] 315

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learns the strength of the prosecution case, and the DPP formulates the terms of the indictment. It is the ideal time for the parties to confer and try to agree on a sensible way forward. 129

The civil program in the Supreme Court, which involves mainly registrars, is very active. In 2014, 583 matters were mediated. 130 The court has noted that: All defended civil cases are subject to mediation prior to going to trial … Some cases are mediated by Judges. The Registrars and some Judges receive extensive training in mediation. The Supreme Court’s approach to managing civil disputes, including the use of in-house mediators, is very successful as less than 2% of contested civil matters are resolved by trial. 131

Family law cases in Western Australia are heard by the Family Court of Western Australia. The Court is funded by the Commonwealth, but is governed by the Family Court Act 1997 (WA). The Act reflects the federal family law legislation (see [8.70]), requiring parties to attend family dispute resolution before applying for parenting orders. 132 The objective of this requirement is to ensure that parties make a “genuine effort” to resolve parenting disputes before applying for a parenting order. 133 There are some exceptions to this requirement, including where there has been family violence. 134 The State Administrative Tribunal (SAT) of Western Australia was set up under the State Administrative Tribunal Act, WA (2004). The Tribunal now uses Facilitative Dispute Resolution (FDR) as well as mediation to deal with many disputes. 135 Facilitative Dispute Resolution has been described as: • directions hearings in which issues are identified, options are developed and, in certain types of applications, alternatives to the proposal are discussed; • mediations “to achieve the resolution of matters by settlement between the parties”; • compulsory conferences “to identify and clarify the issues in the proceeding and promote the resolution of the matters by settlement between the parties”; and

129 130 131

See Supreme Court of Western Australia, Criminal Case Conferencing, available on http:// www.supremecourt.wa.gov.au/C/criminal_case_conferencing.aspx?uid=3376-2163-4134-2225. See the Supreme Court of Western Australia, Annual Review 2014 (2014), available on http:// www.supremecourt.wa.gov.au/_files/Annual_Review_2014.pdf.

132

See the Supreme Court of Western Australia, Annual Review 2014 (2014), available on http:// www.supremecourt.wa.gov.au/_files/Annual_Review_2014.pdf. Family Court Act 1997 (WA), s 66H.

133 134

Family Court Act 1997 (WA), s 66H(2). Family Court Act 1997 (WA), s 66H(8).

135

See WA State Administrative Tribunal (SAT), Annual Report 2013–2014 (2014), available on http:// www.sat.justice.wa.gov.au/_files/SAT%20AReport%202013-2014.pdf.

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• in review proceedings, invitations by the Tribunal to respondents to reconsider their decisions under s 31 of the SAT Act, often in light of further information or clarification provided, or modifications or amendments made, by applicants through the other FDR processes. 136

Other States and Territories [8.55] South Australia has had an extensive range of ADR processes that are used in the courts. Mediation is provided for in the Supreme, District and Magistrates’ Courts. 137 Mediation can be ordered without consent. 138 In particular, South Australia has supported conferences and mediation for a number of years. 139 In conferences, alternatives to litigation are usually discussed. As noted in Chapter 9, there are also pre action or pre filing requirements in place. Under r 33 of the Supreme Court Civil Rules 2006 (SA), parties to a monetary claim dispute are generally required to attempt to negotiate a settlement prior to instigating court proceedings through exchanging letters of offer and counter-offers. Similar provisions exist in respect of the District Court. 140 Rule 27(2) of the Magistrates Court (Civil) Rules 2014 (SA) requires parties to take genuine steps to resolve their dispute before commencing proceedings, including considering the use of ADR. In Tasmania, mandatory referral to mediation was permitted in 2000. 141 The court directs mediation where it appears that there is a good prospect of settlement or where it considers that a mediated settlement is preferable. 142 In the Australian Capital Territory, there has been a close focus on ADR and its relationship to the litigation system. The Mediation Act 1997 (ACT) set up a comprehensive regulatory scheme that applies to mediators. In addition, legislation such as the Domestic Relationships Act 1994 (ACT) and the Leases (Commercial and Retail) Act 2001 (ACT) allow for referral to mediation or arbitration. 143

136

D Parry, Structure and Restructure, the Rise of FDR and Experts in Hot Tubs – Reflections on the First Decade of the State Administrative Tribunal of Western Australia (Paper presented at the Council of Australasian Tribunals National Conference, Melbourne, 4–5 June 2015), available on http:// www.sat.justice.wa.gov.au/_files/Judge_Parry_COAT_National_Conference_2015_paper.pdf. The FDR process is intended to provide additional dispute diagnosis opportunities.

137 138

See Magistrates Court Act 1991 (SA), s 27; District Court Act 1991 (SA), s 32; Supreme Court Act 1935 (SA), s 65. See Barry Hopcroft and Barameda Fishing Company v A M Olsen [1998] SASC 7009.

139 140

See Barry Hopcroft and Barameda Fishing Company v A M Olsen [1998] SASC 7009. See District Court Act 1991 (SA), s 33.

141 142

Alternative Dispute Resolution Act 2001 (Tas), s 5(1). Cases where mediated settlements may be regarded as preferable are those in which there are complex evidentiary issues and only a small amount of money is in dispute compared to the likely cost of the trial.

143

See Domestic Relationships Act 1994 (ACT), s 8; Leases (Commercial and Retail) Act 2001 (ACT), s 148, whereby if the court considers it “likely that parties may resolve the dispute” at a case management [8.55] 317

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Legislation in the Northern Territory provides for ADR processes mostly within the Local Court. 144 However, there has been an increasing focus on ADR in the Northern Territory Supreme Court. In 2010, Practice Note 1 was issued, which enabled mandatory referral of matters to mediation before a judge, master or registrar, or to an external mediator from a list kept by the court. 145 In terms of pre-action procedures, as noted in Chapter 9, parties to disputes in the Supreme Court of the Northern Territory are encouraged to comply with a number of pre-action obligations set out in Part 2 of Practice Direction No 6 of 2009 (PD6). Part 2 of PD6 stipulates that, “[p]arties to a potential dispute should follow a reasonable procedure, suitable to their particular circumstances, which is intended to avoid litigation”. 146 Parties are encouraged to consider the suitability of using ADR to resolve their dispute. 147 Failure to comply with these pre-action obligations can affect the determination of costs. 148 The Australian Centre for Justice Innovation’s Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts report evaluated PD6 as part of a broader study into the effectiveness of pre-action obligations. 149 Based on the limited available data, the report found that 88 per cent of matters resolved as result of the PD6 arrangements. 150

FEDERAL SCHEMES [8.60] Australian federal courts and tribunals have been involved and engaged in ADR development for more than 15 years. The emphasis in federal courts and tribunals has largely been on mediation and conciliation processes rather than other ADR processes, such as evaluation and arbitration, although the AAT has used a number of advisory and evaluative forms of ADR (see discussion and guidelines referred to in Chapter 6). 151 Court staff in the Federal Court and Family Court and members of the Administrative Appeals Tribunal (AAT) have

144

meeting, the court “must promote the settlement of the dispute (either at the meeting or by referral to other dispute resolution mechanisms)”. Provision is also made in s 52 of the Leases (Commercial and Retail) Act 2001 (ACT) for the referral of disputes as to market rental to mediation. Local Court Act (NT), s 16.

145

See the Practice Direction No 1 of 2010 – Mediation, available at http://www.supremecourt.nt.gov.au/ lawyers/documents/1_of_2010_Mediation.pdf; which varied Order 48 to provide for this extended referral. See also Chapter 15 where issues relating to judicial mediation and this order are more specifically discussed.

146

Supreme Court of the Northern Territory, Practice Direction No 6 of 2009 – Trial Civil Procedure Reforms, Pt 2 s 4. Supreme Court of the Northern Territory, Practice Direction No 6 of 2009 – Trial Civil Procedure Reforms, Pt 2 s 11.

147 148 149

Supreme Court of the Northern Territory, Practice Direction No 6 of 2009 – Trial Civil Procedure Reforms, Pt 2 ss 11, 13. T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (Report, Australian Institute of Judicial Administration, 2012), available on http://www.civiljustice.info.

150

T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (Report, Australian Institute of Judicial Administration, 2012) p 75, available on http://www.civiljustice.info.

151

There has been a trial of evaluation processes within the Perth Registry of the Federal Court.

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undertaken much of the mediation and conciliation work. Each court and tribunal has constructed an ADR program to meet its own needs. In 2004, the Federal Government announced that it intended to promote ADR by using seveal initiatives directed at ensuring that ADR is used and supported by government agencies and organisations through a new civil justice strategy, and guidelines for the conduct of government as a litigant have been promulgated. 152 In June 2008, the National Alternative Dispute Resolution Advisory Council (NADRAC) received a reference from the Commonwealth Attorney-General to provide advice regarding encouraging greater ADR use across the federal sector. NADRAC conducted an inquiry and published the results of that advice and recommendations in the report, The Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction. 153 Also in September 2009, a report of the Access to Justice Taskforce in the Commonwealth Attorney-General’s department entitled A Strategic Framework for Access to Justice in the Federal Civil Justice System was produced, with the ultimate aim of promoting effective (and earlier) dispute resolution in order to overcome barriers to access to justice. 154 These two reports have led to substantial and significant changes to the obligations that attach to those involved in ADR and also to the establishment of dispute resolution obligations in the pre-litigation area (these are discussed further in Chapter 11). As in many State jurisdictions, there have also been changes introduced into federal courts that impact on the obligations that litigants have when conducting litigation. For example, the Federal Court of Australia Act 1976 (Cth) was amended in November 2009 155 and new obligations are now placed on the Federal Court, litigants and legal practitioners to facilitate the just resolution of disputes according to law, and to do this as quickly, inexpensively and efficiently as possible. 156 New provisions have also broadened the court’s case management powers, including by allowing the court to: • • • •

refer parties to ADR; require parties to narrow the issues in dispute; limit the length of submissions or the number of witnesses; and set time limits for the completion of part of a proceeding.

152

Commonwealth Attorney-General’s Department, Civil Jurisdiction and Federal Courts Branch, Federal Civil Justice System Strategy Paper (Report, 2003), available on http://www.ag.gov.au/ civiljusticestrategy.

153

NADRAC, The Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (Report, 2009), available on http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/ Documents/NADRAC%20Publications/the-resolve-to-resolve-embracing-adr-improve-access-tojustice-september2009.pdf. Access to Justice Taskforce, Commonwealth Attorney-General, A Strategic Framework for Access to Justice in the Federal Civil Justice System (Report, 2009), available at http://www.ag.gov.au/.

154 155 156

Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth). Federal Court Act 1973 (Cth), s 37M. [8.60] 319

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Section 37N of the Federal Court of Australia Act 1976 (Cth) imposes on parties to a civil proceeding before the court a duty to “conduct the proceeding in a way that is consistent with the overarching purpose”. Furthermore, the court may take account of failure to comply with the duty in making an award of costs in a civil proceeding. On 1 August 2011, the Civil Dispute Resolution Act 2011 (Cth) commenced, and this legislation has had an impact on the work of both the Federal Court and Federal Circuit Court. This Act, and the obligations that it creates, are discussed in greater detail in Chapter 11. The legislation draws on the Access to Justice Framework, as well as key recommendations from the NADRAC report, encouraging parties to take “genuine steps” to resolve their disputes before commencing certain proceedings in either the Federal Court or the Federal Circuit Court. The legislation follows reforms to the family law system were introduced in 2006. These reforms were designed to promote ADR, and have led to the creation of an extensive pre-litigation system that is discussed in Chapter 9 (see also below).

Federal Court of Australia Figure 8.1 – Assisted Dispute Resolution (ADR) 2006-07 to 2010-11 (matters referred to mediation)

[Source: Adapted from Table 3.7 from the Federal Court of Australia, Federal Court of Australia Annual Report 2010–11 (Canberra, 2011), available at http:// www.fedcourt.gov.au.] [8.65] In the Federal Court of Australia, matters have been referred to mediation without the parties’ consent since 1997. 157 The “Assisted Dispute Resolution” program that commenced in 1987 (and, until 1997, required the consent of the parties) was based upon the mediation of disputes by registrars of the court. Registrars have performed much of the mediation work, although external mediators in Victoria and New South Wales have mediated a number of matters. Mediations conducted by registrars have dealt with a wide range of disputes, including issues that range from trade practices disputes to asylum seeker 157

See Federal Court of Australia Act 1976 (Cth), s 53A; see also s 53A(1) and (1A) as amended by the Law and Justice Legislation Amendment Act 1997 (Cth).

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interventions. In 2009, the Federal Court of Australia became a recognised mediation accreditation body (RMAB) under the National Mediator Accreditation System and the registrars of the court who conduct mediations are all accredited practitioners. Part 28 of the Federal Court Rules 2011 (Cth) sets out the way in which a range of alternative dispute resolutions processes will be dealt with. 158 The rules also make clear that “[a]t any hearing, the Court may make directions for the management, conduct and hearing of a proceeding”, including an order referring the proceeding to an arbitrator, mediator or “suitable person” for resolution by an ADR process, and for referral to a case management conference or a pre-trial settlement conference. 159 An order referring proceedings to arbitration currently requires the consent of both parties 160 (as opposed to any other form of alternative dispute resolution, which can be ordered with or without the consent of the parties). Appeals from arbitrations in the Federal Court are on questions of law only 161 and an arbitrator may refer a question of law back to the court for determination. 162 The Federal Court also makes available a voluntary “fast-track” resolution process for commercial, personal insolvency and intellectual property (apart from patents) matters. This expedited process specifically calls for the most appropriate dispute resolution mechanism(s) to be employed (under the guidance of a managing judge). 163 The ADR program in the Federal Court is reasonably well developed and varies somewhat from State to State. Some of that variation is undoubtedly attributable to the backgrounds, interests and case loads of different judges throughout Australia as well as practitioner preference. The Court, perhaps for this reason, has trialled a number of ADR processes that include mediation, early neutral evaluation and arbitration. The Federal Court is enhancing its case management approach through the National Court Framework. The Framework involves restructuring the Federal Court to improve efficiency. A key benefit for litigants will be the “enhanced facilitation of ADR (mediation)”. 164 In 2015 the Federal Court published Interim Practice Note: NCF 1 – National Court Framework and Case Management. The Practice Note is currently confined to the Commercial and Corporations 158

Division 28.2 of the Federal Court Rules 2011 (Cth) relates to arbitration, Div 28.3 relates to mediation, and Div 28.4 to ADR processes generally.

159 160

Federal Court Rules 2011 (Cth), r 5.04. Federal Court of Australia Act 1976 (Cth), s 53A(1A). Section 53C provides that mediators dealing with a referred matter are afforded the same immunity and protection as a judge exercising judicial functions.

161 162 163

Federal Court of Australia Act 1976 (Cth), s 53AB(2). Federal Court of Australia Act 1976 (Cth), s 53AA. Federal Court of Australia, Practice Note CM 8 (Fast Track), available on http://www.fedcourt.gov.au/ pdfsrtfs_p/practice_notes_cm8.rtf. Federal Court of Australia, Introducing the National Court Framework, available on http:// www.fedcourt.gov.au/law-and-practice/national-court-framework.

164

[8.65] 321

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National Practice Area, but is intended to eventually apply to all National Practice Areas. The Practice Note states that: The Court will work actively with the parties and at all times encourage the exploration of an early resolution to the disputes between them through mediation. The parties are expected to participate in ADR processes in good faith towards this end. The Court will facilitate ADR, usually through Court-annexed mediation, or may facilitate a case management conference before a Registrar to explore ADR possibilities or the narrowing of issues in dispute. 165

There have been some attempts to evaluate the Federal Court program. Dr Richard Ingleby conducted one early evaluation in 1990. A later evaluation program conducted by the Court examined mediations conducted between 1 July and 31 December 1993. In that evaluation, a questionnaire was forwarded to legal practitioners and the results indicated that the “ADR program had been well received by both the legal profession and litigants”. Of those surveyed, 42 per cent considered that their matter would probably have settled in any event, although 54 per cent advised that the mediation brought the settlement date forward. 166 More recent evaluations have been largely internal. The 2013–2014 Annual Report of the Federal Court sets out some information in respect of mediations conducted in the court. The report notes that: The majority of court ordered mediations are conducted by registrars who are all trained and accredited under the National Mediator Accreditation Scheme. In the native title jurisdiction the Court maintains a list, available on its website, of specialist mediators who have current experience in the resolution of complex Indigenous land management disputes. In some circumstances the parties may employ the services of a private mediator following a Court ordered referral to mediation. 167

In the 2013–2014 reporting year, mediation accounted for more than 99 per cent of ADR referrals. The remaining referrals were made to conferences of experts. 168 In the 2013–2014 reporting year, 567 filings were referred to mediation. This represents 11 per cent of the total filings. 169 In the previous four reporting years the proportion of filings referred to mediation have ranged from 10 to 13 per cent. 170

Family Court of Australia [8.70] Extensive changes to the family law system were introduced in 2006. These changes included the introduction of a new hearing model in relation to 165

Federal Court of Australia, Interim Practice Note: NCF 1 – National Court Framework and Case Management, available on http://www.fedcourt.gov.au/law-and-practice/practice-documents/ practice-notes/ncf1.

166

MEJ Black, “The Courts, Tribunals and ADR” (1996) 7 Australian Dispute Resolution Journal 138, 142–143.

167

Federal Court of Australia, Annual Report 2013–2014 (2014), p 27.

168 169

Federal Court of Australia, Annual Report 2013–2014 (2014), p 28. Federal Court of Australia, Annual Report 2013–2014 (2014), p 29.

170

Federal Court of Australia, Annual Report 2013–2014 (2014), p 29.

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children’s matters (the less adversarial trial (LAT) model of hearing cases is discussed in Chapter 6). Significant reforms were also implemented in relation to ADR, which is now largely conducted outside the courts. These changes have resulted in a dramatic drop in the filing of cases in the Family Court and are more fully explored in Chapter 9. Additionally, the Family Court’s Child Responsive Program, which is applicable in child-related proceedings, was implemented nationally in the Family Court in January 2008. This program was intended to be integrated with a less adversarial approach to trials in this area of the law. The court noted that: The Family Law Act 1975 (FLA) mandates this approach in Division 12A of Part VII. This means a trial in a child-related proceeding: • is focused on the children and their future; • is flexible so that it can meet the needs of particular situations; • is anticipated to be less costly compared to traditional trials and will save time in court; and • is less adversarial and less formal than is usually the case in a court. 171

This new trial process is also more inquisitorial and is discontinuous. The court notes that: • The trial starts when the parties first meet the judge. • It may finish on the first day or further meetings to continue the trial may be scheduled between the judge and all other parties. • The same judge and the same family consultant deals with the matter throughout the trial. • Most of the evidence will come from each of the parents. • The judge concentrates on getting the best information from everyone about the specific needs of the child(ren). • The judge will consider the evidence and may discuss it with the parents or witnesses. • Meetings with the judge may be by telephone conferences. 172 An internal review of the program indicated a high level of satisfaction with the “way the program focussed on the needs of children and integrated with the first day of the less adversarial trial”. 173 It was also noted that during 2009–2010 the less adversarial trial was fully implemented across all Family Court registries. 174 More generally, the Family Court may, at any stage of the proceedings, order that parties attend conciliation, family counselling, “family dispute resolution” (FDR), attend an appointment with a family consultant or participate in an 171

See Family Court of Australia, Less Adversarial Trials, available on http://www.familycourt.gov.au/ wps/wcm/connect/fcoaweb/reports-and-publications/publications/court-events/less-adversarialtrials.

172

See Family Court of Australia, Less Adversarial Trials, available on http://www.familycourt.gov.au/ wps/wcm/connect/fcoaweb/reports-and-publications/publications/court-events/less-adversarialtrials.

173

Family Court of Australia, Annual Report 2009–2010 (2010), pp 119–120.

174

Family Court of Australia, Annual Report 2009–2010 (2010), p 19. [8.70] 323

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“appropriate course, program or other service”. 175 With the consent of the parties, the Family Court may also order that matters be referred to arbitration. 176 Such an award can be reviewed (and set aside, if necessary), on questions of law, by a single judge of the Family Court, or the Federal Circuit Court. 177 Both courts can also determine questions of law referred by an arbitrator. 178 As discussed in Chapter 9, one of the largest pre-litigation schemes that imposes mandatory attendance at a dispute resolution process in Australia is set up through legislation and with significant infrastructure and operates in the family dispute area. It has been noted that: There is an extensive mandatory pre-litigation ADR system in the family relationships area: Government funding of these services exceeds $82 million (in Australian dollars) annually, so most family disputants can expect to attend some form of mandatory ADR before being able to commence court proceedings. 179

The amendments to the Family Law Act 1975 (Cth) introduced in 2007 mean that if an individual wants to apply to the court for a parenting order under Pt VII of the Act, they first need to attend FDR. This is defined as a process (other than a judicial process) whereby an independent FDR practitioner (who must be accredited) helps people “affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other”. 180 Once the FDR process has been engaged in, the parties can obtain a certificate from the FDR practitioner confirming that an attempt at family dispute resolution was made, and then may apply to seek a Family Court order. 181 These extensive legislative changes have impacted on the way in which the court deals with mediation. In its 2006–2007 Annual Report, the Family Court noted that: In response to the changes to the family law framework, particularly the establishment of Family Relationship Centres and the introduction of compulsory dispute resolution before filing, the court has changed the role of its family consultants. This is in line with the court’s aim to provide a quality service which directly supports judicial decision making, without duplicating services in the community. The court has developed and tested a new model of family consultants working with child disputes, called the Child Responsive Program (CRP). Each case 175 176

Family Law Act 1975 (Cth), s 13C. Matters which may be referred to arbitration include: Pt VIII matters (Property, Spousal Maintenance and Maintenance Agreements), Pt VIIIAB matters (Financial Matters Relating to De Facto Relationships): s 13E of the Family Law Act 1975 (Cth).

177 178

Family Law Act 1975 (Cth), ss 13J and 13K. Family Law Act 1975 (Cth), s 13G.

179

T Sourdin, “International Dispatch: ADR Trends Down Under” (2014) 20(3) Dispute Resolution Magazine 30. Family Law Act 1975 (Cth), s 10F.

180 181

Section 60I(7) mandates that a court exercising jurisdiction under the Family Law Act 1975 (Cth) “must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate”. Exceptions are made (in ss 60I(9) and 60J) for child abuse, family violence, and urgent matters.

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has a family consultant allocated to it. This provides continuity of family consultant through to trial and post-trial follow up and referral, where this is required. CRP aims to include children early in the process, providing an opportunity to put forward their views and to focus parents on their needs. CRP is designed to integrate and align with less adversarial (child related) trial proceedings and to enable what occurs during the program to be admissible in court.

The CRP provides the parties with the following: • intake and assessment meeting; • child and family conference with potential for child involvement, depending on the family consultant’s assessment; • • • •

selective settlement meeting; oral report to the court on first day of trial, if the matter has not settled; a full family report if required; and post order follow up. 182

In the past, the court operated a fairly extensive mediation program. Under the Family Law Act 1975 (Cth), ADR processes were called “primary dispute resolution methods” (PDR) 183 and a range of PDR services was offered by the Family Court, including mediation, conciliation, counselling, information sessions, parenting programs, childrens’ programs, and other programs designed to impart life skills to the participants. 184 However, the Joint Select Committee on Funding and Administration of the Family Court recommended that PDR processes, including mediation, should be community-based rather than pursued through existing Family Court structures. 185 The distinction between the provision of services before and after commencement of proceedings has not been as rigidly maintained in the Family Court as has been the case in other Australian courts and tribunals. This change led to the introduction of compulsory dispute resolution in most cases before filing an application for a parenting order. 186

Federal Circuit Court of Australia [8.75] The Federal Magistrates Court was renamed the Federal Circuit Court of Australia (FCC) in April 2013. The Commonwealth Parliament established the original court at the end of 1999. The FCC is an independent federal court under the Australian Constitution. The commencing jurisdiction of the court includes 182 183

Family Court of Australia, Annual Report 2006–2007 (2007), p 18. Family Law Act 1975 (Cth), s 14E. It has also been suggested that “mediation” could be used to describe all PDR processes. See Family Court of Australia, Annual Report 1999–2000 (2001) p 8.

184

AM Sikiotis, Deputy Registrar, Case Conferences in the Family Court (Unpublished Paper, Dandenong, 26 April 2001). Joint Select Committee on Certain Family Law Issues, Funding and Administration of the Family Court of Australia (Report, AGPS, 1995) p xi.

185 186

See Federal Magistrates Court of Australia, Compulsory Dispute Resolution, available on http:// www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-publications/publications/ family-law/compulsory-family-dispute-resolution-court-procedures-and-requirements. [8.75] 325

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family law and child support, administrative law, bankruptcy law and consumer protection law. Part 4 of the Federal Circuit Court of Australia Act 1999 (Cth) entitled Dispute Resolution for Proceedings other than Proceedings Under the Family Law Act 1975 establishes dispute resolution processes (DRP). Part 6 of the Federal Circuit Court of Australia Act 1999 (Cth), entitled Practice and Procedure, read together with the Civil Dispute Resolution Act 2011 (Cth), also supports extensive case management and pre-litigation obligations in relation to ADR (see also Chapter 11). The Explanatory Memorandum to the Federal Magistrates Bill 1999 (Cth) notes that: Obligations are imposed on the Federal Magistrates Court and legal practitioners to advise parties about primary dispute resolution processes that may help in resolving their dispute. Parties who have been ordered by the Federal Court to undertake a primary dispute resolution process may apply to the court to have a question of law determined which arises out of the proceedings. Such an application must be accompanied by a statement by the person conducting the primary dispute resolution process to the effect that the determination of the question of law would be likely to assist parties in settling. 187

Part 4 requires the court to consider whether to advise people to use DRP once they have commenced proceedings (s 22). If the court “considers that a [DRP] may help the parties to a dispute before it to resolve that dispute … [it] must advise the parties to use [that process]” (s 23). A duty is also placed on legal practitioners to consider whether to advise the parties about the DRP that could be used to resolve any matter in dispute (s 24). If requested, officers of the Federal Circuit Court must advise parties about the DRP that could be used to resolve any matter (s 25). The DRP of the FCC was evaluated in 2004 and those results suggested that the processes were working well and highly regarded. During the 2013–2014 reporting period, 540 general federal law filings were referred to mediation, which represented 10 per cent of the total filings. 188 Mediation is predominantly undertaken by registrars of the court; however some matters are referred to external dispute resolution practitioners. 189 According to the FCC’s 2013–2014 Annual Reort: The number of matters referred to mediation in 2013–14 has increased markedly from the 482 referrals in 2012–13 to 540 in 2013–14. The increase can be attributed to the increased filing of Industrial matters. 190

In financial family matters, the FCC offers privileged conciliation conferences in addition to internal mediation and referral to private mediation. 191 During the 2013–2014 reporting period, 4511 family law conciliation conferences were held, 187 188 189

Explanatory Memorandum, Federal Magistrates Bill 1999 (Cth), p 10. Federal Circuit Court of Australia, Annual Report 2013–2014 (2014) p 64. Federal Circuit Court of Australia, Annual Report 2013–2014 (2014) p 63.

190 191

Federal Circuit Court of Australia, Annual Report 2013–2014 (2014) p 63. Federal Circuit Court of Australia, Annual Report 2013–2014 (2014) p 74.

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with approximately 1804 being settled. 192 The FCC has also established collaborative projects to provide dispute resolution services in the family dispute resolution area.

Administrative Appeals Tribunal [8.80] A variety of case conferencing, mediation and evaluative ADR processes operate, within the administrative review area. In addition, following amendments in 2005 by the Administrative Appeals Tribunal Amendment Act 2005 (Cth), 193 a range of other processes are now available. The range of ADR processes set out in s 3 of the 2005 amending Act include conferencing, mediation, conciliation, neutral evaluation, case appraisal and other procedures or services specified in the regulations (see discussion in Chapter 6 relating to the definition of these processes). In 2013–2014, the number of conciliations held by the AAT increased from 485 in the previous year to 555. Mediations decreased from 42 to 39 and neutral evaluations decreased from 32 to 22. 194 The Administrative Appeals Tribunal (AAT) ADR Committee 195 has produced guidelines and detailed process descriptions in relation to each of the processes. 196 The Administrative Appeals Tribunal Act 1975 (Cth) sets out a number of interesting ADR provisions, which include: • section 34A(1) authorises the president of the AAT to direct that a proceeding, or any part of a proceeding, be referred for a particular ADR process (including conferencing); • section 34A(5) requires that parties who are directed to participate in an ADR process must act in good faith; • section 34B authorises the tribunal to direct that a small claims taxation tribunal (STCT) matter be referred to an ADR process and that the parties must act in good faith; • section 34C authorises the president to make directions about: – the procedure to be followed in an ADR process; and – the person who is to conduct an ADR process (must be a member, officer of the tribunal or a person engaged under s 34H); and – what will happen following the conclusion of an ADR process; • section 34E(3) provides an exemption to the general inadmissibility of any evidence in connection with an ADR process by allowing the admission of a case appraisal report or a neutral evaluation report in the absence of an objection from either party; 192 193

194 195 196

Federal Circuit Court of Australia, Annual Report 2013–2014 (2014) p 74. The Administrative Appeals Tribunal Amendment Act 2005 (Cth) (No 38 of 2005), amended a number of federal Acts, but primarily, for present purposes, the Administrative Appeals Tribunal Act 1975 (Cth). All relevant amendments came into force on or by 16 May 2005. Administrative Appeals Tribunal, Annual Report 2013-2014 (2014) p 172. For information on AAT ADR processes, see Administrative Appeals Tribunal, Alternative Dispute Resolution, available on http://www.aat.gov.au/LawAndPractice/AlternativeDisputeResolution.htm. The author is a member of the AAT ADR Committee. Details of the guidelines and process models can be found on Administrative Appeals Tribunal, Alternative Dispute Resolution, available on http:// www.aat.gov.au/ApplyingToTheAAT/AlternativeDisputeResolution.htm. [8.80] 327

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• section 34F permits a member who has conducted an ADR process to subsequently sit on a hearing of the matter unless a party objects; • section 60(1A) provides that an ADR practitioner has, in the performance of their duties as an ADR practitioner, the same protection and immunity as a justice of the High Court. Section 60(4) defines an “alternative dispute resolution practitioner” as a person who conducts an ADR process under Div 3 of Pt IV. Members of the AAT, rather than registrars, conduct mediations and there appears to have been no referral to external practitioners. Conferences are part of the “assisted resolution” program and are often conducted by registrars but with a dual purpose – focused on settlement of matters, and as a case management tool to ensure that matters are prepared for a later hearing should settlement not appear possible or likely. The usefulness of mediation may be canvassed with the parties during the conference process. The Administrative Review Council which was established under Part V of the AAT Act described the difference between conferences and mediation as follows: In the conference setting, the tribunal member or officer involved may take a more directive role than does a mediator: they may discuss the merits of the case (in confidence, and subject to not being a member of the tribunal panel that subsequently hears the case if it proceeds to a hearing). Mediation, on the other hand, is characterised by the neutrality of the mediator, the aim simply being to have the parties themselves explore the possibilities of agreement, with the mediator playing a facilitating role. 197

The AAT uses its own members as mediators. It has done so after having regard to considerations of cost, confidentiality, maintenance and security of files, control over listing and use of available expertise among tribunal members. One tribunal member noted: Mediation has not been introduced to the AAT as a case management tool [as it is satisfied that] … the ethic and philosophy of mediation has been corrupted where courts, tribunals and agencies strive for reduction in delays between commencement of litigation and conclusion or the elimination of court backlogs which exist primarily as the result of a failure to properly administer case loads. 198

In 2008, the president of the AAT stated that “[e]xperience over time will inform the further development of [the process models] and, in particular, a more nuanced understanding of when particular forms of ADR may be most effective”. 199 197

Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals (Report, 1995) at [3.139].

198

J Handley, “Mediation in the Commonwealth Administrative Appeals Tribunal” (1995) 6 Australian Dispute Resolution Journal 5, 6.

199

The Hon Justice G Downes AM, Alternative Dispute Resolution at the AAT (Speech presented at NSW Law Week 2008, Sydney 1-2 April 2008) p 5, available on http://www.aat.gov.au/about-the-aat/ engagement/speeches-and-papers/the-honourable-justice-garry-downes-am-former-pre/alternative-

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National Native Title Tribunal [8.85] The Federal Court is now responsible for managing native title applications. 200 The National Native Title Tribunal’s (NNTT) mediation function and Indigenous Land Use Agreements (ILUA) negotiations related to native title claims mediation were transferred to the Federal Court as part of institutional reforms that occurred in 2012. 201 The Federal Court can refer mediation matters to the NNTT or another mediation body or mediator. The NNTT can provide mediation in areas such as future acts and can assist parties in negotiating standalone ILUAs. 202 The NNTT’s 2011–2012 Annual Report states that: At 30 June 2012, 127 (or 29 per cent) of current claimant applications had been referred to the Tribunal for mediation, including 11 referred to it during the reporting period. Nationally there was a significant reduction in both the number and proportion of claims in Tribunal mediation compared with one year ago. Only in the Northern Territory, where there were 178 current claims at the end of the reporting period and the Court has adopted a different case management approach, did the Tribunal have no claims for mediation. 203

The institutional reforms were followed by the Courts and Tribunals Legislation Amendment (Administration) Act 2013, which amended the Native Title Act 1993 (Cth). The amendments transferred the NNTT’s “administrative functions, staff and appropriation to the Federal Court”. 204 A key objective of the amendments was to improve the timeliness and cohesiveness of the native title system. 205 The Native Title Act 1993 (Cth) provides for mediation conferences 206 and also provides a “right to negotiate” mechanism. 207 Mediation of contested native title determination and compensation applications is, unless ordered otherwise, mandatory. Thus, parties are not able to avoid mediation without leave of the court. Once mediation has begun, a party to a proceeding may apply to the court dispute-resolution-at-the-aat (accessed 24 August 2011). The speech has also been published in (2008) 15 Australian Journal of Administrative Law 137. 200

National Native Title Tribunal, Mediation of Claims, available on http://www.nntt.gov.au/ nativetitleclaims/Pages/Mediation-of-claims.aspx.

201

The Hon Justice G Downes AM, Alternative Dispute Resolution at the AAT (Speech presented at NSW Law Week 2008, Sydney 1-2 April 2008) p 5, available on http://www.aat.gov.au/about-the-aat/ engagement/speeches-and-papers/the-honourable-justice-garry-downes-am-former-pre/alternativedispute-resolution-at-the-aat (accessed 24 August 2011). The speech has also been published in (2008) 15 Australian Journal of Administrative Law 137. National Native Title Tribunal, Mediation of Claims, available on http://www.nntt.gov.au/ nativetitleclaims/Pages/Mediation-of-claims.aspx. National Native Title Tribunal, Annual Report 2011-2012 (2012) p 14. Commonwealth, Parliamentary Debates, House of Representatives, 31 October 2012, 12735 (Nicola Roxon, Attorney-General and Minister for Emergency Management). Commonwealth, Parliamentary Debates, House of Representatives, 31 October 2012, 12735 (Nicola Roxon, Attorney-General and Minister for Emergency Management). See Native Title Act 1993 (Cth), Pt 4, Div 1B (Reference for mediation). Section 86A(1) sets out the purpose of mediation in proceedings where compensation is not involved. Section 86A(2) applies where compensation is involved. Section 86B sets out the grounds on which matters may be referred from the Federal Court to the NNTT for mediation. See Native Title Act 1993 (Cth), Pt 3, Div 2 (Applications to the National Native Title Tribunal: right to negotiate).

202 203 204 205 206

207

[8.85] 329

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for an order that mediation cease at any time after three months from the start of mediation. 208 The Native Title Act 1993 (Cth) was recently amended by the Native Title Amendment Act 2009 (Cth). The amendments enable the court to determine who will mediate in relation to a native title claim (specifically the court, the tribunal, or another “appropriate person or body”), and extend previous provisions concerning the conduct of mediation by the tribunal to all mediation in relation to native title applications. As noted in the NNTT’s 2009–2010 Annual Report: 209 The 2009 amendments realigned the relationship between the Court and the Tribunal. It remains to be seen what the full practical operational effect will be and to what extent the effects will depend on the approaches taken by individual judges. In the past year, the Tribunal has engaged in communications with the Court about how the Court will administer aspects of the amended Act, and how the two institutions can work together in the exercise of their respective powers and functions. … Most of the claimant applications that had been referred to, and were still with, the Tribunal before the 2009 amendments commenced have remained with the Tribunal. In some cases the Court has directed that Tribunal mediation cease and/or the claim has been listed for hearing by the Court. At 30 June 2010, 202 (or 47 per cent) of current claimant applications had been referred to the Tribunal for mediation, including three referred to it during the reporting period. Although there was a reduction in both the number and proportion of claims in Tribunal mediation compared with one year ago, a large majority of the claims in the states are with the Tribunal. Only in the Northern Territory, where there were 157 current claims at the end of the reporting period and the Court has adopted a different case management approach, does the Tribunal have few claims for mediation (4 or 2.5 per cent).

NEW ZEALAND [8.70] A number of courts and tribunals in New Zealand have developed ADR programs. For example, the High Court of New Zealand has used a judicial conferencing program since 1986. Use of this scheme seems to have declined in recent years however, in 2009, a court-assisted mediation pilot project was established that uses external mediators to conduct mediation. The pilot project was subject to review. 210 In common with Australian courts, many cases that are commenced within New Zealand courts are not finalised by way of judicial determination. For example, in the High Court of New Zealand in the 2014 reporting year, 2,526 new matters were commenced and only 340 were disposed of via trial adjudication. 211 The High Court has set up special arrangements in a number of areas. The most recent special arrangement list is known as the 208 209

Native Title Act 1993 (Cth), ss 86B(1) and (2) and 86C(2). National Native Title Tribunal, Annual Report 2009–2010 (2010) pp 15–16.

210

See T Sourdin (ed), Australasian Dispute Resolution (Thomson Reuters, subscription service), in particular C Powell, New Zealand Commentary. See Annual Review, High Court of New Zealand, 2015 available on http://www.courtsofnz.govt.nz/ from/judicial-reports/2014_HighCourtAnnualReview.pdf.

211

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“Earthquake List” and relates primarily to the issues raised by the Christchurch earthquakes. Another list relates to “weathertight” or “leaky” homes. In each of these areas there has been extensive mediation work and mediation schemes have been set up to assist (see Chapter 9). These schemes however operate independently from the court system. The High Court, for example, maintains an “Earthquake List” and manages both case management and pre-trial conferences however each of these processes is not directed at settlement. 212 The High Court approach in New Zealand assumes that people will opt in to mediation that will be conducted by private ADR practitioners so there is no mandatory referral scheme (either before court filing or once cases have commenced). It may be however that judges use persuasive approaches to encourage the use of mediation however these may vary from judge to judge. Although these approaches have been recently questioned it is unclear whether they will change in the near future. 213 The approach to mediation in the New Zealand Family Court has changed significantly in recent times. Mediation conferences were previously conducted by judges of the Family Court (see discussion about judicial involvement in ADR at [8.105]). 214 While family group conferences continue in some courts (see the Rangatahi Court project 215), the Family Court has now adopted a pre-litigation mediation approach in regards to children’s matters. In most disputes people are required to attend Family Dispute Resolution before going to court. Family Dispute Resolution provides limited funding mediation in regards to children’s matters. A preliminary preparation program, Parenting Through Separation, is also available and parents are encouraged to attend this program before attending Family Dispute Resolution. The Parenting Through Separation program assists parents to develop a parenting plan. 216 Some other schemes that support a pre-filing or pre-action approach operate in other areas such as employment law where a government scheme supports mediation prior to action being taken. 217 The Employment Relations Authority 212

See, for example, information about the “Earthquake List” in the High Court (2012), available on http://www.courtsofnz.govt.nz/business/high-court-lists/The%20Earthquake%20List.pdf/? searchterm=earthquake%20list.

213

A conference session relating to voluntary or mandatory mediation explored differing attitudes in New Zealand (10, 11 September 2015, Resolution Institute Congress, Auckland).

214

See Ministry of Justice, 1999 Report of the New Zealand Judiciary (Report, 1999) p 24.

215

These projects were the subject of evaluation work in 2012 (see http://www.justice.govt.nz/ publications/global-publications/r/rangatahi-court-evaluation-of-the-early-outcomes-of-te-kootirangatahi) and as a result of those evaluations the projects have been extended. The projects rely on restorative justice approaches and include elder involvement – see the District Courts of New Zealand 2014 Annual Report available on http://www.courtsofnz.govt.nz/district/district/annual-reports-ofthe-district-court-judiciary/district-courts-annual-report-2014rs.pdf.

216

Ministry of Justice, Family Dispute Resolution – A Mediation Service, available on http:// www.justice.govt.nz/family-justice/about-us/documents/publications/brochure-and-pamphlets/pdf/ moj0508-family-dispute-resolution.pdf. Ministry of Justice, Family Dispute Resolution – A Mediation Service, available on http:// www.justice.govt.nz/family-justice/about-us/documents/publications/brochure-and-pamphlets/pdf/ moj0508-family-dispute-resolution.pdf.

217

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does not conduct the scheme which is supported by the Ministry of Business, Innovation and Employment. This agency provides the infrastructure in respect of mediation referral. 218 There is capacity for mediators in that scheme to adopt a blended process model by consent. 219 The Disputes Tribunal of New Zealand uses referees to deal with disputes that have a value of less than NZ$15,000 (or by agreement less than NZ$20,000). 220 In the hearing process, referees will encourage settlement but there does not appear to be a formal ADR process. 221 Forms of ADR are also supported in the Environment Court of New Zealand. The Resource Management Amendment Act 1996 (NZ) provides that additional dispute resolution processes can be conducted by members of the Environment Court and others (with or without the consent of the parties). 222 Notably, the legislation governing the ADR program in the Environment Court provides that a commissioner who acts as a mediator may continue to act as a commissioner provided the parties agree that it is appropriate for the member to do so. 223 A toolkit relating to mediation use was prepared in March 2015. 224 A 2014 Practice Note relating to the Environment Court noted as follows: The Court is not required by statute to, and does not, make ADR processes mandatory, but Judges may direct that ADR processes be attempted because issues of public interest are present in most environment cases. If ADR processes are declined by parties, or if a co-operative approach is resisted, the case is likely to be set down for hearing at the earliest possible time. It is widely recognised that ADR processes offer the most value when they are constructively embraced, as they offer flexibility, an interests-based approach, ownership of resolution of the dispute, and are often more conducive to the preservation of inter-party relationships. While participation in ADR is not mandatory, it should be noted that if a party declines to participate, and the other parties to the proceeding reach a settlement among themselves, the non-participating party may face consequences in costs if that party cannot persuade the Court that the appropriate outcome is materially different from that agreed by the others. 225

There are also extensive pre-court and tribunal processes that operate in New Zealand in the housing area, where matters are routinely referred to mediation (see Chapter 9). 226 218 219

See generally http://www.era.govt.nz/. See http://employment.govt.nz/er/publications/MediationServices.pdf.

220 221

See http://www.justice.govt.nz/tribunals/disputes-tribunal. See Guidelines available on http://www.justice.govt.nz/tribunals/disputes-tribunal/documents-new/ guidelines/dt-guidelines-full.

222 223 224

Resource Management Act 1991 (NZ), s 268. Resource Management Act 1991 (NZ), s 268. See http://www.mfe.govt.nz/publications/rma/everyday-guide-rma-you-mediation-and-environmentcourt. Environment Court of New Zealand, Practice Note 1 (December 2014) available on http:// www.justice.govt.nz/courts/environment-court/legislation-and-resources/practice-notes.

225 226

See Department of Building and Housing, Mediation, available on http://www.dbh.govt.nz/tenancymediation.

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OTHER LEGISLATIVE SCHEMES [8.95] The diversion of disputes from court or tribunal settings can be encouraged by a number of different processes. As noted previously at [8.70], these can include requirements in the family area to obtain certification from a family dispute resolution practitioner to indicate that attempts have been made to settle a dispute before commencing proceedings, or, in other jurisdictions, requirements to take reasonable, genuine or sincere steps to settle disputes before commencing proceedings. These requirements are also discussed in more detail in Chapters 9 and 11 in the context of pre-litigation schemes and obligations. In South Australia, legislation requires parties to notify one another of a claim before the initiating process is filed. Other legislation requires mandatory attendance at some form of ADR session as a pre-condition to litigation. 227 The legislation often requires different reporting standards and notice periods. New South Wales has legislation in a number of different areas to prevent court proceedings being commenced without mediation occurring. The Farm Debt Mediation Act 1994 (NSW) provides that a mediation must occur before a creditor can take possession of property or other action under a “farm mortgage”. 228 Similarly, the Retail Leases Act 1994 (NSW) provides for the mediation of retail tenancy disputes. Under that legislation, court proceedings cannot be commenced until a certificate has been provided by the registrar of the Retail Tenancy Unit or a court has satisfied itself that the dispute is unlikely to be resolved by mediation. 229 The recently enacted Legal Profession Uniform Law Application Act 2014 (Vic) and Legal Profession Uniform Law 2014 (NSW) provide that parties to consumer matters, including costs disputes, can be ordered to attend mediation in “good faith”. 230 Further, a complainant’s matter may be closed if they fail to engage in mediation in good faith. The Strata Schemes Management Act 1996 (NSW) provides for the mandatory mediation of strata scheme disputes prior to any application being made to the registrar for an order concerning the dispute. 231 Other bodies, such as the New South Wales Health Commission, provide mediation programs that divert disputes away from the litigation system. 232 227

For example, Family Law Act 1975 (Cth), s 79(9); Retail Leases Act 1994 (NSW), Pt 8; Farm Debt Mediation Act 1994 (NSW); Supreme Court Rules 2006 (SA), r 33; Supreme Court Civil Supplementary Rules 2014 (SA), rr 16-28.

228 229 230

Farm Debt Mediation Act 1994 (NSW), s 3. Retail Leases Act 1994 (NSW), s 68(1) and (2). Legal Profession Uniform Law Application Act 2014 (Vic), s 288; Legal Profession Uniform Law 2014 (NSW), s 288. For a discussion on the “good faith” requirement, see T Sourdin, “Good Faith Participation in Mediation – An Australian Perspective” (2014) ACResolution 31.

231

Strata Schemes Management Act 1996 (NSW), s 125.

232

T Altobelli, “ADR Legislation: Some Recent Developments” (1996) 3(1) Commercial Dispute Resolution Journal 1, 11. [8.95] 333

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In Victoria, the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) provides that claimants cannot commence proceedings in court unless the dispute has been referred to conciliation and the Conciliation Officer has issued a certificate stating that the claimant has taken all reasonable steps to settle the dispute. 233

KEY ISSUES [8.100] The increased referral of disputes to ADR processes has raised numerous issues for the litigation system and the courts. At the same time, there have been greater opportunities for lawyers to play a more constructive role in the resolution of disputes through engagement in ADR (either as ADR practitioners or representatives). Lawyers are increasingly involved in compliance work, risk analysis, dispute system design and management work that clearly sits under the ADR umbrella. Many lawyers also work as ADR practitioners and offer ADR services as part of the package of services that are available to prospective clients. These changes offer practitioners some significant opportunities to establish client bases that may not have previously existed. While some commentators have suggested that lawyers need to remodel themselves to ensure that they can work effectively within the litigation environment, 234 others consider that the growth in ADR as well as technological and other changes will mean that many lawyers will no longer be able to undertake more traditional and litigation focussed work. 235 Clearly, many clients now expect lawyers to be informed about ADR processes. Clients also expect lawyers to be able to give advice about managing and avoiding disputes, not just “fighting” a case or the other party. There is also competition from those outside the legal profession who seek to be involved in ADR work. This feature of the broad ADR environment may promote more collaborative interdisciplinary opportunities for lawyers who offer ADR services and advice as part of their practice (see Chapter 4). The way judges are involved in ADR processes also raises key issues (see [8.105] below). The transformation of legal practice is also being accompanied by a much slower ad hoc transformation of judicial practice. ADR is clearly being integrated into judicial functions by some judges in some courts. This transformation and integration of ADR processes into the judicial role has already commenced and is partially complete, at least in some courts and tribunals. The author has previously highlighted key issues that arise in respect to court-annexed ADR: Clearly, there are a number of issues that arise where ADR processes are situated or mainly connected to the court system (as was envisaged in the early multi door 233 234 235

Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 273(1). See J Macfarlane, The New Lawyer – How Settlement is Transforming the Practice of Law (UBC Press, Vancouver, 2008). See L Susskind, The End of Lawyers? Rethinking the Nature of Legal Services (Rev ed, Oxford University Press, London, 2010).

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arrangements). For example, locating ADR within courts and not supporting ADR in the pre-litigation area may mean that people may be less likely to use ADR before commencing litigation. This reality means that courts need to be wary of how much ADR they may offer (even on a referral basis) and be aware of trends in dispute resolution outside courts. Offering and regulating ADR within court environments may also reduce the number and scope of pre-litigation ADR options available (particularly if having different levels of immunity for ADR practitioners may make ADR more attractive for practitioners - higher levels of immunity within court referral frameworks and lower levels outside courts could provide disincentives to pre-litigation ADR). 236

Issues have also been raised for those who view the development of court led ADR and in particular judicial dispute resolution from a perspective of the broader dispute resolution system that sits outside the litigation system. ADR practitioners include many non-lawyers in a vast array of occupations. In addition, some commentators have cautioned that locating ADR within the court and litigation system could have a detrimental impact on ADR 237 and raise concerns that lawyers could “capture” ADR by forcing it to fit within the litigation culture. Attempts to regulate and formalise ADR processes can be perceived in this way. These issues are discussed further in Chapters 11 and 12.

Judicial involvement in ADR [8.105] Views about the relationship between ADR and the judicial role and judicial practice have also evolved in recent years. Much discussion has focused on perspectives that are similar to those raised in respect of the role of courts. However, views have also focused on the nature of the judicial function and the constitutional impediments that may prevent a judge from undertaking an ADR process. 238 Many Australian judges appear to draw a distinction between acceptable pre-trial judicial activism, which facilitates negotiation by ensuring that the issues are clear and that all the evidence is on the table, and activism where the judge expresses opinions about the merits of the case before those merits have been adequately canvassed. 239 This key issue in debates about active judicial management suggests there are limits on the extent to which judges can work towards settlement before trial. To some extent, this debate has been overtaken by the developments in the Family Court of Australia (referred to above at 236 237

238 239

T Sourdin, “The Role of the Courts in the New Justice System” (2015) Yearbook on Arbitration and Mediation, Penn State Dickinson School of Law (forthcoming). J Stempel, “Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood?” (1996) 11(2) Ohio State Journal on Dispute Resolution 310; referring to C Menkel-Meadow, “Narrowing the Gap by Narrowing the Field: What’s Missing from the MacCrate Report – Of Skills, Legal Science and Being a Human Being” (1994) 69 Washington Law Review 593, 604. See, for example, T Sourdin, “Five Reasons Why Judges Should Conduct Settlement Conferences” (2011) 37(1) Monash University Law Review 5. A DeGaris “The Role of Federal Court Judges in the Settlement of Disputes” (1994) 13 University of Tasmania Law Review 217. [8.105] 335

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[8.70]) as well as the Supreme and County Courts of Victoria where associate judges act as mediators and judges may conduct settlement conferences that can resemble mediation (see [8.35] above). Judicial activism in the settlement process appears to be more acceptable in the United States than in Australia. 240 It is not considered so radically separate from adjudication but as part of the same process. Litigation and negotiation are not viewed as distinct but as continuous processes. 241 It has been said that: Most American judges participate to some extent in the settlement of some cases before them. Indeed, this has become a respectable, even esteemed, feature of judicial work. 242

In the United States, it has been noted that there is an increasing pressure upon courts and judges to do “more” to resolve cases and to actively pursue settlement. 243 Some commentators have suggested that litigation has been transformed so that “… ‘the trial’ has ceased to be the centrepiece of litigation”. 244 In Canada, 245 judges are actively engaged in judicial dispute resolution (JDR), which draws upon mediation skills and processes. Alexander 246 has suggested that civil law countries are more likely to enable the judicial and mediator role to be blended and combined, and this may reflect recent developments in inquisitorial processes. It may be that maintaining a rigid distinction in Australia between negotiation and litigation processes is counter-productive in that it presents a barrier to the adoption of more flexible and facilitative processes in litigation. However, active promotion of settlement by judges is perceived to be fraught with danger, including the risk that parties are pressured to settle by judges who have formed an impression of the case based on incomplete evidence. One view is that public confidence in the integrity and impartiality of the courts may be reduced by judicial involvement in settlement discussions, particularly if parties are permitted to meet with the judge separately (see discussion below at [8.110]), 247 a procedure that may occur in United States courts and in other countries. 248

240 241

S Landsman, American Bar Association Section of Litigation – Readings on Adversarial Justice: The American Approach to Adjudication (West Publishing Co, St Paul, 1988) p 23. A Rogers, “Judges in Search of Justice” (1987) 10 University of New South Wales Law Journal 93, 104.

242 243

M Galanter, “The Emergence of the Judge as a Mediator in Civil Cases” (1996) 69 Judicature 5, 257. J Resnik “Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century” (1994) 41 UCLA Law Review 1471.

244

246 247

C Glasser and S Roberts, “Dispute Resolution: Civil Justice and its Alternatives” (1993) 3 The Modern Law Review 277. The Hon HF Landerkin QC and A Pirie, “What’s the Issue? Judicial Dispute Resolution in Canada” (2004) 22(1) Law in Context 25. N Alexander, “Mediation on Trial: Ten Verdicts on Court-Related ADR” (2004) 22(1) Law in Context 8. L Street, “The Courts and Mediation – A Warning” (1991) 2 Australian Dispute Resolution Journal 203.

248

For example, Japan.

245

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Judges as mediators [8.110] Often the issues relating to the relationship between ADR and the litigation system are framed by the question: “Should judges mediate?” 249 There has been some discomfort within Australia about the notion of judges acting as mediators and discussion has often focused on this issue although in many overseas jurisdictions 250 this approach is common 251. This discomfort may not arise when judges adopt a “facilitative role”, which is where no private sessions 252 take place with litigants or their advisers. There is, however, little recognition of the considerable flexibility and diversity that currently occurs in terms of judicial practice. The discomfort with judges adopting a role as a mediator has arisen in response to a number of concerns. First, there is reluctance by some judges in some jurisdictions to mediate or even consider that mediation is part of an appropriate judicial function. This concern is reflected in a narrower view of the objectives of judicial processes: as essentially creating, explaining and applying the law. However, this perspective is not uniform or fully articulated. For example, the Hon James Spigelman AC QC, formerly Chief Justice of the Supreme Court of New South Wales, stated in 2010 that he did not “favour judicial mediation”, and that while “some courts in Australia have judges mediating [we] don’t … we draw the line at registrars and that works very well for us”. 253 This approach would appear to be consistent with some other jurisdictions within Australia. However, in contrast, in the federal jurisdictions, judges and tribunal members are more likely to act as mediators and there has been no policy direction to suggest that they should not. Indeed, the Chief Justices’ Council Declaration has stated that there are circumstances where it is appropriate for a judge to mediate. 254

249

See, for example, the Hon M Warren AC, Chief Justice of the Supreme Court of Victoria, Should Judges Be Mediators? (Paper presented at the Supreme and Federal Court Judges’ Conference, Canberra, 27 January 2010), available on http://www.supremecourt.vic.gov.au/home/contact+us/speeches/ speech+-+should+judges+be+mediators+(pdf); Justice B Debelle, Should Judges Act as Mediators (Paper presented at the Institute of Arbitrators and Mediators Australia Conference, Adelaide, 1–3 June 2007).

250

See T Sourdin and A Zariski, The Multi Tasking Judge (Thompson Reuters, 2013).

251

T Sourdin and A Zariski, “Judicial Dispute Resolution – A Global Approach” in Global Legal Issues Vol 3 (Korean Legislation Research Institute, Seoul, 2012).

252

For a detailed discussion see T Sourdin, “Why Judges Should Not Meet Privately With Parties In Mediation But Should Be Involved In Settlement Conference Work” (2014) 4(2) Journal of Arbitration and Mediation 91. C Merritt, “Mediation in NSW Supreme Court works: Spigelman”, The Australian, 1 October 2010, available on http://www.theaustralian.com.au/business/legal-affairs/mediation-in-nsw-supremecourt-works-spigelman/story-e6frg97x-1225932539482.

253

254

J Spigelman, “Mediation and the Court” (2001) 39 Law Society Journal 2. [8.110] 337

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In the Australian Federal Court and AAT, judges and members can and have acted as mediators. 255 In the Federal Court, judges have also acted as evaluators. Registrars have largely conducted the mediations under the Federal Court program, although judges have also conducted mediation conferences. 256 In the AAT, only members have conducted mediations. Where judges or members conduct mediation, they generally will have no further involvement in the dispute should the matter fail to resolve (see “Natural justice and bias” below at [8.125]). In contrast, in some other jurisdictions, such as New Zealand (where judges have commonly mediated disputes), a different approach has emerged. For example, the legislation governing the ADR program in the Environment Court of New Zealand provides that commissioners who act as mediators may continue to act as a commissioner provided the parties and the member agree that it is appropriate for the member to do so. 257 In other jurisdictions such as Canada, forms of judicial mediation or JDR are well accepted in some local jurisdictions. In these jurisdictions, judges chair processes that may resemble mediation and do not go on to hear those disputes. Second, in the United States, the discomfort with the combining of judicial and mediator functions has arisen in response to the style of mediation adopted by some judges. “‘Muscle’, ‘rhino’ or ‘Rambo’ mediation styles that involve a judge ‘… seeking to extract settlement offers that mirror the judge’s analytical perception of the dispute’” 258 sit uncomfortably with facilitative and other models of mediation that are focused upon party self-determination and empowerment. These concerns may be linked to other variations in the judicial role. For example, some judges may use “settlement techniques”, which may range from assertive “arm twisting” to gentle suggestions from the bench. Other judges may incorporate facilitative processes as part of a hearing process – for example, concurrent evidence approaches may utilise an expert conclave that may or may not be “chaired” by a judge. 259 Where judges conduct or integrate ADR processes into hearing processes, the issues raised may be different from issues that relate to registrars and other court staff conducting such processes within courts. It has been suggested that disputants regard the involvement of such persons in a different manner and that their independence and neutrality has an impact on the perceptions that are 255 256

257 258 259

Other examples have occurred in the Australian State court system. The Industrial Relations Act 1996 (NSW) provides for a member of the Commission, a judge, to conduct the mediation. MEJ Black, “The Courts Tribunals and ADR” (1996) 7 Australian Dispute Resolution Journal 138. His Honour has noted that 97 per cent of mediations conducted within the court have been conducted by registrars. Resource Management Act 1991 (NZ), s 268. E Brunet, “Symposium: Perspectives on Dispute Resolution in the Twenty-First Century: Judicial Mediation and Signalling” (2003) 3 Nevada Law Journal 232, 234. G Downes et al, Concurrent Expert Evidence in the Administrative Appeals Tribunal (Paper presented at AAT National Conference, Tasmania, 2003).

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formed of the process. 260 Certainly, as Spigelman CJ (as he then was) noted that in the Supreme Court of New South Wales, “no judicial officer descends into the arena in the way feared by Sir Laurence [Street]”. 261 Meeting privately with the parties [8.115] In terms of judicial mediation, it may be that what causes most concern is any suggestion that a judge meet privately with a party in dispute. Key concerns regarding private meetings include that these may result in altering the relationship between the judge and a particular party to the dispute (perhaps raising concerns about over-familiarity), judicial impartiality (where a judge meets a party in private in the absence of another party), fairness of judicial mediation outcomes (which may be affected by judicial input or approval as well as untested communications) and the transparency of mediated proceedings given that transparency is a fundamental value in the context of judicial determinations. 262 In this regard, it may be that settlement conferences that involve all parties (and where no “private” session takes place – as in mediation) do not raise such concerns. 263 Sir Laurence Street has stated: I reiterate my acknowledgment of the usefulness of the conventional settlement or pre-trial conference conducted in open court in the presence throughout of both parties. This stands on a different footing. It does not infringe basic principles nor does it involve the grave threats inherent in a court mediation. 264

The notion of judges acting as “evaluators” or chairing conventional settlement or conciliation conferences may therefore be acceptable to those who consider that mediation is inconsistent with the judicial role. Indeed, the author has stated that: The evolving nature of the relationship between courts and [ADR] and more specifically the nature of the judicial function and its relationship with ADR, suggests that judges should logically be involved in judicial settlement conferences which do not have the problematic features of mediation. 265

The early and frank appraisal by a judge can assist to prompt settlement in some disputes. It has been suggested that this may be desirable in some kinds of 260 261

See T Sourdin and N Alexander, “Developments in ADR”, in D Fleming and AIJA (eds), Serving Democracy and its Publics (AIJA, Melbourne, 2013) pp 119-148, 142. J Spigelman, “Mediation and the Court” (2001) 39 Law Society Journal 2.

262

For a detailed discussion, see T Sourdin, “Why Judges Should Not Meet Privately With Parties In Mediation But Should Be Involved In Settlement Conference Work” (2014) 4(2) Journal of Arbitration and Mediation 91.

263

One of the primary features of judicial conferencing cf private mediation is said to be that judges do not hold a private meeting with parties or their representatives: T Sourdin, “Five Reasons Why Judges Should Conduct Settlement Conferences” (2011) Vol 37(1) Monash University Law Review 5.

264 265

L Street, “The Courts and Mediation – A Warning” (1991) 2 Australian Dispute Resolution Journal 203. T Sourdin, Why Judges Should Not Meet Privately With Parties In Mediation But Should Be Involved In Settlement Conference Work (Paper presented at International Conference on Negotiation, Paris, 23 March 2014) pp 108 and for a detailed discussion see T Sourdin, “Why Judges Should Not Meet Privately With Parties In Mediation But Should Be Involved In Settlement Conference Work” (2014) 4(2) Journal of Arbitration and Mediation 91. [8.115] 339

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matters provided that the judge or member has no further contact with the dispute and that certain standards are observed. 266 A trial of alternative judging practices that involves a form of judicial conferencing is being undertaken in the Family Court in Parramatta, Sydney, and is linked to the establishment of “problem-solving courts” (referred to in [6.140] and [8.35]). The judicial function – constitutional impediments [8.120] Other commentators have also focused on the constitutional impediments to judges operating as mediators. 267 Such arguments have focused on the nature of mediation and the constraints on judges that arise as a result of Ch III of the Australian Constitution. Essentially, it is said that the “incompatibility principle” or condition may arise “in the performance of non-judicial functions of such a nature that the capacity of a judge to perform his or her judicial functions with integrity is compromised or impaired”. 268 In exploring the constitutional impediment argument in relation to judicial mediation, Moore J has concluded that “[a]t the heart of the judicial function is the resolution of disputes or controversies”. 269 Justice Moore has also noted that: existing authority points to the procedural requirements deriving from Chapter III attending only to the exercise of judicial power not any other function a judge may perform.

In any event, a consideration of the incompatibility doctrine requires a consideration of the underlying purpose, which is to ensure that the fundamentals of separation of powers are not undermined. 270 Justice Moore suggests that one has to consider the constitutional purpose of Ch III as well as the objectives of the court system in examining these issues. He concludes this examination indicates that the judicial role may not be undermined by judges acting as mediators. However, it is fair to say that there is no consensus on the issue of whether the judicial role can or should include the role of “mediator” within Australia. Strong views have been articulated; however, they have been overtaken by practice, particularly in tribunals where members may be more likely to use facilitative techniques or in courts where judges may blend facilitative and adjudicative functions. On this issue, NADRAC had recommended that “judges 266

267 268 269 270

M Moore, “Judges as Mediators: A Chapter III Prohibition or Accommodation?” (2003) 14 Australian Dispute Resolution Journal 188, 190, available on http://www.austlii.edu.au/au/journals/FedJSchol/ 2003/6.html. See P Tucker “Judges as Mediators: A Chapter III Prohibition?” (1991) 11 Australian Dispute Resolution Journal 84. M Moore, “Judges as Mediators: A Chapter III Prohibition or Accommodation?” (2003) 14 Australian Dispute Resolution Journal 188, 190. M Moore, “Judges as Mediators: A Chapter III Prohibition or Accommodation?” (2003) 14 Australian Dispute Resolution Journal 188 at 191. M Moore, “Judges as Mediators: A Chapter III Prohibition or Accommodation?” (2003) 14 Australian Dispute Resolution Journal 188, 195.

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should not mediate”. 271 However, NADRAC had also suggested that judges should adopt a facilitative role in disputes and supports the notion that “ADR processes other than mediation may be acceptable forms of judicial dispute resolution”. 272 Natural justice and bias [8.125] Where judges do act as mediators (in most jurisdictions where this takes place) they are unlikely to proceed to “hear” the case or a related dispute. However, even with this limitation, concerns about the judicial role and whether it can include mediation are often expressed. An exploration of cases concerning bias and natural justice and the role of judges in mediation suggests that these concerns are unfounded. What constitutes bias? The situation appears clear where adjudicatory processes take place. In court proceedings in Australia, judicial comments before or during the trial about the credit of witnesses will often raise an inference of bias, 273 as will excessive intervention in the parties’ conduct of the litigation. 274 Decisions about bias may mean that judges and arbitrators are reluctant to “enter into the fray” and intervene to prevent proceedings from continuing for too long or prevent a party pursuing a topic that is clearly irrelevant. However, the Australian High Court has made it clear that the bias rule should not prevent appropriate levels of intervention from occurring: It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated. 275

Similarly, Kirby P, then President of the New South Wales Court of Appeal, indicated that contemporary civil litigation requires greater judicial intervention and that this should not be seen as opening judges to accusations of bias: It has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists … In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party then affected has no opportunity to 271

272

273 274 275

NADRAC, The Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (Report, 2009) Recommendation 7.2, p 111, available on http://www.ag.gov.au/LegalSystem/ AlternateDisputeResolution/Documents/NADRAC%20Publications/the-resolve-to-resolve-embracingadr-improve-access-to-justice-september2009.pdf. NADRAC, The Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (Report, 2009) Recommendation 7.2, p 111, available on http://www.ag.gov.au/LegalSystem/ AlternateDisputeResolution/Documents/NADRAC%20Publications/the-resolve-to-resolve-embracingadr-improve-access-to-justice-september2009.pdf. R v Watson; Ex parte Armstrong (1976) 136 CLR 248. Jones v National Coal Board [1957] 2 QB 55; Tousek v Bernat (1959) 61 SR (NSW) 203; see also A Rogers “The Managerial or Interventionist Judge” (1993) 3 Journal of Judicial Administration 96. Vakauta v Kelly (1989) 167 CLR 568 at 571. [8.125] 341

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correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of injustices that can sometimes occur from undue delay or unnecessary prolongation of trials … The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements. 276

This relaxation in the bias rule has occurred as judges have increased their levels of participation in civil trials. Other forms of intervention, such as calling or questioning witnesses by the judge, are also recognised in some jurisdictions as acceptable practices to ensure just outcomes and to expedite trials. 277 Issues associated with a judge mediating a matter and then proceeding to hear that matter or a related dispute were specifically considered in the Duke Group Ltd (in liq) v Alamain Investments Ltd 278 decision by Justice Debelle, in relation to a successful application to disqualify himself from hearing a matter. The application related to a mediation conducted nine years prior to the court hearing that involved the same plaintiff and which might involve similar issues in relation to fiduciary duties. His Honour had, “… no memory of the details”. However, His Honour disqualified himself on the basis that: A reasonable bystander might apprehend that, in the course of meeting the directors separately, I might have received information which would cause me to have a view about the merits of the claim against the directors which might affect the exercise of my discretion … 279

In considering issues relating to bias, Debelle J noted that: When a judge acts as a mediator, the judge sheds, as it were, the judicial mantle for the duration of the mediation and acts in a manner inconsistent with the role of a judge by seeing the parties in private. In doing so, the judge acts in a manner contrary to the fundamental principle of natural justice that a judge must not hear representations from one party in the absence of the other. It is for that reason that the judge will not in any respect adjudicate in that action except with the consent of the parties. It is for that reason that r 56A.05 of the Supreme Court Rules provided: 56A.05 A judicial officer who has presided over a mediation in an action shall, ipso facto, be disqualified from thereafter hearing or determining the action or any issue arising in the course thereof which is directed to be tried separately. The principle is based upon the need for public confidence in the administration of justice. The judge is disqualified because a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson (2000) 201 CLR 488 at [12]; Ebner v Official Trustee in Bankruptcy (2000) 205

276 277

Galea v Galea (1990) 19 NSWLR 263 at 281–282. See D Ipp “Judicial Intervention in the Trial Process” (1995) 69 Australian Law Journal 365, 371–372; G Davies and S Sheldon “Some Proposed Changes in Civil Procedure: Their Practical Benefits and Ethical Rationale” (1993) 3 Journal of Judicial Administration 111.

278 279

Duke Group Ltd (in liq) v Alamain Investments Ltd [2003] SASC 272. Duke Group Ltd (in liq) v Alamain Investments Ltd [2003] SASC 272 at [28].

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CLR 337 at [33]. The fair-minded observer might apprehend that the judge has been told something by one party in the absence of the other and that information may affect his reasoning. 280

Justice Debelle also made some instructive comments about his perception of the role and integrity of the court: In the result, I believe that what is at stake is the integrity of the court engaging in two forms of dispute resolution and the public interest in upholding the integrity of the court and public confidence in the court. It is necessary to uphold public confidence in the integrity of the mediation process. It is equally important to uphold the public confidence in the integrity of the process of adjudication by the court. It is important that nothing should occur which would suggest any breach of the obligation of confidence attaching to a mediation. Those who engage in mediation should be entirely confident that in no respect will anything said in confidence be revealed. Secondly, the public should have confidence in its judges knowing that, when they adjudicate issues, they are not influenced by anything which might have occurred in a mediation. 281

Another concern from the profession appears to be that a mediator judge may reveal information to another judge (who is adjudicating) that was obtained in a private session. This concern is somewhat surprising given that the same issue does not arise where judges excuse themselves from hearing a case on the basis of actual or perceived bias. Under those circumstances, it has not been suggested that confidential information could pass between judges. Clearly, in relation to judicial conferencing, the absence of a private meeting with one party addresses these concerns. It is the notion of a private meeting with a judge that most offends various commentators. 282 However, in respect of the separate issue of confidential information, the Chief Justice of the Supreme Court of Victoria has noted that the process: …does not involve judges behaving in exactly the same way as a private mediator from the profession or the Bar. Judges cannot caucus or confer with individual parties on a separate or private basis – mediators ordinarily do that. For a judge it would jeopardise the independence and dignity of the judicial office. We know of litigation and threats of litigation against private mediators for allegations of negligence, bias, dishonesty and the like. It is essential that in an effort to alleviate pressures on court workloads we do not see the confidence of the community in the courts undermined. 283

280 281

Duke Group Ltd (in liq) v Alamain Investments Ltd [2003] SASC 272 at [23]. Duke Group Ltd (in liq) v Alamain Investments Ltd [2003] SASC 272 at [29].

282

The Hon M Warren AC, Chief Justice of the Supreme Court of Victoria, Should Judges Be Mediators? (Paper presented at the Supreme and Federal Court Judges’’ Conference, Canberra, 27 January 2010) p 17, available on http://www.supremecourt.vic.gov.au/home/contact+us/speeches/speech++should+judges+be+mediators+(pdf).

283

Chief Justice of the Supreme Court of Victoria, the Hon M Warren AC, ADR and a Different Approach to Litigation (Speech presented at the Law Institute of Victoria Serving up Insights Series, Melbourne, 18 March 2009), available on http://www.austlii.edu.au/au/journals/VicJSchol/2009/25.pdf. [8.125] 343

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Do judges make good mediators? [8.130] There is a final concern that has been expressed in relation to the concept of judicial mediation. 284 This concern is essentially related to whether a judicial officer has the “right” temperament and adequate skills to undertake a non-advisory process. The prevalence of mandatory ADR in Australia means that judicial officers who undertake this work must have high level facilitative skills as well as an appropriate temperament, as, in many cases, participants may not be able to “opt out” and may also have more limited opportunities to withdraw from an ADR process. In essence, there is an ongoing concern that any judge will revert to an advisory role and will do so regardless of stated process objectives. 285 Given that widespread active case management is a relatively recent phenomenon, most judicial officers have spent a significant portion of their career working within the context of an adversarial trial process. As such, they may be unlikely to have extensive experience in facilitative processes or well-developed skills in this area. Harvard Professor Frank Sander, when interviewed on this topic, noted that “there were significant issues about whether a judge could mediate and immediately be ‘competent [as a] mediator.. without further training …’”. 286 He added that: True mediation – and I don’t mean settlement activity by judges – is a complex process that requires very different qualities from judging because you’re looking for an accommodative resolution …You’re not assessing fault; you’re trying to find a mutually acceptable resolution … you should almost assume that a judge wouldn’t be good, though there are clear exceptions to that … Mediation is a future-oriented process, and court and litigation are past-oriented processes. 287

This is doubtless a matter that will continue to be the subject of debate. The debate also appears more heated when the issue involves retired judges and where there are concerns that mediation work that can be conducted by the broader legal profession is reserved for “private judges”. 288 With current sitting judges, however, the topic is worthwhile, particularly in the context of future judicial appointments. If judges are to be engaged in such work, should 284 285 286

287

288

See T Sourdin, “Using Alternative Dispute Resolution to Save Time” (2014) 33 The Arbitrator & Mediator 61. See, for example, S Burns, “Think Your Blackest Thoughts and Darken Them: Judicial Mediation of Large Money Damage Disputes” (2001) 24 (3) Journal of Human Studies at 227. See D Levin, Mediation Channel, You be the Judge: Do Retiring Judges Make the Best Neutrals?, available on http://mediationchannel.com/2008/03/06/you-be-the-judge-do-retiring-justices-make-the-bestneutrals/, referring to N Schaffer, “Rush to Judgment: Retiring Judges Have Always Flocked to ADR. But Do They Make the Best Neutrals?”, Massachusetts Lawyer’s Weekly (3 March 2008). See D Levin, You be the Judge: Do Retiring Judges Make the Best Neutrals?, available on http:// www.mediationchannel.com/2008/03/06/you-be-the-judge-do-retiring-justices-make-the-bestneutrals, referring to N Schaffer, “Rush to Judgment: Retiring Judges Have Always Flocked to ADR. But Do They Make the Best Neutrals?”, Massachusetts Lawyer’s Weekly (3 March 2008). T Sourdin, Why Judges Should Not Meet Privately With Parties In Mediation But Should Be Involved In Settlement Conference Work (Paper presented at International Conference on Negotiation, Paris, 23 March 2014) p 108.

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appointment criteria reflect a broader skills base? There are significant issues about whether a person with strong skills in decision-making may also have a high tolerance for ambiguity (a requirement in facilitative not directive processes). Members in tribunals may frequently be involved in ADR processes that are grafted onto existing practices (for example, in the NNTT and mediation in the AAT) and may be involved in conferences that are related to case management programs. Registrars may be involved in mediations, 289 conciliations, case conferences and hearings. This is often the case in State courts (for example, in Western Australia) and in the Federal Court where registrars conduct most mediations. In the Family Court of Australia and the AAT, registrars may also conduct conciliation conferences that may resemble forms of “advisory” facilitation. Conferences in which court officers act in a “facilitative” rather than adjudicative manner contribute to case management, as well as to settlement, by encouraging the parties to better define the issues that require resolution. At times, these ADR functions have been said to be inconsistent with the duties of these court officers. Issues about bias have also be raised. In Ruffles v Chilman, 290 an application was made for the trial judge to disqualify himself on “the basis that the plaintiff was of the opinion that because of comments made by the Deputy Registrar (following an unsuccessful mediation), the trial judge had already judged the case”. 291 In this regard, it is clear that judges who conduct judicial conferences that are not held in open court must be trained in, and alert to, the obligations and ethical issues that can arise in judicial conferencing.

Mandatory ADR [8.135] All States in Australia now have provision for some mandatory referral of proceedings to ADR processes within courts and tribunals (many jurisdictions also provide for various pre-litigation mandatory ADR referral – see Chapter 11). In most instances, this power has been present for some years and is not controversial. 292 In New Zealand, by contrast, there is little mandatory referral within courts. In some schemes and jurisdictions, the issue of mandatory referral only raises concerns where facilitative ADR processes such as mediation are concerned. Within courts and tribunals, some ADR users and commentators define mediation by a voluntary entry into the process. 293 Others support mandatory 289 290

As is the case in the Federal Court of Australia and various State courts. Ruffles v Chilman (unreported, Western Australian Supreme Court, Full Court, 19 May 1997).

291

D Spencer, “Case Note” (1997) 8(4) Australian Dispute Resolution Journal 308.

292

In 1998, the Australian Law Reform Commission (ALRC) noted that the power was not mandatory in a number of areas. However, since that time, most areas have introduced provisions that allow for mandatory referral (see specific sections in this chapter). See ALRC, Review of the Adversarial System of Litigation: ADR – Its Role in Federal Dispute Resolution, Issues Paper 25 (Paper, 1998).

293

See New South Wales Law Society, 1993 Guidelines. [8.135] 345

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entry and do not consider that this has an adverse impact on the process. 294 Some models for referral are based on judicial or quasi-judicial persuasion 295 or attendance at a mandatory ADR or mediation orientation session. There are numerous legislative examples of such referral programs, for example, the scheme that operates in the Family Court of Australia. 296 Where non-mandatory programs operate, other “incentives” to use ADR may operate, for example, a judge may “forcefully recommend” that parties mediate a dispute. Mandatory referral objections arise in three areas linked to: 1.

concerns about the possible adverse impact that mandatory referral practices may have upon the process; 297

2. 3.

questions about how the process should be funded; and concerns relating to the choice of ADR practitioner, which is also linked to training and accreditation issues.

Several cases have considered mandatory referral programs. In Idoport Pty Ltd v National Australia Bank Ltd, 298 Einstein J referred to amendments that allowed for the referral of matters to mediation without consent and noted: The amendments raised some debate surrounding the appropriateness of mandatory mediation. Some view this notion as a contradiction in terms, opposing the culture of ADR, which generally encompasses a voluntary, consensual process. It is important to note however, that while parties may be compelled to attend mediation sessions, they are not forced to settle and may continue with litigation without penalty. Furthermore, Part 7B requires that referrals follow a screening process by the Court, and that mediation sessions are conducted by qualified and experienced mediators. 299

His Honour referred to the comments of the Chief Justice and said: No doubt it is true to say that at least some people, perhaps many people, compelled to mediate will not approach the process in a frame of mind likely to lead to a successful mediation. There is, however, a substantial body of opinion albeit not unanimous that some persons who do not agree to mediate, or who express a reluctance to do so, nevertheless participate in the process often leading to a successful resolution of the dispute. I am advised that in Victoria no difference in success rates or user satisfaction between compulsory and non-compulsory mediation has been noted. Not all research or anecdotal evidence is to this effect. 294 295

Law Council of Australia, “Mediation Plan Endorsed” (1995) 30(5) Australian Lawyer 15. MEJ Black, “The Courts, Tribunals and ADR” (1996) 7 Australian Dispute Resolution Journal 138, 142.

296

See Family Law Rules 2004 (Cth), r 1.05 and Sch 1, whereby every “prospective party to a case in the Family Court of Australia is required to make a genuine effort to resolve the dispute before starting a case by: (a) participating in dispute resolution, such as negotiation, conciliation, arbitration and counselling; …”.

297 298

For example, R Ingleby, “Compulsion is Not the Answer” (1992) 27(4) Australian Law News 17. Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 427.

299

Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 427 at [24], and referring to T Altobelli, “NSW Supreme Court Makes Mediation Mandatory” (2000) 3(3) ADR Bulletin 43.

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It appears that, perhaps as a matter of tactics, neither the parties nor their legal representatives in a hard-fought dispute are willing to suggest mediation or even to indicate that they are prepared to contemplate it. No doubt this could be seen as a sign of weakness. Nevertheless, the parties are content to take part in the mediation conference if directed to do so by a judge. There is a category of disputants who are reluctant starters, but who become willing participants. It is to that category that the new power is directed. 300

In Browning v Crowley, 301 Bryson J described the benefits of compulsory mediation as follows: A number of factors have suggested to me that the court ought to decide in favour of compulsory mediation. One group of factors relates to the complexity of the issues, the amount of costs likely to be incurred, the amount of time of the court (at the expense of the public) which is likely to be engaged, the burden of costs and also the burden of personal attendances on the parties associated with the contemplated hearing. While the expense of a mediation cannot be disregarded, and there is a clear prospect that it may be incurred without result, it is relatively small in relation to what the parties are likely to be embarking on if the case goes to hearing. Experience favours mediation in cases arising out of long-standing personal relationships as this plainly is, however the relationship ought to be classified. Even in cases where, as in this case, there is a large gulf between the parties’ positions, which are clearly defined in a way which does not seem to allow for compromise, experienced [sic] teaches that mediations have in a recognisably significant number of cases produced results with which the parties are prepared to agree. I have a general view that there is a public interest in relatively peaceable resolution of conflicts. 302

Justice Campbell, also of the New South Wales Supreme Court, in Lidoframe Pty Ltd v New South Wales 303 said that although the Crown thought that the parties were too far apart for mediation to be likely to be of any use and that the nature of the issues were unsuitable for mediation, compulsory referral of the dispute to mediation was appropriate. In this respect, His Honour noted: The experience of the Court … has been that compulsory mediation can be a useful tool for the resolution of disputes, even disputes that at first sight look intractable. Thus, there have been orders for mediation even when one of the parties is opposed to mediation: Remuneration Planning Corporation Pty Limited v Fitton; Fitton v Costello [2001] NSWSC 1208; Higgins v Higgins [2002] NSWSC 455; Singh v Singh [2002] NSWSC 852. There have also been orders for a second mediation, when a first mediation has failed, but there has been a material change in the circumstances: Unconventional Conventions Pty Ltd v Accent Oz Pty Ltd [2004] NSWSC 1050. Even if parties have genuinely tried to resolve a dispute by negotiation between solicitors, and failed, that does not mean that the different dispute-resolution process involved in mediation is unlikely to succeed. 304 300

Browning v Crowley [2001] NSWSC 427 at [40].

301 302

Lidoframe Pty Ltd v New South Wales [2004] NSWSC 128. Lidoframe Pty Ltd v New South Wales [2004] NSWSC 128 at [5].

303 304

Lidoframe Pty Ltd v New South Wales [2006] NSWSC 1262. Lidoframe Pty Ltd v New South Wales [2006] NSWSC 1262 at [7]. [8.135] 347

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In Cains & Anor v Wadiwel & Ors, 305 Gzell J also said that, under s 26(1) of the Civil Procedure Act 2005 (NSW), the dispute could be referred to mediation, despite the objection of a party to that course. His Honour referred the proceeding to mediation on the basis that “even if the matter cannot be finally resolved, [by mediation] there is a prospect that some of the issues may be confined by a person with expertise in dealing with rival contentions by parties”. 306 In the Federal Court in Western Australia, Nicholson J considered the operation of the mandatory power where a party was intellectually disabled. In ACCC v Lux Pty Ltd, 307 His Honour referred to the disability and stated: In my opinion there is no evidence here that this factor would disfavour the continuance of the order for mediation. In appropriate circumstances mediation may avoid a complainant with an intellectual disability being called as a witness and consequently have the potential to reduce the pressure of court proceedings on that complainant. 308

His Honour also considered the role of the Federal Government as a “model litigant”, and noted that this may mean that the government should pursue settlement avenues that could be provided by ADR processes. 309 (These issues are discussed further in Chapter 11.)

CONCLUSIONS [8.140] Growth in the use of ADR in courts and tribunals in Australia has undoubtedly been driven, at least in part, by the judiciary, who are often keen supporters of ADR processes. Although there has been no recent research into judicial attitudes towards ADR processes, a 1994 survey into the attitudes of Federal Court judges provided some valuable information. 310 The results showed that most of the judges believed settlement before trial was preferable to going to trial. The judges generally considered that it was appropriate for them to encourage parties to settle the dispute before trial or to advise them to seriously consider alternative means of dispute resolution. However, the judges did not view themselves as having a role in the actual process of settlement. The changes to the litigation system that involve the use of ADR processes will provide challenges to many ADR practitioners, lawyers, judges, administrators and parties. One of those challenges concerns accessibility 305

Cains and Anor v Wadiwel and Ors [2007] NSWSC 207.

306 307

Cains and Anor v Wadiwel and Ors [2007] NSWSC 207 at [7]. ACCC v Lux Pty Ltd [2001] FCA 600. His Honour considered a range of matters in deciding not to discharge an order for mediation.

308 309

ACCC v Lux Pty Ltd [2001] FCA 600 at [13]. ACCC v Lux Pty Ltd [2001] FCA 600 at [23]. For a full discussion regarding these and other obligations see Chapter 11.

310

A DeGaris, “The Role of Federal Court Judges in the Settlement of Disputes” (1994) 13 University of Tasmania Law Review 217.

348 [8.140]

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(namely how those processes can be used by all sectors of the community) as well as the funding implications, which highlight the tensions between privately and publicly funded processes. Other challenges could be described as “cultural”. It has been suggested that most lawyers are more comfortable with adjudicative and determinative processes, and are surprised to learn that their clients are often seeking or may be interested in facilitative and participatory processes to manage disputes and conflict. However, undoubtedly many, if not most, legal practitioners are already familiar with ADR processes. It has been estimated that more than half of the profession in New South Wales has received some form of basic training in ADR processes. Many practitioners are already familiar with pre-litigation processes and use those processes frequently as part of their existing practice. The primary concerns of those within the litigation system, and courts and tribunals themselves, appear to relate to: • what matters are referred to ADR; • how and when referral takes place (Chapter 15 explores the timing of ADR interventions); • how a practitioner is chosen; and • how payment occurs. Many of these questions and concerns can only be addressed within continuing evaluation and research. However, it has been the experience of all Australian jurisdictions that have implemented mandatory referral procedures that these concerns can be managed in individual and creative ways. For example, the Supreme Court of New South Wales in its mediation Practice Note 311 initially attempted to address some of these concerns by introducing an information session procedure that may enable more sensitive and diagnostic referral processes to operate. It may be that some issues can be further addressed by technological innovation (see Chapter 10) that can assist participants to better understand processes and assist them and their representatives with dispute resolution process options and choices. Other issues relate to the role of third-party practitioners, the confidentiality of communications, and the enforceability of agreements. (These issues are explained in Chapters 11 and 12.) To some extent, the issues within the court infrastructure are different from the issues raised where ADR occurs outside the court and tribunal system. These issues are further explored in Chapter 9.

311

Supreme Court of New South Wales, Practice Note No SC Gen 6 (Supreme Court – Mediation), available on http://www.lawlink.nsw.gov.au/practice_notes/nswsc_pc.nsf/516. [8.140] 349

Chapter 9 ADR outside the courts [9.05] [9.10]

[9.45]

[9.80]

Introduction..................................................................................................................... 351 ADR in the community ................................................................................................ 352 [9.15] Legal aid schemes ............................................................................ 356 [9.20] Children and young people ........................................................... 357 [9.25] Neighbourhood disputes ................................................................ 360 [9.30] Public policy disputes ..................................................................... 361 [9.35] Health care ........................................................................................ 362 [9.40] Insurers and injury dispute resolution arrangements ............... 364 ADR in the business sector .......................................................................................... 366 [9.50] Industry-based ADR ........................................................................ 371 [9.55] Business to business disputes ........................................................ 375 [9.60] Dispute resolution and government ............................................. 376 [9.65] Standards, codes and benchmarks ................................................ 378 Conclusion....................................................................................................................... 381

INTRODUCTION [9.05] In recent years, industry, government, private organisations and individuals have developed dispute resolution processes and systems to encourage the early and effective resolution of disputes outside the court and tribunal system. The Australian government, as noted in Chapter 1, includes these arrangements as part of the justice system. 1 The arrangements are sometimes referred to as the external dispute resolution (EDR) system and this system may have little, if anything, to do with courts or the court system. The arrangements incorporate ADR processes that support pre-action (or pre-filing) requirements and alternative industry, institutional and systemic arrangements. This systemic approach acknowledges that a court is not the first “port of call” for many people dealing with a dispute. 2 The EDR environment deals with many hundreds of thousands of disputes each year. 3 This chapter examines reforms in these areas and the growth in ADR-directed legislation, standards, benchmarks and mandatory process provisions that are directed at the range of EDR schemes, organisations and people involved in EDR. To some extent, the line between what ADR is “in court” or “out of court” has been blurred as many pre-litigation requirements have been introduced (see Chapters 8 and 11), and as noted in Chapter 8, some 1 2 3

See also T Sourdin, “A Broader View of Justice” in M Legg (ed), The Future of Dispute Resolution (Lexis Nexis Butterworths, Chatswood, 2013) pp 155–166. T Sourdin, “The Role of the Courts in the New Justice System” (2015) Yearbook on Arbitration and Mediation, Penn State Dickinson School of Law (forthcoming). T Sourdin, “Innovation and Alternative Dispute Resolution” (2013) 32 The Arbitrator and Mediator 111, 112. See also Chapter 1 at [5.05] and Chapter 5 at [1.60]. [9.05] 351

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courts have begun to change and adopt restorative and other ADR approaches that involve the court itself engaging with external services to provide more holistic approaches to conflict. In this way, they may focus not only on what has been commenced within courts but also disputes within the broader community. Some of these more innovative approaches are discussed in Chapter 13 and also in Chapter 11 where questions about what ADR services could usefully be situated within courts, or outside courts, are more fully explored. Chapter 11 also more specifically explores obligations to use ADR as a pre-condition to litigation (see [11.10]). 4 In the context of EDR, it is also important to note that many ADR processes and skills approaches are used not only in dispute resolution, but also increasingly as an adjunct to community, government and organisational decision-making. In this context, ADR is not only focused on dispute resolution or management. Rather, the processes are used to plan further action and assist in interest-based decision-making and planning. Such processes are seen as supporting better decision-making, particularly where options need to respond to a range of interests and where continuing relationships are concerned.

ADR IN THE COMMUNITY [9.10] The growth in ADR processes outside the mainstream litigation system in Australia has emerged in four main areas: the community, family, environmental and business sectors. Within the Australian community it is increasingly understood that disputes can be and are often finalised outside the court system and will not involve using a lawyer. 5 In the community sector, ADR has grown in response to the establishment of community justice centres (for example, Community Justice Centres in New South Wales; 6 Dispute Resolution Centres in Queensland; 7 the Dispute Settlement Centre in Victoria; 8 the Conflict Resolution Service in the Australian Capital Territory; and Community Mediation Services in South Australia, Western Australia and Tasmania), government and private funding of family-directed dispute resolution services, “grass roots” changes that have occurred in councils (in which mediation programs have been set up),

4

5 6

7

8

See also T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (Report, Australasian Institute of Judicial Administration (AIJA), 2013) available on http://www.civiljustice.info/ access/26/. T Sourdin, “International Dispatch: ADR Trends Down Under” (2014) 20 Dispute Resolution Magazine 30, 31. These centres pre-dated the legislation. See Community Justice Centres Act 1983 (NSW). For information, see NSW Department of Justice, Welcome to Community Justice Centres, available on http://www.lawlink.nsw.gov.au/cjc. See the Dispute Resolution Centres Act 1990 (Qld). See Queensland Government, Dispute Resolution, available on https://www.qld.gov.au/law/legal-mediation-and-justice-of-the-peace/setting-disputesout-of-court/dispute-resolution-centres/. See Dispute Settlement Centre of Victoria on http://www.disputes.vic.gov.au.

352 [9.10]

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schools where anti-bullying and peer mediation processes have been developed, and various other areas where ADR strategies are now being used. 9 The largely State government-funded bodies not only provide mediation services but may also provide advisory services. For example, the Dispute Settlement Centre of Victoria (DSCV) forms part of the Department of Justice and provides ADR services (mostly free of charge) that include: • telephone or face-to-face dispute resolution advisory and referral services (DRAS); • • • •

telephone-assisted settlements; mediation and facilitation services; education programs; training; and

• policy advice on alternative dispute resolution (ADR). 10 The DSCV can deal with civil matters including neighbourhood, workplace, household and planning disputes. It also has a program for mediating intervention order cases at the Magistrates’, Supreme and County Courts of Victoria, and more recently has set up regional referral points that link with local courts. 11 The number of organisations that provide support in the context of ADR is significant. For example, in 2001, the National Alternative Dispute Resolution Advisory Council (NADRAC) noted in 2001 that more than 114 organisations in Australia were involved in providing or formally referring parties to ADR services (this figure did not include sole practitioners). 12 In 2015, there were more than 38 bodies that could accredit mediators under the NMAS 13 and there are many other organisations that are active in the ADR area and which may not be involved in mediation accreditation. While many organisations may have limited engagement with courts, some community-based ADR is closely allied to the court and tribunal system (see Chapter 8) while other schemes are separate but allow for referral to or from a court. An example of a comprehensive scheme that falls between the two systems is the conciliation program that is operated by the Australian Human Rights Commission (HRC). The HRC is an independent, 9

10

11 12 13

For example, the growth in victim–offender conferencing schemes in specific areas, and schemes directed at assisting particular parts of the community, such as the Aboriginal Alternative Dispute Resolution Service in Western Australia. T Sourdin and N Balvin, Interim Evaluation of Dispute Settlement Centre Victoria Projects: The Neighbourhood Justice Centre Project – The Corio/Norlane Community Mediation Project, Report (Report, Department of Justice, 2008), available on http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1619109. See Dispute Settlement Centre of Victoria, Court-based Programs, available on http:// www.disputes.vic.gov.au/court-based-programs. National Alternative Dispute Resolution Advisory Council (NADRAC), A Framework for ADR Standards (Attorney-General’s Department, Canberra, 2001) p 24. See the Mediator Standards Board, RMAB Contact List, available on http://www.msb.org.au/ accreditation-bodies/rmab-contact-list. [9.10] 353

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government-funded national organisation that investigates and conciliates complaints of discrimination and human rights breaches. 14 The HRC does not act for either party to a complaint and is responsible for handling complaints under the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth), the Age Discrimination Act 2004 (Cth) and the Australian Human Rights Commission Act 1986 (Cth). ADR in the community sector is often specifically targeted at particular groups, such as young people or children. There are also overarching ADR approaches that are supported by a variety of government and non-government bodies. The non-government bodies include organisations that may have religious or other affiliations. Statistics relating to ADR conducted by conflict resolution services reported that in the Australian Capital Territory in 2013–2014, 127 mediation sessions were organised and resulted in 83.73 per cent written or verbal agreements. 15 In New South Wales during 2013–2014, community services conducted 1,512 mediation sessions (4,403 files were opened) with 79 per cent resulting in agreements. 16 Examples of organisations that undertake this work include UNIFAM and Relationships Australia. Other bodies include Anglicare, Lifeworks and Centacare, which offer a range of counselling and mediation services in some areas. These agencies are accredited by the Australian Government Attorney-General’s Department (AGD) to provide family and child family dispute resolution, counselling or mediation. Funding to these bodies has been undertaken by the Commonwealth Government since 1989 under the Family Law Services stream of the Family Support Program (FSP) (although some organisations may also receive State and local council funding). Increasingly, these bodies are expected to fund services through user pays arrangements. 17 The FSP is managed in partnership and jointly funded by the AGD and the Department of Social Services (DSS). DSS funds some community organisations to deliver early intervention services to couples and families to help them to build stronger family relationships. AGD funds community organisations to deliver post-separation services to couples and families contemplating separation and/or experiencing separation and divorce. An extensive evaluation of the 2006 reforms in the family area 18 (discussed below) found that these reforms had resulted in a significant increase in the use 14 15

See Australian Human Rights Commission, Annual Report 2012–13 (2013). Conflict Resolution Service, Annual Report 2013–2014 (2014) p 14.

16

Community Justice Centres New South Wales, About CJC, available on http://www.cjc.nsw.gov.au/cjc/ com_justice_aboutus.html; see also NADRAC, ADR Statistics: Published Statistics on Alternative Dispute Resolution in Australia (2003), available on http://www.ag.gov.au/LegalSystem/ AlternateDisputeResolution/Documents/NADRAC%20Publications/ADR%20Statistics.pdf.

17

See material at Department of Families, Housing, Community Services and Indigenous Affairs, Main Types of Family Services, available on http://www.fahcsia.gov.au (accessed 16 September 2011).

18

R Kaspiew, M Gray, R Weston, L Moloney, K Hand, L Qu and the Family Law Evaluation Team, Evaluation of the 2006 Family Law Reforms (Report, Australian Institute of Family Studies, 2009), available on https://aifs.gov.au/publications/evaluation-2006-family-law-reforms.

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of services, which had resulted in a decrease in matters filed in the Family Court of Australia and the Federal Magistrates Court: There was an increase in the number of clients for all [Family Relationship Services Program] services over the period 2006–07 to 2008–09. The number of: • [Family Relationship Centre (FRC)] clients increased from about 14,000 to 60,000; • [Family Dispute Resolution (FDR)] (including Regional Family Dispute Resolution (RFDR) clients) increased from about 14,500 to 22,500; • [Children’s Contact Services (CCS)] clients increased from about 11,000 to 23,500; • [Parenting Orders Program (POP)] clients increased from about 3,000 to 8,000; • [Specialised Family Violence Services (SFVS)] clients increased from about 3,500 to 7,000; • [Men and Family Relationships Services (MFRS)] clients increased from about 24,000 to 28,000; • counselling services clients increased from about 63,500 to 101,000; and • [Education and Skills Training (EDST)] clients increased from about 32,000 to 49,500. 19

In 2012, a further review and evaluation was undertaken 20 that suggested fairly similar levels of activity. The extensive revisions to the Family Law Rules 2004 (Cth) in 2006 to impose more onerous obligations on parties through the use of pre-action primary dispute resolution procedures contained in the Family Law Rules 2004 contributed to the increase in dispute resolution work in the family sector over the past decade. The rules required, among other things, that parties “make a genuine effort to resolve their disputes … by participating in dispute resolution, such as negotiation, conciliation, arbitration and counselling” (Sch 1, r 1.05). This change was accompanied by additional funding and information services. 21 The shift was also accompanied by a renewed focus on standards for mediators in the family law area. In 2004, comprehensive draft approval and practice standards were created for dispute resolution practitioners working in this area in an effort to support high quality ADR and referral processes. 22 As mentioned above, in 2006 the Federal Government introduced a more extensive series of changes to the family law system. These included changes to the Family Law Act 1975 (Cth) and increased funding for new and expanded family relationships services. The objective of the reforms was to bring about “generational change in family law” and a “cultural shift” in the management of separation “away from litigation and towards co-operative parenting”. 23 19

20

R Kaspiew, M Gray, R Weston, L Moloney, K Hand, L Qu and the Family Law Evaluation Team, Evaluation of the 2006 Family Law Reforms (Report, Australian Institute of Family Studies, 2009) at [3.2], available on https://aifs.gov.au/publications/evaluation-2006-family-law-reforms. See Allen Consulting and Australian Centre for Justice Innovation (ACJI), Research on Family Support Program Family Law Services (Allen Consulting Group, 2013), available on http://www.ag.gov.au/ Publications/Pages/ResearchOnFamilySupportProgramFamilyLawServices.aspx.

21 22

See Family Relationships Online, on http://www.familyrelationships.gov.au/. See T Sourdin, T Fisher and L Moloney, Towards Quality Standards for Family Dispute Practitioners: Research Report 2004 (Report, La Trobe University, 2004).

23

Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005, p 1. [9.10] 355

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Following this project, an extensive accreditation exercise was undertaken and, in 2008, the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) introduced a progressive series of mandatory accreditation requirements to be met by FDR practitioners, who are required to apply to the Commonwealth Attorney-General’s Department for accreditation approval (see Chapter 14). 24 The changes in the family dispute resolution area have led to the creation of a more comprehensive pre-litigation scheme that is oriented towards supporting families in terms of separation and family break-up. These initiatives have led to the establishment of more than 65 Family Relationship Centres around Australia. The centres conduct intake and assessment work, and provide advisory and referral services as well as family dispute resolutions services. There are approximately 900 registered practitioners who are part of this scheme. 25 As of 1 July 2007, with some limited exceptions, any disputants wishing to file an application in the Family Court must have attended some form of FDR. They must present a certificate from a FDR practitioner before they can file an application with the court. Apart from these extensive schemes, there have also been other substantive shifts in the way that family disputes are resolved. Collaborative practice is, for example, oriented towards resolution outside the litigation system (see Chapter 4). 26 Government bodies that are active in the community sector include community justice centres (noted above), as well as legal aid entities, ombudsman’s offices, family and community departments and services (such as Family Relationship Centres) or juvenile justice bodies. Other organisations, which include community legal centres, play an important role in assisting parties to negotiate disputes. Local government may also support communitybased dispute resolution processes. These can be particularly important in communities where a diverse cultural mix is present and miscommunication may be more likely to occur. Police can also foster and support community dispute resolution processes in particular areas. A number of schemes are directed at the particular areas discussed below.

Legal aid schemes [9.15] A variety of ADR programs are associated with legal aid services throughout Australia. These programs can be related to the grant of legal aid itself; that is, a legal aid applicant may not be entitled to legal aid unless the 24

See Commonwealth Attorney-General’s Department, Information for Family Dispute Resolution Practitioners, available on http://www.ag.gov.au/FamiliesAndMarriage/Families/ FamilyDisputeResolution/Pages/Foraccreditedfamilydisputeresolutionpractitioners.aspx.

25

See Family Relationships Online, Family Dispute Resolution Register, available on http:// fdrregister.familyrelationships.gov.au/Search.aspx (there may be some overlap of practitioners in the various States). See also T Sourdin, “Innovation and Alternative Dispute Resolution” (2013) 32 The Arbitrator and Mediator 111, 116.

26

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applicant has attended a conferencing program (see also Chapter 3 at [3.105] regarding conferencing more generally). Such programs can raise particular issues for ADR practitioners as they may require them to determine whether or not a party is being “reasonable” or is making a bona fide attempt to settle. 27 In some States, the processes used by legal aid are referred to as “round table” dispute management, 28 and there may be a focus on conferences in the context of FDR. 29 In New South Wales, information provided to those attending FDR conferences states that if agreement cannot be reached: A certificate will be issued to you and the other person/s. … Your dispute resolution practitioner will also make recommendations to Legal Aid NSW about whether legal aid should be continued. These recommendations are mainly based on the legal merits of your case, including whether it has a reasonable chance of success in court. 30

Children and young people [9.20] A number of ADR schemes are directed at children and young people. Many schools now use peer mediation programs that are a part of their overall communication strategy. 31 In some Australian States school students are involved in Schools Conflict Resolution and Mediation (SCRAM), 32 and other peer mediation programs 33 operate in many Australian schools. Children may also be exposed to ADR processes through their involvement in family and child mediation, juvenile justice conferencing, legal aid conferencing, and an increasing 27

28

See, for example, Legal Aid (WA), which, in determining whether an individual qualifies for legal aid, applies a means test, a type of matter test and a merit test: Legal Aid Western Australia, Applying for Legal Aid, available on http://www.legalaid.wa.gov.au/LegalAidServices/applyingforLegalAid/Pages/ Applyingfor.aspx. See also the Civil Law Legal Aid Scheme that operates in Legal Aid Queensland, where legal aid may be terminated if the chairperson and the solicitor providing the aid report state that “appropriate advice to accept settlement has been refused”, and the assisted person may be liable for professional fees and outlays: Legal Aid Queensland, Civil Law Legal Aid Scheme Guidelines p 9, available on http://www.legalaid.qld.gov.au/services/Documents/guidelines.pdf. In Victoria, see Victoria Legal Aid, Annual Report 2013–2014 (2014) p 23.

29 30

In New South Wales, see Legal Aid (NSW), Annual Report 2013–2014 (2014) p 17. Legal Aid (NSW), Family Dispute Resolution (FDR): Working Out What’s Best for My Children, available on http://www.legalaid.nsw.gov.au/__data/assets/pdf_file/0016/5416/FDR-Brochure.pdf.

31

In the United States, these programs have been shown to have a positive impact upon student skills development and have reduced the number of conflicts in schools: see D Johnson, R Johnson and B Dudley, “Effects of Peer Mediation Training on Elementary School Students” (1992) 10(1) Mediation Quarterly 89. Skills are also transferred to other settings, such as the home: see D Gentry and W Benenson, “School-age Peer Mediators Transfer Knowledge and Skills to Home Setting” (1992) 10(1) Mediation Quarterly 101. See also M Decker, “Comment: Unexcused Absence: A Review of the Need, Costs, and (Lack of) State Support for Peer Mediation Programs in US Schools” (2009) Journal of Dispute Resolution 485, who notes that due to the success of such programs “states should be enacting legislation both requiring and advocating the use of ADR in the elementary and secondary schools within their borders” (at 485).

32

Schools Conflict Resolution and Mediation (SCRAM) is a mediation competition for schools that is supported by various Australian law societies and institutes: see http:// www.scram.business.ecu.edu.au. See G Shaw, “Restorative Practices in Australian Schools: Changing Relationships, Changing Cultures” (2007) 25(1) Conflict Resolution Quarterly 127.

33

[9.20] 357

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array of conferencing programs that have been developed to assist those who have regular dealings with government and related entities. In the United States, specific “restorative” schools have been established which foster particular communication strategies that are oriented towards influencing behaviour and approaches. 34 Restorative justice conferences [9.22] ADR has been used increasingly in relation to criminal victim–offender contact in respect of what is sometimes described as restorative justice meetings but most commonly referred to as conferencing (see [3.105]). 35 Victim-offender ADR or conferencing is a relatively recent phenomenon although some schemes have existed for more than a decade. The increase in youth conferencing (see definition below) is often related to overall changing expectations of what should occur when young people are involved in criminal actions (there are programs that can be directed at adult offenders). Conferencing is often perceived to have a pronounced impact upon recidivism. Where conferencing is used, the information and type of program can vary according to the scheme under which the conference takes place. 36 In New South Wales, legislation supports the programs: see the Young Offenders Act 1997 (NSW). 37

34

See International Institute for Restorative Practices – Real Justice on http://www.realjustice.org. A branch of this organisation called Real Justice Australia now operates in Australia: see http:// www.iirp.org/au. On education in conflict resolution, see G Shaw, “Restorative Practices in Australian Schools: Changing Relationships, Changing Cultures” (2007) 25(1) Conflict Resolution Quarterly 127.

35

For publications and evaluation in this area, see Australian Institute of Criminology, Restorative Justice, available on http://www.aic.gov.au/criminal_justice_system/rjustice.aspx. For a description of the New South Wales scheme, see NSW Government Attorney General and Justice, Community Justice Centres on http://www.cjc.nsw.gov.au and G Cumes, “Diversion of Young Offenders by Community Youth Conferencing in NSW” (1997) 35(1) Law Society Journal 60. Information about the Queensland schemes can be accessed at http://www.qld.gov.au/law/ sentencing-prisons-and-probation/young-offenders-and-the-justice-system/youth-justiceconferences.

36

37

See Young Offenders Act 1997 (NSW) Pt 5 entitled “Youth Justice Conferences”; see also Department of Justice (NSW) – Juvenile Justice, Conferencing, available on http://www.djj.nsw.gov.au/ conferencing.htm, which sets out details of the scheme. For scheme evaluation statistics see NSW Department of Justice (NSW) – Juvenile Justice, Youth Justice Conferencing, available on http:// www.djj.nsw.gov.au/statistics_yjc.htm.

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A youth justice conference can be appropriate where the offence is serious and where a victim has suffered harm at the hands of the young person. The decision to have a conference can be made by the Department of Public Prosecutions, a court, a Juvenile Justice Conference Administrator or a New South Wales Police Specialist Youth Officer. Police will inform young people if they can be dealt with by way of a conference. As with a caution, the young person must first admit to the offence, and then attend a conference with the victim of their crime. The young person and the victim must agree to an outcome plan to rectify or compensate for the harm suffered by the victim. 38 Young people as complainants [9.23] There has been some focus upon ADR schemes that are related to children and their dealings with business. Often, children may not have the same opportunities or understanding as adults in the consumer area. The role of children in this area was recently highlighted by the submission of the National Children’s and Youth Law Centre 39 in the consumer policy framework issues paper, which was a precursor to the new Competition and Consumer Act 2010 (Cth). The submission made clear that the centre had adopted, and supported, a: child rights-based approach towards consumer policy which recognises that consumer rights are interdependent and indivisible from all other rights to which

38

For more information, see Department of Justice (NSW) Juvenile Justice, A Different Way of Justice, available on http://www.juvenile.justice.nsw.gov.au/Documents/YJCBrochure.pdf.

39

National Children’s and Youth Law Centre, Response to the Consumer Voices: Sustaining Advocacy and Research in Australia’s New Consumer Policy Framework Issues Paper (Submission, 2009). [9.23] 359

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children and young people are entitled. In other words, consumer laws and policies should be seen as part of a holistic framework for the promotion and protection of children’s rights and interests. 40

Many legal aid offices also prepare information that is specifically directed at disputes that children and young people may have. 41 State governments have also made significant efforts to understand, better assist, and attempt to resolve the particular issues confronting young people in the consumer area, and more broadly, such as via the NSW Ombudsman’s Guidelines for Dealing with Youth Complaints 42 and the Victorian Government’s Youth Central website. 43 There are particular issues that relate to power imbalance where children are parties to a dispute, and these and other factors may mean that ADR models require considerable variation. 44

Neighbourhood disputes [9.25] Facilitation and community conferencing programs have been developed in response to a range of community issues. Initially, many of these programs were directed at small-scale disputes. Increasingly, these programs are focusing on larger community conflicts. Often community justice centres, or their equivalents 45 in different States, are at the forefront of this development. However, private church-related and other bodies are also involved in assisting communities to develop effective dispute resolution strategies. There are numerous examples of community disputes that have been resolved with the assistance of extensive community facilitation approaches. Such approaches have also been integrated into a court system (or a hybrid court, such as the Neighbourhood Justice Centre in Collingwood, see Chapter 8, which discusses these schemes in more detail. See also [8.35]). Disputes may also be dealt with by local mediators, who can receive referrals from court systems, government bodies and community justice centres. In addition, government departments, such as the Department of Housing, may support ADR processes or practitioners in particular conflict “hot spots”. Parties may also engage lawyers who suggest that ADR processes may be more effective 40 41

42

43 44 45

National Children’s and Youth Law Centre, Response to the Consumer Voices: Sustaining Advocacy and Research in Australia’s New Consumer Policy Framework Issues Paper (Submission, 2009) p 1. See, for example, Legal Aid Queensland, Legal Aid for Young People, available on http:// www.legalaid.qld.gov.au/services/Youth-Legal-Aid/Pages/Legal-aid-for-young-people.aspx and the Children’s Legal Service (of Legal Aid NSW), available on http://www.legalaid.nsw.gov.au/what-wedo/criminal-law/children-and-young-people. NSW Ombudsman, Guidelines for Dealing with Youth Complaints, available on https:// www.ombo.nsw.gov.au/news-and-publications/publications/guidelines/youth/guidelines-fordealing-with-youth-complaints. Victorian Government, Youth Central, Know Your Rights: Making a Complaint, available on http:// www.youthcentral.vic.gov.au/Know+Your+Rights/Making+a+complaint. An example of a variation could include a co-mediation model where the mediation team included a young person. The child could also have access to separate and independent advice. See, for example, DSCV, which has a comprehensive advisory and referral process, at Services on http://www.disputes.vic.gov.au/services.

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in resolving the dispute without reference to the formal litigation system. In doing so, lawyers and others often consider three main factors: • the costs of the dispute; • available options to resolve the dispute; and • whether there is any continuing relationship between the parties.

Public policy disputes [9.30] It is now relatively common for facilitation and other processes to be used where public policy disputes arise. Facilitation and mediation are used where planning disputes arise over land use and where government policies change. Such processes are often supported by local or State government and may vary according to the individual dispute and the facilitators involved. Public issue disputes or “disputes which affect members of the public as well as the principal parties” can be divided into three main categories: • enforcement disputes (relating to compliance with laws and regulations); • permitting disputes (relating to planned construction of new facilities); and • policy or law-making disputes (related to the establishment of new policy or standards in management). 46 Elix noted that there are few guidelines available to assist in the development of approaches to deal with complex public disputes 47 that can present environmental, economic and social dilemmas. Wootten divides these categories into “site-specific disputes and policy-related matters”. 48 Increasingly, ADR processes are being used to help plan and manage discussions about these disputes. This approach is a departure from the “commission” or “inquiry” approach where recommendations appear to be largely unimplemented and the discussions often feature positional rather than interest- or needs-based approaches. In many public disputes, there appears to be some reluctance to use ADR processes, particularly among those in the conservation movement: This caution aris[es] in part from the observation that some proponents of EDR [environmental dispute resolution] appear to believe that the use of such techniques will help to restore the “proper balance” between environmental and development interests, the premise being that environmental interests have been accorded too much weight recently by governments. 49

46

P Condliffe, “The Mediation of Public Issue Disputes: Seven Key Issues” (1998) 9 Australian Dispute Resolution Journal 257, 259.

47

J Elix, More than Resolution: System Design for the Management of Intractable Natural Resource Conflict in Australia (unpublished PhD thesis, La Trobe University, Melbourne, 2005).

48 49

H Wootten, “Environmental Dispute Resolution” (1993) Adelaide Law Review 47, 65–66. R Fowler, “Environmental Dispute Resolution Techniques – What Role in Australia?” (1992) 9 Environmental and Planning Law Journal 122. [9.30] 361

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Health care [9.35] Health care is an area where disputes often arise, particularly as our society becomes older and more consumer-focused. It has also been noted that the level of risk in health care has risen. 50 All States have a Health Complaints Commissioner or the equivalent, and many use conciliation to resolve disputes either before or after complaints handling or investigative processes have been exhausted. 51 In addition, in some States, pre-action protocols and requirements can apply to disputes involving medical negligence issues (see Chapter 11). For instance, the Victorian Office of the Health Services Commissioner (OHSC) identifies conciliation as a key component of its complaint resolution system alongside its legislative power to conduct formal investigations. 52 The New South Wales Health Conciliation Registry uses conciliation to resolve a range of health care disputes. 53 In the health insurance area, the regulation of private health insurance was moved from the National Health Act 1953 (Cth) to the new Private Health Insurance Act 2007 (Cth) (and the Private Health Insurance (Ombudsman) Rules 2007). The Commonwealth Private Health Insurance Ombudsman (PHIO) may conduct mediations in relation to complaints lodged with the PHIO under the new Private Health Insurance Act 2007 (Cth). 54 The Commonwealth Government has also set up an Aged Care Complaints Scheme for people who are eligible to receive Australian government-funded aged care services. 55 The Aged Care Complaints Scheme has undergone significant reform following the release of the Review of the Aged Care Complaints Investigation Scheme in 2010. The new Scheme enables complainants to resolve disputes using a variety of processes, including early resolution, service provider resolution, conciliation, mediation and investigation. 56 50

L Mulcahy, Disputing Doctors – The Socio-Legal Dynamics of Complaints About Medical Work (Open University Press, Buckingham, 2003).

51

For Victoria, see Office of the Health Services Commissioner: http://www.health.vic.gov.au/hsc; New South Wales, see the Health Care Complaints Commission: http://www.hccc.nsw.gov.au; Queensland, see the Office of the Health Ombudsman: http://www.oho.qld.gov.au; South Australia, see the Health and Community Services Complaints Comissioner: http://www.hcscc.sa.gov.au; Western Australia, see Health and Disability Services Complaints Office: http://www.healthreview.wa.gov.au; Tasmania, see the Health Complaints Commissioner Tasmania: http:// www.healthcomplaints.tas.gov.au; Australian Capital Territory, see the ACT Health Services Commissioner: http://www.healthcomplaints.act.gov.au/health; Northern Territory, see the Health and Community Services Complaints Commission: http://www.hcscc.nt.gov.au.

52

Office of the Health Services Commissioner, Information for Complainants, available on http:// www.health.vic.gov.au/hsc/resources/infosheet.htm. See A Gurley, “Conciliation of Health Care Complaints” (1997) 8 Australian Dispute Resolution Journal 168.

53 54 55 56

See Div 247 “Mediation” of the Private Health Insurance Act 2007 (Cth). See Australian Government Department of Social Services – Aged Care Complaints Scheme: http:// agedcarecomplaints.govspace.gov.au/. Australian Government Department of Social Services – Aged Care Complaints Scheme, Reforms to Scheme in 2011, available on http://agedcarecomplaints.govspace.gov.au/about-us/about-thereforms/#.VSSJJmccScw; see new guidelines, Australian Government Department of Health and

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In most States and Territories, there are also specific disability advocacy services 57 that deal with complaints of discrimination or other disputes involving people with disabilities. The national disability Complaints Resolution and Referral Service (CRRS) investigates complaints about Commonwealthfunded disability employment and advocacy services. 58 In a 2011 review of conciliation services in the (then) Queensland Health Quality and Complaints Commission (HQCC), 59 it was noted that conciliation was used in only a small number of difficult disputes: the annual report of the HQCC notes that in the 2009–2010 year, 102 matters were referred for conciliation, 122 matters were closed following a conciliation process, and 118 conciliation files remained open. The commentary in that report noted that: The number of matters entering conciliation decreased by 19% while finalised conciliations rose by 13%, with a higher than average 25 cases before each of our five conciliators at any one time. Bearing in mind conciliation matters are often complex and require the participation and cooperation of external parties, 59% of conciliations were finalised within 12 months, compared with 71% in 2008-09. This represents a difference of five cases. The average case time frame was 364 days (2008-09: 280); median 427 days (2008-09: 272). The significant increase in the average time frame can be ascribed to the finalisation of several complicated and lengthy conciliations – including four two-year cases and one three-year case.

Often there is a reluctance to make a complaint in the health care setting. Mulcahy’s research in the United Kingdom 60 found that a large proportion of people who had made complaints to the National Health Service had raised minor administrative issues when, in fact, they had far more serious concerns about clinical standards. Their lack of confidence about areas in which they lacked expertise made them reluctant to raise the issues that were really troubling them. There is now an expectation that health care providers will have appropriate internal health care complaints systems in place. A 2004 initiative of the Australian Council for Safety and Quality in Health Care, working in partnership with the Australasian Council of Health Care Complaints Commissioners in this area, included the preparation of guidelines for all health care providers as well as the preparation of a handbook. 61 These set out what internal complaints and dispute resolution approaches can include. The

57

Ageing, Guidelines for the Aged Care Complaints Scheme (2013), available on http:// webarchive.nla.gov.au/gov/20140801041931/http://www.health.gov.au/internet/publications/ publishing.nsf/Content/ageing-accs-guidelines-toc; see new complaints principles, Complaints Principles 2014 (Cth). Such as People with Disabilities (WA) Inc: see http://www.pwdwa.org.

58 59

See Complaints Resolution and Referral Services (Cth), http://www.crrs.org.au. The HQCC ceased operations in 2014 and was replaced by the Office of the Health Ombudsman.

60

L Mulcahy, Disputing Doctors – The Socio-Legal Dynamics of Complaints about Medical Work (Open University Press, Buckingham, 2003). See also Chapter 5 at [5.60]. See Australian Council for Safety and Quality in Health Care, Complaints Management Handbook for Healthcare Services, available on http://www.safetyandquality.gov.au/former-publications/ complaints-management-handbook-for-health-care-services-pdf-588-kb. The author prepared some sections of the publication.

61

[9.35] 363

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guidelines and handbook are the result of research and stakeholder consultation in the 2003 project, Turning Wrongs into Rights: Learning From Consumer Reported Incidents. 62 One particular issue in relation to health care complaints concerns the amount of disclosure that a health care provider can make. This issue is specifically addressed in the Australian Open Disclosure Framework (Framework), which “is designed to enable health service organisations and clinicians to communicate openly with patients when health care does not go to plan”. 63 The Framework clarifies the types of information that may be disclosed to a consumer. In addition, the Framework outlines supported approaches for responding to complaints; such as making apologies and sharing information about medical procedures. The Framework replaced the Open Disclosure Standard, following a review in 2011–2012.

Insurers and injury dispute resolution arrangements [9.40] Most States and Territories have ADR schemes in place in respect of personal injury (including WorkCover and motor vehicle accident injuries). There are often obligations placed on insurers to resolve disputes as quickly as possible and to make decisions about whether or not the insurer will reject a claim. Where claims are rejected a range of different schemes operate across Australia. As discussed in Chapter 6, New South Wales has a WorkCover scheme governed by the Workers Compensation Act 1987 (NSW) and the Workers Injury Management and Workers Compensation Act 1998 (NSW). The legislation imposes pre-action obligations on certain claims, forming part of the Workers Compensation Scheme. The legislation stipulates various levels of review, and as a result very few matters are referred to a court. For example, after initial review some disputes are referred to conciliation (conducted by telephone) and then arbitration with limited appeal rights. Other disputes may be referred to a medical panel. In 2013, the New South Wales Workers Compensation Commission (NSW Commission) received 7,702 “Applications to Resolve a Dispute”. 64 Seventythree per cent of these applications were resolved without determination by the NSW Commission. 65 In addition, 1,280 applications for mediation were received and a settlement rate of 60 per cent was recorded. The New South Wales Motor Accidents Scheme also includes a number of dispute resolution processes that are set out in the Motor Accidents Compensation 62

63 64 65

See Australian Council for Safety and Quality in Health Care, Complaints Management Handbook for Healthcare Services, available on http://www.safetyandquality.gov.au/former-publications/ complaints-management-handbook-for-health-care-services-pdf-588-kb. Workers Compensation Commission, Annual Review 2013 (Workers Compensation Commission, 2013) p 17. Workers Compensation Commission, Annual Review 2013 (Workers Compensation Commission, 2013) p 18. Workers Compensation Commission, Annual Review 2013 (Workers Compensation Commission, 2013) pp 17-18.

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Act 1999 (NSW) (MACA). The MACA provides the framework for the Claims Assessment and Resolution Service (CARS) and the Medical Assessment Service (MAS). The CARS and MAS are functions of the Motor Accidents Authority (MAA), the scheme regulator. In the 2013–2014 financial year, 3,801 applications were lodged with CARS and 3,786 were finalised. 66 A total of 4,651 applications were lodged with the MAS and 4,658 were finalised. 67 In Victoria, certain WorkCover disputes are governed by the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The legislation provides that a worker cannot commence proceedings unless they have referred the matter for conciliation and obtained a certificate from the Conciliation Officer stating that the worker has taken all reasonable steps to settle the dispute. 68 Conciliation Officers are statutory officers appointed by the Governor in Council. 69 The Transport Accident Commission (TAC) in Victoria was established and is governed by the Transport Accident Act 1986 (Vic) (TAA). It has the statutory objective of ensuring “that appropriate compensation is delivered in the most socially and economically appropriate manner and as expeditiously as possible”. 70 The TAC has established pre-litigation Dispute Resolution Protocols that were developed collaboratively with the Law Institute of Victoria (LIV) and the Australian Lawyers Alliance (ALA) with the support of the Minister. 71 The Protocols are not compulsory, however the LIV and ALA agreed that their members would comply with them. 72 There are three different types of protocols, being “No Fault Dispute Protocols”, “Common Law Damages Protocols” and “Impairment Assessment Protocols”. The Protocols all contemplate “the mutual and early exchange of relevant and reasonable information and documents to assist with timely resolution of disputes …”. 73 The Protocols “also contemplate the use of a range of appropriate ADR including the use of a mediator upon election by any party to assist in the settlement”. 74 The Protocols endorse the use of a range of ADR processes, including the use of 66 67

Motor Accidents Authority of NSW, Annual Report 2013–2014: The Facts the Figures the Future (Motor Accidents Authority of NSW, 2014) p 27. Motor Accidents Authority of NSW, Annual Report 2013–2014: The Facts the Figures the Future (Motor Accidents Authority of NSW, 2014) p 27.

68 69

Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 203, 273(1). Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 523(2).

70

Transport Accident Act 1986 (Vic), s 11; see also s 8 for the objectives of the Transport Accident Act, itself; A Ford, TAC, Resolving Disputes without Courts – Commentary from TAC (Submission to ACJI Background Paper, TAC, 2012). A Ford, TAC, Resolving Disputes without Courts – Commentary from TAC (Submission to ACJI Background Paper, TAC, 2012) p 2.

71 72 73 74

A Ford, TAC, Resolving Disputes without Courts – Commentary from TAC (Submission to ACJI Background Paper, TAC, 2012) p 2. A Ford, TAC, Resolving Disputes without Courts – Commentary from TAC (Submission to ACJI Background Paper, TAC, 2012) p 4. A Ford, TAC, Resolving Disputes without Courts – Commentary from TAC (Submission to ACJI Background Paper, TAC, 2012) p 4. [9.40] 365

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a mediator paid for by the TAC. 75 They do not have the statutory force of the Victorian WorkCover legislation; however they provide “structure and certainty where no equivalent legislated or civil procedural process exists”. 76 In Queensland, a personal injury scheme exists pursuant to the Personal Injuries Proceedings Act 2002 (Qld) (PIPA). There are also separate WorkCover and motor vehicle accident schemes. The main purpose of the PIPA is “to assist the ongoing affordability of insurance through appropriate and sustainable awards of damage for personal injury”. 77 Among other methods, this objective is to be achieved through: a)

providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; and

b)

promoting settlement of claims at an early stage wherever possible; and

c)

ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial; and

d)

putting reasonable limits on awards of damages based on claims; and

e)

minimising the costs of claims; and

f)

regulating inappropriate advertising and touting. 78

The PIPA sets out various pre-action obligations, including notification and response timeframes, disclosure requirements and compulsory conferences. 79

ADR IN THE BUSINESS SECTOR [9.45] The major forms of community ADR utilise facilitative processes such as negotiation and mediation rather than decisional processes such as arbitration. In the business sector, advisory and determinative processes such as arbitration and senior executive appraisal are also used. More formal models of dispute resolution operate in different States and Territories under the Commercial Arbitration Acts. 80 The models of arbitration used under this legislation are increasingly being adapted, modified and, at times, transformed into processes that incorporate mediation elements (see Chapter 6 at [6.85]). For example, the Commercial Arbitration Acts provide that pursuant to an arbitration agreement, 75 76 77 78 79 80

A Ford, TAC, Resolving Disputes without Courts – Commentary from TAC (Submission to ACJI Background Paper, TAC, 2012) p 5. A Ford, TAC, Resolving Disputes without Courts – Commentary from TAC (Submission to ACJI Background Paper, TAC, 2012) p 3. Personal Injuries Proceedings Act 2002 (Qld), s 4(1). Personal Injuries Proceedings Act 2002 (Qld), s 4(2). See Personal Injuries Proceedings Act 2002 (Qld), Ch 2 Pt 1; see also, for example, the commentary in Broadhead v State of Queensland [2006] QDC 273. For example, Commercial Arbitration Act 2010 (NSW); see discussion of the Commercial Arbitration Acts regime in the States and Territories in Chapter 6.

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or with the parties’ consent, an arbitrator may act as a mediator. 81 An arbitrator acting as a mediator may communicate with the parties separately, if desired, and must treat information received as confidential. 82 As noted in Chapter 6, this blended approach has been somewhat controversial. The changes made to arbitration as a result of the commercial arbitration reforms in 2010 (and beyond in relation to some Australian States) were intended to enable more effective arbitral processes to operate. The author has noted that in the past: Arbitration has … been criticised for mimicking the worst excesses of court-based litigation, and the concurrent evidence, case management and other innovations in the court system have not necessarily been adopted as readily in the private arbitration area. It is partly for this reason that recent innovation in the arbitral area has been directed at reducing time and cost by combining case management, issue identification and mediation processes with arbitral processes. However, it remains rare in private arbitration to include expert referral or engage in ‘add-on’ referral (presumably because arbitrators will often be chosen on the basis of their subject matter expertise). 83

The growth of ADR in the business sector has been linked to its growth in the social sector and increased awareness about ADR benefits (see Chapter 1). In addition, the growth in knowledge, availability and support of ADR processes has been increasingly focused on reducing risks that impact adversely upon the operation of businesses. Business continuity management approaches are founded on the notion that risk is an inevitable part of any business and that strategies can be employed that can accept, transfer or mitigate risk. Increasingly, business is designing systems to reduce the harmful impact of disputes, an identified key risk area. At the same time, the Australian Government is increasingly concerned with the dispute resolution approaches taken by business. In an effort to support small business and encourage greater productivity, a series of initiatives has been directed at dispute management approaches within this sector. Legislation has also been developed that has specifically focused on dispute resolution management, and courts (in some jurisdictions) have assisted in changing the dispute resolution environment by ensuring that ADR options are stressed at every possible opportunity and by suggesting that ADR can be used to help “manage” disputes (not just resolve them). An increase in partnering, dispute review boards, mandatory informationsharing and an adherence to “good faith” negotiations have been key elements in the dispute avoidance armoury. (In regards to the efficacy of “good faith”

81

For example, Commercial Arbitration Act 2010 (NSW), s 27D(1).

82 83

For example, Commercial Arbitration Act 2010 (NSW), s 27D(2). T Sourdin, “Innovation and Alternative Dispute Resolution” (2013) 32 The Arbitrator and Mediator 111, 114. [9.45] 367

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obligations see Chapter 11.) In addition, it may be that stating and enforcing these types of obligations can create a normative environment that leads to more collaborative behaviour. 84 The reasons for this focus seem obvious. Disputes are inevitable. Their impact and the appropriateness of the dispute-handling processes used to resolve them can have profound impacts upon the profitability and viability of a business. It has long been accepted that competitive approaches to dispute management and resolution can be costly. It has been widely stated that: [M]ediation is much cheaper than litigation … It has been said that the mediation of a commercial dispute by the Australian Commercial Disputes Centre costs 5% of the costs of litigating or arbitrating the same matter. 85

The more intangible advantages of “good” dispute resolution have also been emphasised. For example, Ingleby has stated that there is a perception that mediation has the capacity “to remove the sources rather than the symptoms of problems.” 86 Other writers have commented on this “warmer” method of dispute resolution. 87 The original hopes of the ADR movement were said to be that the: expanded use of informal methods … would result in resolutions more suited to the parties’ needs, reduced reliance on laws and lawyers, rebirth of local communities, maintenance of long-term relationships, and relief for non-parties affected by conflict, such as the children of divorcing couples. 88

In the business arena, aspirations have been somewhat different; the primary strategy has been directed at avoiding loss caused by deteriorating relationships. Other objectives have been related to benefits in terms of narrowing issues and discussions. Effective dispute management processes may also have an important “catalytic” effect in that they may prompt early settlement, promote early positive action and discourage “languishing” through the ventilation of issues, thus reducing the amount of destructive conflict. Business disputes can fall into a number of categories that include disputes with and between: • consumers of goods and or services; • suppliers of goods and services; • staff and contractors; • other business entities, such as competitors and related business; and 84

T Sourdin, “Good Faith Participation in Mediation: An Australian Perspective” 13(2) ACResolution 31, 34. See Chapter 11 for discussion regarding the meaning of “good faith”.

85

NSW Supreme Court, Report of the Chief Justice’s Policy and Planning Sub-committee on CourtAnnexed Mediation (Report, 1991) p 9, referring to “Resolution of Disputes” (1987) 1(2) ACDC 1.

86

R Ingleby, Why Not Toss a Coin? Issues of Quality and Efficiency in Alternative Dispute Resolution (Paper presented at the Ninth Annual Australian Institute of Judicial Administration (AIJA) Conference, Victoria, 18-19 August 1990) p 23. S Goldberg, F Sander and N Rogers, Dispute Resolution: Negotiation, Mediation and Other Processes (2nd ed, Little Brown and Co, Boston, 1992) p 8.

87 88

S Goldberg, F Sander and N Rogers, Dispute Resolution: Negotiation, Mediation and Other Processes (2nd ed, Little Brown and Co, Boston, 1992) p 8.

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• government and related entities. The dispute avoidance, management and resolution strategy that can be used in each area may be subject to legislation, regulatory arrangements (such as ASIC Regulatory Guide 139, which is the subject of comment in Chapter 5), court and tribunal approaches, and ADR framework. There are also particular issues for small business where there may be limited understandings about possible ADR processes, time, geographical or other access issues, and limited finances. Two of the issues in the business dispute area are: 1.

Unless a specific schemes exists (such as an industry scheme) it may be hard for a business to know what scheme or dispute resolution service it can access.

2.

It can be difficult to identify systemic issues.

Specialised dispute-settlement assistance and resources for small business exist in systems across a number of states, including Victoria, 89 Western Australia, 90 New South Wales 91 and South Australia. 92 The schemes are not uniform in nature or extent, but most have an educative and investigative role, tailored towards assisting small businesses. Certain schemes, such as the Victorian and New South Wales Small Business Commissioners, are also tasked with reducing the incidence of disputes generally, and also with utilising and assisting with the use of ADR processes, such as mediation, for particular disputes. At the same time, there is a concern that “[t]he sheer number of services can be confusing for members of the community, who may become ‘lost’ in the system”. 93 On this basis in 2011, the Federal Government sought submissions about whether, and in what form, a standardised national dispute resolution service for small business should be introduced. Four options for the system were raised: 1. 2. 3. 89 90

91 92 93

a national information and referral service; a national dispute resolution service; a national small business tribunal; or See Small Business Commissioner Act 2003 (Vic). The Victorian Small Business Commissioner has been in operation since 2003; for more information, see http://www.vsbc.vic.gov.au. Amendments to the Small Business Development Corporation Act 1983 (WA) and the Commercial Tenancy (Retail Shops) Agreement Act 1985 (WA) enabled the establishment of a Small Business Commissioner in 2012. The Small Business Commissioner functions from within the Small Business Development Corporation (WA Government): see Small Business Development Corproation, Small Business Commissioner Search Fact Sheet on https://www.smallbusiness.wa.gov.au/business-in-wa/ about-sbdc/corporate-structure/small-business-commissioner-fact-sheet. See Office of the NSW Small Business Commissioner, Solving Problems, available on http:// www.smallbusiness.nsw.gov.au/solving-problems. See Office of the South Australian Small Business Commissioner, Overview, available on http:// www.sasbc.sa.gov.au/about_us/our_services. Victorian Parliament Law Reform Committee, Inquiry into Alternative Dispute Resolution and Restorative Justice (Report, Parliament of Victoria, 2009) p xlv, available on http:// www.parliament.vic.gov.au/archive/lawreform/inquiries. [9.45] 369

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4.

a small business advocate. 94

As a result of the submissions received, it is unlikely that the government will proceed with the options as framed as there is a concern that existing state-based services could be duplicated. In an attempt to support small business in resolving disputes at an early stage, the Australian Centre for Justice Innovation (ACJI) developed a toolkit for small and medium sized businesses in 2015. 95 It is unclear how many complaints small and medium-sized businesses experience each year however the majority will experience a complaint each year. The number of “disputes” or disagreements is likely to be much lower and a reflection of whether or not responsive and useful complaints-handling processes are in place (see Chapter 5). A 2010 survey and report for the Department of Innovation, Industry, Science and Research 96 indicated that approximately 20 per cent of Australian small businesses surveyed had experienced a disagreement or dispute of some kind over the past five years. Businesses with revenue of over $1 million were considerably more likely than those of a lower revenue bracket to have experienced disputes in which some form of third-party intervention was necessary. 97 Of those small businesses that had experienced any kind of dispute, an overall 35 per cent noted that they had avoided escalation of the disagreement due to the potential cost of such an action. 98 The federal Department of Innovation, Industry, Science and Research 2011 Options Paper, Resolution of Small Business Disputes 99 concluded that: The key message taken from this study is that despite the wide range of mechanisms available, including low cost and free services, small businesses are not generally aware of the existing services, the relative costs or suitability of each mechanism for different types of disputes. The survey also found that small businesses have a low awareness of ADR and this view was supported by stakeholders consulted in the development of this paper. 100

94

Department of Innovation, Industry, Science and Research, Resolution of Small Business Disputes (Options Paper, 2011) p iv, available on http://www.industry.gov.au/smallbusiness/ SmallBusinessCommissioner/Documents/SBDisputesOptionsPaper.pdf.

95

See Australian Centre for Justice Innovation, Professional Standards in Complaints Handling, available on http://www.monash.edu/law/centres/acji/research/complaints-handling.

96

Orima Research, Small Business Dispute Resolution (Summary Report, Department of Innovation, Industry, Science and Research, Industry of Small Business Policy Division, 2010). Orima Research, Small Business Dispute Resolution (Summary Report, Department of Innovation, Industry, Science and Research, Industry of Small Business Policy Division, 2010) p 9.

97 98 99

100

Orima Research, Small Business Dispute Resolution (Summary Report, Department of Innovation, Industry, Science and Research, Industry of Small Business Policy Division, 2010) p 14. Department of Innovation, Industry, Science and Research, Resolution of Small Business Disputes (Options Paper, Commonwealth of Australian, 2011) p iv, available on http://www.industry.gov.au/ smallbusiness/SmallBusinessCommissioner/Documents/SBDisputesOptionsPaper.pdf. Department of Innovation, Industry, Science and Research, Resolution of Small Business Disputes (Options Paper, Commonwealth of Australian, 2011) p 3, available on http://www.industry.gov.au/ smallbusiness/SmallBusinessCommissioner/Documents/SBDisputesOptionsPaper.pdf.

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Industry-based ADR [9.50] In the business sector, various different ADR schemes operate. Some are run by government agencies and oriented towards consumers. (These schemes are discussed in greater detail in Chapter 5.) 101 For example, Consumer Affairs Victoria’s (CAV) Annual Report provides information regarding the number of disputes finalised through ADR services. 102 Other schemes are industry-based and either oriented toward consumers or supporting business relationships. Initially, many industry-based schemes were directed at disputes relating to consumer relationships rather than general business relationships. In the financial sector, for example, it has been estimated that more than 130,000 consumers a year rely on industry-based ADR schemes. 103 In the broad industry sector the number is much greater. 104 A study in Victoria noted that in the period 2005–2006 in that State, the following number of contacts shown in Table 9.1 were made with ADR suppliers: Table 9.1 Survey Findings – Contacts with Selected ADR Suppliers 1 July 2005 to 30 June 2006

Total number ADR suppliers Total number of contacts made to ADR suppliers Matters referred to other agencies by agencies Information enquiries responded to by agencies Cases subject to mediation 105 Cases resulting in a determination 106

18 1,002,000 29,000 92,000 31,000 102,000

[Source: C Field, Alternative Dispute Resolution in Victoria: Supply-Side Research Project – Research Report (Chris Field Consulting Pty Ltd, Melbourne, 2007) p 3.] Although precise statistics are difficult to gauge, this figure has no doubt grown in the intervening years. 107 Most schemes have also been directed at “resolution” rather than prevention or handling (system design). 101

See, also, T Sourdin, “Resolving Disputes Without Courts?” (2013) 32(1) The Arbitrator & Mediator 25.

102 103

Consumer Affairs Victoria, Annual Report 2013–2014 (2014) p 16. B Slade and C Mikula, The Use of Industry-based Consumer Dispute Resolution Schemes (Paper, NSW Legal Aid, Sydney, 1997) p 2. For a comprehensive list of complaints schemes, see Complaint Line, Categories, available on http://www.complaintline.com.au/categories.html. IPSOS Australia Pty Ltd, Alternative Dispute Resolution in Victoria: Community Survey 2007 (Report, Department of Justice, State Government of Victoria, 2007), available on http:// www.consumer.vic.gov.au/library/publications/resources-and-education/research/disputeresolution-in-victoria-community-survey-2007.pdf. The definition of mediation appears to include all forms of assisted settlement: see C Field, Alternative Dispute Resolution in Victoria: Supply-Side Research Project – Research Report (Chris Field Consulting Pty Ltd, Melbourne, 2007), available on http://www.consumer.vic.gov.au/ CA256902000FE154/Lookup/CAV_Publications_Reports_and_Guidelines_2/$file/cav_report_adr_ supply_side_research_2007.pdf. See Chapter 5 and C Field, Alternative Dispute Resolution in Victoria: Supply-Side Research Project – Research Report (Chris Field Consulting Pty Ltd, Melbourne, 2007), available on http:// www.consumer.vic.gov.au/CA256902000FE154/Lookup/CAV_Publications_Reports_and_ Guidelines_2/$file/cav_report_adr_supply_side_research_2007.pdf. See, for example, P O’Shea, “The Lion’s Question Applied to Industry-based Consumer Dispute

104

105

106

107

[9.50] 371

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Dispute resolution schemes have been set up in various industries to provide low-cost (or free), effective and relatively quick means of resolving consumer complaints about products and services. These schemes are often funded by a cooperative of industry members (examples include the Telecommunications Industry Ombudsman (TIO), and the Financial Ombudsman Service (FOS)) and are intended to deal with disputes between business and consumers. Generally, the scope of these schemes is limited in that they do not deal with internal disputes or disputes with contractors, suppliers or other business entities. In 2008, reforms were introduced that enabled many of these schemes to merge (for example, FICS, BFSO and IOS merged to become FOS). 108 On 1 January 2009, the Credit Union Dispute Resolution Centre (CUDRC) and the Insurance Brokers Disputes Ltd (IBD) also joined the FOS. The Credit and Investments Ombudsman (CIO) also handles complaints about credit unions, building societies, non-bank lenders, mortgage and finance brokers, financial planners, lenders and debt collectors, credit licensees and credit representatives. While there are already common “help lines”, these processes may mean that it is easier for consumers to access services. Dispute resolution for domain name disputes in the e-commerce realm (pursuant to the .au Dispute Resolution Policy, the auDRP) is undertaken by .au DomainAdministration Ltd (auDA), which is an incorporated membershipbased non-profit organisation from the Australian internet community. Complainants are not obliged to use the system, and may instead choose to pursue other means of resolving their dispute (such as traditional litigation). The appeal of the auDRP is, however, in the fulfilment of its stated aim of providing “a cheaper, speedier alternative to litigation for the resolution of disputes between the registrant of a .au domain name and a party with competing rights in the domain name”. 109 Matters will be referred to an independent arbitral panel (of one or three panel members) to determine the complaint. There is no appeals process. Nonetheless, if the unsuccessful party is not satisfied with a decision, they may decide to initiate legal proceedings. Some ADR industrybased schemes face criticism when decisions are made that are binding on industry members but not consumers. Other criticisms of scheme-based ADR were highlighted in the author’s 2012 report, Exploring Civil Pre-Action Requirements – Resolving Disputes Outside Courts, which noted that “occasionally, schemes are viewed as potentially displacing or even replicating courts, whereas ‘self-help’ or similar types of requirements may generate less concern”. 110 These schemes can also change rapidly, and for small business this can be confusing. The schemes have, therefore, attempted in recent years to offer more Resolution Schemes” (2006) 8(5) ADR Bulletin 83, available on http://epublications.bond.edu.au/adr/ vol8/iss5/2/. 108 109 110

See Financial Ombudsman Service, available on http://www.fos.org.au. Australian Domain Name Administrator (auDA), au. Dispute Resolution Policy, available on http:// www.auda.org.au/pdf/auda-2010-05.pdf. T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (Report, Australian Centre for Justice Innovation, 2012) p xii.

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standardised processes. In 2010, new dispute resolution processes were created by FOS, to better reflect a single standardised procedure (as the FOS now incorporates what were previously a number of agencies) and with a focus on “early” dispute resolution. 111 As noted in Chapter 5, organisations such as the FOS deal with a significant number of disputes each year. For example, 31,680 new disputes were initiated in the 2013–2014 reporting period (a decrease of two per cent on the previous year). 112 In 2013–2014, 33,450 disputes were closed; 69 per cent were finalised by consent and only 9 per cent resulted in a determination by FOS. 113 The processes used in such schemes vary and are undergoing rapid evolution. However, they are often focused on the referral of a complaint back to a member, supporting internal complaints handling, providing advice, conciliation and determination. As noted in Chapter 5, in 1999 the Consumer Redress Study 114 reported that there were particular problems with schemes that promoted advisory and determinative processes. In particular, there was: high consumer satisfaction with the accessibility of the schemes, wide variation in satisfaction with scheme independence and general dissatisfaction with the outcome of the disputes. 115

A review of the Financial Industry Complaints Service by the author in 2002 and 2003 found that many of those who used the scheme wanted direct facilitated problem-solving processes, rather than advisory processes, to be used. In the Review of the Financial Industry Complaints Service 2002, 116 over half of the complainants surveyed believed that face-to-face (or teleconference) discussion with the other side was a better method of dispute resolution than a process of “advice” or determination. The reasons given for this belief were that … face-to-face discussions: • Provide the opportunity to fully present your case (82%) • Provide the opportunity for the company to understand the situation (53%) • Provide the opportunity to hear from the other side (40%) • Are fairer (27%) • Save time (27%). 117

There are a number of initiatives that are directed at supporting consumer access and advocacy. For example, the Assistant Treasurer and Minister for Competition Policy and Consumer Affairs released the Consumer Voices: Sustaining Advocacy 111 112

Financial Ombudsman Service, 2009–2010 Annual Review (2010) p 4. Financial Ombudsman Service, 2013–2014 Annual Review (2010) p 44.

113

Financial Ombudsman Service, 2013–2014 Annual Review (2010) p 48.

114 115

Commonwealth Department of the Treasury, Consumer Redress Study (Report, 1999). Commonwealth Department of the Treasury, Consumer Redress Study (Report, 1999) referred to in NADRAC, A Framework for ADR Standards (Report, Attorney-General’s Department, 2001) p 28.

116

See J Elix and T Sourdin, Review of the Financial Industry Complaints Service 2002 – What are the Issues? (Issues Paper, Community Solutions, La Trobe University, 2002). J Elix and T Sourdin, Review of the Financial Industry Complaints Service 2002 – What are the Issues? (Issues Paper, Community Solutions, La Trobe University, 2002).

117

[9.50] 373

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and Research in Australia’s New Consumer Policy Framework issues paper. 118 The paper sought to determine “consumer” views and the impact of reforms embodied in the consequent Consumer Credit Act 2010 (Cth), as well as exploring the policy goals of consumer advocacy and its operation in the government context. In addition, ASIC’s recently revised regulatory guide on internal dispute resolution procedures for financial institutions, 119 read in conjunction with ASIC’s regulatory guide on the approval and oversight of external dispute resolution schemes, 120 outlines the requirements 121 for a financial services licensee, unlicensed product issuers and unlicensed secondary sellers to have internal dispute resolution (IDR) processes that meet standards or requirements made or approved by ASIC, as well as membership of one (or more) ASIC-approved external dispute resolution (EDR) schemes. Other approaches to reforming dispute resolution have been more industry specific and are linked to complaints handling arrangements (see Chapter 5). The efficacy of complaints handling arrangements has a direct impact on the volume of disputes in the EDR schemes. For example, in the 2013–2014 reporting year, the TIO reported that new complaints decreased more than 12 per cent. This marks the lowest number of new complaints in six years. The significant decrease in new complaints was largely due to fewer customer service and complaints handling issues. 122 In its TIO Complaints – The Year in Review 2013–2014 publication, the Ombudsman observed that: customer service and complaint handling concerns are reducing. We recorded 50 per cent fewer complaint handling issues than just three years ago. Customer service complaints have decreased substantially – by more than 20 per cent in the past year (to 75,033 in 2013-14, from 94,639 in 2012-13). The public statements by telcos to focus on better serving customers and stronger industry code rules introduced in 2012 are having a positive impact. 123

To improve efficiency in dispute resolution, the TIO has incorporated the use of technology such as an integrated online complaint form, member portal, SMS notifications and a records management system. 124 In the 2013–2014 year, 90 per 118

119

120

Australian Government, The Treasury (Competition and Consumer Policy Division), Consumer Voices: Sustaining Advocacy and Research in Australia’s New Consumer Policy Framework (Issues paper, 2009), available on http://archive.treasury.gov.au/contentitem.asp?ContentID=1532. Australian Securities and Investments Commission, Licensing: External and Internal Dispute Resolution Procedures, Regulatory Guide 165, available on http://asic.gov.au/regulatory-resources/find-adocument/regulatory-guides/rg-165-licensing-internal-and-external-dispute-resolution. Australian Securities and Investments Commission, Approval and Oversight of External Dispute Resolution Schemes, Regulatory Guide 139, available on http://asic.gov.au/regulatory-resources/find-adocument/regulatory-guides/rg-139-approval-and-oversight-of-external-complaints-resolutionschemes.

121

Under Corporations Act 2011 (Cth), ss 912A(1)(g), 912A(2) and 1017G(2).

122 123

Telecommunications Industry Ombudsman, 2013–2014 Annual Report (2014) p 4. Telecommunications Industry Ombudsman, TIO Complaints – The Year in Review 2013–2014 (2014) p 3, available on https://www.tio.com.au/.

124

S Cohen, How Technology Has Enabled Timeliness at the TIO (Slideshow, TIO, 2014), available on http://www.civiljustice.info/cgi/viewcontent.cgi?article=1024&context=timeliness.

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cent of new complaints were referred to service providers within one day of receipt, 88 per cent of unresolved complaints were conciliated within 30 business days and 8 per cent of open complaints were unresolved for more than 120 days. 125

Business to business disputes [9.55] There are a large number of schemes that are related to business to business disputes. For example, the Takeovers Panel (discussed in Chapter 6 at [6.95]) deals with takeover issues. Other schemes include the Oilcode scheme (directed at distributors, wholesalers and retailers involved in fuel disputes), 126 the Franchising Code scheme 127 which sets up the Office of the Franchising Mediator Adviser (OFMA) and the NBN schemes which deals with industry based disputes. 128 Some business areas have additional schemes that are directed at business consumers. For example, New South Wales has an extensive building and construction industry “security of payment” scheme. The scheme is imposed by the Building and Construction Industry Security of Payment Act 1999 (NSW) (BCISPA NSW) and applies to commercial construction contracts, as opposed to residential construction contracts. 129 The legislation is aimed at ensuring construction workers and suppliers of related goods and services are entitled to receive and are able to recover progress payments for their work. 130 The legislation sets out a procedure for recovering progress payments. 131 Claimants are required to serve a “payment claim” on the respondent, specifying the work relating to the progress payment and the claimed amount. 132 The respondent may reply to the claim with a payment schedule specifying the respondent’s proposed amount of payment. 133 Failure to provide a payment schedule results in liability to pay the claimed amount. 134 Where the respondent either fails to provide a payment schedule or does not pay the amount specified in the payment schedule, the claimant can either apply for “adjudication” or commence proceedings. 135 A court cannot 125 126

Telecommunications Industry Ombudsman, 2013–2014 Annual Report (2014) p 3. See Oilcode Dispute Resolution Adviser, available on http://oilcodedra.com.au/index.html.

127

See Office of the Franchising Mediation Adviser (OFMA), available on http:// www.franchisingmediationadviser.com.au/. See NBN Independent Dispute Resolution Adviser, available on https://nidra.endispute.com.au/. The author is the Dispute Resolution advisor for this scheme.

128 129 130

Building and Construction Industry Security of Payment Act 1999 (NSW), s 7(2)(b). Building and Construction Industry Security of Payment Act 1999 (NSW), s 3(1).

131 132

See Building and Construction Industry Security of Payment Act 1999 (NSW), Pt 3. Building and Construction Industry Security of Payment Act 1999 (NSW), s 13.

133 134

Building and Construction Industry Security of Payment Act 1999 (NSW), s 14(1)–(2). Building and Construction Industry Security of Payment Act 1999 (NSW), s 14(4).

135

Building and Construction Industry Security of Payment Act 1999 (NSW), ss 15–16. [9.55] 375

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make a judgment in the claimant’s favour if they have not completed requirements (essentially, pre-action obligations). 136 An extensive construction industry security of payment scheme also exists in Victoria. The scheme is governed by the Building and Construction Industry Security of Payment Act 2002 (Vic) (BCISPA Vic) and is similar to the BCISPA NSW in many respects. The Victorian legislation also does not apply to domestic building contracts. 137 Claimants are required to serve a payment claim on the respondent and the respondent can reply with a payment schedule. 138 Where the respondent does not provide a payment schedule, or fails to pay the amount specified in the payment schedule, the claimant can apply for “adjudication’”or can commence court proceedings. 139 As with the New South Wales scheme, if the claimant has not completed their pre-action obligations, a court cannot make a judgment in the claimant’s favour. 140 In court proceedings, the respondent is prohibited from bringing a cross-claim against the claimant and cannot raise a defence in relation to matters arising under the construction contract. 141 Unlike the BCISPA NSW, the Victorian legislation provides a review mechanism for certain decisions made by an adjudicator. 142 The review adjudicator can either substitute or confirm the determination subject of the review. 143

Dispute resolution and government [9.60] Government departments, agencies and organisations may also be required to consider their internal and external dispute avoidance, management and resolution processes as a result of changing government policy. For example, in the federal area there are extensive requirements that have been introduced to support government in dealing with disputes. NADRAC’s 2010 guide, Managing Disputes in Federal Government Agencies: Essential Elements of a Dispute Management Plan, 144 was directed at helping Commonwealth agencies to develop and regularly review dispute management plans, including by ensuring appropriate

136

Building and Construction Industry Security of Payment Act 1999 (NSW), ss 15(4)(a), 16(4)(a).

137 138

Building and Construction Industry Security of Payment Act 2002 (Vic), s 7(2)(b). Building and Construction Industry Security of Payment Act 2002 (Vic), ss 14–15.

139 140

Building and Construction Industry Security of Payment Act 2002 (Vic), ss 16(2), 17(2). Building and Construction Industry Security of Payment Act 2002 (Vic), ss 16(4)(a), 17(4)(a).

141 142

Building and Construction Industry Security of Payment Act 2002 (Vic), ss 16(4), 17(4). Building and Construction Industry Security of Payment Act 2002 (Vic), Pt 3 Div 2A.

143 144

Building and Construction Industry Security of Payment Act 2002 (Vic), s 28I(5). NADRAC, Managing Disputes in Federal Government Agencies: Essential Elements of a Dispute Management Plan, available on http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/ Pages/NadracPublicationsByDate.aspx#2003.

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use of ADR principles and processes. The guide sets out the essential topics and issues that agency-specific plans should address and a toolkit sets out potential approaches. 145. NADRAC has noted that dispute management plans should apply to internal and external disputes, from the point at which conflict first emerges, and can usefully deal with dispute avoidance, management and resolution. The guide has been used by some government departments and agencies to create “plans” that will incorporate more extensive use of ADR. Information about the Federal Attorney General’s Plan, the Australian Taxation Office Plan and the Australian Competition and Consumer Commission Plan, which also applies to the Australian Energy Regulator, 146 is set out on the Federal Attorney General’s website. 147 In launching the guide in 2010, the Federal Attorney-General noted: Commonwealth agencies are the single biggest litigator in the federal civil justice system. Agencies should therefore be leading the way in a cultural shift away from litigation, towards actively engaging with disputes early, in a strategic way. In doing so, we will build a civil justice system that is practical, cost efficient and timely in resolving disputes. 148

The Attorney-General also noted that: Adopting a dispute management strategy and the underlying culture should be led from the top, and with significant involvement of all staff of Commonwealth agencies. As government lawyers, you will be used to ensuring that your agency complies with the Legal Services Directions 2005, including the obligation to consider alternative dispute resolution before commencing litigation and the model litigant obligation. The principles underlying NADRAC’s guide are consistent with these obligations. 149

The adoption of plans requires agencies to consider the sources of disputes and their resolution and this may have a “halo” impact on those dealing with government. The use of plans also needs to be considered in the context of model litigant obligations and pre-action protocols (see Chapter 11), which may also support earlier ADR outside the court system. 145

146 147

148 149

See NADRAC, A Toolkit for Developing a Dispute Management Plan, available on http://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Documents/NADRAC%20Publications/A%20Toolkit%20 for%20Developing%20a%20Dispute%20Management%20Plan.pdf Australian Competition and Consumer Commission, Dispute Management Policy, available on http:// www.accc.gov.au/publications/accc-aer-dispute-management-policy. See Australian Government Attorney-General’s Department, Dispute Management in Australian Government Agencies, available on http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/ Pages/DisputemanagementinAustralianGovernmentagencies.aspx. Federal Attorney-General The Hon R McLelland, Getting Ready for Dispute Management Plans (Speech presented at the National Press Club of Australia, Australian Capital Territory, 16 February 2010). Federal Attorney-General The Hon R McLelland, Getting Ready for Dispute Management Plans (Speech presented at the National Press Club of Australia, Australian Capital Territory, 16 February 2010). [9.60] 377

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Standards, codes and benchmarks [9.65] There is also evidence that dispute management is now considered, at least in some parts of the business sector, in a more holistic fashion. 150 The concept in its expanded form represents a shift away from a focus on resolution processes toward communication management. These changes are in response to external and internal stimuli and may also be a result of general changes to business management structures with an emphasis on more relational approaches in business (see Chapter 1). 151 This shift is evidenced, in part, by mandatory industry codes of conduct such as the Franchising Industry Code, Horticulture Code, Oilcode, Unit Pricing Code and Wheat Port Code (see previous discussion). The making of either mandatory or voluntary codes is governed by Pt IVB of the Competition and Consumer Act 2010 (Cth). Treasury has issued policy guidelines on the use of some codes. 152 Further evidence of this shift to relational approaches in business is seen in the benchmarks for dispute avoidance and resolution that are increasingly focused on the resolution of disputes prior to the commencement of litigation, as well as on dispute prevention. As in the government area (as noted above), there is also a shift towards dispute management of all disputes, not just those with consumers. 153 The Australian Standard [9.70] Clear evidence in relation to this shift arose when Standards Australia first formulated standards for use in the prevention, handling and resolution of disputes. 154 The standards are of particular interest as they examine not only processes that can be used to resolve disputes, but also processes that can prevent and manage damaging forms of conflict. In addition, they are directed at improving existing approaches and practices in respect of all external disputes. The scope of the originating standard was as follows: These guidelines provide a framework for the prevention, handling and resolution of business disputes between parties in a business relationship. The prime focus of this standard is upon disputes that are external to an organisation. 155 150 151

See discussion relating to the Standards Project: AS 4608–1999 and AS 4608–2004 in Chapter 5. S Caspi Sable and E Kornhauser, “Some Reflections on a Relational World View” (1999) 2(7) ADR Bulletin 65.

152

Australian Government, Treasury (Infrastructure, Competition and Consumer Division), Policy Guidelines on Prescribing Industry Codes Under Part IVB of the Competition and Consumer Act 2010, available on http://www.treasury.gov.au/PublicationsAndMedia/Publications/2011/Prescribingindustry-codes. Standards Australia, AS 4608:1999: Guide to the Prevention, Handling and Resolution of Disputes (1999) and AS 4608:2004: Dispute Management Systems (2004).

153 154

155

Standards Australia, AS 4608:1999: Guide to the Prevention, Handling and Resolution of Disputes (1999) and AS 4608:2004: Dispute Management Systems (2004). The author was a member of the committee that produced AS 4608:1999 and, as a member of NADRAC, also provided comment on AS 4608:2004. Standards Australia, AS 4608:1999: Guide to the Prevention, Handling and Resolution of Disputes (1999) and AS 4608:1999“Section One, Scope and Purpose” (1999).

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In the standard, dispute prevention describes measures used to build and maintain relationships in order to prevent problems from developing into disputes. Australian Standard 4608–2004 also focuses on risk assessment and management, an increasingly important aspect of complaints handling in large-scale complaints systems (the standard is discussed in greater detail in Chapter 5). These measures highlighted in the standards include contractual arrangements, cultural changes, negotiations and partnering arrangements to support conflict prevention. Section 2 of the Australian Standard outlines the essential principles for good working relationships: effective processes, open and effective communication, and good faith. Key elements of these principles are explored in some detail in the Standard. In 2006, Standards Australia published a new Australian standard on complaints handling entitled AS ISO 10002–2006: Customer Satisfaction – Guidelines for Complaints Handling in Organizations. 156 This international standard was based largely on the International Organization for Standardization (ISO) Standard of 2004 (Quality Management – Customer Satisfaction – Guidelines for Complaints Handling in Organizations). A team was established in Standards Australia to consider the adoption of the ISO standard relating to Guidelines for Dispute Resolution External to Organizations (ISO 10003–2007). The ISO standard “provides guidance for an organization to plan, design, develop, operate, maintain and improve an effective and efficient dispute-resolution process for complaints that have not been resolved by the organization”. 157 As discussed in some detail in Chapter 5, in 2014, Standards Australia and Standards New Zealand published a joint standard on complaints handling entitled AS/NZS 10002:2014: Guidelines for Complaint Management in Organizations. 158 The Standard provides guidance on managing complaints within an organisation, including the establishment and operation of an organisation’s complaint management system. 159 The originating Standard and the 2014 Standard on complaints management, in focusing on system design and dispute avoidance, represented a departure from a previous focus on dispute resolution processes. It also defined necessary strategies for prevention procedures, communication, monitoring and review. Dispute handling describes “do-it-yourself” and “in-house” processes that can be used to deal with problems, complaints and conflicts. The use of ADR processes was also explored. The benefits of using mandatory and non-mandatory frameworks (such as the standards) are, however, questionable. There are key questions that can be 156

Standards Australia, Australian Standard ISO 10002–2006: Customer Satisfaction – Guidelines for Complaints Handling in Organizations (2006).

157

International Organization for Standardization (ISO), ISO 10003–2007: Guidelines for Dispute Resolution External to Organizations (2007). Standards Australia, Australian Standard AS/NZS 10002:2014: Customer Satisfaction – Guidelines for Complaint Management in Organizations (2014).

158 159

Standards Australia, Australian Standard AS/NZS 10002:2014: Customer Satisfaction – Guidelines for Complaint Management in Organizations (2014). [9.70] 379

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raised, such as what impact the standards will have. To a large extent, the answer to the question will depend on business attitudes. The standards may, however, as in the case of other standards, inform courts and tribunals (as well as the business community) about norms of operation and expected responses as well as informing the sector about negotiation processes. The main role of the standards may therefore involve education about ethical communication and negotiation rather than ADR processes. In relation to ADR processes, early evidence indicated that the business sector was using ADR processes in preference to traditional litigation processes. 160 Other benchmarks and codes [9.75] Other relevant benchmarks and codes have been developed federally. For example, in 1997 the then Minister for Customs and Consumer Affairs released benchmarks for industry-based customer dispute resolution schemes to guide industry in developing and improving such schemes. The benchmarks were intended to operate flexibly and are still in use (although adapted and upgraded in 2015): The benchmarks should be approached in a spirit of seeking resolution by consensus as far as possible at an early stage to reduce costs, increase productivity and build better relationships between the parties. This is the essence of alternative dispute resolution. 161

The ACCC also published guidelines intended to assist the business community to adopt benchmarks for avoiding and resolving disputes. 162 These guidelines were developed following a series of “round table” discussions on small and large business disputes, in an attempt to find a more effective way for small businesses to resolve disputes in the marketplace. The guidelines aim to embed dispute avoidance practices in everyday operation, encourage the use of ADR processes and assist the development of benchmarks for dispute avoidance and dispute resolution. 163 To this end, the benchmarks include a section that sets out the characteristics of a “conflict-averse” company. For dispute avoidance, the round table participants suggested benchmarks in the areas of disclosure (sharing information), culturally appropriate practices 160 161

162

163

T Sourdin, An Empirical Study of Commercial Disputes (PhD thesis, University of Technology, Sydney, 1996). Consumer Affairs Division, Department of Industry, Science and Tourism, Benchmarks for Industrybased Customer Dispute Resolution Schemes (Benchmarks, 1997). See also recent revisions at Commonwealth Consumer Affairs Advisory Council (CCAAC), Review of the Benchmarks for Industrybased Customer Dispute Resolution Schemes, Final Report (Report, 2015) available on http:// ccaac.gov.au/2013/04/24/review-of-the-benchmarks-for-industry-based-customer-dispute-resolutionschemes/. Australian Competition and Consumer Commission, Benchmarks for Dispute Avoidance and Resolution – A Guide, available on https://www.accc.gov.au/publications/benchmarks-for-dispute-avoidanceresolution. Australian Competition and Consumer Commission, Benchmarks for Dispute Avoidance and Resolution – A Guide p 7, available on https://www.accc.gov.au/publications/benchmarks-for-dispute-avoidanceresolution. The benchmarks arose out of a round-table discussion of which the author was a member.

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(recognising our diverse population), recognition of mutual interests (which arose following concerns expressed about the “power and rights” approach adopted by large business), and conflict avoidance practices at the company level. Dispute resolution benchmarks agreed to by the round table included: • use of in-house dispute managers to settle disputes; • • • •

a dispute resolution clause in contracts/codes/disclosure statements; recognition/use of a small business negotiator; having the right negotiators; setting out clear and simple dispute handling policies and procedures;

• early intervention by a neutral third party; • establishing panels of appropriately trained and appropriately oriented dispute solvers; • industry awareness, endorsement and active support of the scheme; • accountability; • administration. 164 A variety of other trends are likely to impact on the way in which business deals with disputes and the associated risks of ineffective or “bad faith” communication. One trend can be categorised as an increasing emphasis on “self help” rather than the use of third-party neutrals. 165 This trend is allied to the growth in standards and benchmarks. The newer concepts assume that the role of third-party practitioners is likely to be reduced as parties are empowered to negotiate their disputes. The dangers of unassisted negotiation principally relate to the likelihood that positional approaches will be adopted and that ethical requirements will not be considered. However, the Australian Standards do define what negotiation process can be used and the key principles to be adopted. The Standards also explore to a limited extent the concept of “good faith” (see discussion in Chapter 11). The status of the standards and their capacity to be converted into regulatory legislation are areas of potential future change. Should the standards become mandatory in particular areas, they would have the capacity to create a new norm in respect of business communications and disputing patterns.

CONCLUSION [9.80] Changes in legislation continue to impact on the location and use of ADR. Some legislative requirements foster notification processes while others focus on ADR attendance. These are explored in greater detail in Chapter 11 in the context of expanding pre-litigation obligations. For example, at one level, some 164

165

Australian Competition and Consumer Commission, Benchmarks for Dispute Avoidance and Resolution – A Guide p 7, available on https://www.accc.gov.au/publications/benchmarks-for-dispute-avoidanceresolution. The benchmarks arose out of a round-table discussion of which the author was a member. See for example the small business step by step approach in Western Australia, http:// www.smallbusiness.wa.gov.au/dispute-resolution. [9.80] 381

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legislation requires that parties notify each other of a claim before process is filed. 166 Other legislation requires mandatory attendance at some form of ADR as a precondition to litigation, 167 detailed in the list below (and discussed in Chapter 11). The legislation often requires different reporting standards and notice periods. A number of States have adopted legislation to prevent court proceedings being commenced before mediation has been undertaken. In New South Wales, for example: • The Farm Debt Mediation Act 1994 (NSW) provides that mediation must occur before a creditor can take possession of property or other action under a “farm mortgage”. 168 • The Retail Leases Act 1994 (NSW) provides for the mediation of retail tenancy disputes. Under this legislation, court proceedings cannot be taken until the registrar of the Retail Tenancy Unit has provided a certificate or a court has satisfied itself that the dispute is unlikely to be resolved. 169 (Similar legislation operates in Victoria under the Retail Leases Act 2003 (Vic), which provides that a dispute about compensation cannot be dealt with at the Victorian Civil and Administrative Tribunal (VCAT) unless mediation has been undertaken.) 170 • The Legal Profession Act 2004 (NSW) specifically provides for referral to mediation or investigation in relation to disputes involving an issue of professional misconduct or unsatisfactory professional conduct between clients and legal practitioners. 171 • the Strata Schemes Management Act 1996 (NSW) provides for the mandatory mediation of strata scheme disputes prior to any application being accepted by the registrar for an order concerning the dispute. 172 While some schemes directly relate to the litigation system, an increasing number of ADR schemes and processes are not closely related to the litigation system and many of these operate in the business and community sectors. Over the past decade these schemes have grown in size and complexity and there is now an expectation that when most disputes arise they are unlikely to be dealt with using litigation processes.

166

167 168 169 170

See Supreme Court Civil Rules 2006 (SA) r 33, which applies to matters with a “primary action based on a monetary claim” (other than urgent or ex parte matters), and requires that the plaintiff give the defendant written notice of a potential claim 90 days before commencing an action. This must be accompanied by an offer to settle the claim, with sufficient details and supporting material. See, for example, Family Law Act 1975 (Cth), s 79(9); Retail Leases Act 1994 (NSW), Pt 8; Farm Debt Mediation Act 1994 (NSW). Farm Debt Mediation Act 1994 (NSW), Pts II and III.

171

Retail Leases Act 1994 (NSW), s 68(2). See T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (Report, Australian Centre for Justice Innovation, 2012), which examines the Victorian Retail Lease Scheme’s pre-action requirements. Legal Profession Act 2004 (NSW), s 517.

172

Strata Schemes Management Act 1996 (NSW), s 125.

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Chapter 10 ADR and technology [10.05] [10.20] [10.30]

[10.50] [10.55] [10.60] [10.70]

Introduction................................................................................................................... 383 [10.10] What is online dispute resolution (ODR)? .................................. 386 Supportive technology ................................................................................................ 389 [10.25] Websites and apps ........................................................................... 389 Replacement technologies .......................................................................................... 391 [10.35] Cultural factors and replacement technologies .......................... 396 [10.40] Information and standards ............................................................. 397 [10.45] Trends in replacement technologies ............................................. 397 Disruptive technologies .............................................................................................. 399 The impact of online facilitative processes ............................................................. 403 The impact of online advisory and determinative processes .............................. 408 [10.65] Implications for courts .................................................................... 412 Future developments................................................................................................... 417

INTRODUCTION [10.05] Changing and emerging technologies have considerable relevance to the continuing evolution of ADR processes and the justice system in general. 1 There are three main ways in which technology is reshaping ADR. First, and at the most basic level, technology can assist to inform, support and advise people involved in ADR (“supportive technologies”). Second, technology can replace functions and activities that were previously carried out by humans (“replacement technologies”). Finally, at a third level, technology can change the way that ADR works and provide for very different forms of ADR (“disruptive technologies”) particularly where processes change significantly. 2 In this context, technology can also inform ADR and justice system reform through the use of big data sets and relationship data as well as more complex knowledge generation. This Chapter considers each of these differing levels of technological change in addition to the current and potential impact on facilitative, evaluative and determinative forms of ADR. At present, most ADR reform that is supported by technology has focused on the first and second level of technological innovation. For example, more recent technological developments supplement and support the operation of many dispute resolution processes. At the first level of innovation, many Australians now locate ADR services online and obtain information about ADR processes, 1

See two papers (2012) used to support deliberations by Australian Attorney Generals, available on http://webarchive.nla.gov.au/gov/20141215115054/ and http://www.lccsc.gov.au/sclj/archive/former_ sclj/standing_council_publications/2012_publications.html.

2

This material is drawn from and discussed in more detail in T Sourdin, “Justice and Technological Innovation” (2015) 25 Journal of Judicial Administration 96, 105. [10.05] 383

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options and alternatives (including legal alternatives) through web-based information systems. Australians also increasingly locate and obtain legal support and services online and the growth of online legal firms which may provide “unbundled” legal services has been significant over the past three years. 3 Some web-based information (including digital video), video-conferencing (including internet-based group video calls), 4 teleconferencing and email can supplement, support and replace many face-to-face ADR approaches and could be defined as a second level technological approach. At this second level, ADR is supported by technology, and in some circumstances ADR changes the environment in which it takes place. 5 For example, online mediation is increasingly used in family disputes and may support more effective communication: Using online mediation allows a face-to-face experience, even where safety issues have been raised. Online mediation allows documentation and material to be displayed so that everyone can see the material as necessary. 6

Other technologies may merge into the third level and support negotiation by enabling people to access more sophisticated online “advice” that is supported by artificial intelligence (AI) or to consider options and alternatives or engage in different ways. For example, some commentators note that in family dispute resolution (FDR), technology now plays an increasing role with the development of online negotiation support systems. Many negotiation support systems such as AdjustedWinner, Smartsettle and FamilyWinner use bargaining and game theory to provide win-win solutions to participants in disputes. Adjusted Winner and SmartSettle can be used to provide negotiation advice, whereas Split-Up, Family-Winner and Asset Divider … focus upon decision support for negotiation. 7

In contrast to the traditional rational decision-making approaches, these more sophisticated technological programs are designed to encourage the development 3

4

5 6 7

See, for example, Lawyal, available on https://lawyal.com.au/about-us. Unbundled legal service provision involves assistance with set tasks. That is, a lawyer may be engaged to assist to prepare some documentation. Group video calls are available through subscription services such as Skype. Users require a high-speed broadband connection and must meet device hardware and software standards. See http://www.skype.com/en/features/group-video-chat/. See, for example, procedural changes in relation to ODR in the arbitration area, available on http://acica.org.au/resources/draft-procedural-order-for-use-of-online-technologies. L Kochanski, “Family Dispute Resolution” (2014) 4 Family Law Review 122, 124. E Wilson-Evered, D Macfarlane, J Zeleznikow and M Thompson Towards an Online Family Dispute Resolution Service in Australia (Paper presented at 9th Forum on New Technologies of Information and Communication Applied to Conflict, Buenos Aires, 2 and 3 June 2010) pp 4–5. . See a specific example on http://www.adrforum.com/Home/HomePage, where SettlementIQ can recommend settlements based on past history. Issues have been raised in the past about the National Arbitration Forum – see Lieff Cabraser Heimann & Bernstein, National Arbitration Forum, available on http:// www.lieffcabraser.com/Case-Center/National-Arbitration-Forum-Consumer-Fraud-Class-ActionLawsuit.shtml.

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and refinement of a number of options (rather than producing one outcome). 8 Technology can also assist in negotiation and mediation processes as well as making decisions. 9 One area where this has occurred is in resource disputes. For example, an early system called SIRO–MED was designed to create a computerised issue-focused database that could assist stakeholders and governments make decisions in a mediation context. 10 The system was said to support mediation because it encouraged a wide range of plans and therefore the development of a consensus plan. Similar systems have been designed to promote “e-democracy” 11 and report on issues by gathering data. 12 It is logical to assume that more sophisticated data interrogation methods will enhance these types of processes and also that online processes will be used to deal with disputes that can surface in related areas (such as crowdfunding disputes). 13 These areas of technological innovation, at the “third level”, have the capacity to be more disruptive than previous innovations that supported a “graft and grow” approach and assumed that ADR processes would not change in the context of their basic procedural stages. 14

8

See, for example, Smartsettle, available on http://www.smartsettle.com/home/products/smartsettleone/. It has been said that collaborative platforms, such as GroupMindExpress.com, are likely to be used more frequently in large multiparty disputes where information and participants are plentiful: see A Gaitenby, Online Dispute Resolution in The Internet Encyclopedia (John Wiley and Sons Inc, 2004) Vol 2, p 745, available on http://www.onlinelibrary.wiley.com/doi/10.1002/047148296X.tie129/full.

9

See MJ Hall, D Calabro, T Sourdin, A Stranieri and J Zeleznikow, “Supporting Discretionary Decisionmaking with Information Technology: A Case Study in the Criminal Sentencing Jurisdiction” (2005) 2(1) University of Ottawa Law and Technology Journal 1.

10

J Ive and D Cocks, “SIRO-MED: Bringing Information-based Mediation Support to Natural Resource Allocation” (1999) 10 Australasian Dispute Resolution Journal 165, 166. See, for example, Department of Finance, Whole of Government and Communications Technology, available on http://www.agimo.gov.au/practice/delivery/cop/e-democracy and The National Forum, Australian eDemocracy, available on http://www.democracy.nationalforum.com.au and http:// forums.e-democracy.org/. See also Cabinet Office and Civil Service, Social Media Guidance for Civil Servants, available on https://www.gov.uk/government/publications/social-media-guidance-for-civil-servants. See, for example, A Raymond and A Stemler, “Trusting Strangers: Dispute Resolution in the Crowd” (2015) 16 Cardozo Journal of Conflict Resolution 357. Significant shifts in the justice landscape are predicted by Susskind. See R Susskind, Tomorrows Lawyers; An Introduction to Your Future (Oxford University Press, Oxford, 2013) and R Susskind, The Future of Law: Facing the Challenges of Information Technology (Clarendon Press, Oxford, 1998) p 120. See also R Susskind (ed), Transforming the Law: Essays on Technology, Justice and the Legal Marketplace (Oxford University Press, Oxford, 2004).

11

12 13 14

[10.05] 385

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What is online dispute resolution (ODR)? [10.10] Some forms of ADR are currently carried out completely online using a variety of technological processes however many use a mix of online and offline approaches. 15 These processes are often referred to as online dispute resolution (ODR). The use of ODR has grown significantly in the past decade in Australia and overseas. 16 ODR is also defined as “dispute resolution processes [that are] conducted with the assistance of information and communications technology, particularly the Internet”. 17 However it is probably more appropriate to define ODR using the categorisation in the introduction above as primarily a second (replacement technology) or potentially a third level (disruptive technology) approach. That is, ODR is not just about providing information and access to material (supportive technology). Rather, ODR is about using technologies to replace interactions in ADR with technological solutions. ODR has evolved largely in response to the rapid evolution of the internet and supportive technologies (such as video-conferencing) and the corresponding 15

16

17

AC Tidwell, “Handling Disputes in Cyberspace” (1996) 7 Australian Dispute Resolution Journal 245. For an example of a website offering dispute resolution services, see Virtual Courthouse, available on http://www.virtualcourthouse.com/, which allows parties to select a neutral decision-maker who will review the arguments and evidence and render a decision online. T Sourdin and C Liyanage, “The Promise and Reality of Online Dispute Resolution in Australia”, in Wahab, Katsh and Rainey (eds), Online Dispute Resolution: Theory and Practice – A Treatise in Technology and Dispute Resolution (Eleven International Publishing, The Hague, 2011) p 457. M Conley Tyler and M McPherson, “Online Dispute Resolution and Family Disputes” (2006) 12 Journal of Family Studies 1, 5.

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increase in online transactions and conflict. 18 In this respect, it has been estimated that more than one trillion transactions now take place online each year. 19 For the past two decades, ODR providers have often been linked with specific transaction types (such as Amazon or PayPal) 20 and there has been a slow and significant increase in service providers and available ODR options outside of the online service area. Technology and ODR has led to the globalisation of dispute resolution services. In disputes about internet domain names, 21 as well as many other types of disputes, online dispute resolution (ODR) has become a thriving industry. Already these schemes are having an impact on economic and family dispute systems and in the future they may result in a more globalised delivery of dispute resolution services. The existence of internet systems and a lack of other more traditional global dispute resolution systems also means that e-business or e-commerce disputes are likely to be resolved online and outside traditional court and tribunal systems. However, there are issues about the quality and capacity of some ODR schemes to adequately support consumers and others (see later in this chapter). 22 There has also been increasing scholarly attention paid to ODR. Apart from books, conference and general professional interest groups, journal articles in the field have increased. In 2014, the inaugural issue of the International Journal of Online Dispute Resolution (IJODR) was published. As its name suggests, the IJODR is dedicated solely to ODR, marking another milestone in the development and recognition of ODR. 23 Despite some fears that technology could lead to the replacement of many ADR practitioners, 24 arguably, ADR practitioners are better placed than some to deal with new technologies. This is partly because they specialise in social and communication skills. As one commentator noted: “So why are social skills so

18

In general see ODR.INFO, available on http://www.odr.info/publications.

19

See PR Newswire, “Crossbeam Systems Secures Over One Trillion Online Financial Transactions a Day”, available on http://www.prnewswire.com/news-releases/crossbeam-systems-secures-overone-trillion-online-financial-transactions-per-day-52747327.html. T Sourdin, “Innovation and Alternative Dispute Resolution” (2013) 32(2) The Arbitrator and Mediator 111.

20 21

See Internet Corporation for Assigned Names and Numbers, available on http://www.icann.org/en/ about.

22

L Ponte, “Getting a Bad Rap? Unconscionability in Clickwrap Dispute Resolution Clauses and a Proposal for Improving the Quality of these Online Consumer ‘Products’” (2011) 26(1) Ohio State Journal on Dispute Resolution 119. See International Journal of Dispute Resolution (2014) 1(1), available on http://www.internationalodr.com/documenten/ijodr_2014_01_01.pdf.

23 24

See R Larson, “Artificial Intelligence: Robots, Avatars, and the Demise of the Human Mediator” (2010) 25(1) Ohio State Journal on Dispute Resolution 105. [10.10] 387

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prized in today’s labor market? One reason, Deming explains, is because computers are still bad at simulating social interaction”. 25 Issues with technology access [10.15] As internet use has grown across Australia, it is often assumed that all people will access information about dispute resolution options via the internet. However this is not always the case. “Digital divide” issues can impact upon the use and utility of all forms of new technology, and a range of factors contribute to this phenomena around the globe. 26 One writer has optimistically referred to “digital inclusion” issues. 27 These can be grouped into a number of areas that can effect how people access the internet and supportive technologies: culture and preference; broadband issues; age; disability; income; geographical factors; and education. While many technologies are directed at assisting people who might otherwise have difficulty accessing information and support (for example, Skype Translate), 28 and the number of households with internet access continues to increase within Australia, 29 there may still be issues with internet access that arise for different reasons. The Australian Bureau of Statistics (ABS) reported that the percentage of households with internet access rose from 79 per cent in 2010–2011 to 83 per cent in 2012–2013. 30 However, ABS data has also revealed a continuing gap in usage. These findings suggest that while it may be possible for many people to access supportive technologies, it will continue to be difficult for many people to use replacement technologies such as more developed forms of ODR, even within relatively technologically advanced communities in Australia.

25

26 27 28 29 30

See N Torres, “Research: Technology is Only Making Social Skills More Important” (2015) Harvard Business Review, available on https://hbr.org/2015/08/research-technology-is-only-making-socialskills-more-important?utm_campaign=Socialflow&utm_source=Socialflow&utm_medium=Tweet. See T Sourdin, ODR and the Digital Divide (Paper presented at the United Nations Third Annual Forum on Online Dispute Resolution, Melbourne, 5-6 July 2004). See M Wahab, “The Global Information Society and Online Dispute Resolution: A New Dawn for Dispute Resolution” (2004) 21(2) Journal of International Arbitration 14. See http://www.skypetranslate.com/. ABS, Household Use of Information Technology, Australia, 2012-13 (Report, 2014), available on http:// www.abs.gov.au/AUSSTATS/[email protected]/Lookup/8146.0Main+Features12012-13?OpenDocument. ABS, Household Use of Information Technology, Australia, 2012-13 (Report, 2014), available on http:// www.abs.gov.au/AUSSTATS/[email protected]/Lookup/8146.0Main+Features12012-13?OpenDocument.

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SUPPORTIVE TECHNOLOGY [10.20] Many supportive technologies are directed at supporting an understanding of, and engagement in, ADR. For example, Australian ADR environments now use Facebook, Twitter, LinkedIn and YouTube to engage with business, consumers and stakeholders about dispute resolution and to support dispute avoidance and self-managed negotiation strategies. 31 In addition most ADR practitioners and services use websites to inform and support those involved in ADR and may reach out to others via social media. The extent to which websites and apps are used may vary according to the technological capacity and maturity of the main users of the ADR services. For example, as younger Australians are more likely to be online, ADR services and support mechanisms that utilise technology are more likely to be oriented towards this group. In terms of age and internet connectivity, ABS research has found: In 2012–13, 83% of persons were internet users. Those persons in the 15 to 17 years age group had the highest proportion of internet users (at 97%) compared to the older persons age group (65 or over) with the lowest proportion of internet users (at 46%). 32

The differences are linked to whether there are children in a household. The ABS has found that: Almost every household with children under 15 years of age had access to the internet at home (96%), as compared to 78% of households without children under 15 years of age in 2012–13. 33

It is probably for this reason, that replacement technologies have been so successfully adapted in the family dispute resolution area. In discussing the statistical trends of this growth, Bilinsky notes that: most family/divorce/access/support issues take place in families where the age of the parties are often under 35. This demographic group is familiar with technology as well as having access to technology. Given the large geographic challenges faced in Australia, this factor alone is driving the use of this system. 34

Websites and apps [10.25] There are many websites that support ADR services. Such websites enable people to find a mediator or another type of ADR practitioner, access information about ADR and download tools that can support ADR. These supportive arrangements vary and often where ADR is funded by industry or 31

See http://gov2.net.au/blog/2009/12/31/guest-post-the-victorian-department-of-justice-and-web-2-0/ #more-1750.

32

ABS, Household Use of Information Technology, Australia, 2012-13 (Report, 2014), available on http:// www.abs.gov.au/AUSSTATS/[email protected]/Lookup/8146.0Main+Features12012-13?OpenDocument. ABS, Household Use of Information Technology, Australia, 2012-13 (Report, 2014), available on http:// www.abs.gov.au/AUSSTATS/[email protected]/Lookup/8146.0Main+Features12012-13?OpenDocument.

33 34

D Bilinsky, Report from the ODR Conference in Buenos Aires (2010) Slaw, available on http:// www.slaw.ca/2010/06/03/report-from-the-odr-conference-in-buenos-aires. [10.25] 389

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government (and not carried out by private practitioners) the arrangements and support can be more elaborate and enable users to lodge complaints or dispute information to enable face-to-face, telephone assisted or video-conferencing processes to be set up. Some ADR websites offer online forms and follow-up email and related request support and it is likely that more sophisticated websites will expand in the future. Many sites remain supportive, for instance, the Dispute Settlement Centre of Victoria (DSCV) introduced an online information package in 2010 with web-based resources that are available in a range of languages and supported by an interpreter service. 35 While the DSCV does not provide a replacement technology service, its web-based materials assist in direct resolution of disputes and provide resources for face-to-face dispute resolution services. 36 In the context of other supportive technologies, applications or “apps” have become an increasingly popular way of accessing information and connecting to services over the past five years. A variety of apps have been created that provide people with free access to legal information and advice. This is a significant area of development as apps may support those who are comfortable with smartphones and mobile devices but intimidated by or unable to access computers. 37 In the 2012 analysis paper, Harnessing the Benefits of Technology to Improve Access to Justice, the Australian Government noted that: The development of mobile software applications and optimised websites for use on mobile phones is increasingly becoming a necessity if an agency or organisation wishes to have a strong online presence and increase their reach to the public, particularly people in RRR areas which is very important for legal assistance services. Given the current use of mobile media devices and the projected increase in the use of such devices to access information in the future, there will be an increase in expectations from the public that they will be able to access information through these devices and that this information will be current. 38

A large number of legal information and services apps have emerged in the United States of America. For example, “Ask a Lawyer: Legal Help” enables 35

36

37

38

See Dispute Settlement Centre of Victoria (DSCV), available onhttp://www.disputes.vic.gov.au; also DSCV’s Dispute Resolution Toolkit: DSCV, Resolving Your Own Dispute, available on http:// www.disputes.vic.gov.au/resolving-your-own-dispute. See T Sourdin and C Liyanage, “ODR in Australia” (Chapter 7), in MS Abdel Wahab, E Katsh, and D Rainey, Online Dispute Resolution: Theory and Practice – A Treatise on Technology and Dispute Resolution (Eleven Publishing, Egypt, 2011). See J Dysart, “20 Apps to Help Provide Easer Access to Legal Help” (2015) American Bar Association (ABA) Journal, available on http://www.abajournal.com/magazine/article/20_apps_providing_easier_ access_to_legal_help. Law, Crime and Community Safety Council, Attorney General’s Department, Australian Government, Harnessing the Benefits of Technology to Improve Access to Justice (Analysis Paper, AG, 2012) p 16, available on http://www.lccsc.gov.au/agdbasev7wr/sclj/harnessing_the_power_of_technology_ analysis_paper.pdf.

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people to message and chat live with lawyers for free. 39 Another American app, “BernieSez”, allows consumers to upload a photograph of a ticket or other charge-related paperwork. Lawyers then compete to win work from the consumer, offering their fees upfront. 40 In Australia, legal apps have also emerged. Legal Aid South Australia has created an app called “LegalAidSA”. The app is free to download and provides legal information and resources on a wide range of areas, including family law, wills and motor vehicle accidents. The app facilitates calls to free legal help telephone lines and provides travel directions to South Australian Legal Aid offices. 41 Apps are an especially useful tool for communicating with young people who commonly use their smartphones to access information. Victoria Legal Aid, in conjunction with a number of interstate Legal Aid bodies, created an app named “Below the Belt”. Below the Belt provides young people with legal information about sexual offences and cyberbullying. Legal research apps and websites are also relevant. Some examples include Austlii and HeinOnline. A variety of more general apps are also available for lawyers. These include apps that convert voice to text, day counting apps and document management apps. Many apps have the potential to support ADR by either providing resources that assist in understanding ADR or supporting information about options and alternatives. Some apps support forms of ODR (discussed further below) such as the well-known Skype app, which can be used for video or telephone conferencing.

REPLACEMENT TECHNOLOGIES [10.30] The last decade has seen a significant growth in replacement technologies, which are technologies that can replace all or part of the interaction in an ADR process and (as noted previously) are often referred to as ODR. Within Australia technology has continued to develop rapidly in some selected dispute areas as a result of a healthy ADR environment, robust e-environment and the extension of higher bandwidth via new broadband arrangements that will continue to expand as a result of the NBN rollout 42 and newer technologies that support 39

40

41 42

See https://play.google.com/store/apps/details?id=com.absmallbusinessmarketing.askalawyer&hl= en; J Dysart, “20 Apps to Help Provide Easer Access to Legal Help” (2015), available on http:// www.abajournal.com/magazine/article/20_apps_providing_easier_access_to_legal_help/. See http://www.berniesez.com/; J Dysart, “20 Apps to Help Provide Easer Access to Legal Help” (2015), available on http://www.abajournal.com/magazine/article/20_apps_providing_easier_ access_to_legal_help/. Legal Services Commission of South Australia, What’s New: LegalAidSA, available on http:// www.lsc.sa.gov.au/cb_pages/news/LegalAidSAdownloadoverview.php. See T Sourdin and C Liyanage, “ODR in Australia” (Chapter 7), in MS Abdel Wahab, E Katsh and D Rainey, Online Dispute Resolution: Theory and Practice – A Treatise on Technology and Dispute Resolution (Eleven Publishing, Egypt, 2011). See also Department of Communications, National Broadband Network, available on http://www.communications.gov.au/broadband/national_ broadband_network. [10.30] 391

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wifi remote operating options. Statistics collected by the ABS in 2014 indicated that the relatively slow dial-up services in Australia have almost been phased out. In 2014, 99 per cent of internet connections were broadband 43 and the increased internet capacity indicates that replacement technologies that do not just provide information and support are likely to become more relevant in the near future. Statistics released by the ABS in 2014 show that the digital divide in respect of remote and inner city regions is closing. 44 Interestingly, the percentage of households with internet access is the same in respect of major cities and “very remote” areas. 45 Table 10.1 – Australian households with internet access, proportion of total households 2012–13 Remoteness area Major Cities Inner Regional Outer Regional Remote Very Remote

Households with internet access (%) 85 79 77 77 85

[Source: Australian Bureau of Statistics (ABS), Household Use of Information Technology, Australia, 2012–13, Table 4 (extract): Households with internet access, proportion of total households: 2012–13 (February 2014) © Commonwealth of Australia 2014.] While the growth in replacement technologies has not matched the exponential rate predicted in the early 2000s, the increasing engagement of government institutions with systems of ODR is also indicative of its promise as a dispute resolution system. 46 However, much of the increase in ODR in Australia has been directed at first-tier complaints handling mechanisms for e-commerce and consumer-based schemes or mixed supportive and replacement technologies. 47 For example, Consumer Affairs Victoria (CAV) provides a partial ODR 43 44 45

ABS, Internet Activity, Australia, December 2014 (Report, 2014), available on http://www.abs.gov.au/ AUSSTATS/[email protected]/DetailsPage/8153.0December%202014?OpenDocument. ABS, Household Use of Information Technology, Australia, 2012-13 (Report, 2014), available on http:// www.abs.gov.au/AUSSTATS/[email protected]/Lookup/8146.0Main+Features12012-13?OpenDocument. ABS, Household Use of Information Technology, Australia, 2012-13 (Report, 2014), available on http:// www.abs.gov.au/AUSSTATS/[email protected]/Lookup/8146.0Main+Features12012-13?OpenDocument.

46

The adoption of ODR by government institutions, or the “institutional phase”, is recognised as the fourth phase in the adoption of ODR, taking it beyond the earlier “hobbyist”, “experimental” and “entrepreneurial” phases. See M Conley-Tyler, 115 and Counting: The State of ODR (Paper presented at the United Nations Third Annual Forum on Online Dispute Resolution, Melbourne, 5-6 July 2004), available on http://www.ombuds.org/unforum2004/ConleyTyler.htm.

47

See M Conley-Tyler, 115 and Counting: The State of ODR (Paper presented at the United Nations Third Annual Forum on Online Dispute Resolution, Melbourne, 5-6 July 2004), available on http:// www.ombuds.org/unforum2004/ConleyTyler.htm; M Conley-Tyler and M McPherson, “Online Dispute Resolution and Family Disputes” (2006) 12(2) Journal of Family Studies 7, note 13, available on http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1032743.

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environment with support packages for consumer disputes, online lodgements for complaints, and dispute resolution mechanisms that are offered using both online and offline methods. 48 There are also some court based schemes that are developing and trialling these technologies (discussed further below at [10.60]). As noted previously, while many websites act solely or primarily as supportive referral and information points, 49 others provide online services. This suggests that online ADR can have many benefits such as enabling greater choice in terms of options, saving travel costs and keeping parties separate (particularly in domestic violence situations). ODR can take advantage of evolving and improving technologies to support dispute resolution through real time translation and other initiatives that can reduce barriers to effective communication. One writer has suggested that the internet could become a “dispute resolution space” with the assistance of useful tools for “communicating, storing and processing information”. 50 ODR processes in this context have been referred to as a “Fourth party”, which signifies the special role that technology can play in facilitating the resolution of disputes. 51 However, this is something of a misnomer, although many ODR sites often utilise “bidding” or advisory online processes and can almost be fully automated. Others use human intervention through the facilitation of all or part of a dispute or complaints handling process. There are numerous examples of dispute resolution that are conducted completely online in the consumer sector. One of the largest commercial operators in this area is Modria, which is chiefly focused on business in the United States. 52 These systems that mainly deal with consumer disputes and specialise in large-scale operations and Modria have handled more than 400 million disputes. The eBay and PayPal online systems deal with approximately 60 million matters per year. 53 Online systems are expanding rapidly, particularly in Europe, following the establishment of the European Union (EU) ODR regulation. This extensive system has already been set up in some European countries and focuses on consumer disputes. 54 Importantly, both the directive on consumer ADR 55 and a Regulation on Consumer Online Dispute Resolution (Regulation on Consumer 48 49

See Consumer Affairs Victoria, available on http://www.consumer.vic.gov.au. For example, Mediation Information Resource Centre, available on http://www.consumer.vic.gov.au and Dispute Settlement Centre of Victoria, Department of Justice Victoria, available on http:// www.disputes.vic.gov.au.

50

E Katsh and J Rifkin, Online Dispute Resolution: Resolving Conflicts in Cyberspace (Jossey-Bass, San Francisco, 2001) p 3. E Katsh and J Rifkin, Online Dispute Resolution: Resolving Conflicts in Cyberspace (Jossey-Bass, San Francisco, 2001) p. 93; For a discussion of the issues surrounding the translation of ADR principles to the internet environment, see HA Haloush and BH Malkawi, “Internet Characteristics and Online Alternative Dispute Resolution” (2008) 13 Harvard Negotiation Law Review 327, 332–334. See https://www.modria.com/.

51

52 53

See https://www.modria.com/.

54

See a discussion of these developments at http://www.infolaw.co.uk/newsletter/2013/01/onlinedispute-resolution/. [10.30] 393

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ODR) 56 have led to additional commentary about ODR. 57 EU member states had 24 months to transpose the regulation into national legislation (that is by mid-2015) and a further 6 months for ODR platforms to become operational (that is, by early 2016). It is unclear how well the operation will work particularly given the very different legal system parameters in various European countries. 58 The United Kingdom has already begun the implementation process. 59 The online platform became operational in January 2016 60 and the European Commission has stated that: Consumers who encounter a problem with an online purchase will be able to submit a complaint online through the ODR platform, in the language of their choice. The ODR platform will notify the trader that a complaint is lodged against him. The consumer and the trader will then agree on which ADR entity to use to solve their dispute. When they agree, the chosen ADR entity will receive the details of the dispute via the ODR platform. 61

This single point entry model is marketed as being easy to use and free of charge. ADR entities will be required to settle disputes within 90 days. 62 This coordinated recognition and implementation of ODR marks a significant step in ODR’s evolution. In areas beyond consumer dispute resolution, there has been less growth in fully online options. One significant provider in Europe is Youstice. 63 Youstice is focused on online complaints and has built an app (launched in 2014) to assist with this work. ODR has a relatively long history in the resolution of disputes between users of online communities such as Wikipedia, eBay and Facebook. In addition, ODR 55

Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) Directive 2013/11/EU of 21 May 2013, available on http://eurlex.europa.eu/legal-content/EN/TXT/?uri=celex:32013L0011.

56 57

Available on http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:165:0001:0012:EN:PDF. In the United Kingdom a 2014 report by the Department for Business, Innovation and Skills, Alternative Dispute Resolution for Consumers, available on https://www.gov.uk/government/uploads/ system/uploads/attachment_data/file/377522/bis-14-1122-alternative-dispute-resolution-forconsumers.pdf sets out material relating to the United Kingdom response. In March 2015, government regulations were published which included requirements for traders to provide certain information to consumers regarding ADR by 9 July 2015.

58

See P Cortes, “The Impact of EU Law in the ADR Landscape in Italy, Spain and the UK: Time For Change or Missed Opportunity?” (2015) (V 16) 2 ERA Forum 125-147. The United Kingdom government has transposed the core provisions of the ADR Directive through the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 and the (Amendment) Regulations 2015. See European Union, Alternative and Online Dispute Resolution, available on http://ec.europa.eu/ consumers/solving_consumer_disputes/non-judicial_redress/adr-odr/index_en.htm. European Commission, A Step Forward for EU Consumers: Questions & Answers on Alternative Dispute Resolution and Online Dispute Resolution (Memorandum, EC, 2013), available on http://europa.eu/ rapid/press-release_MEMO-13-193_en.htm.

59

60 61

62

63

European Commission, A Step Forward for EU Consumers: Questions & Answers on Alternative Dispute Resolution and Online Dispute Resolution (Memorandum, EC, 2013), available on http://europa.eu/ rapid/press-release_MEMO-13-193_en.htm. See http://www.youstice.com/en/.

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has provided Wikipedia and eBay with useful data to use when developing dispute prevention strategies. 64 Each year 60 million eBay trader disputes are resolved through ODR. 65 Wikipedia’s dispute resolution system provides an interesting case study because it was developed primarily by the site users, as opposed to dispute resolution professionals. 66 Consequently, Wikipedia’s dispute resolution system is different to the traditional ADR model, but reflective of Wikipedia’s user-centric operating model. 67 Wikipedia has various mechanisms for dealing with content and conduct disputes. Editors may resolve their content disputes through Wikipedia’s “Dispute Resolution Noticeboard”, which is a platform for a discussion moderated by Wikipedia volunteers, with the view to reaching a compromise and resolution. Where there are two editors in a dispute, the editors may request a non-binding opinion by an independent third editor. Editors may request formal mediation by the “Mediation Committee”, constituted by a panel of editors. As a last resort mechanism for conduct disputes, Wikipedia has an “Arbitration Committee” that imposes binding solutions. 68 Facebook regulates content that violates its terms of service; however it refrains from intervening in user-to-user matters such as unwanted postings of insults or embarrassing photos. To assist with the latter matters, Facebook has implemented message templates that provide constructive language for communicating grievances to another user. The aggrieved person can select how they feel about the relevant post (for example, embarrassed or angry) and Facebook will generate an appropriate template. 69 This form of online dispute resolution offers a constructive way for people to deal with their social media grievances. Replacement technologies are also being used in broader areas of dispute resolution although often they are more focused on supportive rather than replacement technologies. For example, the Accident Compensation Conciliation Service (ACCS) provides online dispute resolution via video conference in

64 65 66

O Rabinovich-Einy and E Katsh, “Digital Justice: Reshaping Boundaries in an Online Dispute Resolution Environment” (2014) 1(1) International Journal of Online Dispute Resolution 5, 24. CJC, Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 11. O Rabinovich-Einy and E Katsh, “Digital Justice: Reshaping Boundaries in an Online Dispute Resolution Environment” (2014) 1(1) International Journal of Online Dispute Resolution 5, 24.

67

O Rabinovich-Einy and E Katsh, “Digital Justice: Reshaping Boundaries in an Online Dispute Resolution Environment” (2014) 1(1) International Journal of Online Dispute Resolution 5, 24.

68

See Wikipedia, Wikipedia: Dispute Resolution, available on http://en.wikipedia.org/wiki/ Wikipedia:Dispute_resolution. See Facebook, Safety Center, available on https://www.facebook.com/safety/tools/; CNN Money, Facebook’s Other User Experiment: Conflict Resolution, available on http://money.cnn.com/2014/07/01/ technology/social/facebook-compassion-research/; K Shonk, Using a Negotiation Approach to Resolve a Conflict: On Facebook, Dispute Resolution Goes Live, available on http://www.pon.harvard.edu/daily/ dispute-resolution/on-facebook-dispute-resolution-goes-live.

69

[10.30] 395

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limited circumstances. 70 The Financial Ombudsman Service (FOS) is also expanding its technological tools. The FOS generally conducts conciliation via telephone. 71 The FOS recently launched an array of online learning modules concerning its dispute resolution process, including those designed to reach marginalised audiences. For example, the FOS recently launched an Auslan online video, introducing the FOS to the Australian hearing-impaired community. 72 The FOS uses an online collaboration tool known as the Consumer Liaison Group (CLG) Hub. The CLG Hub hosts discussion forums, news, surveys and social content. 73 In relation to financial difficulty disputes, the FOS is developing an optional online tool which will enable applicants to provide more details of their financial position electronically. 74 Online form lodgement is becoming increasingly popular at FOS. During 2013–2014, the FOS reported that: Almost three-quarters of applicants (74°%) chose to lodge their disputes through our website using the online dispute form … which was an increase from 69°% in 2013–2014, 63°% in 2011–2012 and 57°% in 2010–11. This increase corresponds to greater general use of the internet.

At present, apart from internet user disputes, email is still used widely in ODR processes and flat written email dialogue seems incompatible with most facilitative forms of ADR, where communication skills and the opportunity for interaction are of particular importance. 75 It is probable that the email approach will evolve rapidly over the next decade as emergent technology provides better communication options. Boulle has raised the possibility that, in the future, virtual mediation might occur; that is, software could be developed to enable a computer to listen, acknowledge, define disputes, mutually reframe and encourage settlement. 76

Cultural factors and replacement technologies [10.35] Cultural factors may play a role in determining the effectiveness of replacement technologies.. For example, more recent “tech savvy” generations show an increasing willingness to conduct and share experiences online and it seems likely that the familiarity with online processes will extend to the ADR environment. However there are concerns that these replacement technologies may not support flexibility in ADR. ADR processes can be adapted and varied by practitioners to support more culturally appropriate decision-making. For example, indigenous forms of ADR may combine cultural preferences for open 70

See ACCS, Online Dispute Resolution, available on http://www.conciliation.vic.gov.au/conciliationprocess/conferences/online-dispute-resolution.

71 72

Financial Ombudsman Service (FOS), Annual Review 2013-2014 (2014) p 89. Financial Ombudsman Service (FOS), Annual Review 2013-2014 (2014) p 9.

73 74

Financial Ombudsman Service (FOS), Annual Review 2013-2014 (2014) p 26. Financial Ombudsman Service (FOS), Annual Review 2013-2014 (2014) p 81.

75 76

See also L Boulle, “Options for Cyber-med” (1999) 10 ADR Bulletin 1, 128. See also L Boulle, “Options for Cyber-med” (1999) 10 ADR Bulletin 1, 127.

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community consultation with ADR practices that respect familial approaches. Some ODR processes may not allow for this type of flexibility in process to take place. Of more immediate concern is that many people may be unable to access technological processes because of cultural limitations and preferences. This inability can also be linked to factors related to wealth, health, geographical location, language and literacy (as discussed previously). These factors have been considered more generally by the ABS in considering IT use among the indigenous population of Australia. In 2012 the ABS noted that “63% of Aboriginal and Torres Strait Islander households reported having an internet connection, up from 40% in 2006”. 77

Information and standards [10.40] Despite access issues that may be related to disability and other potential limiting conditions, many potential participants in ODR are said to show considerable interest in ODR to deal with online and offline disputes. However, it is unclear how informed consumers are about the process. Ponte has pointed out that most consumers simply click on “I agree” when making online transactions and they may not know or understand that they can be agreeing to forms of ODR that are inferior or of lower quality than other forms of ADR. It may be more difficult for some consumers to challenge these arrangements because they are not as internet-aware as others or are unable to access offline services (because of geographical or other limitations). 78

Trends in replacement technologies [10.45] It is likely that ongoing developments in this area will be informed by international as well as local developments. At the local level, developments facilitating ongoing reforms have been supported by the recent Productivity Commission Report 79 as well as work by the Australian Centre for Justice Innovation (ACJI) on timeliness. 80 Internationally, recent work in the United Kingdom by the Civil Justice Council (UK) (CJC) 81 is likely to influence developments in the justice sector into the future and this will in turn impact on 77

78

79 80

81

ABS, Census of Population and Housing: Characteristics of Aboriginal and Torres Strait Islander Australians, 2011 (Report, 2012), available on http://www.abs.gov.au/ausstats/[email protected]/Lookup/ 2076.0main+features702011. L Ponte, “Getting a Bad Rap? Unconscionability in Clickwrap Dispute Resolution Clauses and a Proposal for Improving the Quality of These Online Consumer ‘Products” (2011) 26(1) Ohio State Journal on Dispute Resolution 119. Productivity Commission, Access to Justice Arrangements (Report No 72, Productivity Commission, Australia, 2014). See Australian Centre for Justice Innovation, The Timeliness Project: Background Report (Report, ACJI, 2013) and Australian Centre for Justice Innovation, Innovation Paper on Timeliness (Report, ACJI, 2015). Civil Justice Council (CJC), Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, 2015) p 3. [10.45] 397

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the ADR sector. There is already some significant work that has been undertaken within Australia (see [10.60]) however cohesive policy arrangements are not yet in place. In both the UK and in Europe (as a result of the ODR Directive) there has been more extensive policy debate than in Australia. The CJC Online Dispute Resolution for Low Value Civil Claims report, for example, addresses concerns that the current court system of England and Wales is “too costly, too slow, and too complex, especially for litigants in person”. 82 The CJC’s central recommendation relates to replacement technologies with the establishment of a new internet-based court service for civil disputes with a value of less than £25,000. 83 The CJC estimates that the new court, the HM Online Court (HMOC), could be launched in 2017, with a pilot scheme operating in 2016. 84 The CJC’s recommendations are similar to those of the European Union’s Regulation on Consumer ODR. 85 The CJC recommended that the HMOC consist of three tiers. 86 The first tier, Online Evaluation, is primarily informative. It provides an online assessment of a grievance to classify and categorise the problem. This online evaluation also educates users about their rights, obligations, options and available remedies. 87 This stage is free of charge. If problems are not resolved through Online Evaluation, users can proceed to the second tier, Online Facilitation. 88 Online Facilitation provides parties with access to professional online facilitators who can mediate, advise and encourage negotiation. This involves a mix of ADR and advisory techniques, with telephone conferencing facilities available where necessary. The outcomes are not binding. Users will pay a court fee that is significantly lower than the fee charged at the third tier. 89 The third tier, Online Judges, involves online judicial determination of cases. Decisions made by the online judges are binding and enforceable, as though they were made in a traditional court. Decisions will be largely based on electronically submitted

82 83 84 85 86 87 88 89

Civil Justice Council (CJC), Online Dispute Resolution Resolution Advisory Group (Report, 2015) p 3. Civil Justice Council (CJC), Online Dispute Resolution Resolution Advisory Group (Report, 2015) p 3. Civil Justice Council (CJC), Online Dispute Resolution Resolution Advisory Group (Report, 2015) p 29. Civil Justice Council (CJC), Online Dispute Resolution Resolution Advisory Group (Report, 2015) p 27.

for Low Value Civil Claims – Online Dispute for Low Value Civil Claims – Online Dispute for Low Value Civil Claims – Online Dispute for Low Value Civil Claims – Online Dispute

Civil Justice Council (CJC), Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, 2015) p 6. Civil Justice Council (CJC), Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, 2015) p 19. Civil Justice Council (CJC), Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, 2015) p 19. Civil Justice Council (CJC), Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, 2015) p 20.

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papers and where necessary, telephone conferences. A fee will be imposed; however it will be significantly lower than the fee imposed by a traditional court. 90 The three-tiered online dispute resolution system is intended to provide a more cost efficient approach to justice. The CJC explains that: [c]ases are handled by lower cost facilitators rather [than] judges and those cases that do reach judges will be handled at less expense because they will not involve court buildings with their associated operating costs. 91

The CJC recommends that the proposed system be piloted. 92

DISRUPTIVE TECHNOLOGIES [10.50] As noted previously at the third level of technological change are technologies that may significantly change ADR processes. These technologies can impact upon who attends and contributes to an ADR process, how relationships and other factors are mapped and considered, and how decisions are made. Newer technologies can develop options and use Artificial Intelligence (AI) to chart alternatives and run processes. In this regard, some disruptive technologies are linked to Artificial Legal Intelligence (ALI) which can be viewed as a form of dispute resolution or a system that has the capacity to render expert advice or decision-making. AI refers to computer systems that perform tasks and/or solve problems that usually require human intelligence. 93 These processes have emerged over the past 50 years 94 and have been directed at technical as well as legal analysis. 95 They have the capacity to blend with existing adjudicatory or non-adjudicatory processes. However, it is most probable that their impact will be most significant where determinative and advisory processes are used. Legal information and AI systems can use sophisticated “branching” and data searching technology to create elaborate “decision trees” that can suggest outcomes to disputes. This is done by a system which emulates human intelligence (neural networks). 96 Essentially, what takes place is that the system, 90 91 92

Civil Justice Council (CJC), Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, 2015) p 20. Civil Justice Council (CJC), Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, 2015) p 20. Civil Justice Council (CJC), Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, 2015) p 20.

93

R Susskind, The Future of Law: Facing the Challenges of Information Technology (Clarendon Press, Oxford, 1996) p 120.

94

For a history of the development of ALI, see P Gray, Artificial Legal Intelligence (Brookfield, Dartmouth, United Kingdom, 1997) Ch 2.

95

P Savasdisara, “Computer-assisted Legal Analysis Systems: Part 1: The Origins of Computer-aided Support Systems” (1994) 5(2) Computers and Law 28.

96

See, for example, NB Chaphalkar, KC Iyer and S K Patil, “Prediction of Outcome of Construction Dispute Claims Using Multilayer Perceptron Neural Network Model” (2015) 33(8) International Journal of Project Management 1827. [10.50] 399

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which is modelled on past data about decisions, asks the user a number of questions, or uses existing data about the user and then asks questions about the dispute to enable an accurate description of the dispute to be built. The computer then forms a conclusion by applying the law to the dispute description. It does this by applying rules for specific sets of facts. Finally, the computer can perform tasks based on the description given. 97 This process may enable indicative decisions to be expressed. Arguably however, there are many other factors that impact on decision-making. The Australian Law Reform Commission (ALRC) has noted that such factors include induction and intuition as well as the capacity to assess the social impact of decisions. 98 Branching technology that is not rule-based was used in a project of the Intelligent Computing Systems Research conducted by La Trobe University and Victoria University (called “Split-Up”). The project, led by Professor Zeleznikow, determined that there are 94 factors relevant for a percentage split decision and was directed at applying AI to assist in calculating the division of property in family law proceedings. 99 Split-Up, a hybrid rule-based neutral network system that grew out of this research, offers advice on how property is likely to be distributed if the matter was to be determined by a court. It has been trialled by some judges, judicial registrars and registrars of the Family Court of Australia as well as legal practitioners, mediators and counsellors. A more advanced approach, which is oriented at supporting negotiation, is called Family Winner. 100 In Victoria in 2002 and 2003, a collaborative project by La Trobe University, Victoria University, Justsys and Legal Aid Victoria was undertaken to explore, model and build a decision-making prototype of the decisions made by magistrates when determining sentences in the Magistrates’ Court of Victoria (criminal) jurisdiction. For this project, legal knowledge was modelled into reasoning in sentencing and a model developed to predict the sentencing decision of a magistrate, taking into account all the factors used when exercising discretion. When experts were satisfied that the knowledge model was complete and correct, it was implemented as a web-based application. A 2004 paper, Supporting Discretionary Decision Making with Information Technology: A Case Study in the Criminal Sentencing Jurisdiction, highlights some of the benefits, risks and disadvantages of the model that require acknowledgment and management. The model’s benefits are its ability to support consistency in 97 98 99 100

P Savasdisara, “Computer-assisted Legal Analysis Systems: Part 1: The Origins of Computer-aided Support Systems” (1994) 5(2) Computers and Law 28. Australian Law Reform Commission (ALRC), Review of the Adversarial System of Litigation. Technology – What it Means for Federal Dispute Resolution (Issues Paper No 23, ALRC, 1998) p 100. See Victoria University, Professor John Zeleznikow, available on http://www.vu.edu.au/contact-us/ john-zeleznikow. See J Zeleznikow and E Bellucci, Family Winner: Integrating Game Theory and Heuristics to Provide Negotiation Support, available on http://www.jurix.nl/pdf/j03-03.pdf; J Zeleznikow, E Bellucci, UJ Schild and G Mackenzie, Bargaining in the Shadow of the Law – Using Utility Functions to Support Legal Negotiation (Paper presented at International Conference on Artificial Intelligence and Law, New York, 4–8 June 2007) pp 237–246).

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interpretation of the law, boosting public confidence in the legal system, allowing decision transparency, promoting better community understanding of the law, and providing accessible and cost-effective advice as to potential outcomes. Further benefits are the model’s usefulness in training judges, magistrates, legal counsel and law students. 101 Potential limitations of the model are: • the de-skilling of human staff; • the threat to the independence of the decision-maker; • the model’s ability to support some users better than others; • the potential for users to be misled as to the amount of knowledge contained in the system; • the absence of a human element which may be required in special circumstances; • the risk of replacing ouster clauses in legislation due to automated enforcement; and • the undermining of the judiciary in acting as a check on the legislature. The project demonstrated that while some AI support can be of benefit to society, some of its models are unsuitable for total automation and should remain within human control. 102 It is questionable given the advances in the past five years (in the context of technology) whether such conclusions remain valid. Whilst Bellucci, Macfarlane and Zeleznikow suggested that, in the Australian context, “computers can help negotiation by providing quick and easily accessible decision support”, 103 it seems likely that these approaches can do considerably more. If the technologies support decision making (by, for example, enabling BATNA/ WATNA identification) they may play an increasing role in some forms of dispute resolution (particularly in the family area) and support faster negotiations and dispute resolution. If the impact is more significant it is possible that ADR practitioner work will be reduced in the future although, as noted previously, this is more likely to impact on those who are advisory or determinative ADR practitioners. Facilitative ADR practitioners are less likely to be displaced for the reasons indicated previously and discussed below. Some forms of disruptive technology are already affecting how advisory and determinative forms of ADR take place (see discussion below relating to online advisory and determinative processes). For example, Smartsettle (see [10.60]) 101

102

103

MJJ Hall, D Calabro, T Sourdin, A Stranieri and J Zeleznikow, “Supporting Discretionary Decision Making with Information Technology: A Case Study in the Criminal Sentencing Jurisdiction” (2004) 1(2) University of Ottawa Law and Technology Journal 1. MJJ Hall, D Calabro, T Sourdin, A Stranieri and J Zeleznikow, “Supporting Discretionary Decision Making with Information Technology: A Case Study in the Criminal Sentencing Jurisdiction” (2004) 1(2) University of Ottawa Law and Technology Journal 1. E Bellucci, D Macfarlane and J Zeleznikow, “How Information Technology Can Support Family Law and Mediation”, in W Abramowicz, R Tolksdorf and K Węcel (eds), Business Information Systems 2010 Workshops (Springer-Verlag, Berlin, 2010) p 243. [10.50] 401

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and related processes include basic AI approaches to use information to locate appropriate bidding ranges that can support negotiation processes. In various forms of dispute resolution and in litigation, computer-assisted document coding and review, often referred to as “predictive coding”, 104 for the analysis of large sets of data is likely to have a “game-changing” impact. The technology collapses the time (and costs) needed to review millions of pages of discovered material, to identify relevant aspects without devoting massively costly person hours. 105 Until recently, as noted by the ALRC report entitled, Discovery in Federal Courts, 106 discovery processes could contribute significantly to problems of delay. Other, less sophisticated technologies exist that can organise legal discovery of files to simplify and reduce the time necessary to review and analyse files. 107 Apart from the impact that disruptive processes may have on ADR, perhaps more significantly disruptive processes and “big data” gathering has the potential to change the way we think about and plan for ADR. The quality of business decision-making, government administration, scientific research and much else can potentially be improved by analysing data in better ways. 108 Researchers at the Hague Institute for the Internationalisation of Law studying big data’s impact on the justice environment have noted that these benefits are generally not being realised: For most justice systems, the goal of court information systems is to get accurate statistics about workloads, disposition times, sentence rates, appeal and reversal rates, etc. However, our research indicates that existing court IT and organisational tools and mechanisms have limited capacity to extract valuable knowledge and insights from massive data sets. 109

Ingo Keilitz, an expert consulting with justice institutions throughout the world on measuring and improving their performance, offers the following example of how big data could affect court administration issues such as court consolidation: For example, court location data could be compared against a number of public databases with information from inside and outside the justice system including Zip codes, populations, demographics of the population (race, age, disability), 104

M Tamburro, “The Future of Predictive Coding – Rise of the Evidentiary Expert”, available on http://technology.findlaw.com/electronic-discovery/the-future-of-predictive-coding-rise-of-theevidentiary-expert-.html.

105

J Markoff, “Armies of Expansive Lawyers, Replaced by Cheaper Software”, The New York Times (online), 4 March 2011, available on http://www.nytimes.com/2011/03/05/science/05legal.html?_r=0.

106

Australian Law Reform Commission (ALRC), Discovery in Federal Courts (Consultation Paper No 2, ALRC 2010), available on http://www.alrc.gov.au/sites/default/files/pdfs/publications/ Whole%20Discovery%20CP.pdf. Stratify, Stratify Legal Discovery 6.0 Service Expands Discovery Capabilities and Increases Attorney, available on http://technology.findlaw.com/electronic-discovery/stratify-legal-discovery-6-0-serviceexpands-discovery.html. D Bollier, “The Promise and Peril of Big Data” (2010) The Aspen Institute 2, available at http:// india.emc.com/collateral/analyst-reports/10334-ar-promise-peril-of-big-data.pdf. G Lim, “Courts and Big Data” (2013), available on http://www.innovatingjustice.com/blogs/big-data.

107

108 109

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travel times between locations, numbers and types of cases heard by different courts, levels of courts, and availability of public transportation. 110

The result of this analysis would aid the more targeted delivery of ADR and support services and enable better understanding about how and what ADR interventions might be more effective. It is also possible that big data will support more sophisticated measuring in respect of effectiveness. 111

THE IMPACT OF ONLINE FACILITATIVE PROCESSES [10.55] Where facilitative ADR processes are concerned, technological opportunities may vary. This is partly because many activities in facilitative ADR processes are “people” activities. 112 Hardy has noted that “nuances of expression, timing, communication, framing of persuasion often make the difference between success and failure in bargaining and mediation”. 113 Where facilitative processes are concerned, many technological advances have been said to fail because there are real barriers in understanding another party without an opportunity for face-to-face communication. Madonik notes that identifying the particular communication patterns suited to individuals in a technological environment, and tailoring the methods employed to suit these needs, are important steps in building trust in the ODR process. 114 Reframing is also an essential part of most facilitative processes and this can be difficult if technological processes that use written communication (such as email and discussion room technology) are used. Another problem arises where face-to-face contact does not occur and exchanges are through written communication, that is, when communication styles “may be more polemic and oppositional, as conciliatory or inclusive statements tend to be ignored. This may also reflect a more ‘masculine’ communication style on the internet”. 115 The recent growth in the use of group 110 111

112 113

114

115

I Keilitz, “The Courts’ Big Data: What If Only?” (2013), available on http://made2measure.blogspot.nl/ 2012/11/big-data-data-analytics-and-access-to.htm. M Tamburro, “The Future of Predictive Coding – Rise of the Evidentiary Expert” Findlaw (25 July 2012), available on http://technology.findlaw.com/electronic-discovery/the-future-of-predictivecoding-rise-of-the-evidentiary-expert-.html. See S Hardy, “Online Mediation: Internet Dispute Resolution” (1998) 10 Australian Dispute Resolution Journal 216. S Hardy, “Online Mediation: Internet Dispute Resolution” (1998) 10 Australian Dispute Resolution Journal 216, referring to G R Shell, “Computer Assisted Negotiation and Mediation, Where We Are and Where We Are Going?” (1995) Negotiation Journal 117. See also S Hattotuwa, “Transforming Landscapes: Forging New ODR Systems with a Human Face” (2006) 23(3) Conflict Resolution Quarterly 371 for a more recent discussion regarding this issue. BG Madonik, “Building Trust: Keeping the Heart and Mind in Online Negotiation” (Chapter 12), in JR Silkenat, JM Aresty and J Klosek (eds), The ABA Guide to International Business Negotiations: A Comparison of Cross-cultural Issues and Successful Approaches (3rd ed, American Bar Association, Chicago, 2009) p 226. National Alternative Dispute Resolution Advisory Council (NADRAC), Online ADR – Background Paper (Background Report, 2001), available on https://www.ag.gov.au/LegalSystem/ AlternateDisputeResolution/Pages/NADRACPublications-A-Z.aspx. [10.55] 403

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video-conferencing as part of ADR processes may go some way to mitigate this problem. In the family law area, many disputes are now dealt with through the Family Relationship Advisory Line (FRAL), Telephone and Online Dispute Resolution Service (TDRS) and increasingly across Australia through videoconferencing (Skype or purpose built). These options are particularly suited to disputants who may be geographically isolated from services or one another and also in circumstances where family violence may be an issue. Some issues about the increased use of technology include concerns about privacy, confidentiality, ease of use and the impact of reduced face-to-face interaction. The most comprehensive and recent study of the use of technology in the FDR area was undertaken by Relationships Australia in 2011, which evaluated an Online FDR (OFDR) project funded by the Commonwealth AGD. 116 In the context of timeliness, it was noted that these processes were expected to be and often were faster: As evidenced by respondent comments, clients may hold particular expectations of online services – of note, themes relating to speed of service and convenience emerged from the data. 117

The Relationships Australia report found that there were very high rates of satisfaction with the OFDR services that were set up as part of the project in Queensland. Their research suggests that many factors support the use of effective OFDR. The factors include: • the type of technology – the ease of use, reliability, accessibility and staff assistance (help desk and like supports); • the skills and experience of staff; and • the training given to staff. 118 General benefits of these types of processes have included: • savings in costs and time where the parties and mediator are separated by distance; • where there is a power imbalance, opportunities to have a dialogue without the fear of physical intimidation; 119 • Timing – parties can contemplate responses before sending them. Newer technology and the availability of digital video contact reduces the likelihood that contact will not be instantaneous;

116

Relationships Australia, Development and Evaluation of Online Family Dispute Resolution Capabilities (Report, 2011).

117

Relationships Australia, Development and Evaluation of Online Family Dispute Resolution Capabilities (Report, 2011) p 147. Relationships Australia, Development and Evaluation of Online Family Dispute Resolution Capabilities (Report, 2011) pp 150-187.

118 119

S Hardy, “Online Mediation: Internet Dispute Resolution” (1998) 10 Australian Dispute Resolution Journal 216, 217.

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• a reduction in emotional content 120 – having a physical distance between parties may enable parties to view an argument more dispassionately. Where contact is not visual, this can be a disadvantage and notes that telephone mediation has been criticised for its lack of non-verbal input; 121 and • assistance in setting up a future communication process – video-conferencing may become a “normal” way to meet. Concerns about online facilitation include the following: • processes can be costly 122 and many disputants may be excluded if they are either not technologically literate or lack access to the technology. Telephonebased services are the cheapest form of communication (by email or voice); however, such communication forms are also the most criticised; • fears that the information conveyed will not be secure or confidential; and • digital divide issues may be a factor. Gender, age and cultural differences may be more pronounced particularly where parties may not be familiar with newer technologies. There are also concerns that conclusions relating to the efficacy of online services do not reflect the experiences of many ordinary disputants. In this regard, regular online users may have a preference for electronic communication, be less likely to resort to litigation and have a commitment to a global virtual community. 123 Online mediation has been trialled in the past as “shuttle mediation” where emails are shuttled backwards and forwards with comments being made by a mediator (see Chapter 3 at [3.30]). This form of e-shuttle mediation has been the subject of some criticism in the United States where it has been more extensively used. 124 An additional concern is that email use in mediation can be costly. A rich interaction that involves the parties and enables full clarification to take place can result in lengthy emails that are time-consuming for the dispute resolution practitioner and the parties. 125 An issue for many ADR practitioners also relates to the emotional barriers that may arise (or not be removed) with technological processes. Technological processes vary greatly and there may be capacity for useful video-conferencing that enables non-verbal cues to be exposed. ODR can be asynchronous (not at 120

124

It has been suggested that this may be advantageous in some instances: see R Friedman, C Anderson, J Brett, M Olekalns, N Goates and C Cherry Lisco, “The Positive and Negative Effects of Anger on Dispute Resolution: Evidence From Electronically Mediated Disputes” (2004) 89(2) Journal of Applied Psychology 369. S Hardy, “Online Mediation: Internet Dispute Resolution” (1998) 10 Australian Dispute Resolution Journal 216, 219. National Alternative Dispute Resolution Advisory Council (NADRAC), Online ADR – Background Paper (Background Report, 2001) p 4, available on https://www.ag.gov.au/LegalSystem/ AlternateDisputeResolution/Pages/NADRACPublications-A-Z.aspx. National Alternative Dispute Resolution Advisory Council (NADRAC), Online ADR – Background Paper (Background Report, 2001) p 9, available on https://www.ag.gov.au/LegalSystem/ AlternateDisputeResolution/Pages/NADRACPublications-A-Z.aspx. D King, “Internet Mediation – A Summary” (2000) 11 Australasian Dispute Resolution Journal 180.

125

See E Katsh and J Rifkin, Online Dispute Resolution (Jossey-Bass, San Francisco, 2001) p 120.

121 122

123

[10.55] 405

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the same time) or synchronous (in real-time, as with video-conferencing). Many current ODR facilitative processes involve e-mail (asynchronous), chat rooms, streaming video, secure site logins, instant messaging, discussion boards and video-conferencing. However, a lack of familiarity and discomfort with technology (which could the third party ADR practitioner and/or all of the parties) may result in the parties being unable to adequately express their emotions and feelings. There have been numerous attempts to set up online facilitative processes. These processes deal with an increasingly larger number of disputes each year and an international ODR forum explores many issues that arise in this area. 126 Mostly, as with SquareTrade, which operated until late 2009, and the internal service that followed it, after a direct negotiation approach has failed, email is used to connect mediators with the parties who are in dispute. Online stories are told by the parties and mediators may “reframe” in an attempt to find common ground. It has been said that: Disputes arising from online auctions present limited dispute profiles, thus mediators depend upon understanding what is really of value to the disputants and where is the most likely place for movement. Repetition has allowed SquareTrade’s online mediators to develop a knowledge base and a set of practices to manage auction related disputes. 127

It has also been suggested that online mediation may “enhance the power of narrative” 128 and promote more narrative forms of mediation. This is because disputants may have a greater opportunity to reflect on situations and, where personal pathologies exist, to modify behaviour; therefore, the potential for increased conflict is reduced. As voice-based technological opportunities increase, it is likely that reflection can take place more readily. Some other specific programs are also directed at supporting mediation or combining mediation programs with online tools. The Mediation Room, 129 for example, is an international online mediation sites and was established in 2007 as an online mediation body by the Law Council of Australia. 130 The Mediation Room has court cases referred to its online service from a range of jurisdictions and a dedicated service to assist with shareholder disputes. 131 The service can

126

See National Center for Technology and Dispute Resolution, International ODR Forum Archives, available on http://odr.info/international-odr-forum-archive.

127

A Gaitenby, “Online Dispute Resolution” in The Internet Encyclopedia (John Wiley and Sons Inc, 2004) Vol 2, p 745, available on http://www.onlinelibrary.wiley.com/doi/10.1002/047148296X.tie129/full; see also E Katsh and A Gaitenby, Proceedings of the Third Annual Forum on Online Dispute Resolution (Online Dispute Resolution Forum, Melbourne, 5–6 July 2004).

128 129

See J Greary, Online Narrative Mediation: A Potential New Service Approach (Paper presented at the Online Dispute Resolution Forum, Melbourne, 5–6 July 2004). See The Mediation Room, available on http://www.themediationroom.com.

130 131

See The Mediation Room, available on http://www.themediationroom.com. See Boardroom Resolve, available on http://www.boardroomresolve.com/.

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support “meetings” that are face-to-face, teleconferences, video-conferences or wholly online. The benefits in terms of support for face-to-face meetings are said to include: Prior to a mediation meeting, the mediator’s understanding of the matter is usually limited to a statement in writing by the parties and possibly, but not always, a telephone conversation. Much of the initial time in the first 1:1 meetings is taken up with the mediator gaining a more in depth understanding of the facts and what the dispute means to the parties. [The mediator] may often have to try to assist the parties in controlling any negative emotions provoked by the dispute and the other party. He will also need to help the parties understand fully, and be confident of, the impartial nature of his role. This can take up much time, certainly often the whole of the first two private meetings. However, by using the secure and confidential private discussion areas to “talk” to each party, the mediator will be able to significantly improve his understanding of the matter, and help the parties address the mediation in a positive frame of mind, before the date of the meeting. Thus, when the “face-to-face” part of the mediation commences, the mediator will be able to “hit the ground running” to improve the prospects of a successful solution being found before the time allowed for the meetings expires. This will be particularly important for short time mediations. Meetings have to be arranged to a date and time convenient for all parties. There will inevitably be an intervening delay, which may even lengthen should the meeting need to be re-arranged due to illness etc. Since use of our online platform can be undertaken by each participant in their own time, this means that efforts to try to resolve the dispute can commence almost immediately the mediator has been appointed. This may help “take the heat” out of a dispute pending the mediation meetings. There also remains the possibility that a dispute may settle prior to the meetings. 132

Other technology that supports disputants in this area includes “supportive service technology”, such as that offered by Anglicare in Tasmania where e-counselling is provided to clients in the remote north-west of that state. 133 Real-time counselling is provided online using software developed by that organisation. Partnerships have been developed with local community organisations that allow clients to use their computer facilities for counselling sessions. 134 Some ODR service providers have comprehensive information available for users, as well as agreements that can help support facilitative processes. It is probable that ODR processes will continue to increase in certain areas (for example, where online consumer activity occurs) or may be used in first-tier complaints management and dispute resolution systems. However, the physical 132 133

134

See The Mediation Room, Why Mediate Online?, available on http://www.themediationroom.com/ #!whymediateonline/c13z2. H Brookes and T Smith, “Servicing Rural and Remote Communities Through e-Counselling” (2010) 16 Family Relationships Quarterly: The Newsletter of the Australian Family Relationships Clearinghouse 14, 15–16, available on http://www.aifs.gov.au/afrc/pubs/newsletter/frq016/index.htm. H Brookes and T Smith, “Servicing Rural and Remote Communities Through e-Counselling” (2010) 16 Family Relationships Quarterly: The Newsletter of the Australian Family Relationships Clearinghouse 14, 15–16, available on http://www.aifs.gov.au/afrc/pubs/newsletter/frq016/index.htm. [10.55] 407

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proximity 135 and “face-to-face” 136 nature of most facilitative ADR processes such as mediation is often regarded by practitioners as essential in supporting negotiation processes in more complex disputes where creating or supporting an ongoing relationship is important. Gaitenby has noted that another inhibitor of the use of ODR processes is that: ODR service providers may be relatively unknown, their facilitators hidden behind a digital veil. To bridge that gap service providers make assurances as to the confidentiality and privacy of participants’ ODR experiences in conjunction with open and transparent processes and third party facilitator profiles. Until ODR is more well established the primary manner to assuage trust gaps resulting from concerns with third party training and practice standards is to draw online facilitators from the ADR field. 137

THE IMPACT OF ONLINE ADVISORY AND DETERMINATIVE PROCESSES [10.60] There are many examples of online ADR advisory and determinative processes that provide targeted advice services. These are increasing and most support selected categories of dispute activity. For example, in the energy sector advisory and bidding technologies have been used for dispute resolution purposes. 138 The technology used is often email- and chatroom-based, and bidding processes are used extensively. These hybrid ODR systems use “blind bidding” or bidding structures which are web- and email-based and may also have referral points to services that mimic more conventional arbitration and mediation services. Sturzaker considers that these and other online systems have a number of advantages, which include: • the ability to transfer large quantities of information quickly and at low cost; • parties can communicate interactively without being physically present; • there is a reduction in delay; and 135

Close physical proximity can assist in creating the atmosphere and a commonality of experience that cannot be experienced in processes that are not “face-to-face”. The impact of sharing coffee and food, and the relationship that develops when disputants are physically present, has not yet been the subject of any research.

136

For a discussion about face- to- face interactions compared with video conferences see D Rainey, “If an Eyebrow is Raised on the Internet, Will the Arbitrator See it?” (2014) 21(1) Dispute Resolution Magazine 13. A Gaitenby, “Online Dispute Resolution” in The Internet Encyclopedia (John Wiley and Sons Inc, 2004) Vol 2, p 745, available on http://www.onlinelibrary.wiley.com/doi/10.1002/047148296X.tie129/full. See also A Gaitenby, “The Fourth Party Rises: Evolving Environments of Online Dispute Resolution in Symposium On Enhancing Worldwide Understanding Through Online Dispute Resolution” (2006) 38(1) The University of Toledo Law Review 372.

137

138

See, for example, Out-Law, Survey of international energy firms reveals ’surprising’ support for online dispute resolution, says expert, available on http://www.out-law.com/en/articles/2015/may/survey-ofinternational-energy-firms-reveals-surprising-support-for-online-dispute-resolution-says-expert/ and the Report at http://www.energyarbitration.org/icea-initial-report-on-dispute-resolution-in-theenergy-sector/.

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• documents can be readily accessed. 139 Smartsettle is one such process that operates as a hybrid form of ODR. 140 It uses visual double blind bidding processes to deal with disputes, which can range from simple bilateral disputes to complex multiparty issues. 141 The processes that are used are referred to as “optimisational algorithms” that “create a representation of party preferences that can be used to generate packages (bundled positions on issues)”. 142 Smartsettle is intended to help negotiators by comparing different alternatives in terms of complete packages (bundled positions on issues). 143 The options for resolution are based on private information that remains private to the parties but is visible to the system. 144 According to Smartsettle, the system enables parties to focus on: • collaborating regarding their case; • • • •

building a Framework for Agreement; keeping track of versions; allowing dynamic representation of issues; tracking shared issues and private variables with constraints and formulas;

• eliciting and analysing user-references; • providing a mechanism for the exchange of packaged proposals; and • making intelligent suggestions for resolution. 145 Past systems that were developed in this area have included Cybersettle 146 that was very active in the ODR area until 2013 and also dealt with government disputes. According to the New York Post, Cybersettle has been used to settle 139 140

141

142

D Sturzaker, “Dispute Resolution in the New Millennium – International Arbitration” (1999) 2(6) ADR Bulletin 60. See Smartsettle, available on http://www.smartsettle.com. For a simulated bidding process, see http://www.smartsettle.com/home/resources/business-simulations/smartsettle-one-simulationwater/. See discussion in E Thiessen, P Miniato and B Hieber “ODR and E Negotiation”, in M Wahab, E Katsh and D. Rainey (eds), Online Dispute Resolution: Theory and Practice – A Treatise in Technology and Dispute Resolution (Eleven International Publishing, The Hague, 2011). See discussion in E Thiessen, P Miniato and B Hieber “ODR and E Negotiation”, in M Wahab, E Katsh and D. Rainey (eds), Online Dispute Resolution: Theory and Practice – A Treatise in Technology and Dispute Resolution (Eleven International Publishing, The Hague, 2011) p 333. Note that the term, “optimization algorithms”, is used by the authors.

143

See discussion in E Thiessen, P Miniato and B Hieber “ODR and E Negotiation”, in M Wahab, E Katsh and D. Rainey (eds), Online Dispute Resolution: Theory and Practice – A Treatise in Technology and Dispute Resolution (Eleven International Publishing, The Hague, 2011) p 333. Note that the term, “optimization algorithms”, is used by the authors.

144

See discussion in E Thiessen, P Miniato and B Hieber “ODR and E Negotiation”, in M Wahab, E Katsh and D. Rainey (eds), Online Dispute Resolution: Theory and Practice – A Treatise in Technology and Dispute Resolution (Eleven International Publishing, The Hague, 2011) p 339. See discussion in E Thiessen, P Miniato and B Hieber “ODR and E Negotiation”, in M Wahab, E Katsh and D. Rainey (eds), Online Dispute Resolution: Theory and Practice – A Treatise in Technology and Dispute Resolution (Eleven International Publishing, The Hague, 2011) p 339.

145

146

See Cybersettle on http://www.cybersettle.com/pub. [10.60] 409

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more than 600 insurance cases in New York. 147 The Cybersettle system involves the parties submitting “double blind” bids in rounds of offers to enable settlements to occur in a range of disputes. This process utilises more secure email communication techniques. In addition, a telephone facilitation service exists that can support online processes. Blind bidding through the Cybersettle scheme involved “blind” demands and offers with calculations to determine whether the case specific settlement barrier has been breached. Basically, a party submits three bids or minimum offers. The other party submits three bids or demands. Each bid is played against another until a round is completed. For each demand, Cybersettle adds 20 per cent and creates a range of settlement figures.

However, some parties may not receive the satisfaction they seek out of numbers-based processes such as Smartsettle, particularly if they do not enable some “face-to-face” contact and where people are interested in the personal level of the dispute as well as the technical. 148 Kulp argues that: If a party having her “day in court” is a substantial factor in achieving satisfaction, then a process that involves little or no face-to-face contact, as in most ODR, might be considered inadequate. 149

147 148

149

“Cybersettle Saves the City of New York Time and Money”, New York Post, 3 May 2005, available onhttp://www.cybersettle.com/pub/76/section.aspx/25. H Scheiwe Kulp, “Future Justice? Online Dispute Resolution and Access to Justice”, Just Court ADR, available on http://www.blog.aboutrsi.org/2011/policy/future-justice-online-dispute-resolution-andaccess-to-justice. H Scheiwe Kulp, “Future Justice? Online Dispute Resolution and Access to Justice”, Just Court ADR, available on http://www.blog.aboutrsi.org/2011/policy/future-justice-online-dispute-resolution-andaccess-to-justice.

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Other types of technology support private virtual courts. A new ODR provider, Arbitration Resolution Services, provides a binding arbitration process. This involves an impartial lawyer acting as a judge in a private online forum. For example, in Sydney a virtual courtroom called iCourthouse hosts arbitration proceedings 150 Various online ombudsman programs have now been set up around the world, 151 where a confidential, disinterested third party practitioner can be provided online. Parties may need to agree to be part of the process and decisions may not be enforceable. More recent iterations include Smartsettle and Online Schlichter. 152 However, as noted previously, often those who opt to use an online advisory process may not be making an informed choice. As Ponte has pointed out consumers may agree to use advisory or determinative schemes simply by clicking “I agree” and may be unaware that they have opted to use an online dispute resolution process. 153 There have been some United States court cases that have challenged ODR clauses in consumer contracts. For example, in Trujillo v Apple Computer Inc, 154 the court considered whether an iPhone TM activation agreement that provided a binding arbitration clause forbade class actions. The court considered all the circumstances and found that the agreement was unconscionable. A number of United States court cases have criticised online businesses for “one sided” arbitration agreements with limited venue options. 155 In response to some of these decisions, PayPal has made a number of ODR options available to consumers so that they can choose how they would like to resolve their disputes. 156 Ponte has also noted that where agreements to use ADR are imposed, they are often excessively lengthy and “squeezed into small pop-up

150

(2014) 1(1) International Journal of Online Dispute Resolution 97, 100; see Arbitration Resolution Services, available on http://www.arbresolutions.com.

151

See, for example, Online Schlichter, available on http://www.online-schlichter.de. Extensions of the underlying principles can be accessed at http://www.i-courthouse.com.

152 153

See Online Schlichter, available on http://www.online-schlichter.de. L Ponte, “Getting a Bad Rap? Unconscionability in Clickwrap Dispute Resolution Clauses and a Proposal for Improving the Quality of These Online Consumer ’Products’” (2011) 26(1) Ohio State Journal on Dispute Resolution 119. Such clauses and contractual arrangements could be challenged under the Australian Consumer Law. Trujillo v Apple Computer Inc 578 F Supp 2d 979 (ND Ill 2008), cited in L Ponte, “Getting a Bad Rap? Unconscionability in Clickwrap Dispute Resolution Clauses and a Proposal for Improving the Quality of These Online Consumer ’Products’” (2011) 26(1) Ohio State Journal on Dispute Resolution 119, 136. L Ponte, “Getting a Bad Rap? Unconscionability in Clickwrap Dispute Resolution Clauses and a Proposal for Improving the Quality of These Online Consumer ’Products’” (2011) 26(1) Ohio State Journal on Dispute Resolution 119.

154

155

156

L Ponte, “Getting a Bad Rap? Unconscionability in Clickwrap Dispute Resolution Clauses and a Proposal for Improving the Quality of These Online Consumer ’Products’” (2011) 26(1) Ohio State Journal on Dispute Resolution 119. [10.60] 411

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windows that are difficult to read”, and that website set-ups are aimed at diverting consumers away from this material. 157 Another area in which arbitration processes have been established relates to disputes over domain names. In the United States, this area has spawned a number of innovative systems to handle and process disputes. The Internet Corporation for Assigned Names and Numbers (ICANN) 158 uses a Uniform Domain-Name Dispute-Resolution Policy (UDRP) 159 that involves arbitration via selected providers 160 to settle disputes about internet domain name registration. Disputants choose a dispute service provider and submit a claim. The service provider then contacts the other party about a potential arbitration. Arbitrators then consider the claim as well as any filed documentation provided and make a decision based on UDRP “bad faith” rules. According to Gaitenby: Arbitrators and disputants utilize an array of communication but never have a physical meeting or session, arbitrators make decisions and submit opinions via their respective service provider to ICANN to make [them] publicly available. 161

Implications for courts [10.65] Online ADR growth has been primarily directed at e-commerce and consumer-based schemes that operate as first-tier complaints handling and dispute resolution mechanisms. The growth in these schemes in recent years has been immense and there are now a number of examples of processes that are available to resolve disputes that have arisen as part of an online transaction. 162 Increasingly ODR is also being blended with tribunal and court systems to provide support, intake and advisory processes that are intended to assist disputants negotiate more effectively without involvement from an ADR practitioner. 163

157

L Ponte, “Getting a Bad Rap? Unconscionability in Clickwrap Dispute Resolution Clauses and a Proposal for Improving the Quality of These Online Consumer ’Products’” (2011) 26(1) Ohio State Journal on Dispute Resolution 119.

158

See Internet Corporation for Assigned Names and Numbers (ICANN), available on http:// www.icann.org/en/about.

159

See Internet Corporation for Assigned Names and Numbers (ICANN), available on http:// www.icann.org/en/about. For a current list of providers, see https://www.icann.org/resources/pages/welcome-2012-02-25-en.

160 161 162

163

E Katsh and A Gaitenby, Technology as the “Fourth Party” (Paper presented at the 2003 United Nations Forum on ODR, Geneva, 30 June–1 July 2003). See Australian Government, Federal Treasury, Consumer Affairs Division, Dispute Resolution in Electronic Commerce (Canberra, 2001), available on http://www.treasury.gov.au/documents/1083/ PDF/australian_guidelines_for_electronic_commerce.pdf. See, for example, in New South Wales the new online court website at https:// onlineregistry.lawlink.nsw.gov.au/content/nsw-supreme-district-local-courts-online-registry and http://www.smh.com.au/nsw/nsw-government-trials-online-court-for-civil-cases-in-sydney-20150807giuig2.html. The Federal Court of Australia has had an e courtroom and expanding online lodgement services for some years – see Federal Court of Australia, eCourtroom, available on http:// www.fedcourt.gov.au/online-services/ecourtroom.

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Some schemes support ADR, for example, in 2014 the NSW Civil and Administrative Tribunal (NCAT) conducted a 3-month ODR pilot for small consumer claims. 164 NCAT described the ODR pilot’s process as follows: Participants can access the Online Dispute Resolution Pilot via a secure online portal that will allow them to exchange information about their dispute in a structured way but without the need to meet, speak or attend NCAT in person. Its guided framework is designed to lead participants to outcomes with a view to reaching a negotiated agreement … Where parties are successful in reaching an agreement through Online Dispute Resolution, they can seek Tribunal orders giving effect to that agreement. 165

The program, conducted through Guided Resolution, 166 was oriented towards negotiation. It also has the capacity, however, to include advisory and other processes. The benefits of the ODR system trialled at NCAT include convenient “24/7” access to the ODR portal, the opportunity to negotiate with the other party without attending NCAT in person and receiving a tribunal order to give effect to any agreement reached. 167 There is a growing convergence between online systems and court and tribunal systems outside Australia. For example, in British Columbia, Canada, a new Civil Dispute Tribunal is intended to operate using an online platform so that disputants will make initial contact and commence proceedings through an online format. 168 It is intended that processes used by the Tribunal will be mainly online, at least initially. 169 Online-supported negotiation and supported online dispute resolution are features of the system, together with adjudication, with most cases decided “on evidence and arguments submitted through the tribunal’s online tools. However, when necessary, the adjudicator will have discretion to conduct a telephone or video hearing”. 170 In Ireland, the Northern Ireland Courts and Tribunal Service now offers an online process in respect of small claims. A specialised Civil Processing Centre operates according to time-based and other rules to make orders, although final adjudication remains a face-to-face option. 171 Significantly, and as noted 164

165

New South Wales Civil and Administrative Tribunal (NCAT), NCAT to Trial Online Dispute Resolution for Consumer Claims, available on http://www.ncat.nsw.gov.au/Pages/about_us/news_events/20140801_ ncat_to_trial_online_dispute_resolution.aspx. New South Wales Civil and Administrative Tribunal (NCAT), NCAT Online Dispute Resolution Pilot, available on http://www.ncat.nsw.gov.au/Documents/ncat_online_dispute_resolution_pilot.pdf.

166 167

See Guided Resolution available on http://www.guidedresolution.com.au. New South Wales Civil and Administrative Tribunal (NCAT), NCAT Online Dispute Resolution Pilot, available on http://www.ncat.nsw.gov.au/Documents/ncat_online_dispute_resolution_pilot.pdf.

168 169

http://www.ag.gov.bc.ca/legislation/civil-resolution-tribunal-act/. British Columbia Ministry of Justice, Online Civil Dispute Tools to Save Time, Money (2012), available on http://www2.news.gov.bc.ca/news_releases_2009-2013/2012JAG0068-000600.htm.

170 171

See http://www.ag.gov.bc.ca/legislation/civil-resolution-tribunal-act/pdfs/CRT-Business-Model.pdf. See Northern Ireland Courts and Tribunals Service, Small Claims Online: A Users Guide, available on http://www.courtsni.gov.uk/SiteCollectionDocuments/Northern%20Ireland%20Courts%20Gallery/ Online%20Services%20User%20Guides/Small%20Claims%20Online%20User%20Guide.pdf. [10.65] 413

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previously, the CJC Online Dispute Resolution for Low Value Civil Claims report 172 recommends building a new dedicated internet-based court service for civil disputes with a value of less than £25,000. 173 The HMOC could be launched within the next few years (see above at [10.45]). 174 The CJC’s recommendations are in the same spirit as the European Union’s Regulation on Consumer ODR (see [10.30]). 175 The report distinguishes between two approaches for incorporating ODR into the justice system: The first involves the application of technology to improve what is already in place today. In this way, IT is grafted onto existing working practices and so replaces or perhaps enhances current systems. This approach tends to be costly, difficult, and, in the end, often delivers ‘mess for less’, that is, it replaces today’s inefficient, paper-based processes with IT-based systems. It does not fundamentally change the underlying processes and procedures. The second use of IT in the courts is to enable the delivery of services in entirely new ways. When this is the aim, it encourages new and imaginative thinking and urges reformers to start afresh, with a blank sheet of paper. 176

The CJC recommends the second approach, stating that: We propose new ways in which justice can be administered through the use of ODR techniques. This is therefore in contrast with many projects that are currently in progress in the civil justice system – those that fall into our first category and are seeking to systematize the traditional operation of the courts. 177

The CJC therefore appears to be recommending that more active consideration be given to the role of disruptive technology into the future. It recommends both supportive and replacement technologies and also suggests building a system that has the potential to support AI at least in small claims. The CJC recommends that the HMOC consist of three tiers. 178 The first tier, Online Evaluation, is primarily informative. It provides an online assessment of a grievance to classify and categorise the problem. This online evaluation also educates users about their rights, obligations, options and available remedies. 179 This stage is free of charge. If problems are not resolved through Online 172 173 174 175 176 177 178 179

CJC, Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 3. CJC, Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 3. CJC, Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 29. CJC, Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 27. CJC, Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 4. CJC, Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 4. CJC, Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 6. CJC, Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 19.

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Evaluation, users can proceed to the second tier, Online Facilitation. 180 Online Facilitation provides parties with access to professional online facilitators who can mediate, advise and encourage negotiation. This involves a mix of ADR and advisory techniques, with telephone conferencing facilities available where necessary. The outcomes are not binding. Users will pay a court fee that is significantly lower than the fee charged at the third tier. 181 The third tier, Online Judges, involves online judicial determination of cases and has the potential to use disruptive technologies. Whilst initially it appears that human judges will take this role, the comments above suggest that this may not always be the case. The CJC suggests that decisions made by online judges are binding and enforceable, as though they were made in a traditional court. Decisions will be largely based on electronically submitted papers and where necessary, telephone conferences. A fee will be imposed; however it will be significantly lower than the fee imposed by a traditional court. 182 Those within the litigation system have noted that technological changes have the potential to dramatically transform the way in which dispute resolution is carried out partly because much of the preparation work before a hearing will be carried out online. 183 Within the court system, e-callovers, 184 e-filing, 185 video conferencing and applications 186 are now commonplace in many jurisdictions. Technology courts, virtual courts or cyber courts now exist in many jurisdictions, 187 and the presence of such initiatives may produce more participatory court processes as well as better communication and document management. Other changes have occurred in the handling, collation and storage of information and in the way that research occurs. The information available online increases access to court systems and can assist parties to observe and understand what takes place within the court system. While many technology media and virtual courts do not necessarily support ADR processes, many do and they envision that this will become an increasingly important way to deliver ADR services to the community. The Federal Court of

180 181 182 183

CJC, Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 19. CJC, Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 20. CJC, Online Dispute Resolution for Low Value Civil Claims – Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 20. Australian Law Reform Commission (ALRC), Review of the Adversarial System of Litigation. Technology – What it Means for Federal Dispute Resolution (Issues Paper No 23, 1998).

184 185

For example, New South Wales Land and Environment Court. For example, Federal Court of Australia.

186 187

Bail applications are commonly carried out by video in the Supreme Court of New South Wales. See Hong Kong Judiciary, Technology Court, available on http://www.judiciary.gov.hk/en/crt_services/ tech_crt.htm. [10.65] 415

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Australia, for example, developed the eCourt forum as early as 2001. 188 This forum “is a virtual courtroom that assists in interlocutory matters and allows for directions and other orders to be made online. It may also be used in mediations, where these are directed by the court and conducted by one of the registrars”. 189 The eCourt enables updated online conversations to take place and protocols have been developed to assist users and the court. The e-court concept is not new to ODR. For example, a virtual magistrate program was set up in the 1990s, 190 e-court concepts in Singapore, 191 small claim courts 192 and a virtual court room in Sydney. The Australian Federal Court eCourt program is an advanced e-court program that is equipped with a range of new technologies. Parties to a dispute are no longer required to go to the court; instead, they can participate in the court proceedings via technology, access e-documents, check the status of a matter (online), and exchange documents and make submissions in a protected and confidential e-environment. One commentator has suggested that there may be a general reluctance to move away from a paper-based court system and that a “preference for traditional paper-based systems remains”. 193 It has been suggested that “the rest of the business world and community are already lodging and retrieving documents electronically” and that “the courts remain wedded to practices that are centuries old”. 194 Various state courts have implemented technology into their processes. For example, for certain disputes the Supreme Court of Victoria uses a secure “cloud-based” electronic case management system that enables parties to file and manage documents online. 195 The Supreme Court of New South Wales has the requisite facilities to operate a virtual courtroom. 188

189

190

See the Federal Court of Australia’s eCourt, available on http://www.fedcourt.gov.au/online-services/ ecourtroom; the legal basis for the operation of the Federal Court’s eCourt is provided by the Federal Court of Australia Act 1976 (Cth). See P Kellow, “The Federal Court of Australia: Electronic Filing and the eCourt Online Forum” (2002) 4 University of Technology, Sydney Law Review, available on http://www.austlii.edu.au/au/journals/UTSLRev/2002/8.html. B Tamberlin, Online Dispute Resolution and the Courts (Paper presented to the United Nations Third Annual Forum on Online Dispute Resolution, Melbourne, 5–6 July 2004), note 14, available on http://www.ombuds.org/unforum2004/tamberlin.htm. For a history of this project, see http://www.umass.edu/dispute/ncair/gellman.htm.

191

A similar advanced online court service is offered by the Singaporean Subordinate Courts: S Schiavetta, Online Dispute Resolution, E-Government and Overcoming the Digital Divide (Paper presented to the 20th British and Irish Law, Education and Technology Association Conference: Over-Commoditised; Over-Centralised; Over-Observed: the New Digital Legal World?, Belfast 6–7 April 2005) p 3, available on http://www.bileta.ac.uk/content/files/conference%20papers/2005 /Online%20Dispute%20Resolution,%20E-Government%20and%20Overcoming%20the %20Digital%20Divide.pdf.

192 193

See, for example, I CAN! Legal, available on http://www.icandocs.org/ca/sc.html. A Stanfield, “Online Courts: The Way of the Future?” (2015) 2(2) Law Society of NSW Journal 50, 50.

194 195

A Stanfield, “Online Courts: The Way of the Future?” (2015) 2(2) Law Society of NSW Journal 50, 50. See Supreme Court of Victoria, E-Filing and Case Management, available on http:// www.supremecourt.vic.gov.au/home/forms+fees+and+services/efiling+and+case+management/.

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FUTURE DEVELOPMENTS [10.70] The areas in which technology is currently impacting on innovation in the ADR system can be summarised as follows: 1.

2.

3.

4.

Changing process technology. This includes using technology as a medium to “support or supplant” existing processes (for example, through the use of video and Skype conferencing) to replace steps or stages in dispute resolution with basic artificial intelligence solutions and online dispute resolution. As AI improves, these technologies are likely to reshape more advisory processes in ADR. Using technology to change styles of interaction. In particular, using more collaborative “working together” techniques to prepare documents, manage tasks and disputes and provide more support and referral avenues for disputants. Improving management, reporting and data collection. This can take place through the use of disputant- (rather than service) focused inputs and through efficient tracking technologies. Using data in different ways. This can be either as big data 196 to link dispute criteria and data fields or to map and promote transparency and comparability. This development is also coupled with a growth in social media and internet use that promotes the spreading of information and the exchange of views among disputants. 197

Shortcomings and difficulties that currently exist with ODR are likely to decrease as technology improves. However, the question remains as to whether online ADR can replace those processes that thrive because of their focus on face-to-face contact. 198 Many commentators perceive the role of ODR to be one of supporting existing facilitative ADR options so that where face-to-face communication is not possible that ADR processes can still be used. New and emerging technologies may also promote the use of blended ADR processes where decisional and advisory processes can rely on artificial advisory or determinative methods and have a broader and more significant impact in these areas. Rabinovich-Einy and Katsh have commented that: Online communication and data-driven functionalities can provide both new tools and approaches to managing interactions and performing informational tasks such as brainstorming, identifying options and clarifying interests. The more powerful the tools become and the more familiar parties are with the tools, the less resistant they are likely to be to processes that do not require face-to-face encounters. 196

197 198

Big data – This term is used to describe big and complex data-sets that are hard to use, difficult to report on, search, share or analyse. For big data to be useful into the future, some common data definitions are necessary and common variables need to be collected. T Sourdin, “Innovation and Alternative Dispute Resolution” (2013) 32(2) The Arbitrator and Mediator 111. See F Pasquale and G Cashwell, “Four Futures of Legal Automation” (2015) 63 UCLA Law Review 26, 28. [10.70] 417

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Developments in the future can be expected to provide screens with finer resolution, thus facilitating the idea that face-to-face communication can occur at a distance. The displacement of ADR by ODR, however, is likely to result more from intelligent software … not present at all with ADR. 199

In general however, many commentators suggest that ODR has the potential to reduce delay and broaden the range and reach of existing dispute resolution services: Compared to the costs of litigation or even prolonged alternative dispute resolution, the investment in online technologies is potentially both value adding and cost saving. 200

199 200

O Rabinovich-Einy and E Katsh, “Digital Justice: Reshaping Boundaries in an Online Dispute Resolution Environment” (2014) 1(1) International Journal of Online Dispute Resolution 5, 23. E Bellucci, D Macfarlane and J Zeleznikow, “How Information Technology Can Support Family Law and Mediation”, in W Abramowicz, R Tolksdorf and K Węcel (eds), Business Information Systems 2010 Workshops (Springer-Verlag, Berlin, 2010) pp 243, 252.

418 [10.70]

Chapter 11 Obligations in ADR and enforcing ADR outcomes [11.05] [11.10]

[11.30] [11.35] [11.45] [11.50] [11.55]

Introduction................................................................................................................... 419 Obligations to use ADR as a precondition to commencing litigation................ 420 [11.15] Overseas developments .................................................................. 429 [11.20] The court system as a last resort .................................................. 432 [11.25] Changing court perspectives on obligations ............................... 436 Good faith and other requirements .......................................................................... 437 Obligations that apply to practitioners .................................................................... 454 [11.40] ADR practitioner obligations ......................................................... 460 Enforceability of agreements reached in an ADR process.................................... 462 Arbitration enforcement.............................................................................................. 471 Conclusions ................................................................................................................... 474

INTRODUCTION [11.05] The conduct of participants in ADR processes, and in related processes, can be influenced by: • conduct obligations that arise outside court and tribunal settings, as a result of agreements to enter into ADR processes, legislative arrangements, regulatory schemes and guidelines – these may require disputants to engage in ADR, consider using ADR as a precondition to commencing legal proceedings and may specify how engagement in ADR will take place; • conduct obligations in relation to ADR processes conducted within or related to courts and tribunals – these may require participants to take certain steps, negotiate in good faith or exchange information, or may require that participants comply with civil procedure 1 or other requirements to ensure that ADR processes are effective; • potential obligations that can arise in relation to an agreement or award that has been made following an ADR process and which may be linked to issues about about the enforceability of ADR outcomes – these obligations may be linked to ethical standards (for example, mediators may have ethical requirements to ensure that confidentiality is maintained in ADR processes subject to certain exceptions) or enforceability issues. 1

See, for example, civil procedure requirements — Federal Court of Australia Act 1976 (Cth), s 37M; Court Procedure Rules 2006 (ACT), r 21; Civil Procedure Act 2005 (NSW), s 56; General Rules of Procedure in Civil Proceedings 1987 (NT), r 1.10; Uniform Civil Procedure Rules 1999 (Qld), r 5; Supreme Court Civil Rules 2006 (SA), r 3; Civil Procedure Act 2010 (Vic), s 7; Rules of the Supreme Court 1971 (WA), r 4B. The only jurisdiction that does not impose these types of obligation is Tasmania. There are also international examples of obligations, such as the Civil Procedure Rules 1998 (UK) and the Federal Rules of Civil Procedure 2011, 28 USC (US). [11.05] 419

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Conduct obligations can apply to the disputing parties, their representatives, those involved in the dispute in other ways (for example, experts, supporters, interpreters and others who may be bound by obligations in respect of confidentiality) as well as ADR practitioners and may require reporting and confidentiality requirements to be considered and ethical standards (see Chapter 12). At a general level, conduct obligations may specify that certain standards be maintained or that participants negotiate in particular ways. In addition, they may require that people use or consider ADR processes at particular times, or that they advise clients to do so. In this chapter, conduct obligations are explored by first considering obligations to use ADR processes that arise outside the court and tribunal system. The role of the courts is also considered in this context (see also Chapter 1). Secondly, consideration is given to specific requirements to negotiate in good faith or engage in a particular way, make a genuine or reasonable effort to negotiate or use ADR, or that require some defined attempt to resolve a dispute. To some extent, requirements to negotiate in good faith or to make a genuine or reasonable effort in negotiations or ADR may be more relevant in circumstances where attendance at ADR is mandatory rather than voluntary. Issues relating to the enforceability of ADR outcomes are considered in the final section of the chapter and these may be linked to issues relating to the mode of entry into the ADR process. Compliance with ADR outcomes may for example be less likely where there has been a mandatory requirement to use ADR although compliance may also be linked to the behaviour of those involved in the ADR process and the extent to which the outcomes are “tested” and agreed. Other issues that are linked to obligations and enforceability, such as the immunity of ADR practitioners, are more closely considered in Chapter 12 as are obligations that arise in relation to the confidentiality of ADR processes and the admissibility of material following an ADR session.

OBLIGATIONS TO USE ADR AS A PRECONDITION TO COMMENCING LITIGATION [11.10] There has been considerable interest over the past decade in the creation of pre-litigation or pre-filing ADR obligations. Essentially, these obligations require that, before commencing court or tribunal proceedings, individuals or organisations attempt to resolve their differences. The obligations may arise as a result of: • specific and directed legislation (as in the retail lease area) or more general legislation (as in the family and federal proceedings areas); • contractual obligations (as in many commercial matters where arbitration may be required); 420 [11.10]

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• specific industry or government initiatives (as in the banking and financial sector where, as noted in Chapter 9, many schemes require “members” to use external dispute resolution processes. Model litigant obligations, legal services directions, protocols and pledges may also create and support obligations). Some obligations are specific and result in a requirement that mediation or some other form of ADR be attempted before litigation can be commenced. Other obligations can require that participants consider ADR or file a statement with their originating documents regarding the efforts made to attempt to resolve a dispute. There may be a pre-condition to commencing litigation and a lack of appropriate action may be the subject of some form of judicial review and a costs penalty if litigation is commenced. Requirements that some disputants, in some jurisdictions, use ADR before commencing court proceedings are not new. In recent years, industry, government, 2 private organisations and individuals have developed dispute resolution processes and systems to encourage the early and effective resolution of disputes outside the court and tribunal system. In Australia, much work has been done in exploring the use of pre action requirements. 3 For example, in 2012 the Australian Centre for Justice Innovation (ACJI) completed research exploring pre-action obligations, including a literature review. 4 In selected jurisdictional areas, statutory or other contractual obligations requiring the use of ADR may prevent disputants from accessing certain courts unless they are able to demonstrate that they have used an ADR process or that they fall within a recognised category of exception. The myriad of arrangements that foster pre-filing ADR is discussed in Chapter 9. The most comprehensive scheme of this nature has been established in the family dispute sector in Australia, which has been the subject of extensive evaluation and is discussed at [9.10]. However, legislation at the federal level has extended the obligations so that they apply to litigants in civil proceedings who might otherwise have been exempt from more specific pre-litigation requirements. The Civil Dispute 2

3

4

See for example, the Productivity Commission draft report in relation to workplace relations, which was released in August 2015 – Productivity Commission, Workplace Relations Framework Draft Report (Draft Report, Productivity Commission, 2015) available on http://www.pc.gov.au/inquiries/current/ workplace-relations/draft. The Draft Report notes that “an early emphasis on conciliation is also in accord with the basic principles of alternative dispute resolution arrangements , since it avoids an overly adversarial approach and allows parties to be heard …” (pp 142-143). Furthermore, submissions made by the Fair Work Ombudsman (FWO) as part of this draft report state that their “focus is on resolving the dispute as quickly as possible and maintaining the employment relationship. Often, this will involve the FWO directly assisting both the employee and the employer and/or offering a mediation service” (see p 139 of the Draft Report – Fair Work Ombudsman Submission 228, pp 2-3). See, for example, T Sourdin and N Burstyner, “Cost and Time Hurdles in Civil Litigation: Exploring the Impact of Pre-action Requirements” (2013) 2(2) Journal of Civil Litigation and Practice 66; T Sourdin, “Resolving Disputes Without Courts?” (2013) 32(1) The Arbitrator & Mediator 25; T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (Report, Australian Institute of Judicial Administration, 2012), available on http://www.civiljustice.info. See T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (Report, Australian Institute of Judicial Administration, 2012), available on http://www.civiljustice.info. [11.10] 421

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Resolution Act 2011 (Cth) (CDRA) essentially requires that disputants in a number of dispute areas, file a “genuine steps” statement that sets out what attempts have been made to resolve their differences before commencing litigation in respect of a range of civil disputes. The requirements in the “genuine steps statement” are modelled on the recommendations in the National Alternative Dispute Resolution Advisory Council (NADRAC) report The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction. 5 The Commonwealth Act states in s 4: 4 Genuine steps to resolve a dispute (1A)

For the purposes of this Act, a person takes genuine steps to resolve a dispute if the steps taken by the person in relation to the dispute constitute a sincere and genuine attempt to resolve the dispute, having regard to the person’s circumstances and the nature and circumstances of the dispute.

(1)

(2)

Examples of steps that could be taken by a person as part of taking genuine steps to resolve a dispute with another person, include the following: (a)

notifying the other person of the issues that are, or may be, in dispute, and offering to discuss them, with a view to resolving the dispute;

(b)

responding appropriately to any such notification;

(c)

providing relevant information and documents to the other person to enable the other person to understand the issues involved and how the dispute might be resolved;

(d)

considering whether the dispute could be resolved by a process facilitated by another person, including an alternative dispute resolution process;

(e)

if such a process is agreed to: (i)

agreeing on a particular person to facilitate the process; and

(ii)

attending the process;

(f)

if such a process is conducted but does not result in resolution of the dispute—considering a different process;

(g)

attempting to negotiate with the other person, with a view to resolving some or all the issues in dispute, or authorising a representative to do so.

Subsection (1) does not limit the steps that may constitute taking genuine steps to resolve a dispute.

Litigants are required to lodge a certificate may have previously accessed ADR after filing proceedings in a court and used forms of ADR that were either court-annexed or court-related. 6 The legislation indicates a significant policy 5

6

National Alternative Dispute Resolution Advisory Council (NADRAC), The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (Report, Attorney-General of the Commonwealth of Australia, 2009). It is difficult to determine what impact these changes may have made. For example, overall, there appears to have been no reduction in Federal Court filings. However, the Federal Court has increased

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shift from courts providing or referring litigants to dispute resolution processes (commonly envisaged in the multi-door court model devised in the 1970s 7 – this is explored further in Chapter 14), to disputants being required to use dispute resolution processes before court entry. When the then Civil Dispute Resolution Bill 2010 (Cth) was introduced, the then Commonwealth Attorney-General noted that: The Civil Dispute Resolution Bill is all about seeking to resolve disputes at the most appropriate level. It encourages parties to resolve their disputes at the earliest possible opportunity, and to do so outside of the courts – promoting a move away from the often stressful, expensive adversarial culture of litigation [see discussion at [11.15] regarding the court as a “last resort”]. 8

The legislation has coincided with significant shifts in terms of judicial understanding and use of ADR processes, as well as increased requirements to act in a “reasonable manner” that have been imposed on those engaged in litigation. 9 As the author has noted, judicial views about the role of the court system (and whether it should be a “last resort” – see discussion at [11.15]) have not been universally accepted. 10 The Chief Justice of New South Wales, for example, has expressed some concerns: “It remains to be seen whether this trend leads to a system of justice that competes with the court system, or a system of justice that is integrated into the court system.” 11 In addition to pre-action requirements, courts are setting new behavioural standards for litigants, would-be litigants and their representatives (discussed further below). Each of these changes can be considered from the perspective of the role of the court, basic societal obligations and of obligations on the state to provide dispute settlement processes. In New South Wales and Victoria, attempts were made to introduce similar requirements. These attempts have been somewhat controversial and have generated significant comment. In New South Wales, legislative amendments its workload in relation to migration, bankruptcy and workplace relations disputes and in some areas where the CDRA applies there has been a decrease in filings in the 2013 – 2014 reporting period – See Federal Court of Australia, Annual Report 2013-2014 (Federal Court of Australia, 2014) Appendix 5 – Workload Statistics, available on http://www.fedcourt.gov.au/__data/assets/pdf_file/0019/25732/ Annual-Report-2013-14-Appendix5.pdf. 7 8 9

10

11

See discussion in T Sourdin, “A Broader View of Justice”, in M Legg (ed), The Future of Dispute Resolution (Lexis Nexis Butterworths, Chatswood, 2013) pp 155-166 and in Chapter 1 of this book. Commonwealth of Australia, House of Representatives, Parliamentary Debates (16 June 2010), p 5476 (R McClelland, Attorney-General). See discussion about the intersection between civil procedure requirements and ADR in T Sourdin, “Reforming Civil Procedure and Alternative Dispute Resolution (ADR)”, in M Kumar and M Legg (eds), Ten Years of the Civil Procedure Act 2005 (NSW): A Decade of Insights and a Guide to Future Litigation (Thomson Reuters, Sydney, 2015). See T Sourdin, “Reforming Civil Procedure and Alternative Dispute Resolution (ADR)”, in M Kumar and M Legg (eds), Ten Years of the Civil Procedure Act 2005 (NSW): A Decade of Insights and a Guide to Future Litigation (Thomson Reuters, Sydney, 2015). Bathurst CJ, “Opening Address” (Speech presented at the Advanced Alternative Dispute Resolution Workshop, Sydney, 13 August 2011), p 5, available on http://www.austlii.edu.au/au/journals/ NSWJSchol/2011/26.pdf. [11.10] 423

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made in 2010 were postponed and then eventually repealed by the Courts and Other Legislation Amendment Act 2012 (NSW). In announcing the initial postponement in 2011, the New South Wales Attorney General noted the following: Part 2A of the Civil Procedure Act 2005 requires parties to take reasonable steps to resolve their dispute by mutual agreement or to more narrowly define the contentious issues before commencing court action. The provisions were passed in late 2010, but would only have applied to matters filed from 1 October 2011. … the reasonable steps provisions would be postponed by 18 months to enable NSW to monitor the success of similar provisions that commenced in Federal courts on August 1. The NSW Government will ultimately make informed decisions about the future of Part 2A, using all of the available evidence … Compliance with pre-trial obligations should reduce, not add to, the cost of resolving disputes. The purpose of this postponement is to ensure this is the case. 12

The Second Reading speech suggested that it was necessary to gather more evidence about the impact of the federal reforms and an evaluation of those reforms was scheduled to be concluded in 2014. 13 As the author has noted previously, 14 to date, no evaluation has been made public although empirical evaluations of existing schemes have been undertaken. 15 The evaluations undertaken have found that pre-action requirements can reduce cost and delay and can also improve access to justice. 16 Recently, in the context of a New South Wales Law Reform Commission Inquiry into ADR, 17 submissions made suggest that pre-action requirements, provided that they are well articulated, can be useful and should be reconsidered in the context of civil procedure reform. For example, in 2014 a submission to the Inquiry by NSW Young Lawyers noted: In relation to civil disputes, the Committee supports the introduction of a statutory scheme of mandatory pre-litigation requirements, similar to the Part 2A amendments to the Civil Procedure Act 2005 (NSW), which were postponed in late 2011 and eventually repealed in early 2013. 12 13 14

15 16

17

The Hon Greg Smith (NSW Attorney General), NSW Government to Postpone Pre-Litigation Reforms, Media Release (23 August 2011). New South Wales, Parliamentary Debates, Legislative Assembly (21 November 2012), p 4 (Greg Smith, Attorney General and Minister for Justice). See T Sourdin, “Reforming Civil Procedure and Alternative Dispute Resolution (ADR)”, in M Kumar and M Legg (eds), Ten Years of the Civil Procedure Act 2005 (NSW): A Decade of Insights and a Guide to Future Litigation (Thomson Reuters, Sydney, 2015). See T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts, (Report, Australian Institute of Judicial Administration (October, 2012), available on http://www.civiljustice.info. See T Sourdin and N Burstyner, “Cost and Time Hurdles in Civil Litigation: Exploring the Impact of Pre-action Requirements” (2013) 2(2) Journal of Civil Litigation and Practice 66; see also T Sourdin, “Civil Dispute Resolution Obligations: What is Reasonable?” (2012) 35(3) University of New South Wales Law Journal 889. See NSW Law Reform Commission, Statutory Provisions on Dispute Resolution (Consultation Paper No 16, NSW Law Reform Commission, 2014), available on http://www.lawreform.justice.nsw.gov.au.

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In effect, those amendments (if fully implemented) would give rise to mandatory pre-litigation processes, whereby parties would be required to take genuine steps to resolve or reduce issues in dispute prior to the commencement of proceedings. 18

Similarly, the New South Wales Bar Association, in commenting on the pre-litigation aspect of the New South Wales civil procedure reforms and ADR, noted that provided the requirements are not too onerous, they are unlikely to have a negative impact: Anecdotal information from the Association’s members who practise in the Federal Court and the Federal Circuit Court, or mediate matters that would usually be litigated in those courts suggests that the requirements of the Civil Dispute Resolution Act 2011 (Cth) have led to a number of disputes being successfully mediated before proceedings being commenced. That legislation does not require ADR before proceeding but merely requires the disputants to take “genuine steps” to resolve the dispute before commencing or state why they have not been taken. Although there are no statistics or other evidence in relation to the effect of the Civil Dispute Resolution Act 2011, the imposition on the parties is small (particularly since the relevant rules now restrict the genuine steps statements to two pages) and the legislation has given rise to minimal satellite litigation. This type of legislation appears useful but further investigation is required before any view can be formed. 19

In Victoria, there was also an attempt to introduce a “reasonable steps” obligation in 2010 as part of a much broader scheme of overarching obligations that bind courts, lawyers and litigants to a more “reasonable” standard of behaviour. This scheme set out more extensive pre-litigation requirements that required prospective litigants to take steps, exchange material and documents, and consider dispute resolution options. Although enacted, the section of the Civil Procedure Act (2010) (Vic) dealing with pre-litigation requirements was repealed in 2011 following a change of government. However, the changes that were made mean that courts can still make rules relating to pre-litigation requirements and there are some remaining requirements. For example, certification requirements such as the “proper basis” certification requirements were amended and strengthened in 2012 and relate to initial commencement of proceedings (see s 41). In addition the requirements apply to ADR that is conducted in relation to matters that have commenced in the relevant Victorian Courts (see [11.25]). Each of the legislative responses discussed above has been in response to a series of reports that have highlighted the utility and benefits of ADR processes in the pre-litigation area. For example, the Victorian proposal emerged after 18

19

Law Society of New South Wales Young Lawyers, Submission to the New South Wales Law Reform Commission, Dispute Resolution -Frameworks in New South Wales (Submission, Law Society of New South Wales Young Lawyers, 2014), available on http://www.lawreform.justice.nsw.gov.au/ Documents/current-project/adr/submission/dr13.pdf. New South Wales Bar Association, Submission to the New South Wales Law Reform Commission – Dispute Resolution: Frameworks in New South Wales (Submission, New South Wales Bar Association, 2014), available on http://www.lawreform.justice.nsw.gov.au/Documents/current-project/adr/ submission/dr12.pdf. [11.10] 425

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consideration of the Victorian Law Reform Commission (VLRC) report 20 that focused on civil justice reform. The Commonwealth response was informed by a more specific ADR focus and extensive pre-existing litigation reforms already present at the Commonwealth level. The New South Wales approach arose after a detailed discussion and consultation process. 21 As discussed in Chapter 9 (see also [11.15]), in most State jurisdictions, there are various other ad hoc requirements that encourage “would be litigants” to use courts as a “last resort”. For example, in South Australia legislation can require parties in civil disputes to notify one another of a claim before the initiating process is filed. 22 In addition, In October 2014, new pre-action obligations were introduced by the Supreme Court Civil Supplementary Rules 2014 (SA) (Rules) that apply to medical negligence and construction disputes. Under r 33 of the Supreme Court Rules 2006 (SA) (Rule 33), parties to a monetary claim must in most instances attempt to reach a negotiated settlement of the dispute prior to court proceedings, on the basis of sufficient supporting material in order that the other party can assess the reasonableness of the offer (or counter-offer) made. Similar provisions exist in the District Court Civil Rules 2006 (SA). Rule 27(2) of the Magistrates Court (Civil) Rules 2013 (SA) requires that “[a] party must take genuine steps to resolve an action before it is commenced including considering the use of ADR”. The South Australia Magistrates Court Rules also include pre-action requirements concerning discovery between prospective litigants. 23 In the Northern Territory, parties to disputes in the Supreme Court of the Northern Territory are urged to comply with a number of pre-action obligations set out in Pt 2 of Practice Direction No 6 of 2009 (PD6). Part 2 of PD6 stipulates that “[p]arties to a potential dispute should follow a reasonable procedure, suitable to their particular circumstances, which is intended to avoid litigation”. 24 Parties are encouraged to consider whether alternative dispute resolution would be more suitable than litigation. 25 Failure to comply with these pre-action obligations can impact the determination of costs. 26 The Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts report evaluated the PD6 as part of a broader study into the effectiveness of 20 21

Victorian Law Reform Commission (VLRC), Civil Justice Review, Report No 14 (2008). NSW Justice and Attorney General, ADR Blueprint – Draft Recommendations Report 1: Pre-action Protocols & Standards (NSW Justice and Attorney General, Sydney, 2009), available at http:// www.ipc.nsw.gov.au/lawlink/ADR/ll_adr.nsf/vwFiles/ADR_blueprint_draft_recs1_preaction_ protocols.pdf/$file/ADR_blueprint_draft_recs1_preaction_protocols.pdf.

22 23

See District Court Civil Rules 2006 (SA), r 33. See Magistrates Court (Civil) Rules 2013 (SA), r 20.

24

Supreme Court of the Northern Territory, Practice Direction No 6 of 2009 – Trial Civil Procedure Reforms, Pt 2 s 4. Supreme Court of the Northern Territory, Practice Direction No 6 of 2009 – Trial Civil Procedure Reforms, Pt 2 s 11.

25 26

Supreme Court of the Northern Territory, Practice Direction No 6 of 2009 – Trial Civil Procedure Reforms, Pt 2 ss 11, 13.

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pre-action obligations. 27 Based on limited data that was available, the report found that a relatively high percentage of matters resolved as result of the PD6. 28 In Queensland, the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) is largely unrelated to the court processes (see discussion at [11.15]) and contains a pre-action obligation scheme in respect to personal injury proceedings. The main purpose of the PIPA is to “assist the ongoing affordability of insurance through appropriate and sustainable awards of damage for personal injury”. 29 Amongst other methods, this is to be achieved through: a)

providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; and

b)

promoting settlement of claims at an early stage wherever possible; and

c)

ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial; and

d)

putting reasonable limits on awards of damages based on claims; and

e)

minimising the costs of claims; and

f)

regulating inappropriate advertising and touting.

The PIPA sets out an array of pre-action obligations, including notification and response time frames, disclosure requirements and compulsory conferences. 30 In Western Australia, before commencing an action for the revocation of probate or letters of administration, a claimant must lodge a citation or the probate of letters of administration. 31 In Western Australia, family law cases are dealt with by the Family Court of Western Australia. Although the Court is funded by the Commonwealth, it is governed the Family Court Act 1997 (WA). The Act reflects the federal legislation, stipulating that parties must attend family dispute resolution before applying for parenting orders. 32 The purpose of this requirement is to ensure that parties make a “genuine effort” to resolve parenting disputes before applying for a parenting order. 33 The requirement is subject to a number of exceptions, such as where there has been child abuse or other family violence. 34 27

T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (Report, Australian Institute of Judicial Administration, 2012), available on http://www.civiljustice.info.

28

T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (Report, Australian Institute of Judicial Administration, 2012) p 75, available on http://www.civiljustice.info.

29 30

Personal Injuries Proceedings Act 2002 (Qld), s 4. See Personal Injuries Proceedings Act 2002 (Qld), Ch 2 Pt 1; see also, for example, the commentary in Broadhead v The State of Queensland [2006] QDC 273.

31 32

Rules of the Supreme Court 1971 (WA), o 73 r 2. Family Court Act 1997 (WA), s 66H.

33

Family Court Act 1997 (WA), s 66H(2).

34

Family Court Act 1997 (WA), s 66H(8). [11.10] 427

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To some extent, the response in each area was informed by the work of NADRAC as well as regulatory changes in the ADR sector. 35 NADRAC reports have specifically considered the use of pre-action protocols, and have reviewed and considered concerns that, although such protocols would reduce the number of disputes progressing into the litigation system, they could also potentially lead to the front loading of work and legal costs. A central theme in the Australian response has been that the determination of what is reasonable or genuine should be conducted by judges. Chief Justice Warren in Victoria has noted: Ultimately pre-action protocols and their application is a matter that should be left to the courts and court rules made by the judges. 36

It is clear that what is meant by “genuine” may require some judicial oversight to prevent excessive front end cost loading. In addition, in determining genuineness it is probable that a judge may consider that proportionality principles are relevant and could require, for example, that in some categories of dispute “… costs should not exceed the lesser of 5% of the value of the claim or $10,000”. 37 The sanctions for failing to file a “genuine steps” statement in the Federal area or the equivalent in State jurisdictions will depend on judicial approaches to these issues. However under the Civil Dispute Resolution Act 2011 (Cth) costs orders may be made against litigants and personally against their representatives (s 12). In addition, a court could exercise the usual powers available in the Federal area and refer the matter to ADR or dismiss the proceedings in whole or in part. Concerns regarding the genuine steps requirement are linked to cost factors (discussed above); the notion that these requirements could limit court access (discussed below) or that such requirements could have a negative impact on confidentiality (discussed in Chapter 12 and in respect of “good faith” below). The imposition of the requirement can however be viewed as a consistent extension of the behavioural obligations that are increasingly required that litigants or would be litigants within and outside the court system behave reasonably. The Productivity Commission’s (Commission) recent Access to Justice Arrangements Inquiry Report 38 acknowledged the potential efficacy of imposing pre-action obligations. The report highlights the adversarial nature of the justice 35

36 37 38

These changes include the adoption of self- and industry-regulated mediation accreditation under the National Mediator Accreditation System (NMAS) that has operated from 1 January 2008 and which was revised on 1 July 2015. Remarks on the Occasion of the Victorian Commercial Bar Association Reception Supreme Court (Speech delivered at the Victorian Commercial Bar Association Reception, Melbourne, 6 May 2010). See M Legg and D Boniface, “Pre-action Protocols in Australia” (2010) 20 Journal of Judicial Administration 39, 51. Productivity Commission, Access to Justice Arrangements Inquiry Report (Inquiry Report No. 72, Productivity Commission, 2014).

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system as a key driver of some inefficiencies particularly where it 39 hinders the timely and effective resolution of disputes. 40 The Commission proposed that this problem could be addressed by targeted pre-action protocols, which can reduce the cost and time involved with certain litigation processes. 41 The Commission recommended that: Greater use should be made of pre-action protocols which, if well targeted, and accompanied by strong judicial oversight, can help resolve disputes early by narrowing the range of issues in dispute and facilitating ADR. 42

Overseas developments [11.15] Pre-action protocols were implemented in the United Kingdom in 1999, following Lord Woolf’s Access to Justice Report of 1996. Unlike many of the Australian reforms, the UK reforms were often grafted onto broader civil procedural requirements with courts fostering the reforms. The Woolf report proposed the development of pre-action protocols that would: …[B]uild on and increase the benefits of early but well-informed settlements which genuinely satisfy both parties to a disputes. 43

The pre-action protocols form part of the Civil Procedure Rules and apply to proceedings in the County Court, High Court and Civil Division of the Court of Appeal. 44 A general Practice Direction Pre-Action Conduct and Protocols (Practice Direction) exists in addition to a set of specific pre-action protocols that cover particular disputes, such as personal injury disputes. 45 Disputes that do not fall within any of the specific protocols are subject to the Practice Direction. 46 The Practice Direction also contains provisions that apply to all disputes, including those covered by the specific protocols. 47 The Practice Direction recently came into force on 6 April 2015, replacing the Practice Direction-Pre-Action Conduct. 48 The objectives of the Practice Direction are articulated as followed: Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to – 39

Productivity Commission, Access to Justice Arrangements Inquiry Report (Inquiry Report No. 72, Productivity Commission, 2014) p 37.

40

Productivity Commission, Access to Justice Arrangements Inquiry Report (Inquiry Report No. 72, Productivity Commission, 2014) p 37.

41

Productivity Commission, Access to Justice Arrangements Inquiry Report (Inquiry Report No. 72, Productivity Commission, 2014) p 37. Productivity Commission, Access to Justice Arrangements Inquiry Report (Inquiry Report No. 72, Productivity Commission, 2014) p 16.

42 43 44 45

Lord Woolf, Access to Justice: Final Report (Final Report, Ministry of Justice, 1996) ch 10, available on http://global.oup.com/uk/orc/law/alevel/dugdale4e/resources/weblinks. Civil Procedure Rules 1998 (UK) SI 1998/3132, r 2.1.

46

For a full list and text of the protocols see Ministry of Justice, CPR – Pre-Action Protocols, available on https://www.justice.gov.uk/courts/procedure-rules/civil/protocol. Civil Procedure Rules, Practice Direction Pre-Action Conduct and Protocols (UK) [6].

47 48

LexisNexis, Lexis PSL Dispute Resolution Practice Note (Practice Note, LexisNexis, 2015) p 1. LexisNexis, Lexis PSL Dispute Resolution Practice Note (Practice Note, LexisNexis, 2015) p 1. [11.15] 429

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a)

understand each other’s position;

b)

make decisions about how to proceed;

c)

try to settle the issues without proceedings;

d)

consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;

e)

support the efficient management of those proceedings; and

f)

reduce the costs of resolving the dispute. 49

Paragraph 6 of the Practice Direction requires claimants to write a letter to the defendant containing the precise details of the claim. The claimant may wish to identify a suitable ADR process in the letter; however, the Practice Direction does not specifically require this. 50 The defendant must respond to the claimant’s letter within a reasonable time. 51 Disclosure requirements also apply to both parties. In terms of compliance, the Practice Direction states that: If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. A party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs. 52

Although the Practice Direction does not mandate the use of ADR, it states that parties should consider whether ADR might assist in the settlement of the dispute without proceedings. 53 The Practice Direction states that litigation should be a last resort. 54 In the United Kingdom, it has been suggested that lawyers’ costs can increase as a result of pre-litigation protocols as lawyers may be required under the protocols to undertake significant amounts of work before commencing proceedings. 55 Notably, most pre-action work in the United Kingdom does not usually involve ADR processes but rather lawyer–lawyer negotiations. The most recent United Kingdom report on this issue (by The Right Hon Rupert Jackson LJ – the Jackson Review) found that “there was a high degree of unanimity that the specific [pre-action] protocols serve a useful purpose”. 56 Lord Justice Jackson noted in a summary of the Report that:

49 50

Civil Procedure Rules, Practice Direction Pre-Action Conduct and Protocols (UK) [3]. LexisNexis, Lexis PSL Dispute Resolution Practice Note (Practice Note, LexisNexis, 2015) p 2.

51 52

Civil Procedure Rules, Practice Direction Pre-Action Conduct and Protocols (UK) [3]. Civil Procedure Rules, Practice Direction Pre-Action Conduct and Protocols (UK) [11].

53 54

Civil Procedure Rules, Practice Direction Pre-Action Conduct and Protocols (UK) [8]. Civil Procedure Rules, Practice Direction Pre-Action Conduct and Protocols (UK) [8].

55

At 28, referring to R Jackson, Review of Civil Litigation Costs: Preliminary Report (Preliminary Report, May 2009) p 1. The Right Hon R Jackson LJ, Review of Civil Litigation Costs: Final Report (Ministry of Justice, TSO, 2009) p 345.

56

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6.1 Pre-action protocols … There are ten pre-action protocols for specific types of litigation. 57 By-and-large they perform a useful function, by encouraging the early settlement of disputes, which thereby leads (in such cases) to the costs of litigation being avoided. I recommend that these specific protocols be retained, albeit with certain amendments to improve their operation (and to keep pre-action costs proportionate). 6.2 On the other hand, the Practice Direction – Pre-Action Conduct, which was introduced in 2009 as a general practice direction for all types of litigation, is unsuitable as it adopts a “one size fits all” approach, often leading to pre-action costs being incurred unnecessarily (and wastefully). I recommend that substantial parts of this practice direction be repealed. Were this to occur, however, it would not give carte blanche to claimants to whom no specific protocol applied to act unreasonably, e.g. by commencing proceedings with no prior warning to the defendant of the claim or the nature of the claim. Cost sanctions will apply to curb unreasonable behaviour. 6.3 Alternative dispute resolution. Alternative dispute resolution (“ADR”) (particularly mediation) has a vital role to play in reducing the costs of civil disputes, by fomenting the early settlement of cases. ADR is, however, under-used. Its potential benefits are not as widely known as they should be. 58

It was also noted that earlier use of ADR in the United Kingdom could decrease pre-action costs. 59 The Jackson Review found that some lawyers were front loading costs as a result of the United Kingdom protocols, and running up costs by in effect serving draft pleadings and extensive documentation on one another. They were also not considering the principles of proportionality in terms of pre-action costs incurred in certain types of matters. 60 It is for this reason that the Jackson Review recommended abandoning an overarching protocol in favour of specific protocols. It considered that in the commercial arena the protocols had not worked effectively as lawyers had often created lengthy and substantial (and costly) pre-action correspondence. Lord Jackson suggested the new commercial courts guide that stressed inexpensive and concise pre-action letters would be more helpful. In addition, Lord Jackson recommended that judges be educated about ADR and costs management so that the protocols were supported by proportionate and reasonable costs expenditure. In addition, however, the Jackson Review favoured retaining the protocols in many areas where they had worked “effectively” and led to many settlements. Lord Jackson noted that: The repeal of the general protocol will not absolve parties from the obligation to conduct sensible pre-action correspondence. It has always been the case (both before and after the introduction of the CPR) that a claimant who begins 57 58 59 60

As at July 2015, there are 13 pre-action protocols for specific types of litigation. These can be found at the UK Ministry of Justice website: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol. The Right Hon R Jackson LJ, Review of Civil Litigation Costs: Final Report (Ministry of Justice, TSO, 2009) p xxii. See R Jackson, Review of Civil Litigation Costs: Final Report (Ministry of Justice, TSO, 2009) p xxii. R Jackson, Review of Civil Litigation Costs: Final Report (Final Report, 2009) p 350. [11.15] 431

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contentious proceedings without giving appropriate notice to other parties, and appropriate opportunity to respond, is at risk as to costs. This will remain the position. For the avoidance of doubt, however, I propose that the PDPAC should contain a simple provision along the following lines: In all areas of litigation to which no specific protocol applies there shall be appropriate pre-action correspondence and exchange of information. 61

The Jackson Review recommendations (some of which came into effect and are encapsulated within the HM Courts and Tribunal Service Chancery Guide, October 2013) 62 are somewhat similar to those of NADRAC, although, in keeping with the robust and more developed ADR environment that is present in Australia, the Australian pre-action approaches have referred more specifically to ADR processes. In addition, in Australia there has been acceptance of the notion that recent pre-action requirements should refer to ADR but be non-specific and that compliance can be determined by the judiciary. In effect, compliance under the federal legislation will be determined by judges and the guiding principles relate to a consideration of “genuineness.”

The court system as a last resort [11.20] In introducing the Victorian bill in 2010, the then Attorney-General indicated that the “Bill’s intention is to give real meaning to the saying that ‘litigation should be a measure of last resort’”. 63 The Attorney-General also noted that: Courts play an important role in adjudicating civil disputes and procedural rights and that role should, of course, continue. But as a public resource, courts must be used responsibly. Parties should not abuse their right of access to the courts by unnecessarily tying up court resources, thereby preventing others from accessing justice. A well-resourced litigant should not be able to use their power to play tactical games and draw out litigation until the other party is forced into an unfair settlement or withdraws. This bill will curtail such behaviour and arm the courts with the power to prevent such conduct. Parties should be encouraged to resolve their disputes by agreement, and where they require court intervention, the bill will ensure they adhere to appropriate standards of conduct. The result will be a more accessible civil justice system for those parties who need adjudication by the courts. 64

At the Commonwealth level, with regard to the then Civil Dispute Resolution Bill 2010 (Cth) the then Commonwealth Attorney-General noted: The Civil Dispute Resolution Bill is all about seeking to resolve disputes at the most appropriate level. It encourages parties to resolve their disputes at the earliest 61

R Jackson, Review of Civil Litigation Costs: Final Report (Final Report, 2009) p 355.

62 63

See http://www.justice.gov.uk/downloads/courts/chancery-court/chancery-guide.doc. Victoria, Parliamentary Debates, Legislative Assembly, 24 June 2010, 2606 (Mr Hulls, AttorneyGeneral), available on http://hansard.parliament.vic.gov.au/isysquery/8e2ebeb0-4418-4f9a-802084d725f06ff1/2/doc/. Victoria, Parliamentary Debates, Legislative Assembly, 24 June 2010, 2606 (Mr Hulls, AttorneyGeneral), available on http://hansard.parliament.vic.gov.au/isysquery/8e2ebeb0-4418-4f9a-802084d725f06ff1/2/doc.

64

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possible opportunity, and to do so outside of the courts – promoting a move away from the often stressful, expensive adversarial culture of litigation. 65

Each legislative response is therefore founded on the notion that disputants ought to attempt to resolve their disputes outside the court system and use the court system as a “last resort”. While none of the responses require that disputants use an ADR process before commencing litigation, ADR use is clearly one factor that will be considered when assessing whether disputant conduct has been reasonable or genuine. In contrast as noted previously some judicial figures have reservations about the utility and need for pre-action requirements. For example, in New South Wales Bathurst CJ has noted: I have significant reservations about a compulsory mediation process prior to litigation at least in superior courts. This is for a number of reasons. First, the statistics to which I have referred cast doubts as to its necessity. Secondly, there may be cases, particularly more complex ones, where the parties do not have a clear idea as to the merits of the other party’s case and, therefore, cannot make a rational determination as to whether or not proceedings should be compromised. In such circumstances a mediation is unlikely to succeed and may perhaps lessen the prospect of a successful compromise rather than enhance it. 66

As noted previously, however, pre-litigation requirements to use ADR are not new in Australia and there is ample evidence to suggest that they result in satisfactory agreements even in complex disputes. The diversion of disputes from the court or tribunal setting is encouraged by a number of different processes and in a number of jurisdictional areas. Courts and tribunals are already considered to be a “last resort” option in many jurisdictional areas if ADR processes have not resulted in the settlement of a dispute. By far, the largest pre-litigation scheme that imposes mandatory attendance at a dispute resolution process in Australia operates in the family dispute area. Initiatives that have been phased in since 2006 (under the Family Law Act 1975 (Cth)) represent a significant change in family law. 67 The explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Act 2006 notes that “this is a key change to encourage a culture of agreement making and avoidance of an adversarial court system”. 68 The 2006 amending Act required compulsory dispute resolution, pursuant to Subdiv E of Div 1 of Pt VII of the Family Law Act 1975. Section 60I provides for compulsory attendance at family dispute resolution in a range of circumstances, 65

See Commonwealth of Australia, Parliamentary Debates, House of Representatives, 30 September 2010, 270 (The Hon R McClelland, Attorney-General), available on http://parlinfo.aph.gov.au/parlInfo/ search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F2010-09-30%2F0029%22.

66

Chief Justice T Bathurst, “Opening Address” (Speech presented at the Advanced Alternative Dispute Resolution Workshop, Sydney, 13 August 2011) p 7, available on http://www.austlii.edu.au/au/journals/ NSWJSchol/2011/26.pdf. See the Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) p 1. See the Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) p 20.

67 68

[11.20] 433

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prior to lodging an application with the court. The requirement for compulsory certificates in respect of family dispute resolution as a prerequisite to the filing of all new parenting matters (subject to certain exceptions for example where there is urgency, family violence or the abuse of a child and where delay could have a negative impact) came into force on 1 July 2007. As noted previously, disputants are also advised that: When applying to the court, you will need to provide information to demonstrate that one of the exceptions applies to you. 69

In State jurisdictions, there are various other ad hoc requirements that encourage “would be litigants” to use courts as a “last resort”. For example, in South Australia legislation can require parties in civil disputes to notify one another of a claim before the initiating process is filed (see also the 2014 requirements that are linked to medical negligence and construction disputes). 70 Some other jurisdiction specific State legislation requires mandatory attendance at some form of ADR session as a pre-condition to litigation. 71 The legislation can require different pre-litigation reporting standards and notice periods. As also noted in Chapter 8, many States have legislation in a number of different areas to prevent court proceedings being commenced without mediation or some other form of ADR occurring first. For example, the Farm Debt Mediation Act 1994 (NSW) provides that a mediation must occur before a creditor can take possession of property or other action under a “farm mortgage”. Similarly, the purpose of the Farm Debt Mediation Act 2011 (Vic) is to require “… a creditor to provide a farmer with the option to mediate before taking possession of property or other enforcement action under a farm mortgage” (s 1). 72 The Retail Leases Act 1994 (NSW) provides for the mediation of retail tenancy disputes. Under that legislation, court proceedings would not normally be commenced until a certificate has been provided by the Registrar of the Retail Tenancy Disputes unit or a court has satisfied itself that the dispute is unlikely to be resolved by mediation. 73 Justice Price in Fordham Laboratories Pty Limited v Sor & Anor 74 noted that “[t]he requirement to mediate is not a condition precedent to the commencement of proceedings, but the court may not proceed to hear and determine the dispute unless satisfied that mediation under Part 8 is unlikely to

69 70 71 72

See Family Relationships Online, Family Dispute Resolution, available on http://www.familyrelationships.gov.au/Services/FamilyLawServices/FDR/Pages/default.aspx. See Supreme Court Civil Rules 2006 (SA) r 33. Under the rule, parties in most matters are required to serve an unfiled process on another party 90 days before filing in a court. For example, Family Law Act 1975 (Cth), s 79(9); Retail Leases Act 1994 (NSW), Pt 8; Farm Debt Mediation Act 1994 (NSW); Local Court Rules (NT), r 7.12. See ABC News, “Banks Forced to Offer Farm Mediation”, available on http://www.abc.net.au/news/ 2011-06-30/banks-forced-to-offer-farm-mediation/2777152.

73

Retail Leases Act 1994 (NSW), s 68(2).

74

Fordham Laboratories Pty Limited v Sor & Anor [2011] NSWSC 706.

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resolve the dispute.” 75 The participants are required to participate in “good faith” in the mediation and a certificate is issued to this effect in the pre-litigation setting. Legislation that supports pre-litigation arrangements in the retail lease area also operates in Victoria under the Retail Leases Act 2003 (Vic) but does not impose the same type of framework. The mediation scheme that operates under this legislation requires that: If a respondent (or an applicant) declines to participate in mediation, the Small Business Commissioner may issue a certificate under section 87(1) of the Act to the effect that mediation is unlikely to resolve this dispute. The applicant (or respondent) may then present the certificate to the Victorian Civil and Administrative Tribunal (VCAT). It is important to note, however, that section 92(2) of the Act gives VCAT the power to order any party that refuses to take part in a mediation to pay the costs of the other party. 76

Effectively, although mediation is not mandatory in the Victorian scheme, cost penalties can apply for those who do not use the pre-litigation mediation scheme. In New South Wales, the Legal Profession Act 2004 (NSW) specifically provides for disputes between clients and legal practitioners to be referred to mediation; participation by the parties in mediation is not voluntary in relation to some types of cost disputes. 77 The Strata Schemes Management Act 1996 (NSW) provides for the mandatory mediation of strata scheme disputes prior to any application being made to the registrar for an order concerning the dispute. 78 Also, an extensive array of dispute resolution schemes exist that are mandatory for “members” but not consumers, and apply to consumer and some business disputes in the insurance, banking and other sectors (see Chapter 9 where these schemes are discussed in some detail). Membership of such schemes can form part of mandatory licensing requirements and members such as banks and financial institutions are not permitted to litigate without first using the schemes. The new legislation in the federal and State areas that deal with pre-litigation requirements differs from these various arrangements in that it seeks to create a series of overarching requirements for prospective litigants rather than creating an additional set of piecemeal provisions (such as those that currently exist in relation to selected categories of civil litigation). In addition, the new legislation does not create an ADR scheme that is specifically designed to deal with these types of disputes – it is presumed that would-be litigants will make their own arrangements. The legislation also represents a shift that is part of an ongoing evolution in terms of how justice, the courts and ADR are perceived. This shift 75 76

Fordham Laboratories Pty Limited v Sor & Anor [2011] NSWSC 706 at [43]. See Office of the Victorian Small Business Commissioner, Dispute Resolution, available on http:// www.vsbc.vic.gov.au/.

77

Legal Profession Act 2004 (NSW), Pt 4.3 (Mediation); and Pt 3.2, Div 8 (Mediation of Costs Disputes) (see s 336). Strata Schemes Management Act 1996 (NSW), s 125.

78

[11.20] 435

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has occurred over the past decade and is based on the view that justice and effective dispute resolution can be achieved and occur outside the court system. This perspective has not been driven solely by policy-makers. Many judges and courts have also promoted this view. For example, in his opening address to the National Access to Justice and Pro Bono Conference in 2006, the former Chief Justice of Australia, The Hon Murray Gleeson AO, said: Access to justice has a much wider meaning than access to litigation. Even the incomplete form of justice that is measured in terms of legal rights and obligations is not delivered solely, or even mainly, through courts or other dispute resolution processes. To think of justice exclusively in an adversarial legal context would be a serious error. 79

The maturity of the existing pre-litigation schemes and ADR process options has, over the past decade, supported this enthusiasm to embrace more developed pre-litigation arrangements.

Changing court perspectives on obligations [11.25] As noted above, under the new schemes courts may increasingly be required to assess whether disputants have acted “reasonably”, genuinely or even in a proportionate manner in respect of their pre-litigation activities. Recently, courts have also shown a readiness to engage in developing broader principles that would be relevant in the pre-litigation area. For example, Pembroke J in Thomas v SMO considered issues relating to obligations by those involved in court proceedings: Duty to Court It is common for some litigants to want to use their evidence as an opportunity to unburden themselves in unmanageable detail of the many facts which have preoccupied them in the years preceding the hearing of their case. But a fair hearing of their case can be seriously hindered by such unfiltered outpourings. That is why, among other things, counsel have a duty to the court which is additional to their duty to the party whom they represent. This duty is a legal duty, not merely a rule of practice or etiquette … The efficient hearing of a large or complex case requires recognition of that duty and sensible co-operation and sound judgment on the part of the Bar … The coming years may see principles emerge to guide judicial intervention against evils – the waste of time and money – that result from unhelpful or excessive tenders of both oral and documentary evidence … But whether or not legal principles capable of dealing with these evils emerge, there must be an ethical duty on counsel to abstain from excessive tenders. Lord Hoffmann said that counsel “should not waste time on irrelevancies even if the client thinks that they are important.” For those reasons, a strictly adversarial approach to the presentation of a party’s case must sometimes be tempered. Counsel’s duty to the court requires them, where necessary, to restrain the enthusiasms of the client and to confine their 79

The Hon M Gleeson AO, Chief Justice, High Court of Australia, “Opening Address” (Speech presented at the National Access to Justice and Pro Bono Conference, Melbourne, 11 August 2006) p 1, available on http://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/ cj_11aug06.pdf.

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evidence to what is legally necessary, whatever misapprehensions the client may have about the utility or the relevance of that evidence. In all cases, to a greater or lesser degree, the efficient administration of justice depends upon this co-operation and collaboration. Ultimately this is in the client’s best interest. It is more likely to ensure that a just result is reached – sooner and with less expense. 80

The emerging judicial view that is noted in more recent case law and reported speeches makes it clear that litigants and their representatives have an obligation to cooperate and collaborate, temper a strict adversarial approach and avoid the needless waste of time and money. These views also suggest that courts will play a critical role in developing pre-litigation guidelines and articulating what behaviour and conduct may be reasonable, genuine and appropriate (and proportionate) in the pre-litigation setting. There are now many instances where Australian courts have considered breaches of obligations that exist as a result of civil procedure reforms. In Victoria for example, obligations to comply with timetables 81 and other procedural requirements 82 have been enforced by the courts (see discussion below). In other jurisdictions such as the United Kingdom, there is also case law on this point. For example, in Dunnett v Railtrack 83 Brooke LJ declined to make a costs order in favour of the winning party in litigation because that party had failed to take up an offer to use ADR that had been made after litigation had commenced. 84 However, this line of cases does not deal with a number of interesting issues regarding pre-action requirements. 85 In private ADR processes that take place before entry into the litigation system, participant and representative conduct is often also largely managed by a combination of guidelines, contract clauses, legal representative input 86 and ADR practitioners (who can manage participant conduct within the process and, in some circumstances, can terminate the process). Sometimes, there is a requirement that participants in ADR engage in the process in “good faith” or that they make a genuine effort. The meaning of these requirements is discussed further below.

GOOD FAITH AND OTHER REQUIREMENTS [11.30] Over the past two decades, there has been a continuing focus and increased interest in the imposition of guidelines in relation to how people 80 81

Thomas v SMO [2010] NSWSC 822 at [19]–[21]. See Eaton v ISS Catering Pty Ltd [2013] VSCA 361.

82 83

See Klement v Randles [2012] VSCA 73. Dunnett v Railtrack [2002] EWCA Civ 302; [2002] 1 WLR 2434.

84

A number of cases have supported this approach – see, for example, Rolf v De Guerin [2011] EWCA Civ 78.

85

See T Allen, Dunnett v Railtrack Really Lives: Sanctioning for Refusing to Mediate (Centre for Effective Dispute Resolution (CEDR), 24 Feb 2011), available on http://www.cedr.com/articles/?291.

86

Particularly in collaborative law processes where lawyers contract with parties to comply with particular requirements to support interest-based negotiations and where lawyers may withdraw if there is non-compliance with those contractual arrangements. [11.30] 437

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engage in ADR and other justice related processes. 87 This focus has led to reforms in many jurisdictions that require people in ADR to “engage in good faith”, or in the family dispute resolution area where people involved in family dispute resolution need to make a “genuine effort” (see below) or in respect of civil procedure obligations where primary and sub obligations may require that people cooperate and transparently disclose matters (see below). In addition, lawyers, experts and others may have specific and additional obligations that relate to ADR activities as a result of ethical and professional requirements and legal services and model litigant rules (see [11.35]). These types of requirements have an impact on the entry into ADR processes as agreements between potential disputants may specify that people negotiate in good faith, use their best endeavours, mediate or arbitrate. There have been a number of court decisions that have considered these issues and in some circumstances agreements have not been upheld as they have been “too uncertain”. Requirements may also be considered in the context of the enforceability of agreements made at (or following) ADR processes. These matters are discussed at [11.45]. The most widely used standard that is linked to ADR participation and negotiation relates to the concept of “good faith” which continues to be developed in case law. The concept is commonly considered in the context of negotiation and may apply to all participants – disputants, lawyers and others. Essentially, by prescribing that people engage in negotiations and ADR in good faith, it is hoped that negotiations will be more productive and less likely to be subject to adversarial tactics that could otherwise promote competitive rather than interest-based negotiation. More than a decade ago, the Australian Law Reform Commission (ALRC) focused on lawyers and recommended 88 that national model rules should be developed in relation to lawyer dispute resolution practitioners as well as lawyers participating in ADR processes that require practitioners to participate in “good faith”. “Good faith” now features as the most commonly used standard of conduct prescribed by federal and State/Territory legislation for those involved in ADR processes. However, as noted in NADRAC’s 2009 report The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction, while several federal and State laws impose “good faith” obligations on participants in ADR processes, there is limited legislative guidance on the meaning of the phrase in

87

88

This trend is not as present in some overseas jurisdictions – see T Sourdin, “Good Faith Participation in Mediation: An Australian Perspective” (2014) Spring ACResolution 31, available on http:// www.acresolution-digital.org/acresolutionmag/spring_2014#pg31 and T Sourdin, “International Dispatch: ADR Trends Down Under” (2014) 20(3) Dispute Resolution Magazine 3, 30. See also P Thomson, “Good Faith Mediation in the Federal Courts” (2011) 26 Ohio State Journal on Dispute Resolution 363. Australian Law Reform Commission (ALRC), Managing Justice: A Review of the Federal Civil Justice System (Report No 89, Sydney, 2000).

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the ADR context. 89 There is however some guidance in some specific jurisdictional areas. For example, the Administrative Appeals Tribunal (AAT) published guidelines in December 2013 in relation to ADR and the requirement to engage in “good faith” (discussed further below). 90 The extent to which good faith can be determined has caused debate within the courts. Initially, court cases focused on contract clauses that required parties to an agreement to either negotiate in “good faith,” engage in ADR in “good faith” or to do both if a dispute arose. There have also been differing interpretations regarding the concept in jurisdictions around Australia. For example, “good faith” has also been explored in the context of dispute resolution clauses in contracts requiring parties to use an ADR process in “good faith” before litigation can be commenced. Uncertainty regarding dispute resolution clauses was the subject of comment in Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd, 91 Hooper Bailie Associated Ltd v Natcon Group Pty Ltd, 92 Morrow v Chinadotcom Corporation, 93 New South Wales v Banabelle Electrical Pty Ltd 94 and The Heart Research Institute Ltd v Psiron Ltd. 95 In Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service 96 and Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd, 97 both the parties and the courts accepted that good faith clauses were enforceable. Similarly, in Queensland, good faith requirements contained in a dispute resolution clause were upheld in AMCI (IO) Pty Ltd v Aquila Steel Pty Ltd. 98 In the leading case of United Group Rail Services Ltd v Rail Corporation New South Wales, 99 the concept of good faith was clearly supported and a contractual obligation to negotiate in good faith was found to be binding: One of the available tools of dispute resolution is the obligation to engage in negotiations in a manner reflective of modern dispute resolution approaches and techniques – to negotiate genuinely and in good faith, with a fidelity to the bargain and to the rights and obligations it has produced within the framework of the controversy. This is a reflection, or echo, of the duty, if the matter were to be 89

NADRAC, The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (Report, Attorney-General of the Commonwealth of Australia, 2009) pp 142–146.

90

See AAT, The Duty to Act in Good Faith in ADR Processes, available on http://www.aat.gov.au/steps-ina-review/alternative-dispute-resolution/the-duty-to-act-in-good-faith-in-adr-processes. Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995) 36 NSWLR 709. Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194.

91 92 93

Morrow v Chinadotcom Corporation [2001] ANZ ConvR 341. For a mediation clause to be enforceable, it has been suggested that all steps should be clearly set out and relevant rules and guidelines incorporated. See P Mead, “ADR Agreements: Good Faith and Enforceability” (1999) 10 Australasian Dispute Resolution Journal 40.

94 95 96 97 98

New South Wales v Banabelle Electrical Pty Ltd (2002) 54 NSWLR 503. The Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646. Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (2010) 15 BPR 28,563. Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [2010] WASCA 222. AMCI (IO) Pty Ltd v Aquila Steel Pty Ltd [2009] QSC 139; [2010] 2 Qd R 101.

99

United Group Rail Services Ltd v Rail Corporation New South Wales (2009) NSWLR 618. [11.30] 439

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litigated in court, to exercise a degree of co-operation to isolate issues for trial that are genuinely in dispute and to resolve them as speedily and efficiently as possible. 100

In United Group Rail Services Ltd v Rail Corporation New South Wales, 101 the New South Wales Court of Appeal effectively held that a dispute resolution clause based on good faith, so long as sufficiently certain, was enforceable. Prior to this decision, some dispute resolution clauses were found to be uncertain because of their reliance on “good faith” as a necessary condition in the negotiations. 102 In Idoport Pty Ltd v National Australia Bank Ltd, 103 Einstein J considered the concept of “good faith” in the context of Supreme Court legislation requiring parties to participate in “good faith”. His Honour noted his earlier comments in Aiton Australia Pty Ltd v Transfield Pty Ltd 104 and stated that: Notwithstanding the defendants stated attitude to the application which is that a mediation would be futile, as the plaintiffs have pointed out, it is important to bear in mind the fact that following the making of an order for mediation there is imposed upon both parties a statutory obligation to mediate in good faith. Some examination of the case law and academic writings dealing with the statutory requirements and dealing with the essential or core content of an obligation to mediate in “good faith” was given in Aiton Australia v Transfield Pty Ltd (1999) 153 FLR 236. That judgment at page 268 included the following: In my view, the authorities and academic writings referred to above demonstrate that while the content of any good faith requirement depends on context (statutory or otherwise) and the particular factual circumstances, it is possible to delineate an essential framework for the notion of good faith such that the requirement of good faith in cl 28 is sufficiently certain for legal recognition of the agreement. 105

Einstein J ordered mediation in accordance with the mandatory power under the then Supreme Court Act 1970 (NSW) 106 and, in doing so, explained in some detail what he considered were the fundamental tenets of good faith, citing his earlier comments in Aiton: … As already pointed out, the courts have always avoided hampering themselves by defining or laying down as a general proposition what shall be held to constitute fraud. Yet, however difficult it may be to define what fraud is in all cases, it is relatively easy to identify some of the elements which must necessarily exist. 100 101

United Group Rail Services Ltd v Rail Corporation New South Wales (2009) NSWLR 618, [79]. United Group Rail Services Ltd v Rail Corporation New South Wales (2009) NSWLR 618.

102

Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194.

103 104 105

Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 427. Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236. Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 427 at [47].

106

Section 110K of the Supreme Court Act 1970 (NSW) (now repealed) allowed for the referral of matters to mediation without the consent of the parties. Section 26 of the Civil Procedure Act 2005 (NSW) provides for mandatory referral in similar terms: “(1) If it considers the circumstances appropriate, the court may, by order, refer any proceedings before it, or part of any such proceedings, for mediation by a mediator, and may do so either with or without the consent of the parties to the proceedings concerned”.

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In the same way the court ought to be wary in the extreme of hampering itself by defining in any exhaustive way or by laying down as a general proposition, the ambit of what will constitute a compliance with or failure to comply with an obligation to negotiate or mediate in good faith. These are matters to be determined depending always on the precise circumstances of each individual case. But the certainty issue does require that the court spell out, even in non-exhaustive terms, the perceived essential or core content of an obligation to negotiate or mediate in good faith. To my mind, but without being exhaustive, the essential or core content of an obligation to negotiate or mediate in good faith may be expressed in the following terms: 1.

to undertake to subject oneself to the process of negotiation or mediation (which must be sufficiently precisely defined by the agreement to be certain and hence enforceable);

2.

to undertake in subjecting oneself to that process, to have an open mind in the sense of: (a)

a willingness to consider such options for the resolution of the dispute as may be propounded by the opposing party or by the mediator as appropriate;

(b)

a willingness to give consideration to putting forward options for the resolution of the dispute. 107

Whilst in a number of circumstances agreements to mediate have been upheld (see AMCI (IO) Pty Ltd v Aquila Steel Pty Ltd 108 and Mio Art Pty Ltd v Mango Boulevard Pty Ltd and Ors (No 2), 109 the circumstances under which an agreement will be held to be enforceable will depend on a range of factors including whether the “nature, purpose, context, other provisions or otherwise makes it clear that ‘the promise is too illusory or too vague and uncertain to be enforceable’”. 110 There are many instances where courts have upheld and enforced agreements to arbitrate and there has been a growing body of case law in this area (see Chapter 6). 111 For example, in Parsons Brinckerhoff Australia Pty Ltd and Anor v Thiess Pty Ltd and Anor 112 the Court noted that: 62. Whilst litigation may allow the applicants to include potential third parties, and a consideration of any proportionate liability, arbitration will provide an efficient, cost effective method for resolving promptly the disagreement which has arisen between the parties. Such a consideration is a powerful factor, in the context of an 107

Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 427.

108 109

AMCI (IO) Pty Ltd v Aquila Steel Pty Ltd [2009] QSC 139; [2010] 2 Qd R 101. Mio Art Pty Ltd v Mango Boulevard Pty Ltd and Ors (No 2) [2012] QSC 348.

110 111

Referring to Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1. Much recent case law activity relates to Commercial Arbitration Acts. In general, however, case law supports upholding arbitration agreements – see Rinehart v Welker [2012] NSWCA 95 where the Court noted that: “The words of an arbitration clause should be, to the extent possible consistent with the ordinary meaning of the words, liberally construed. The approach adopted in Fiona Trust & Holding Corporation v Privalov [2007] EWCA Civ 1329; [2007] 4 All ER 951, that arbitration clauses are to be construed irrespective of language in accordance with the presumption that the parties are likely to have intended any dispute arising out of the relationship between them to be decided by the same tribunal, unless clear language to the contrary existed should not be followed”.

112

Parsons Brinckerhoff Australia Pty Ltd and Anor v Thiess Pty Ltd and Anor [2013] QSC 75. [11.30] 441

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agreement in which the parties agreed to act fairly and honestly, and in good faith, in an endeavour to resolve disputes between them. 113

The meaning of good faith has been considered in a number of cases in relation to agreements to negotiate and the different approaches of English courts and Australian courts have been discussed. In Caves Beachside Cuisine Pty Ltd v Boydah Pty Ltd 114 it was noted that English courts had a very different view about good faith. In Baldwin & Anor v Icon Energy Ltd & Anor 115 McMurdo J referred to these contrasting perspectives as follows: Kirby P discussed the inconsistency between the obiter dicta of Lord Wright in Hillas & Co Ltd v Arcos Ltd 116 that there may be an enforceable agreement to negotiate, and a line of subsequent decisions in the English Court of Appeal in which that proposition had been rejected. Kirby P wrote: 117 ... I do not share the opinion of the English Court of Appeal that no promise to negotiate in good faith would ever be enforced by a court. I reject the notion that such a contract is unknown to the law, whatever its term. I agree with Lord Wright’s speech in Hillas that, provided there was consideration for the promise, in some circumstance a promise to negotiate in good faith will be enforceable, depending upon its precise term. Likewise I agree with Pain J in Donwin that, so long as the promise is clear and part of an undoubted agreement between the parties, the courts will not adopt a general principle that relief for the breach of such promise must be withheld. ... Nevertheless ... I believe that the proper approach to be taken in each case depends upon the construction of the particular contract ... In many contracts it will be plain that the promise to negotiate is intended to be a binding legal obligation to which the parties should then be held ...

More recently, in Caves Beachside Cuisine Pty Ltd v Boydah Pty Ltd 118 the concept of good faith was explored by Kunc J in respect of an agreement and whether an implied term in relation to good faith was present. It was noted that: First, it is not the law in New South Wales that any agreement to negotiate in good faith is in and of itself void or unenforceable for uncertainty. Second, such an obligation will be enforceable where it has legal content identified by reference to the context and contract in which the obligation arises. The legal content of an agreement to negotiate in good faith in the context of a dispute resolution clause such as that in United is provided by there being an existing contract between the parties and an agreed mechanism for its resolution. As Allsop P said (at [70]), “this requires an honest and genuine attempt to resolve differences by discussion and, if thought to be reasonable and appropriate, by compromise, in the context of showing a faithfulness and fidelity to the existing bargain”. 119 113 114

Parsons Brinckerhoff Australia Pty Ltd and Anor v Thiess Pty Ltd and Anor [2013] QSC 75, [62]. Caves Beachside Cuisine Pty Ltd v Boydah Pty Ltd [2015] NSWSC 1273.

115

Baldwin & Anor v Icon Energy Ltd [2015] QSC 12.

116 117 118

Referring to Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2; [1932] All ER Rep 494. Referring to Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1. Caves Beachside Cuisine Pty Ltd v Boydah Pty Ltd [2015] NSWSC 1273.

119

Caves Beachside Cuisine Pty Ltd v Boydah Pty Ltd [2015] NSWSC 1273, [121].

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There has also been some recent case law relating to whether ‘good faith’ can be implied in respect of all contracts. In rejecting that proposition (that good faith could be implied in all contracts) in Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) 120 Edeleman J considered the meaning of good faith and noted: ….at least where “good faith” is described as an implied obligation, the notion of “good faith” is better understood as a norm underlying, and shaping, a particular duty or duties. In Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50 [287], [290] Allsop CJ described “good faith” as a “value” and a “normative standard”. Allsop CJ said at [289]: As Posner J said in Market Street Associates Limited Partnership v Frey [[1991] USCA7 746;] [1991] USCA7 746; 941 F.2d 588 (1991) the contractual notion of good faith varies in what is required for its satisfaction by reference to the nature of the contract. But the notion is rooted in the bargain and requires behaviour to support it, not undermine it, and not to take advantage of oversight, slips and the like in it. To do so is akin to theft, and if permitted by the law led to over-elaborate contracts, and defensive and mistrustful attitudes among contracting parties. 1010. In the context of a contractual clause which empowers one party to act to the detriment of another, the content of the norm of good faith has often been described as requiring “reasonableness” in the exercise of the power, or, in more detail, “to act reasonably and with fair dealing having regard to the interests of the parties (which will, inevitably, at times conflict) and to the provisions, aims and purposes of the contract, objectively ascertained”: Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50 [288] (Allsop CJ citing Renard Constructions, Hughes Bros Pty Ltd v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (1993) 31 NSWLR 91, Burger King Corporation v Hungry Jack’s Pty Ltd [2001] NSWCA 187; (2001) 69 NSWLR 558, and Alcatel Australia Ltd v Scarcella [1998] NSWSC 483; (1998) 44 NSWLR 349).

In New Zealand there has also been some acceptance that good faith obligations are enforceable. In Waihopai Valley Vineyard Ltd v Savvy Vineyards 3550 Ltd 121 obligations to behave in a good faith manner were considered and found to be enforceable. Brewer J noted that: I am well aware that this judgment will satisfy neither Waihopai nor Savvy. For one thing, my finding that Waihopai was not entitled to cancel the agreements means that the parties will have to resume a relationship which has broken down and from which trust has deserted. My suggestion is that the parties now engage through the dispute resolution provisions in the agreements to work through the practical aspects of restoring the relationship, at least in commercial terms. 122

In terms of the meaning of “good faith” there have been suggestions that it may be easier to define “bad faith” rather than good faith, and good faith is perhaps

120 121

Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 82, [1009]. Waihopai Valley Vineyard Ltd v Savvy Vineyards 3550 Ltd [2015] NZHC 2089.

122

Waihopai Valley Vineyard Ltd v Savvy Vineyards 3550 Ltd [2015] NZHC 2089, [304]. [11.30] 443

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more readily defined by adopting an “excluder” definition, 123 the central tenets of good faith (cooperation, honesty and reasonable conduct) do appear to have been delineated and supported by the VLRC (see also discussion and Table below). In the context of the case law, the courts have explored and commented on what the concept of good faith means and entails. In Strzelecki, the New South Wales Court of Appeal essentially followed previous adoptions of Sir Anthony Mason’s “three related notions” of good faith, 124 namely: 1. 2. 3.

an obligation on the parties to cooperate in achieving the contractual objects (loyalty to the promise itself); compliance with honest standards of conduct; and compliance with standards of conduct that are reasonable having regard to the interests of the parties.

The case law suggested that there may be some lack of clarity regarding the elements 125 and definition of good faith. However, in business circles and in the context of negotiation (rather than dispute resolution), there may be less confusion. In addition the case law suggests that courts will consider behaviour in ADR closely when necessary although it is accepted that emotions impact on behaviour and strong emotional responses are unlikely to be perceived as a lack of good faith and that the test may be akin to a “reasonable person” test while bearing in mind the particular circumstances of the parties involved. 126 As a result, requirements to act in “good faith” are increasingly being enforced. Some cases have also considered whether or not parties who have failed to participate in “good faith” should be required to face a costs penalty 127 or may be required to do “more”. 128 The VLRC 129 also noted in the 2008 Civil Justice Review report that a number of its submissions had expressed the view that a proposed obligation to act in good faith in civil litigation was considered to be somewhat “nebulous”. 130 This 123

124

125 126

E Peden, “The Meaning of Contractual ’Good Faith’” (2002) 22(3) Australian Bar Review 235, referring to Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 266, also noting that the approach in Renard was “mentioned (seemingly with approval) by the NSW Court of Appeal” in Burger King Corp v Hungry Jack’s Pty Ltd [2001] NSWCA 187 at [149]. A Mason, “Contract, Good Faith and Equitable Standards in Fair Dealing” (2000) 116 Law Quarterly Review 66 at 70 (being an article based on Sir Anthony Mason’s Cambridge Lecture Contract and its Relationship with Equitable Standards and the Doctrine of Good Faith (8 July 1993). See D Spencer, Defining an Operational Standard of Good Faith – Negotiation in the Performance of a Contract, Unpublished Paper (ALTA Conference, Vanuatu, July 2001). See Backreef Oil Pty Ltd and Oil Basins Ltd/John Watson on behalf of Nyikina and Mangala/Western Australia [2012] NNTTA 98. See also Case Note in (2013) 24 Australasian Dispute Resolution Journal 3 for commentary on this case.

127 128

See, eg, Woodford v Bluescope Steel [2007] NSWDDT 16. See Raymond Dann & Ors (Amangu People)/Western Australia/Empire Oil Company (WA) Ltd [2006] NNTTA 153.

129

See D Spencer, Defining an Operational Standard of Good Faith – Negotiation in the Performance of a Contract (Unpublished Paper, ALTA Conference, Vanuatu, July 2001).

130

VLRC, Civil Justice Review (Report No 14 , 2008).

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may be more of an issue in jurisdictions such as Victoria, where the term has not been used extensively in legislative settings. Consequently, there has not been much discussion within Victorian courts about what the characteristics of “good faith” might be. However, the VLRC noted that the concept was now used in a number of legislative settings outside Victoria and that in the context of contractual relationships, courts have been considering for some years whether contracting parties have an obligation to act in good faith, either express or implied, in the contract. 131 In discussing good faith and obligations to disclose, the VLRC also considered that overriding obligations in respect of good faith could extend to settlement negotiations, mediation and other ADR processes that may be utilised by the parties to litigation. In other jurisdictions, case law has been useful in clarifying what is meant by good faith in negotiations. Much of this case law has been linked to agreements that specify that “good faith” negotiation is required. However, in the statutory context there has also been some discussion about what good faith means. In this context, good faith was recently considered by the Fair Work Commission and the Federal Court. In relation to considering the legislative requirements and the history of negotiations of enterprise agreement proposals, there was some acknowledgment of the potential difficulty in imposing a good faith standard in relation to bargaining as “there is an inevitable tension between imposing … a ‘requirement’ that [a party] ‘bargain’ in ‘good faith’ and a prohibition upon imposing an obligation to make “concessions” or reach agreement as to terms.” 132 In other statutory contexts, additional guidelines have been produced to clarify the meaning of good faith. 133 The Administrative Appeals Tribunal has for example stated that: Good faith 5.

The term ‘good faith’ is not defined in the AAT Act, but could be defined to include a ‘genuine effort’ to uphold the basic principles of ADR. (1) These include: • people have a responsibility to take steps to resolve or clarify disputes • disputes should be resolved in the simplest and most cost-effective way • people who attend a dispute resolution process should show their commitment to that process by listening to other views and by putting forward and considering options for resolution.

131

132 133

The VLRC, Civil Justice Review (Report No 14, 2008) p 167, fn 117, referred to: Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234; Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349; Burger King Corp v Hungry Jack’s Pty Ltd [2001] NSWLR 558; Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15; Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL (recs and mgrs apptd) (admins apptd) [2005] VSCA 228; Australian Mutual Provident Society v 400 St Kilda Road Pty Ltd [1991] 2 VR 417; and Central Exchange Ltd v Anaconda Nickel Ltd (2002) 26 WAR 33. Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764. See AAT, The Duty to Act in Good Faith in ADR Processes, available on http://www.aat.gov.au/steps-ina-review/alternative-dispute-resolution/the-duty-to-act-in-good-faith-in-adr-processes. [11.30] 445

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Conduct in good faith 6.

The Tribunal regards the following conduct as consistent with the duty to act in good faith: • ensuring that the person attending an ADR process (other than conferencing) on behalf of a party has the necessary authority to settle the matter • adopting an honest and genuine approach to resolving a dispute by discussion • maintaining the confidentiality of the ADR process: see the fact sheet Privacy and confidentiality at the AAT for more information • treating other parties to the ADR process and the AAT member or Conference Registrar respectfully • acting reasonably and fairly having regard to the interests of all the parties disclosing information relevant to the dispute in a timely fashion • being prepared to make concessions for the purposes of the ADR process, though not necessarily for the purposes of any subsequent AAT hearing • endeavouring to limit the scope of proceedings by making partial concessions where appropriate • having an open mind and a willingness to consider the interests of the other side, understand their position and consider options generated by the other side, or the AAT member or Conference Registrar • having a willingness to propose options for the resolution of the dispute and discuss your position in detail • explaining the rationale behind an offer of settlement or the refusal of the other party’s offer of settlement • being faithful to any agreement reached in the ADR process that is, ‘holding up your end of the bargain’.

Withdrawing 7.

The duty to act in good faith does not: • prevent a party from withdrawing from the ADR process if appropriate • require that agreement is reached or any particular outcome is achieved.

Inconsistent with good faith 8.

Failing to attend an ADR process without sufficient notice or reason is not consistent with a party’s duty to act in good faith. 134

In addition some specific case law has developed in the statutory context area. For example, in Western Australia v Taylor, 135 the National Native Title Tribunal (NTTT) considered how to identify good faith negotiation when the tribunal was dealing with specific legislation that was used in the native title area. The NTTT was prepared to more closely consider the circumstances of the negotiating parties. 136 This is partly because of an additional “good faith requirement” introduced into the native title area in 2007 as a result of the Native 134 135 136

See AAT, The Duty to Act in Good Faith in ADR Processes, available on http://www.aat.gov.au/steps-ina-review/alternative-dispute-resolution/the-duty-to-act-in-good-faith-in-adr-processes. Western Australia v Taylor (1996) 134 FLR 211. See S Burnside, “Negotiation in Good Faith under the Native Title Act: A Critical Analysis” (2009) 4(3) Native Title Research Unit, available on http://aiatsis.gov.au/publications/products/negotiation-goodfaith-under-native-title-act-critical-analysis.

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Title Claims Resolution Review (2006). 137 In the review, it was noted that, “there is a growing tendency for parties to mediation to exhibit a lack of good faith during mediation” and a suggestion was made that a requirement be imposed on all those participating in mediation to act in good faith. 138 One recommendation of the review was that a code of conduct for everyone involved in mediation, including legal practitioners, be formulated. The Native Title Act 1993 (Cth) does not provide any specific penalties for non-compliance with the good faith requirement, rather it offers redress through other means. If the person conducting the mediation considers that a party has breached the good faith requirement, the Act provides mechanisms for the mediator to report such breaches. 139 The breach can be reported to a number of bodies 140 depending on the classes of persons and/or entities that are alleged to have perpetrated the breach and whether the government party had complied with the requirement to negotiate in good faith. In the absence of any definition in the Native Title Act 1993 (Cth) at the time that Taylor, above, was decided, the tribunal noted that the only statutory definition it was aware of was that which was set out in s 170QK(z) of the Industrial Relations Act 1988 (Cth) (now repealed). The tribunal accepted the “totality of circumstances” test in that provision. The test provides that a single element of a party’s behaviour may not, of itself, indicate that a party has not negotiated in good faith, but an examination of the overall conduct of a party may indicate the absence of good faith. 141 Several native title cases have considered good faith and accepted that overall conduct and circumstances must be explored. However, evidence of a lack of good faith has been found in a party’s failure to make any counter-proposals – adopting a “take it or leave it” approach 142 – as well as a party actively engaging in misleading behaviour. 143 In one case, the NNTT considered a situation where it was alleged that negotiations had not been conducted in “good faith”. 144 Essentially, it was said that the lack of “good faith” was indicated by the following behaviour: 137

138

139

A report prepared for the Commonwealth Attorney-General by G Hiley and K Levy (31 March 2006), in response to the Review of the Claims Resolution Process in the Native Title System, available on http://www.ag.gov.au. G Hiley and K Levy, Native Title Claims Resolution Review (prepared for the Attorney-General (Cth), 31 March 2006) p 23, available on http://www.ag.gov.au. Previously the requirement had applied to only limited classes of matters. Native Title Act 1993 (Cth) s 94P.

140

Such as the Federal Court, the Attorney-General, a Commonwealth Minister, a State/Territory minister, heads of government agencies and legal professional bodies.

141

Western Australia v Taylor (1996) 134 FLR 211, 221. Another example of “good faith” is located at s 228 of the Fair Work Act 2009 (Cth). Cosmos/Alexander/Western Australia/ Mineralogy Pty Ltd [2009] NNTTA 35.

142 143 144

FMG Pilbara Pty Ltd v Cox (2009) 176 FCR 141. See Raymond Dam (Amangu People)/Western Australia/Empire Oil Company (WA) Ltd [2006] NNTTA 153. [11.30] 447

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(a)

during the negotiations over compensation [one party] kept, in effect, reducing the amount on offer …;

(b)

it provided to the native title party an incomplete version of the “marked up” version of the agreement which was patently misleading in that not all of the changes effected by the grantee party were disclosed …;

(c)

it negotiated a heritage survey agreement but refused to apply its provisions to areas of the proposed tenement area within the outer boundaries of the Amangu native title determination application where native title had been extinguished …; and

(d)

it rejected, without reason, the acceptance by the native title party of the grantee party’s compensation offer and then introduced late in the negotiations new issues relating to aboriginal heritage, which issues were unreasonable and manifested a specious attitude designed only to obtain a rejection from the native title party …

In that matter, the tribunal did not find that there was a lack of good faith and closely examined the behaviour of the party. It concluded that there was no “dishonesty” and also no lack of good faith. It is unclear whether courts will determine that the genuine steps requirement at the federal level will involve an importation of any good faith requirement. However, good faith obligations as they apply to participants in ADR processes have been the subject of expansion in recent years and are likely to be further expanded in future. This is partly because legislation and case law have now more clearly articulated the characteristics of good faith. In addition, in 2011 NADRAC discussed the issues relating to the imposition of a good faith requirement and decided that, on balance, such a requirement should be imposed, noting that: … the rule of law, and the public interest in the administration of justice, are better served by expressly recognising that participation in mandatory ADR should be undertaken in good faith. However, NADRAC has not reached a consensus view on a preferred formulation for a conduct obligation. There are two sound alternatives: good faith and genuine effort. “Good faith” appears to be the most widely prescribed conduct obligation in existing legislation (both in federal and in State/Territory jurisdictions). Examples of its use can be found in the Native Title Act, the Administrative Appeals Tribunal Act 1975 and the Civil Procedure Act 2005 (NSW). There is extensive and authoritative case law interpreting “good faith” standards, in a range of contexts, supporting the view that this standard appears to be working satisfactorily. Equally, however, “genuine effort” (which is the standard applying under the Family Law Act) appears to have worked well in that jurisdiction. It has appeal as a standard that focuses on subjective behaviour, and may therefore be particularly suited to the nuances of ADR processes. Ultimately, the majority view of NADRAC was slightly in favour of good faith. 145 145

NADRAC, Maintaining and Enhancing the Integrity of ADR Processes (Report, 2011) p 34, available on http://www.nadrac.gov.au.

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NADRAC also attempted to articulate good faith by reference to “genuine effort” 146 (the test used in the family area) and noted that “[o]ne option is to define ‘good faith’ in terms which also capture the essence of ‘genuine effort’. For instance, ‘good faith’ could be defined as including genuine effort to uphold various enumerated principles”, 147 such as those previously identified by NADRAC: 148 1.

People have a responsibility to take genuine steps to resolve or clarify disputes and should be supported to meet that responsibility.

2.

Disputes should be resolved in the simplest and most costeffective way. Steps to resolve disputes including using ADR processes, wherever appropriate, should be made as early as possible and both before and throughout any court or tribunal proceedings.

3.

People who attend a dispute resolution process should show their commitment to that process by listening to other views and by putting forward and considering options for resolution.

4.

People in dispute should have access to, and seek out, information that enables them to choose suitable dispute resolution processes and informs them about what to expect from different processes and service providers.

5.

People in dispute should aim to reach an agreement through dispute resolution processes. They should not be required or pressured to do so if they believe it would be unfair or unjust. If unable to resolve the dispute people should have access to courts and tribunals.

6.

Effective, affordable and professional ADR services which meet acceptable standards should be readily available to people as a means of resolving their disputes.

7.

Terms describing dispute resolution processes should be used consistently to enhance community understanding of, and confidence in, them. 149

Clearly, however, a critical issue in any analysis of “good faith” is how it can be determined that someone has acted in bad faith in ADR processes that are intended to be confidential and where evidence of what has transpired in an ADR process would not otherwise be admissible in court proceedings. These issues of confidentiality, admissibility and practitioner obligations are explored in greater detail in Chapter 12. 146

See also H Astor, “Making a “Genuine Effort” in Family Dispute Resolution: What Does It Mean?” (2008) 22 Australian Journal of Family Law 102, 103–104.

147

NADRAC, Maintaining and Enhancing the Integrity of ADR Processes (Report, 2011) p 35, available on http://www.nadrac.gov.au. NADRAC’s National Principles for Resolution of Disputes can be accessed on http://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Pages/NADRACpublications.aspx.

148 149

NADRAC, Maintaining and Enhancing the Integrity of ADR Processes (Report, 2011) Appendix 1.2, available on http://www.nadrac.gov.au. [11.30] 449

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The question of what constitutes good faith is also likely to be the subject of close attention in the coming years as a result of the inclusion of more “good faith” requirements in various legislative schemes. For example, the Fair Work Act 2009 (Cth) has attempted to set out the requirements for good faith in s 228 of the Act as they apply to bargaining representatives in relation to an enterprise agreement. Section 228 states: (1)

(2)

The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet: (a)

attending, and participating in, meetings at reasonable times;

(b)

disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c)

responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d)

giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;

(e)

refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f)

recognising and bargaining with the other bargaining representatives for the agreement.

The good faith bargaining requirements do not require: (a)

a bargaining representative to make concessions during bargaining for the agreement; or

(b)

a bargaining representative to reach agreement on the terms that are to be included in the agreement.

In addition, some recent developments in this area include a consideration of whether ‘good faith’ obligations can be implied in employment contracts. In Commonwealth Bank of Australia v Barker 150 and State of New South Wales v Shaw 151 these matters were referred to however the case law remains unsettled. It may be that such obligations could eventually be implied in respect of ADR contracts. However, requirements in respect of good faith cannot be considered in isolation from other obligations and requirements that can operate in relation to negotiations. It may be that international developments relating to good faith will also have an impact. These requirements may support good faith even where there are no clear requirements to negotiate or mediate in good faith. Some commentators have suggested that: 150

Commonwealth Bank of Australia v Barker [2014] HCA 32.

151

State of New South Wales v Shaw [2015] NSWCA 97.

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the emerging law of statutory unconscionability provides a legislative dimension that complements the doctrinal dimension of good faith’s treatment under the laws of contract and equity. 152

In this context, good faith is seen as being intertwined with unconscionability principles and this approach can be linked to international trends in good faith jurisprudence that include the use of good faith in international commercial instruments like the UNIDROIT Principles of International Commercial Contracts and UN Convention on Contracts for the International Sale of Goods – that have supported legislative and judicial initiatives to use good faith as an organising principle. 153 Within Australia, as noted below, good faith requirements may be supported by other legislative requirements. For instance, those involved in negotiations may have their conduct regulated by s 18 of Sch 2 of the new Competition and Consumer Act 2010 (Cth) if the conduct is likely to mislead or deceive, in respect of unconscionable conduct and unfair terms are reached. These requirements may support “good faith” even where there are no clear requirements to negotiate or mediate in “good faith” (see discussion at [11.35]). Other statutory obligations will also be relevant. For example, civil procedure requirements may apply to some forms of court connected ADR and may foster requirements that are similar to those identified as ‘good faith’ requirements. Interestingly, the Victorian Civil Procedure legislation specifically included Appropriate Dispute Resolution. That is, the specific obligations apply to those involved in ADR. 154 The sub-obligations that were incorporated into the Civil Procedure Act 2010 (Vic) include: • to act honestly at all times in relation to a civil proceeding: s 17; • • • •

to only make claims or responses to claims that have a proper basis: s 18; to only take steps to resolve or determine the dispute: s 19; to cooperate in the conduct of a civil proceeding: s 21; not to engage in conduct that is, or is likely to be, misleading or deceptive: s 21;

• to use reasonable endeavours to resolve the dispute: s 22; • to narrow the issues in dispute: s 23; • to ensure costs are reasonable and appropriate: s 24; 152

153

154

BT Horrigan, “New Directions in How Legislators, Courts, and Legal Practitioners Approach Unconscionable Conduct and Good Faith” (2012) Supreme Court History Program Yearbook 2012 171-246; Monash University Faculty of Law Legal Studies Research Paper No 2013/38 (draft as of 15/10/2012), p 12. BT Horrigan, “New Directions in How Legislators, Courts, and Legal Practitioners Approach Unconscionable Conduct and Good Faith” (2012) Supreme Court History Program Yearbook 2012 171-246; Monash University Faculty of Law Legal Studies Research Paper No 2013/38 (draft as of 15/10/2012), p 17. See T Sourdin, “Reforming Civil Procedure and Alternative Dispute Resolution (ADR)”, in M Kumar and M Legg (eds), Ten Years of the Civil Procedure Act 2005 (NSW): A Decade of Insights and a Guide to Future Litigation (Thomson Reuters, Sydney, 2015). [11.30] 451

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• to minimise delay: s 25; and • to disclose the existence of documents critical to the dispute: s 26. 155 There is some case law relating to the enforcement of these obligations that suggests that courts will explore whether the obligations have been met in a “robust and proactive way”. 156 There is limited case law relating to obligations in relation to ADR processes however in Eaton v ISS Catering Pty Ltd & Ors 157 the court specifically referred to directions that had been made in contemplation of a mediation: 54. The letter from the third respondent’s solicitors put the appellant’s solicitors on notice that they should apply for an extension of time, prior to the trial date. The only explanation put forward by the appellant for not doing so was given from the Bar table – to the effect that a decision was made to defer seeking expert evidence until after the mediation. The fact that the parties sought to mediate the dispute did not relieve the appellant’s solicitors from the responsibility of complying with Court ordered time limits. The conduct of the appellant’s solicitors in ignoring the Court’s directions as to the time for serving expert evidence undermines the overarching purpose under the Civil Procedure Act 2010 and is contrary to the overarching obligations to which the solicitors were subject. The obvious purpose of the expert evidence direction was to further the overarching purpose by, among other things, ensuring that the mediation would be fully informed; and thus increase the prospects that it might lead to a settlement – with consequent saving of costs to the parties and preservation of scarce judicial resources. Of course, the expert evidence directions were also designed to further the overarching purpose by ensuring that due notice of the evidence was given to the respondents so that they could have a reasonable opportunity to meet it at trial. 55. If there is a perception among plaintiffs’ lawyers in personal injuries litigation that they need not comply with court directions which require steps to be taken before mediation, including seeking expert reports, or a practice of not doing so, such a practice is in our opinion contrary to the overarching obligations. It is no excuse that ‘no win, no fee’ lawyers wish to see whether a case settles at mediation before spending the necessary funds required to comply with court orders. Although each case must, of course, depend upon its own facts and circumstances, the adoption of such a practice may well lead to an application to vacate the trial date or, as here, to adjourn the trial being refused.

It seems clear that considering these type of obligations will require analysis. As with good faith and as noted in Aiton v Transfield, 158 requirements must be considered on a case by case basis 159 and the approach must be fact intensive (which as noted previously raises issues in the ADR area where confidentiality and admissibility issues may hinder a fact intensive consideration – see also Chapter 12). It may also be that in different sectors of the population different approaches to negotiation and “good faith” will operate. Articulating a 155

Civil Procedure Act 2010 (Vic), Pt 2.3.

156 157

See Yara Australia Pty Ltd v Oswal [2013] VSCA 337 and Eaton v ISS Catering Pty Ltd [2013] VSCA 361. Eaton v ISS Catering Pty Ltd [2013] VSCA 361.

158 159

Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236. Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 at 129.

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“reasonable” approach is therefore fraught with difficulty. 160 The Table below, which articulates some potential conduct options, will be considered differently by different individuals and disciplines. It is drawn from the case law approaches outlined above and the legislative exception areas (where they are set out). In addition, the good faith behaviours are responsive to the good faith approach set out by collaborative practitioners (see generally Chapter 4). Clearly however, the different approaches to this topic by individuals, jurisdictions and organisations means that what might be considered to be “robust” negotiation behaviours in some areas may be considered to be “bad faith” in others. Table 11.1: Good faith vs Bad faith Bad faith? Turning up late repeatedly or not turning up at all Not having authority

Bullying, aggressive or disinterested behaviour – uncooperative Not listening to or discussing issues Not considering settlement options

Reducing offer amounts

Dishonest behaviour

Omission and distortion of significant or relevant material

160

May be bad faith? Being unprepared and not allowing sufficient time for meetings Not making authority enquiries early in the process Posturing and disrespectful comments and behaviour

Good faith? Attending scheduled meetings on time

Focusing on own case and not listening to others Not exploring alternatives and options and immediately evaluating and dismissing options Not moving or not explaining why no movement is possible Posturing and suggesting that a court outcome is more favourable than it is or suggesting that legislation will be construed differently without adequate basis Exaggeration and omission of non relevant material

Engaging and contributing to discussions about issues Discussing settlement options and comparing options to litigation and other alternatives Raising options and considering the other party perspectives Transparent behaviour

Having authority or raising authority issues as soon as the process starts Respectful communication

Drawing attention of parties to missing information that could be relevant

See J Lande, “Using Dispute Resolution System Design Methods to Promote Good Faith Participation in Court-Connected Mediation Programs” (2002) 50 UCLA L Rev 69. [11.30] 453

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OBLIGATIONS THAT APPLY TO PRACTITIONERS [11.35] Specific obligations of ADR practitioners are considered more closely at [11.40] and in Chapter 12 (in the context of immunity and liability). This section is initially focused on obligations that may apply to legal and other practitioners who may be involved in ADR. Some additional considerations in respect of lawyers involved in negotiation and potential ethical arrangements are also discussed at [2.80]. Some specific obligation requirements are directed at ‘gatekeepers’ to encourage greater use of ADR in the pre-filing area. For example, r 7.2 of the Australian Solicitors Conduct Rules 161 and r 38 of the Australian Bar Association Barristers’ Conduct Rules 162 require that solicitors and barristers advise their clients of the alternatives to fully contested adjudication. 163 Legal practitioners as participants in ADR may be bound by good faith, genuine effort and other legislative (including civil procedure obligations discussed earlier) and contractual requirements, and may also be required to adhere to other obligations when involved in dispute resolution. For example, there are specific obligations that apply to those who may practice in the Commonwealth dispute resolution area as well as to practitioners in other areas. The Legal Services Directions 2005 (Cth) requires Commonwealth Government agencies to act as “model litigants”. 164 As part of this obligation, Commonwealth Government agencies are required to consider other methods of dispute resolution before commencing litigation. 165 When participating in ADR, these agencies must ensure that their representatives participate “fully and effectively”, and have authority to settle the matter (subject to some exceptions). 166 The definition of “litigation” extends to ADR processes, so that Commonwealth Government agencies are required to observe model standards of conduct when participating in ADR. State and Territory government agencies operate under similar model litigant obligations. For example, the model litigant principles of the State of Victoria are to be found in the standard legal services to government panel contract, and are 161

164 165

These rules have been adopted by Queensland, South Australia and New South Wales; but similar rules apply in the Northern Territory (see Law Society of Northern Territory, Rules of Professional Conduct and Practice (at May 2005) rr 10A.3, 10A.7) and Victoria (see Law Institute of Victoria, Professional Conduct and Practice Rules 2005 (at 30 September 2005) r 12.3); P Baron, L Corbin, J Gutman, “Throwing Babies out with the Bathwater? – Adversarialism, ADR and the Way Forward” (2014) 40(2) Monash University Law Review 283, 292. These rules have been adopted by Queensland, South Australia and New South Wales; but similar rules apply in the Northern Territory (see Law Society of Northern Territory, Rules of Professional Conduct and Practice (at May 2005) rr 10A.3, 10A.7) and Victoria (see Law Institute of Victoria, Professional Conduct and Practice Rules 2005 (at 30 September 2005) r 12.3); P Baron, L Corbin, J Gutman, “Throwing Babies out with the Bathwater? – Adversarialism, ADR and the Way Forward” (2014) 40(2) Monash University Law Review 283, 292. P Baron, L Corbin, J Gutman, “Throwing Babies out with the Bathwater? – Adversarialism, ADR and the Way Forward” (2014) 40(2) Monash University Law Review 283, 292. Legal Services Directions 2005 (Cth), Appendix B. Legal Services Directions 2005 (Cth), Appendix B, clause 5.1.

166

Legal Services Directions 2005 (Cth), Appendix B, clause 5.2.

162

163

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largely modelled on the Commonwealth version. Additional requirements may be imposed by “pledge” or other requirements (in Victoria in 2010, a number of legal practitioners who wished to undertake State Government work were required to sign a pledge that included ADR obligations). Victoria’s model litigant guidelines (policy guidelines originally issued in 2001) were revised in 2011. They set standards for how the State should behave as a party to legal proceedings. 167 Dispute management plans may support party (rather than lawyer) obligations. 168 However, some plans may be more specifically applied to practitioners. For example, the Commonwealth Attorney-General’s plan encourages and supports dispute management within Australian Government agencies, and states that “The department’s plan describes ways of doing our work that can help us to prevent and manage disputes and avoid some matters unnecessarily escalating into formal legal disputes”. 169 The objectives of this recommended approach to dispute management include early identification of complaints, fostering a culture of active dispute management and meaningful recording and use of information about disputes. 170 Other obligations may be specific to schemes and linked to ethical requirements. For example, in 2006 a barrister who had been involved in a mediation as a representative was the subject of an action in the Queensland Legal Practice Tribunal in Legal Services Commissioner v Mullins. 171 In that case, the Legal Services Commissioner argued that the barrister was guilty of professional misconduct in relation to a mediation concerning a claim for compensation for personal injuries. Essentially, it was said that the barrister had misled the insurer by failing to disclose information relating to the reduced life expectancy of his client. In Mullins, the facts suggested that, shortly before the mediation, the barrister became aware that his client (who was a quadriplegic as a result of an accident) had cancer and a reduced life expectancy. The barrister indicated to his client that this information should be disclosed. After discussing the matter with senior 167

168

See State Government of Victoria, Victorian Model Litigant Guidelines on the State of Victoria’s Obligation to Act as a Model Litigant, available on http://www.justice.vic.gov.au/home/justice+system/ laws+and+regulation/victorian+model+litigant+guidelines. The former National Alternative Dispute Resolution Advisory Council (NADRAC) previously developed a guide to help agencies develop dispute management plans. See http://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Documents/DisputeManagementPlan2013.PDF. Government agencies such as the Australian Taxation Office (ATO), the Australian Competition and Consumer Commission (ACCC) and Australian Energy Regulator have developed their own dispute management plans and policies which can be found on their websites.

169

See Commonwealth Attorney-General, Dispute Management in Australian Government Agencies, available on http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/Dispute managementinAustralianGovernmentagencies.aspx.

170

See Commonwealth Attorney-General, Dispute Management in Australian Government Agencies, available on http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/Dispute managementinAustralianGovernmentagencies.aspx. Legal Services Commissioner v Mullins [2006] LPT 012, available on http://applications.lsc.qld.gov.au/ documents/MullinsLPT06-012.pdf.

171

[11.35] 455

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counsel, he took the view that if he did not mislead the insurer (but did not disclose the information) he would be complying with his professional obligations. The Legal Practice Tribunal noted that: Rules adopted by the Bar Association of Queensland then included: 51. A barrister must not knowingly make a false statement to the opponent in relation to the case (including its compromise). 52. A barrister must take all necessary steps to correct any false statement unknowingly made by the barrister to the opponent as soon as possible after the barrister becomes aware that the statement was false. 172

The Legal Practice Tribunal concluded that by continuing to rely on reports as to his client’s life expectancy, the barrister was guilty of professional misconduct. However, the tribunal noted that: In mitigation, there are many references from senior practitioners attesting to the respondent’s competence and good character. Despite the stance adopted in resisting this application, the references indicate that there is good reason for optimism that the respondent will not set about deceiving a colleague again. And his misconduct was not designed to derive a personal advantage: an anxiety to advance his client’s interests accounts for his grave misjudgement. 173

The tribunal ordered that a public reprimand take place and that the barrister pay a $20,000 fine. 174 It could be said that the Mullins matter dealt with an alleged omission of information rather than a lie. This is because, initially, the material that was exchanged relating to the plaintiff’s life expectancy was correct – it was only shortly before the conference that the prognosis of the plaintiff changed and the diagnosis was made. Effectively, the barrister failed to draw the other side’s attention to the change in circumstances. The case also raised many ethical issues for a legal practitioner who was highly regarded for his “integrity and fairness”. 175 Notably, a similar action was also successful against his instructing solicitor who had remained silent during the negotiations. 176 Misleading conduct in an ADR process may raise additional issues. In the 2006 case of Legal Practitioners Complaints Committee v Fleming, 177 it was noted that: … the conduct of a practitioner might be regarded as misleading because an affirmative statement is made in circumstances which required some qualification. In this context, misleading and unprofessional conduct might also be made out where a practitioner states a partial truth, or in the context of making statements of fact, omits relevant information. It might extend to statements which are literally 172 173

Legal Services Commissioner v Mullins [2006] LPT 012, [29]. Legal Services Commissioner v Mullins [2006] LPT 012, [33].

174

Legal Services Commissioner v Mullins [2006] LPT 012, [36].

175

See K Lauchland, “Secrets, Half-truths and Deceit in Mediation and Negotiation – Lawyers Beware!” (2007) 9 ADR Bulletin 6 at 1, available on http://epublications.bond.edu.au/cgi/viewcontent.cgi? article=1389&context=adr.

176

Legal Services Commission v Garrett [2009] LPT 12.

177

Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352.

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true but where a qualification is called for, or where a statement initially true becomes false in the course of the negotiations. And in some circumstances the duty to not bring the legal profession into disrepute and fairness to an opponent may require that the practitioner draw attention to a particular matter, even where the opponent’s misapprehension is not induced by that practitioner. 178

In relation to ADR processes specifically, it was noted that: The public interest is served by practitioners encouraging an early settlement of their client’s dispute. Indeed, practitioners are under a duty to seek such a settlement … But, just as in litigation a practitioner may not use dishonest or unfair means or tactics to hinder his opponent in the conduct of his case (D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 [McHugh J at 111]), so he ought not do so in other areas of practice. Arguably perhaps, for a number of reasons, the proscription against such conduct is more important in settlement negotiations. 179

A different set of issues might surface if a legal practitioner tells an outright lie in an ADR process. While legal practice in Australasia is very different from legal practice in the United States, one study in the United States suggested that a significant proportion of lawyers will lie in negotiations. The study found that approximately 30 per cent of United States lawyers were willing to lie for their clients about a material fact, even though this is prohibited by United States Model Rules of Professional Conduct. 180 In the United States, lawyers are required to act in good faith in that “an attorney may not employ the settlement process in bad faith”. 181 However, this has been interpreted to mean that bluffing about settlement authority, omitting and distorting information, and even making some threats would not necessarily cause issues for lawyers in the United States who are engaged in ADR processes. 182 It is clear that in Australasia that this type of conduct might not only found an action in deceit but would also breach professional ethical requirements. There may also be other actions that could be made out under legislation such as the Australian Consumer Law. The issue of lawyer behaviour in negotiations that are part of ADR processes has also been considered by the Law Council of Australia. In the 2007 Guidelines for Lawyers in Mediations, the Law Council stated that lawyers should “[n]ever mislead and be careful of puffing”. 183 In the United Kingdom, there is some 178

Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352, [73].

179 180

Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352, [74]. A Hinshaw and J Alberts, “Doing the Right Thing: An Empirical Study of Attorney Negotiation Ethics” (2011) 16 Harvard Negotiation Law Review 96. Hinshaw and Alberts presented 734 lawyers in Arizona and Missouri with a hypothetical scenario that explored their reaction to an improper request from their client and their understanding of their obligations under such circumstances.

181 182

American Bar Association, Ethical Guidelines for Settlement Negotiations (2002), s 4.3.1. See B Roth, Ethical Considerations for Advocates in Mediation (2005), available on http:// www.rothadr.com/pages/publications/ethics%20reprint.pdf. See also J Lawrence, “Lying, Misrepresenting, Puffing and Bluffing: Legal, Ethical and Professional Standards for Negotiators and Mediation Advocates” (2014) 29(1) Ohio Journal on Dispute Resolution 35. Law Council of Australia, Guidelines for Lawyers in Mediations (August 2011) p 7, available on http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/a-z-docs/MediationGuidelines.pdf.

183

[11.35] 457

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reference to mediation in the barristers code of conduct (amended in 2005). Rule 708.1 of the Code of Conduct of the Bar of England and Wales provides that: Conduct in Mediation 708.1 A barrister instructed in a mediation must not knowingly or recklessly mislead the mediator or any party or their representative. 184

However, the Solicitors Regulation Authority in the United Kingdom, in its Code of Conduct 2011, 185 has not addressed these issues despite requiring conduct “in court” and there is no mention in either the solicitors or the barristers code of a requirement to negotiate or engage in ADR in good faith or to be “cooperative”. In Australia, the Law Council’s Model Rules of Professional Conduct and Practice (2002) required all lawyers to behave in a certain way and has extended the definition of “court” to include mediation and arbitration. 186 The Legal Profession Uniform Law (LPUL) commenced operation in New South Wales and Victoria on 1 July 2015, replacing the Legal Profession Act 2004 in both jurisdictions. 187 The Uniform Law Framework is made up of a Legal Profession Uniform Law; Uniform General Rules; Uniform CPD, Legal Practice and Professional Conduct Rules for solicitors; Uniform CPD and Professional Conduct Rules for Barristers; and Uniform Admission Rules. Importantly, in the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, 188 “court” is defined broadly to include mediation and arbitration and means: a)

any body described as such;

b) c) d) e)

any tribunal exercising judicial, or quasi-judicial, functions; a professional disciplinary tribunal; an industrial tribunal; an administrative tribunal;

f)

an investigation or inquiry established or conducted under statute or by a Parliament;

g)

a Royal Commission;

h)

an arbitration or mediation or any other form of dispute resolution. 189

The broader definition of “court’”to incorporate ADR means that the obligations and requirements applying to legal practitioners in relation to court activities also apply to ADR. The obligations are extensive and include requirements to be: 184

See The Bar Standards Board, available on http://www.barstandardsboard.org.uk.

185 186

See Solicitors Regulation Authority, SRA Handbook, available on http://www.sra.org.uk/handbook. Law Council of Australia, Model Rules of Professional Conduct and Practice (March 2002), available on http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/a-z-docs/MediationGuidelines.pdf.

187

See The Law Society of Western Australia, National Legal Profession Reform Project, available on https://www.lawsocietywa.asn.au/national-legal-profession-reform-project.html.

188

Available on http://www.liv.asn.au/For-Lawyers/Regulation/Uniform-Law/Legislation-and-Rules.

189

Available on http://www.liv.asn.au/For-Lawyers/Regulation/Uniform-Law/Legislation-and-Rules; see Glossary of Terms.

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[H]onest and courteous in all dealings in the course of legal practice (at 4.2.2). A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of the engagement (7.1). A solicitor must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the solicitor believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the matter (7.2). A solicitor must not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey the solicitor’s personal opinion on the merits of that evidence or issue (17.3). A solicitor must not deceive or knowingly or recklessly mislead the court (19.1). A solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading (19.2). A solicitor will not have made a misleading statement to a court simply by failing to correct an error in a statement made to the court by the opponent or any other person (19.3). A solicitor must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter, inform the court of (19.6): any binding authority (19.6.1); where there is no binding authority, any authority decided by an Australian appellate court (19.6.2); and any applicable legislation (19.6.3), known to the solicitor and which the solicitor has reasonable grounds to believe to be directly in point, against the client’s case. 190

The new requirements are at times difficult to reconcile with approaches that are used in ADR. For example, 19.6 may have little importance in a facilitative mediation where interests rather than rights are a focal point and it may be that as one commentator has suggested, the requirements that apply to lawyers and court obligations may need to be varied at least insofar as mediation is concerned. 191 In terms of potential variations, whilst the Law Council’s Model Rules of Professional Conduct and Practice required all lawyers to behave in a certain way and also extended the definition of ‘court’ to include mediation and arbitration the Law Council of Australia has previously considered the issue of lawyers’ behaviour in negotiations that are part of ADR processes. For example, as noted previously in the 2007 and 2011 Guidelines for Lawyers in Mediations, the Law Council stated that lawyers should ‘[n]ever mislead and be careful of puffing’. 192 It might be appropriate to also consider and articulate more

190

Available on http://www.liv.asn.au/For-Lawyers/Regulation/Uniform-Law/Legislation-and-Rules.

191

See B Wolski, “On Mediation, Legal Representatives and Advocates” (2015) 38(1) University of New South Wales Law Journal 5.

192

Law Council of Australia, Guidelines for Lawyers in Mediations (August 2011) p 7 [6.2]. [11.35] 459

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thoroughly what advocacy in the context of mediation may mean and to indicate what sorts of behaviours are unhelpful and potentially unprofessional in ADR processes. 193 In addition, lawyers, and possibly others involved in negotiations, may be constrained by s 18 of Sch 2 of the new Competition and Consumer Act 2010 (Cth). This law is directed at conduct by a person in trade or commerce that is misleading or deceptive, or is likely to mislead or deceive. The definition of “trade or commerce” states that it “includes any business or professional activity (whether or not carried on for profit)”. The types of conduct that could be covered by this legislative regime can include situations where a lawyer is silent or if there are not reasonable grounds for making a statement. 194 The concept of good faith has also been explored, although to a more limited extent, by the business community. The originating Australian Standard AS 4608–1999 195 adopted a “business” definition after some considerable debate among members of the Standards Committee. That definition incorporated elements of commitment, trust, respect, flexibility and confidentiality and the notion that “[p]arties should be confident that they can rely on the others in the relationship to do the right thing by each other” 196 (see also Chapter 2 in relation to good faith in negotiation). Furthermore, it has recently been suggested that case law in Australia and in England has largely granted recognition to the concept of good faith in business contracts. 197 It has also been suggested that an explicit recognition of a doctrine of good faith for contractual business dealings would: … permit problems of bad faith to be dealt with in a more direct manner and enable judges to develop effecting and coherent way[s] of dealing with complaints of unfair dealing. It would also help in the protection of reasonable expectations of contracting parties, and contribute significantly to an environment of trust and co-operation that would enhance, in the long run the autonomy of the parties. 198

ADR practitioner obligations [11.40] In terms of ADR practitioners, there are few statutory provisions prescribing their conduct other than those that relate to confidentiality and admissibility. Some civil procedure obligations may however apply and there are some statutory requirements that may impact on behaviour and obligations (for 193 194 195 196 197 198

See B Wolski, “On Mediation, Legal Representatives and Advocates” (2015) 38(1) University of New South Wales Law Journal 5. See R Angyal, The Ethical Limits of Advocacy in Mediation (Unpublished paper presented at 11th LEADR ADR Conference, Brisbane, 7–9 September 2011). Standards Australia, AS 4608-1999: Guide to the Prevention, Handling and Resolution of Disputes (Standards Australia, October 1999), s 2. The definition was not repeated in the updated version. Standards Australia, AS 4608-1999: Guide to the Prevention, Handling and Resolution of Disputes (Standards Australia, October 1999), s 2. See also Capolingua v Phylum Pty Ltd (1991) 5 WAR 137. F Botchway, “Can the Law Compel Business Parties to Negotiate?” (2010) 3(3) Journal of World Energy Law and Business 286, 300–301. F Botchway, “Can the Law Compel Business Parties to Negotiate?” (2010) 3(3) Journal of World Energy Law and Business 286, 302.

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example in relation to reporting requirements of Family Dispute Resolution Practitioners – see [12.50] or more generally in relation to the Australian Consumer Law – see [12.75]). Some ADR practitioners may be liable if they act in “bad faith” although some may have more extensive immunity (the immunity of ADR practitioners is specifically considered in Chapter 12, see [12.55]). In addition, the National Mediator Accreditation System (NMAS) requires all accredited mediators to comply with the NMAS Australian National Mediator Standards – Practice Standards (NMAS Practice Standards), and adhere to the ethical standards of their member organisations. 199 The NMAS Practice Standards provide a general framework for the conduct of mediation in Australia and provide for conduct and other requirements (see Chapter 3 and Appendix E). Other ADR practitioners, such as arbitrators, may also have statutory and other conduct requirements (see Chapter 6) that have an impact on their obligations. NADRAC has raised a number of issues in relation to enforcing obligations against ADR practitioners. The primary concern as regards immunity is more fully explored in Chapter 12 and is related to the confidentiality of ADR processes. As NADRAC has noted: 200 In recognition of …potential problems, NADRAC considers that any prescribed conduct obligations should ensure that enforcement, including determination of sanctions, is left to the discretion of the court or tribunal to which the ADR process is connected. Indeed, NADRAC considers that: • before any evidence is admitted for the purpose of enforcing a conduct standard, the party seeking its admission should be required to obtain the leave of the relevant court or tribunal, and • in deciding whether to grant leave to admit evidence of this kind, the court or tribunal should be required to take into account the public interest in the confidentiality of ADR processes, and should only make an order if satisfied that it is in the interests of the administration of justice to do so. 201

199

200 201

See Mediator Standards Board, NMAS Australian National Mediator Standards: Practice Standards (July 2015), available on http://www.msb.org.au/sites/default/files/documents/ NMAS%201%20July%202015.pdf. See also a full report on the Standards process in an article by the author: T Sourdin, Accrediting Mediations – The New National Mediation Accreditation Scheme (Australia) (September 2007) at Social Science Research Network on http://www.civilmediation.org/ downloads-get?id=112. NADRAC, Maintaining and Enhancing the Integrity of ADR Processes (Report, NADRAC, 2011) p 36, available on http://www.ag.gov.au/. Other possibilities are to require the court/tribunal to be satisfied that it is in the public interest to grant leave to admit evidence, or to require the court/tribunal to apply a two-fold test that would allow leave to be granted only if it is both in the public interest and in the interests of the administration of justice to do so. There is authority supporting the legitimacy of courts applying an overall “public interest” test, which can include, but is not limited to, the administration of justice: see the recent case of Hogan v Hinch [2011] HCA 4 in the High Court of Australia. [11.40] 461

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ENFORCEABILITY OF AGREEMENTS REACHED IN AN ADR PROCESS [11.45] Obligations of a more specific nature may be imposed on participants in ADR processes as a result of agreements reached or orders made at the conclusion of the process. As noted previously ADR outcomes can vary greatly and include: • monetary payments; • • • • •

new contractual arrangements; behavioural obligations; apology; public statements; confidentiality agreements;

• the transfer of property or rendering of services; • provision for the care of children and others. Agreements reached at mediation may also take many forms. In community mediations for example, they may simply set out the nature of the agreement – essentially noting who will do what and by what time frame. In workplace mediations, agreements may include agreements about how people email one another, meet with one another and work together (or apart). In family dispute resolution processes they may include parenting plans which may not be legally enforceable but can be “taken into account by a court”. 202 Other agreements may take a form that sets out ‘Heads of Agreement’ indicating the general areas of agreement that can be followed up by more extensive documentation. For example, Heads of Agreement may refer to consent orders to be filed with a court, new leasing and other contractual arrangements. Some agreements can include provisions for a deed of release, the wording of public apologies, the return of goods and repair and rectification work. Other agreements may indicate how participants have narrowed areas of disagreement or have agreed on issues that can be dealt with via another process. Whilst some agreements may be binding and the participants consider that they are, they may not necessarily be legally enforceable. This may be satisfactory for many participants in mediation. For example, in a workplace agreement, participants may be content to have an agreement reached at mediation reported to the human resources division so that actions and follow up can take place. In other situations, participants may wish to have a legally enforceable agreement and this generally is prepared by lawyers and will either require a contractual agreement or consent orders of some type that can be made by a court (or both). In general, an agreement will be legally enforceable if it satisfies contractual requirements and there is no misrepresentation or 202

See information about parenting plans at Family Relationships Online, Parenting Plan Guide, available on http://www.familyrelationships.gov.au/BrochuresandPublications/Pages/parenting planguide.aspx#section11.

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unconscionable conduct. If there is an allegation relating to misrepresentation or conduct issues, it may be that the Australian Consumer Law, contracts review legislation or other legislation may support an action to set aside the agreement (see further discussion below). Contractual requirements in the context of agreements made at mediation have been considered by courts on a number of occasions. Recently, in relation to a dispute relating to an agreement made at mediation, the NSW Court of Appeal in Jingalong Pty Limited v Todd 203 considered contractual principles noting in general that: the common ... also recognised that a cause of action could be discharged by an agreement for valuable consideration if it amounted to an accord and satisfaction. 204

The court discussed various features of the settlement agreement made at mediation and noted that: At first sight the Settlement Agreement has some gaps and curious features. In construing the Settlement Agreement, however, the context is important. The document came into existence as the result of a mediation between the parties to the proceedings in the Equity Division, all of whom were legally represented. The document is handwritten doubtless reflecting the fact, common to many mediations, that agreement was reached after a period of intensive negotiations, but without the parties necessarily having the opportunity to consider successive drafts of the agreement free from urgent time pressures. 205

The court also discussed whether a binding agreement had been made at the mediation and noted that: The context in which the Settlement Agreement came into existence suggests that the parties intended to enter into a binding and immediate agreement. But there are more direct textual indications that the Settlement Agreement, objectively assessed, was intended to bind the parties immediately. The clearest indication is cl 8, which states that “These Heads of Agreement have effect unless any later deed is entered into by the parties.” It is difficult to see what purpose cl 8 could have except to make it clear that the Settlement Agreement, notwithstanding its handwritten form and lack of detail, was intended to bind the three parties. To apply the classification stated by the High Court in Masters v Cameron [Masters v Cameron [1954] HCA 72; 91 CLR 353] … demonstrates that the parties reached finality in arranging the terms of their bargain and intended to be immediately bound to the performance of those terms, even though they contemplated that a more formal deed might subsequently be drawn up. 206

The Court of Appeal also indicated that in finding that the agreement was legally enforceable, a claim for specific performance of the agreement could be made in the future. 207 In another case involving an application to set aside Heads of Agreement reached in a mediation under the Farm Debt Mediation Act (NSW) the Court 203

Jingalong Pty Limited v Todd [2015] NSWCA 7.

204 205

Jingalong Pty Limited v Todd [2015] NSWCA 7. Jingalong Pty Limited v Todd [2015] NSWCA 7, [73].

206 207

Jingalong Pty Limited v Todd [2015] NSWCA 7, [78]. Jingalong Pty Limited v Todd [2015] NSWCA 7. [11.45] 463

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noted that Heads of Agreement did not bring into existence a new farm mortgage. 208 There is other case law that is relevant relating to agreements made. For example, clauses in a memorandum of understanding have not been upheld where not sufficiently certain – see Baldwin & Anor v Icon Energy Ltd & Anor. 209 There is a body of case law relating to attempts to set aside agreements made at mediation and in Chammas v Risk 210 it has been noted that “The Court has well established jurisdiction to set aside a judgment entered against good faith or by fraud”: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534. However, much court related legislation requires that what occurs in mediation is “confidential”. Where there is a challenge to the enforceability of an agreement, the legislation that applies and the context in which the mediation takes place will be relevant (see [12.10]). For example, in Gladstone Area Water Board & Anor v AJ Lucas Operations Pty Ltd 211 the court considered activities and documents produced in a mediation to uphold an agreement. There may also be some specific power to set aside an agreement which has been translated into a court order if there has been a lack of good faith. In Nichols Constructions Pty Limited v Elphick, 212 the Supreme Court of NSW referred to the power to set aside a judgment referred to in the Uniform Civil Procedure Rules (UCPR) and noted that: 1.

The power to set aside judgment is contained in UCPR 36.15 and 36.16. They relevantly read: “36.15 General power to set aside judgment or order (cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3) (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

If there are court or tribunal proceedings in place, a court may have additional powers to consider whether an agreement is enforceable however these may conflict with requirements to keep mediation processes confidential (see [12.10]). For example, in New South Wales, s 73 of the Civil Procedure Act 2005 (NSW) provides that: 1.

In any proceedings, the court: a)

has and may exercise jurisdiction to determine any question in dispute between the parties to the proceedings as to whether, and on what terms, the proceedings have been compromised or settled between them, and

208

McMahon v Permanent Custodians Ltd [2013] NSWCA 27. See also Sharpe v Heywood [2013] NSWCA 192.

209 210 211

Baldwin & Anor v Icon Energy Ltd & Anor [2015] QSC 12. Chammas v Risk [2015] NSWSC 1213. Gladstone Area Water Board & Anor v AJ Lucas Operations Pty Ltd [2014] QSC 311.

212

Nichols Constructions Pty Limited v Elphick [2015] NSWSC 940.

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b)

2.

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may make such orders as it considers appropriate to give effect to any such determination.

This section does not limit the jurisdiction that the court may otherwise have in relation to the determination of any such question.

In general, and despite some issues about legal enforceability, one of the benefits of ADR processes such as mediation is said to be greater compliance with outcomes and more durable settlements. The empirical data produced by Goldberg, which is now somewhat dated, strongly supports this view: [M]ediation is more likely than adjudication to lead to compliance with the resolution. [The data shows that] 70.6% of the mediation agreements with monetary settlement were reported to be paid in full, compared to 33.8% of the adjudications. Another 16.5% of the mediated settlements and 21.1% of the adjudicated judgments were partially paid. In other words, it was more than three times as likely after an adjudicated case as after a mediated case that no payment had been made by the defendant. This pattern of findings suggests that there is something about both the mediation process and the kinds of settlements it achieves that leads to higher compliance rates. 213

Some research in the United States suggests that where parties are less empowered, or where the processes used are advisory or determinative, the compliance rate is reduced. NADRAC has examined Australian research and has concluded that: There is consistently a very high rate of agreement reached by parties at mediation, and mediated agreements are shown to be durable over time. 214

The extent to which an agreement will be “durable” will depend on a range of factors. Many mediators consider that effective “reality testing” in the final stages of facilitative ADR processes assists in ensuring that the agreement reached is reasonable and will be complied with. Reality testing involves the ADR practitioner asking questions about various scenarios to ensure that there is a reasonable possibility that compliance with the agreement will result. In respect of a breach of a mediation agreement (rather than a clause in another agreement that provides for mediation), options include termination of the agreement, renewal of the cause of action, specific performance, declaratory relief and damages. 215 Mediation agreements can also be reviewed pursuant to various State or Territory legislation, such as the Contract Review Acts and the Fair Trading Acts, and also pursuant to the Australian Consumer Law (see further “Liability of ADR Practitioners” at [12.55] and [12.75]). Courts can consider issues that relate to the tactics used, the role of the ADR practitioner, the position and relative bargaining power of the parties, and the conduct of all the parties. 213 214 215

S Goldberg, F Sander and N Rogers, Dispute Resolution: Negotiation, Mediation and Other Processes (2nd ed, Little Brown and Co, Boston, 1992) p 8. NADRAC, A Framework for ADR Standards (Framework Attorney-General’s Department, 2001) p 24. M Dewdney, The Laws of Australia (Thomson Lawbook Co, subscription service) Vol 13 Dispute Resolution, 13.2 “Mediation and Conciliation” at [71]; A Bennett and S Emmett, Australasian Dispute Resolution Service (subscription service, Lawbook Co, Sydney) at [7-203]. [11.45] 465

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In this regard, under general contract law courts do not generally have jurisdiction to intervene in a validly formed contract. As noted by the then Kirby P in Biotechnology Australia Pty Ltd v Pace: 216 Contracts are the agreements between parties. Generally, their terms must be those which reflect the will of the parties, objectively determined. Judges, by reason of their experience and knowledge, may not have the relevant expertise by which to clarify the ambiguous, elucidate the uncertain or give content to the illusory terms of a contract or suggested contract between the parties. To do so by reference to an imported standard of reasonableness may satisfy the lawyer’s desire for fairness. But the law of contract which underpins the economy does not, even today, operate uniformly upon a principle of fairness. It is the essence of entrepreneurship that parties will sometimes act with selfishness. That motivation may or may not produce fairness to the other party. The law may legitimately insist upon honesty of dealings. However, I doubt that, statute or special cases apart, it does or should enforce a regime of fairness upon the multitude of economic transactions governed by the law of contract.

However, the introduction of the Australian Consumer Law invites a closer consideration of what may be unfair in the context of an agreement and may apply to many agreements made at mediation (see [12.75]). There are other considerations that can relate to capacity and may influence not only whether an agreement is enforceable but may also influence whether a matter can be referred to an ADR process. For example, in ACCC v Lux Pty Ltd, 217 Nicholson J in the Federal Court of Australia considered the status of a party who was said to be “vulnerable” where an application had been made to set aside an order referring the matter to mediation. His Honour considered the special position of a person with an intellectual disability and noted that: … It is submitted that where the complaint relates to conduct affecting a vulnerable person, being a person with an intellectual disability, mediation is less likely to be appropriate. In my opinion there is no evidence here that this factor would disfavour the continuance of the order for mediation. In appropriate circumstances mediation may avoid a complainant with an intellectual disability being called as a witness and consequently have the potential to reduce the pressure of court proceedings on that complainant. 218

In National Australia Bank Ltd v Freeman, 219 Ambrose J considered the enforceability of a mediation agreement. The defendant contended that the plaintiff’s conduct had been unconscionable and in contravention of the then Trade Practices Act 1974 (Cth). In particular, the defendant complained that the mediation deed should be set aside as, at the time, he alleged that he was suffering from a psychiatric disorder. Evidence was given about the defendant’s condition at the time of the mediation, the length of the mediation session, the preparation of the deed and the conduct of all parties. The mediator gave 216 217

Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130, 132-133. ACCC v Lux Pty Ltd [2001] FCA 600.

218

ACCC v Lux Pty Ltd [2001] FCA 600, [13].

219

National Australia Bank Ltd v Freeman [2000] QSC 295.

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evidence as to the procedures followed. Ambrose J found that the agreement reached as a result of the mediation was “perfectly valid and enforceable”. 220 Notably, some agreements made at a mediation will require court approval (for example where there is an incapacity issue – see discussion at [1.70] and [3.75]). In these situations, those who apply for court approval must ordinarily satisfy a court that the proposed agreement and arrangements are “reasonable”. Assessing whether an agreement is reasonable may raise issues about mediation confidentiality (see Chapter 12) however often the nature of legal advice can be considered. The Victorian Court of Appeal considered whether a settlement agreement was ‘reasonable’ in the context of a longstanding and complex dispute in BHP v Steuler; Protec v Steuler 221 and in concluding that it was not, noted that: The fact that a proceeding is lengthy, complex and costly and that a commercial settlement results in significant savings in costs, on its own, cannot establish that the settlement amount is legally reasonable in the sense discussed above. While many factors are relevant to the question of whether a settlement amount is legally reasonable, one factor is fundamental and must always be present. That factor is that the settlement amount is informed by an assessment of the relevant party’s potential legal liability to the other party on the pleadings that were current and the evidence that was known at the time of the settlement. 222

There are however strong reasons 223 to support the enforceability of agreements made in mediation. In Gary John Mackin v Roger Belmonte as Executor of the Estate of the late Doris Hilda Mackin 224 the court referred to the significant case law in this area noting that: There is a public interest long-recognised in the court in respect of the need for finality of litigation, see Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 265-267 referred to by Mason CJ in dissent in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 301–303.

Some agreements may be subject to specific arrangements that are linked to legislation and that may impact on enforceability. For example, the Farm Debt Mediation Act (NSW) provides for a “cooling off period” in s 11A: 11A Cooling off period for Heads of Agreement 1)

There is to be a cooling off period for any Heads of Agreement. The cooling off period may be extended by agreement between the farmer and the creditor.

2)

The cooling off period commences when the Heads of Agreement are entered into and ends at 5 pm on the 14th day after the day on

220 221

National Australia Bank Ltd v Freeman [2000] QSC 295, [80]. BHP v Steuler; Protec v Steuler [2014] VSCA 338.

222

BHP v Steuler; Protec v Steuler [2014] VSCA 338, [817]-[818].

223

See also concerns about confidentiality in mediation (Chapter 12) and comments by Palmer J in Rajski and Anor v Tectran Corporation Pty Limited and Ors [2003] NSWSC 476: “As I have said, it seems to me that the mediation process was intended to facilitate settlements between parties, not to provide them with another battleground”. Gary John Mackin v Roger Belmonte as Executor of the Estate of the late Doris Hilda Mackin [2015] NSWSC 1226.

224

[11.45] 467

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which the Heads of Agreement are entered into, or at such later time on that or another day, as may be agreed by the farmer and the creditor. 3)

A statement in the form approved by the Authority, relating to the cooling off period, is required to be included in every Heads of Agreement.

4)

If Heads of Agreement do not contain a statement required under subsection (3), the cooling off period is extended until such time as a statement, in the form approved by the Authority, relating to the cooling off period, is given to the farmer by the creditor for the purposes of this subsection. The cooling off period, as so extended, ends at 5 pm on the 14th day after the statement is given.

5)

The Authority may not issue a certificate under section 11 to a creditor on the ground that satisfactory mediation in respect of a farm debt has taken place if: a)

Heads of Agreement are in force in relation to the farm debt, and

b)

the cooling off period has not expired.

These types of arrangements may be more common where there is a power imbalance or some vulnerability. For example, in the Victorian Civil and Administrative Tribunal (VCAT) a “cooling off period” applies in relation to agreements reached at mediation when parties are not legally represented. The Guidelines for Mediation state: In certain circumstances when a party, or parties are not legally represented and an agreement is reached at a mediation, the agreement is subject to a mandatory ‘cooling off’ period of two business days. 225

According to research about the ‘cooling off’ arrangements at VCAT it has been noted that: VCAT’s own data shows that very few (approximately 6%) of parties withdraw from their mediated agreements during the cooling off period. 226

In the West Australian Supreme Court in Pittorino v Meynert (as Executrix of the Wills of Pittorino (dec’d)) [2002] WASC 76 (referred to at [3.50]), Scott J discussed a number of cases that involved challenging agreements made at mediation. These cases considered: • Whether an agreement reached at the conclusion of a mediation was sufficiently certain to be enforceable 227 225 226

VCAT, Guide to Mediation p 5, available on https://www.vcat.vic.gov.au/system/files/guide_to_ mediation.pdf. R Edwards, Mediators’ Perspectives on the Compulsory Cooling-off Period Offered in Certain Victorian Civil and Administrative Tribunal Mediations (Paper presented at the ADR Research Network Roundtable, Sydney 12-13 September 2015).

227

Referring to Thorby v Goldberg [1964] HCA 41; (1964) 112 CLR 597, [111].

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• That allegations of impropriety and fraud were not upheld against lawyers and the agreement reached at a mediation remained in force 228 • That a loss of confidence in a representative or actual incompetence were not found and the agreement reached was not set aside 229 • That even if there had been undue pressure placed upon a party to a mediation agreement, the full context of the mediation and arrangements would need to be considered before an agreement could be set aside. 230 In relation to non-facilitative ADR processes such as expert determination, the issues relating to enforceability can be more complex. In the context of appointment, courts appear to accept that even if the process is not clearly articulated it may be supported by a court: Where the parties have agreed to the appointment of a particular expert, they must be taken to have accepted that the expert will impose terms on his or her appointment. If they have not agreed between them what terms would be acceptable, then, in order to give effect to their agreement, each must have agreed to the terms proposed by the appointee, except possibly where the terms are unreasonable. 231

In respect of awards made at an expert determination, in Lipman Pty Ltd v Emergency Services Superannuation Board, 232 Hammerschlag J considered whether a determination by experts, who were appointed under a dispute resolution clause of a building contract, was final and binding or whether the matter could be litigated. The contract between the parties in Lipman included an expert determination dispute resolution clause and a clause relating to “executive negotiation”, which were as follows: 42.2 Expert Determination The dispute must, if it is not resolved within 14 days after a notice is given under clause 42.1, be submitted to expert determination. … 42.4 Not Arbitration An expert determination conducted under this clause 42 is not an arbitration and the expert is not an arbitrator. The expert may reach a decision from his or her own knowledge and expertise. 42.5 Procedure for Determination The expert will:

228 229 230 231 232

(e)

act as an expert and not an arbitrator;

(f)

proceed in any manner he or she thinks fit;

Referring to Von Schulz & Anor v Morriello [1998] QCA 236, [115]. Referring to Markovina v The Queen (No 2) (1997) 19 WAR 119 at 140; McKenzie v Edmondson (1996) 15 WAR 391 at 402; Ella v The Queen (1991) 103 FLR 8; R v Birks (1990) 19 NSWLR 677 at [118]. Referring to economic duress and Universe Tankships Inc of Monrovia v International Transport Workers Federation & Ors [1983] 1 AC 366, [130]–[133]. On the question of whether the terms of appointment were unreasonable – Watpac Construction NSW Pty Limited v Taylor Thompson Whitting (NSW) Pty Ltd [2015] NSWSC 780. Lipman Pty Ltd v Emergency Services Superannuation Board [2010] NSWSC 710 (Supreme Court); [2011] NSWCA 163 (Court of Appeal). [11.45] 469

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(g)

conduct any investigation which he or she considers necessary to resolve the dispute or difference;

(h)

examine such documents, and interview such persons, as he or she may require; and

(i)

make such directions for the conduct of the determination as he or she considers necessary.

… 42.9 Agreement with Expert The expert will not be liable to the parties arising out of, or in any way in connection with, the expert determination process, except in the case of fraud. The parties must enter into an agreement with the appointed expert on the terms prescribed by Annexure Part A (if any) or such other terms as the parties and the expert may agree. 42.10 Determination by Expert The determination of the expert: (n)

must be in writing;

(o)

will be: (i)

substituted for the relevant direction for the Superintendent; and

(ii) is final and binding unless a party gives notice of appeal to the other party within 21 days of the determination; and (p)

is to be given effect to by the parties unless and until it is reversed, overturned or otherwise changed under the procedure in the following clauses. 42.11 Executive Negotiation If a notice of appeal is given under clause 42.10, the dispute is to be referred to the persons described in Annexure Part A who must: (q)

meet and undertake genuine and good faith negotiations with a view to resolving the dispute; and

(r)

if they cannot resolve the dispute or difference, endeavour to agree upon a procedure to resolve the dispute. 233

The parties in Lipman agreed to the appointment of two experts, under the contract, to deal with a disputed claim arising from the reconstruction of a shopping centre in Fairfield. The experts determined that a small amount was payable by the plaintiff to the defendant and an amount was paid some six weeks later. Some meetings (executive negotiations) were conducted and then a letter was sent that said that because there had been no agreement, Supreme Court proceedings would be commenced. Some three years later, the plaintiff commenced the court proceedings. Justice Hammerschlag considered that the expert determination was binding, and said: “In my view, these commercial parties clearly intended by the alternative dispute resolution process agreed to, to abrogate their common law remedies”. 234 233

Lipman Pty Ltd v Emergency Services Superannuation Board [2010] NSWSC 710 at Annexure A.

234

Lipman Pty Ltd v Emergency Services Superannuation Board [2010] NSWSC 710 at [30].

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In 2011, the New South Wales Court of Appeal considered this decision and in agreeing with Hammerschlag J noted that: Here there occurred what the commercial parties would plainly have anticipated as likely could have been the case, that is a major dispute: the conduct of a detailed case before people experienced in the building industry and the production of a careful and detailed expert determination – all this at considerable expense. Is it to be thought likely that the mere statement by one side that they wish to seek to discuss and negotiate the result in good faith would mean that the product of the expert determination would never be binding? Far more likely is the construction favoured by the primary judge that the clause as a whole meant that the expert determination was to be fully given effect to subject to it not being final and binding if the parties were able to give substance and effect to the good faith negotiations that were anticipated and provided for by cl 42.11. 235

In New South Wales v UXC Ltd 236 an expert determination clause was considered where the question as to whether court proceedings could be commenced was discussed: … The parties are free to make referral to an expert a condition precedent to accrual of any rights under the contract and they are free to agree to have their rights and liabilities determined by an expert so that the determination, once made, identifies their contractual rights and liabilities. There is a question whether the court can stay proceedings where the parties have agreed to refer their dispute to expert determination. … the court has an inherent power to stay proceedings brought in breach of an agreement to decide the dispute in some other way, 237

ARBITRATION ENFORCEMENT [11.50] Issues relating to the enforcement of arbitral awards have become more settled in recent years as a result of case law and also as a result of the new arbitration laws that apply to commercial arbitrations that are discussed in some detail in Chapter 6 at [6.85]. However, this remains an uncertain area and some legislation and some arbitral issues are still being tested. In the context of agreements to enter into arbitration, there has been a growing support for most of these arrangements (as noted in Chapter 10, there may be issues in relation to online dispute resolution and agreements relating to online transactions). Arbitration can take place as a result of an agreement or as a result of a statutory arrangement (as for example in respect of Workers Compensation Commission disputes in NSW – see Chapter 6) and the method of entry into arbitration will ordinarily impact on how arbitral awards can be reviewed. For example, in

235

236

Lipman Pty Ltd v Emergency Services Superannuation Board [2011] NSWCA 163, [9], available on http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2011/163.html?stem=0&synonyms= 0&query=Lipman. New South Wales v UXC Ltd [2011] NSWSC 530.

237

New South Wales v UXC Ltd [2011] NSWSC 530, [40]. [11.50] 471

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relation to arbitration set up through a statutory scheme, the review is often limited and will ordinarily not involve a rehearing. 238 Agreements to arbitrate may be domestic or international. In general, there are many instances where courts have upheld and enforced agreements to arbitrate and there has been a growing body of case law in this area. See Parsons Brinckerhoff Australia Pty Ltd and Anor v Thiess Pty Ltd and Anor 239 at [11.30]. There has also been some case law relating to the enforceability of decisions made by external dispute resolution schemes. In Patersons Securities Ltd v Financial Ombudsman Service Ltd 240 the Supreme Court of Western Australia considered contracts that enable the determination of disputes by a third party. After referring to sporting disciplinary tribunals and other determinative bodies the Court referred to a previous decision in Victoria that also related to the Financial Ombudsman Service (FOS) noting that: The Victorian Court of Appeal returned to consider the approach of the courts to challenges to decisions of independent domestic tribunals in Mickovski v Financial Ombudsman Service Ltd. That case concerned a challenge to a decision of a panel chair under a previous version of FOS’s terms of reference. Clause 15.3 of those terms of reference provided for a decision of a panel chair to be final. The court accepted that the panel chair had misconstrued the rule which identified complaints with which FOS could not deal. However, the court concluded that this was not a sufficient error to vitiate his decision. The court said that where parties agree that a determination is to be “final”: … they are taken to have agreed that the determination will not be subject to review unless affected by fraud or dishonesty or lack of good faith or (by analogy with jurisdictional error) unless it is otherwise apparent that the determination has not been carried out in accordance with the agreement. 241

In referring to Cromwell Property Securities Ltd v Financial Ombudsman Service Ltd, 242 the West Australian Court noted and referred to the review standard that could apply: In summary, we consider that the relevant standard for review under the [terms of reference], and in contracts of this type by reference to reasonableness is the standard set in Wednesbury [Referring to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223]. We do so on the basis that there is long standing authority in this Court and in other jurisdictions, that where parties contract into an arbitral process with a third party, a court should only intervene where the decision is plainly unjust. The decision can only be reviewed if it is ’one to which no reasonable tribunal could properly come on the evidence’. To set the standard of positive reasonableness, as Cromwell submitted, would defeat the intention of the contract and potentially play havoc with a scheme that is meant to be efficient, cost effective, and informal. 238 239

See Hopkins v Achieve Australia Ltd [2015] NSWWCCPD 54, where it was noted that a review can only be undertaken where there is a factual, legal or discretionary error. Parsons Brinckerhoff Australia Pty Ltd and Anor v Thiess Pty Ltd and Anor [2013] QSC 75.

240

Patersons Securities Ltd v Financial Ombudsman Service Ltd [2015] WASC 321.

241 242

Patersons Securities Ltd v Financial Ombudsman Service Ltd [2015] WASC 321. Cromwell Property Securities Ltd v Financial Ombudsman Service Ltd [2014] VSCA 179; (2014) 288 FLR 374.

472 [11.50]

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Courts have also supported determinations made by ombudsman schemes such as the Telecommunications Industry Ombudsman (TIO). In Australian Communications and Media Authority v Bytecard Pty Ltd 243 the Federal Court considered the TIO arrangements and imposed penalties in relation to a failure to comply with determinations made by the TIO. Enforceability can also relate to initial entry into ADR and there is some greater certainty in terms of the appointment of international commercial arbitrators as the International Arbitration Regulations 2011 (Cth) prescribe appointment processes in relation to international arbitrations in respect of the functions set out in Arts 11(3) and 11(4) of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration. In general, as with mediation, agreements to arbitrate will be supported where they are sufficiently certain and comply with legal requirments. There has been some uncertainty in the past in relation to the enforcement of arbitral awards (particularly in respect of international arbitrations) These issues were highlighted in early 2011 when the Supreme Court of Victoria, in Altain Khuder LLC v IMC Mining Inc, 244 enforced a Mongolian arbitration award under the regime provided for s 8 of the International Arbitration Act 1974 (Cth). In doing so, the court explored a number of topical, complex and controversial issues. An appeal to the Victorian Court of Appeal was successful in late 2011, and although the court set aside the earlier judgment, Warren CJ in a minority judgment only did so after considering whether there had been an “irregularity.” In particular, a primary issue was whether one of those litigating was a party to the arbitration agreement. In her decision, the Chief Justice noted: Sections 8(5)(a) (e) require the enforcing court to be satisfied that a foreign award is tainted by either fraud or vitiating error on the part of the arbitral tribunal. Given that the Act declares arbitration to be “an efficient, impartial, enforceable and timely method by which to resolve commercial disputes”, the enforcing court should start with a strong presumption of regularity in respect of the tribunal’s decision and the means by which it was arrived at. The enforcing court should treat allegations of vitiating irregularity as serious. A correspondingly heavy onus falls upon the award debtor if it wishes to establish such an allegation on the balance of probabilities. Furthermore, the conduct of the parties to the agreement at each of the various stages prior to an enforcement order being sought in these courts, and its consistency with the defence subsequently asserted, will be a relevant fact to consider when deciding whether that burden has been discharged to the necessary standard. 245

The majority of the Court of Appeal also considered what the onus was when a party sought to set aside an arbitration award. They disagreed with the trial judge and found that it was not a “heavy” onus but a matter to be considered on the usual balance of probabilities test. 243

Australian Communications and Media Authority v Bytecard Pty Ltd [2013] FCA 38

244 245

Altain Khuder LLC v IMC Mining Inc [2011] VSC 1. Altain Khuder LLC v IMC Mining Inc [2011] VSC 1, [53], available on https://lettersblogatory.com/wpcontent/uploads/2011/02/altain-khuder-award.pdf . [11.50] 473

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The Federal Court (Foster J) also considered the enforcement of a foreign arbitral award. In Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd, 246 the Federal Court adopted authority from the United States, and referred to overseas cases which suggested that the enforcement of an award will only be contrary to public policy where it “would violate the forum state’s most basic notions of morality and justice”. 247 More recently, this topic was considered by the Full Court of the Federal Court in TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd 248 where it was noted that: “no international award should be set aside unless, by reference to accepted principles of natural justice, real unfairness and real practical injustice has been shown to have been suffered ... in the conduct and disposition of a dispute in an award”. 249 In respect of enforcement in respect of international arbitrations, the NSW Court of Appeal recently held that: In the context of international arbitration, it is necessary to show real practical unfairness and real practical injustice to the party resisting enforcement in order to decline to enforce an award under s 8(7A) of the Act or article 36 of the UNCITRAL Model Law by reason of a breach of the rules of natural justice. In this area, the concern of the law is to avoid practical injustice. 250

CONCLUSIONS [11.55] Issues about obligations and the enforcement of decisions made as a result of ADR processes are critical in terms of how ADR relates to the broader litigation system. It is clear that issues about pre-litigation obligations also invoke concerns about the future of the court system. Chief Justice Bathurst of New South Wales has noted that: Although alternative means of settling disputes is often desirable, the court system should not be sidelined. I have significant reservations about a compulsory mediation process prior to litigation at least in superior courts. This is for a number of reasons. First, the statistics to which I have referred cast doubts as to its necessity. Secondly, there may be cases, particularly more complex ones, where the parties do not have a clear idea as to the merits of the other party’s case and, therefore, cannot make a rational determination as to whether or not proceedings should be compromised. In such circumstances a mediation is unlikely to succeed and may perhaps lessen the prospect of a successful compromise rather than enhance it. There are more fundamental problems. First, how is it determined that an attempt to resolve a matter has been sincere or genuine? Secondly, and related to this issue, how does the court consider that question? Are the parties entitled or compelled to waive communications made on a without prejudice basis or their privileged advice in order to determine questions of sincerity or genuineness? Thirdly, there is the danger that the requirement will be misused to frustrate a plaintiff in pursuing a 246 247 248 249

Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd [2011] FCA 131. Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd [2011] FCA 131 at [128] referring to Parsons & Whittemore Overseas Co, Inc v Société Générale De L’Industrie Du Papier 508 F 2d 969 (2d Cir 1974). TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83. TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83, 111.

250

Aircraft Support Industries Pty Ltd v William Hare UAE LLC [2015] NSWCA 229.

474 [11.55]

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legitimate claim. There is a significant danger of the evolution of satellite litigation involving costs and delays in investigating the mediation process. 251

On one level, the concerns that have been expressed relate to understandings about ADR and its utility at different points during the life cycle of a dispute. They also may stem from a lack of information about the impact of existing pre-litigation arrangements. However, the questions that are raised have been the subject of extensive work by a number of bodies (including NADRAC, which extensively considered these issues and the risk of satellite litigation). They will continue to be the subject of ongoing evaluation and research 252 to determine whether pre-litigation ADR obligations are: • more effective in certain types of matters; • more likely to be effective when linked to a “scheme” (such as the retail lease and related schemes); • more likely to be supported by participants and others when linked to “good faith” or other obligations. However, without clear baseline data from the courts in respect of filed matters and compliance with outcomes, costs, perceptions of justice, ADR use and even timeliness, it is difficult to compare systems or schemes, and to compare outcomes across a range of different processes. The evidence so far from existing schemes seems to suggest that these arrangements can work very effectively 253 provided disputants, practitioners, courts and judges support them. 254

251

Chief Justice of New South Wales, the Hon Tom Bathurst, “Opening Address” (Speech presented at the 2011 Advanced Dispute Resolution Workshop, Sydney, 13 August 2011) pp 7-8, available on http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/vwFiles/Bathurst130811.pdf/$file/ Bathurst130811.pdf.

252

See T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (Report, Australian Institute of Judicial Administration, 2012), available on http://www.civiljustice.info. See T Sourdin, “Resolving Disputes Without Courts?” (2013) 32(1) The Arbitrator & Mediator 25-40 and T Sourdin and N Burstyner, “Cost and Time Hurdles in Civil Litigation: Exploring the Impact of Pre-action Requirements” (2013) 2(2) Journal of Civil Litigation and Practice 66.

253

254

See T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (Report, Australian Institute of Judicial Administration, 2012), available on http://www.civiljustice.info. [11.55] 475

Chapter 12 Confidentiality, admissibility and ADR practitioner liability in ADR [12.05] [12.10]

[12.35]

[12.55]

[12.80]

Introduction................................................................................................................... 477 Confidentiality and the admissibility of ADR communications ......................... 478 [12.15] Implied confidentiality .................................................................... 481 [12.20] Inadmissibility and confidentiality conferred by legislation .... 482 [12.25] Confidentiality by agreement or based on privilege ................. 492 [12.28] Common law privilege and other forms of ADR ...................... 497 [12.30] Legal professional privilege ........................................................... 499 Standards and ethical codes....................................................................................... 500 [12.40] Confidentiality – National Mediator Accreditation System Standards ............................................................................. 500 [12.45] Ethical obligations? .......................................................................... 501 [12.50] Obligations of family dispute resolution practitioners ............. 504 Liability of ADR practitioners.................................................................................... 511 [12.60] The subject matter of the dispute and whether it is within any particular legislative framework .............................. 515 [12.65] Whether there is an agreement to use a particular dispute resolution process .............................................................. 517 [12.70] The type of ADR processes ............................................................ 518 [12.75] The nature of the service provided .............................................. 519 Conclusions ................................................................................................................... 525

INTRODUCTION [12.05] This chapter explores a range of issues that arise in ADR processes that are linked to the confidentiality and admissibility of communications made in ADR and the liability and obligations of ADR practitioners in relation to ADR processes that operate outside the court and tribunal system as well as ADR processes conducted within, or linked to, court and tribunal systems. The notion of confidentiality is often linked to the arrangements that can exist between ADR practitioners and participants to keep matters confidential between themselves. Confidential material can include commercially sensitive, personal or other secret information. Admissibility is a related concept which is linked to the question of what ADR communications can be used in court proceedings. In some circumstances courts can investigate what happens in ADR processes that would otherwise be regarded as confidential and may consider the admissibility of matters raised in an ADR process. The extent to which this occurs can be linked to whether the agreements reached in an otherwise confidential ADR process can be set aside by a court and tribunal (for example if there is an allegation that the agreement is unjust or for some other reason – see Chapter 11) or whether an ADR practitioner has acted inappropriately or could [12.05] 477

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be liable for some action taken (the liability of ADR practitioners is discussed at [12.55]). Often where ADR processes operate as part of a court or legislative framework, these issues are more readily defined although even under these circumstances there may be some confusion about the extent, nature and application of confidentiality and admissibility arrangements The case law relating to the confidentiality and admissibility of material used in ADR and the liability of ADR practitioners is not settled (partly because of the lack of actions commenced against ADR practitioners), and different jurisdictions have adopted differing approaches to some key issues. In addition, the case law is changing rapidly as a result of the overall increase in the number of matters being referred to ADR processes. The comments below summarise some of the legal issues that are particularly relevant in respect of processes that operate outside court and tribunal systems. Additional commentary on these issues is also referred to in each chapter of the book that reports on specific processes, and in sections that deal with court and non court connected systems.

CONFIDENTIALITY AND THE ADMISSIBILITY OF ADR COMMUNICATIONS [12.10] In their opening statement and in material provided to disputants, most mediators will comment on or raise issues about the “confidentiality” of the mediation process. Many mediators will say something like: “This mediation is confidential insofar as the law allows”. This form of words is designed to enable mediators and parties to breach confidentiality where permitted by legislation or where there are statutory exceptions or requirements to do so. There are issues about whether such an overarching statement as to the confidentiality and admissibility of communications made in ADR processes is sufficient given that the extent of any confidentiality can vary and may be founded on legislation, agreement or implied. In some circumstances ADR practitioners may have positive obligations to report some ADR communications (for example, in family dispute resolution, discussed below). Under the Australian Consumer Law there are issues about whether ADR practitioners who are service providers are required to do more than make such a “general” statement and alert consumers to obvious ADR practitioner reporting or other obligations (see also obligations under the NMAS at Appendix E and discussion at [12.40]). Confidentiality normally applies to limit or prevent information being shared to a person or organisation outside the ADR process. Clearly, confidentiality concerns may be different for different ADR processes and participants. For example, in a workplace mediation there may be concerns about what is said in a mediation being the subject of gossip within the workplace. In commercial matters, participants might be concerned about commercially sensitive information being disclosed to competitors. As previously noted, admissibility is a different although related concept and is concerned with how information from an ADR process could be used in court and tribunal processes. 478 [12.10]

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There are also different issues about confidentiality in different types of ADR processes. For example, with mediation, confidentiality can relate to the mediation session as a whole (that is, information cannot be conveyed by any party to a party outside the mediation) or it may specifically relate to private sessions (that is, a mediator cannot, without authority, impart information to another party in the mediation). 1 Some commentators have noted that “[c]onfidentiality and publicity can be seen as two competing public interests”. 2 That is, it can be said that confidentiality is an essential feature of many ADR processes and that without confidentiality the use of ADR might decrease. Confidentiality may therefore support the public interest because it can assist to support ADR and save time and reduce costs. 3 On the other hand, and in the context of concerns relating to transparency as well as the creation of precedents in appropriate cases, it has been suggested that ADR processes such as mediation will only maintain their integrity if public interests are considered appropriately and wrong-doing or injustice is not supported. 4 In this context, it should be noted that some ADR processes can be “public” either with consent or as a result of legislative arrangements (for example, in native title matters). Confidentiality is encouraged in mediation processes for a range of reasons. These include encouraging parties to have full and frank discussions without fear that those discussions can later be used in evidence. Courts have stated that it is undesirable if the mediation process and what has occurred at a mediation are later used in litigation: [T]he mediation process was intended to facilitate settlements between parties, not to provide them with another battleground. 5

Generally, obligations between parties in respect of confidentiality have been affirmed by the common law in well-known cases such as AWA v Daniels (t/a Deloitte Haskins and Sells). 6 However, it is clear that there may be limitations on confidentiality in the context of the admissibility of that material or information in court proceedings that can arise in a range of different circumstances, such as: 7 1 2

See Chapter 7 at [7.40] and discussion relating to approaches at [7.95]. D Leimgruber, “Confidentiality, Public Interest and the Mediator’s Ethical Dilemma” (2013) 24 Australasian Dispute Resolution Journal 187, 90.

3

D Leimgruber, “Confidentiality, Public Interest and the Mediator’s Ethical Dilemma” (2013) 24 Australasian Dispute Resolution Journal 187, 90. R Zitrin, “The Judicial Function: Justice Between the Parties, or a Broader Public Interest?” (2004) 32 Hofstra Law Review 1565, 1575–1577; N Alexander, International and Comparative Mediation – Legal Perspectives (Kluwer Law International, The Netherlands, 2009) pp 249–280, cited in D Leimgruber, “Confidentiality, Public Interest and the Mediator’s Ethical Dilemma” (2013) 24 Australasian Dispute Resolution Journal 187, 190.

4

5 6

Rajski v Tectran Corporation Ltd [2003] NSWSC 476 per Palmer J. AWA v Daniels (t/a Deloitte Haskins and Sells) (1992) 7 ACSR 463 (Comm Div).

7

Some examples of legislative provisions are: Family Law Act 1975 (Cth), s 10H (non-disclosure unless necessary for the purpose of complying with a law, or with consent, to prevent harm/damage to [12.10] 479

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• through the agreement or consent of parties; 8 • where misconduct or incompetence is an issue; 9 • where legislation specifies exceptions; 10 • where reasonable excuse is raised; • where research takes place; • if an offence or fraud occurs during mediation; • where there is a commission of, or threat of, crime; • where there is a public interest in disclosing information. 11 There are some broad exceptions to confidentiality that have been accepted by the courts; for example, where information may be otherwise available, 12 where

8 9

10

person/property or commission of an offence or to assist a lawyer representing a child’s interests, to provide information for research, to issue a s 60I(8) certificate); Federal Court of Australia Act 1976 (Cth), s 53B (no exceptions); Community Land Management Act 1989 (NSW), s 70 (non-disclosure unless consent, necessary to administer legislation, to prevent danger/injury to person/property, for further referral, other law); Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 89(2) (conciliator competent, not compellable); Children Services Tribunal Act 2000 (Qld), s 87 (no disclosure from ADR unless consent of all parties; s 88 (no disclosure by facilitator unless consent, risk of harm to child, injury to person or damage to property; to give details of whether ADR occurred, names of participants, when it took place and outcome); Magistrates Court Act 1991 (SA), s 27 (mediator may not disclose except by law; statements “in attempt to settle” inadmissible in “the proceedings or related proceedings”); Environment Resources and Development Court Act 1993 (SA), s 28B (inadmissible in proceedings before court); Dispute Resolution Centres Act 1990 (Qld), s 37(6) (inadmissible except by consent); Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 83(4) (conference held “in private”); s 85 (compulsory conference; anything said/done inadmissible unless consent of all parties, evidence of directions and reasons for directions, contempt, perjury, sanctions for non-cooperation); s 92 (mediation; inadmissible unless by consent); Sch 1 (variations for various proceedings for specific acts, for example, Equal Opportunity Act 2010, inadmissible even if parties agree). This is often the situation where material about a settlement is required for court approval purposes. This is discussed further below in the context of a lack of mediator good faith. In addition, a number of cases have suggested that courts will consider what has occurred in a mediation if there is an allegation that the agreement reached at the conclusion of the mediation was harsh, unconscionable or unjust. See Commonwealth Bank of Australia v McConnell (unreported, NSWSC, Rolfe J, 10 July 1997); Gain v Commonwealth Bank of Australia (1997) 42 NSWLR 252; Tapoohi v Lewenberg (No 2) [2003] VSC 410. See also A Peterson, “When Mediation Confidentiality and Substantive Law Clash: An Inquiry into the Impact of in Re Marriage on California’s Confidentiality Law” (2007) 8 Pepperdine Dispute Resolution Law Journal 199. In this regard it is important to note that some ADR processes are not confidential as a result of legislation, for example under s 365 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) arbitral decisions are available on AUSTLII. In contrast, arbitral decisions in some other States (for example, Western Australia) are not publically available.

11

There is limited case law about this potential exception. While a public interest privilege could operate to prevent disclosure of some material in litigation, it is also possible that a public interest argument could be mounted in relation to disclosure. A mediation involving a class action could for example conceivably result in an argument about an exception based on public interest grounds: see Downie v Spiral Foods Pty Ltd [2015] VSC 190 and Young v King (No 6) [2015] NSWLEC 111.

12

See, eg, Wagh v Australian Postal Corp [2007] AATA 1948.

480 [12.10]

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there is an application for costs 13, where there is an allegation of mediator pressure, or where it has been suggested that the agreement reached is “unconscionable”. 14 There have also been suggestions that a lack of good faith in some ADR processes (see Chapter 11 – this may also relate to a failure to take “genuine” or reasonable steps) may enable limited evidence to be adduced in later court proceedings (see [11.25]). As discussed below, confidentiality in ADR processes can be founded on an agreement (see below), legislation or could even be “implied”.

Implied confidentiality [12.15] In Esso Australia Resources Ltd v Plowman (Minister for Energy and Minerals), 15 the High Court dealt with the notion of implied confidentiality in the context of an arbitration. The case would no doubt be dealt with very differently as a result of the 2010 changes to the commercial arbitration laws (see [6.85]ff) that now make it clear that arbitration is confidential if the parties “opt in” (see below). However, the case is important in terms of other ADR processes as the court was asked to find that an arbitration contract contained an implied obligation of confidentiality. By majority, the High Court declined to imply a term that arbitrations were private. The court did, however, seem to accept that express provisions in an agreement could be enforceable, 16 and it is possible that confidentiality obligations could be implied in mediation agreements. 17 It may also be that obligations in relation to confidentiality could arise in equity if a person receives information which is either confidential or which they should know is confidential. 18 It has been suggested in the United Kingdom that a similar duty could apply in common law to mediation communications. 19 In the United States, courts have also considered notions of implied confidentiality and noted that broad public policy could require courts to 13

15

This exception does not apply in all jurisdictions and is linked to the legislative regime (see [12.45] below). Where there are exceptions see Western Areas Exploration Pty Ltd v Streeter (No 2) [2009] WASCA 15. In that matter at [44] the court also noted: Where a mediator reports to the court under O 29 r 3(2)(b) on any failure by a party to cooperate in a mediation conference for the purpose of determining any question as to costs, and the mediator is compelled under s 71(4) to give evidence because there is a dispute as to a fact stated or a conclusion reached in his or her report, an issue may arise as to the extent to which the parties are entitled to elicit from the mediator, in cross-examination, evidence of communications, etcetera, in the course of the mediation process or to call evidence for the purpose of corroborating or rebutting the mediator’s evidence. See S Lancken, “The Responsibility of the Neutral in Respect of Mediation Confidentiality” (2004) 7(2) ADR Bulletin. Esso Australia Resources Ltd v Plowman (Minister for Energy and Minerals) (1995) 183 CLR 10.

16

Esso Australia Resources Ltd v Plowman (Minister for Energy and Minerals) (1995) 183 CLR 10.

17 18 19

Esso Australia Resources Ltd v Plowman (Minister for Energy and Minerals) (1995) 183 CLR 10. See Doe v ABC [2007] VCC 281. See Ramsay J in Farm Assist Ltd (in liquidation) v The Secretary of State for the Environment, Food and Rural Affairs (No 2) [2009] EWHC 1102 (TCC). This matter involved an application to set aside a settlement on the basis of economic duress. It was held that because there was an express agreement to confidentiality between the disputants and the mediator, the mediator’s consent was therefore required before confidentiality could be waived. However, the court also noted that: “I

14

[12.15] 481

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disregard mediation confidentiality. In one recent United States case, State of New Jersey v Williams, 20 one of the parties in a mediation was charged with aggravated assault in respect of an incident that had been discussed at a mediation. The defendant sought to have the mediator testify to support his claim of self-defence. The United States courts, in considering these issues, have decided these type of cases differently (in part, according to the type of adoption of the Uniform Mediation Act); however, the Williams case suggests that United States courts will allow such evidence if it is “relevant and necessary to a fair determination of the issues”. In Williams, the court did not allow the testimony. 21

Inadmissibility and confidentiality conferred by legislation [12.20] Clearly, within Australia and New Zealand, the confidentiality and admissibility in evidence of communications that have taken place in mediation also vary depending on the type of mediation and the applicable legislation. 22 Evidence Acts that operate in many States of Australia refer to “without prejudice” discussions, while other legislation is more specific. For example, s 30(4) of the Civil Procedure Act 2005 (NSW) provides that: (4)

Subject to section 29(2) [section 29 deals with agreements made at a mediation]: (a)

evidence of anything said or of any admission made in a mediation session is not admissible in any proceedings before any court or other body, and

(b)

a document prepared for the purposes of, or in the course of, or as a result of, a mediation session, or any copy of such a document, is not admissible in evidence in any proceedings before any court or other body.

Section 31 of the Civil Procedure Act 2005 (NSW) provides some limited exceptions: 31 Confidentiality (cf Act No 52 1970, section 110Q; Act No 9 1973, section 164G; Act No 11 1970, section 21R) A mediator may disclose information obtained in connection with the administration or execution of this Part only in one or more of the following circumstances: consider that, in the context of mediation and in the absence of an express provision, a similar implied confidentiality would arise but that evidence may be given of those matters if the court considers that it is in the interests of justice to do so” at [29]. 20 21 22

State of New Jersey v Williams (2005) 184 NJ 432. See also S Davisson, “Balancing the Scales of “Confidential” Justice: Civil Mediation Privileges in the Criminal Arena” (2007) McGeorge Law Review 38 at 679 (University of Pacific). For example, the Federal Court of Australia Act 1976 (Cth) provides that evidence of anything said or any admission made at a mediation referred under the Act is not admissible in any court: see s 53B. In other mediations, parties may agree that the mediation is not to be confidential, particularly where a number of parties are involved. The Family Law Act 1975 (Cth) s 19N provides a clear exclusionary rule for anything said or any admission made at a meeting conducted by a court mediator, a community or private mediator, or a counsellor.

482 [12.20]

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(a)

with the consent of the person from whom the information was obtained,

(b)

in connection with the administration or execution of this Part, including section 29(2),

(c)

if there are reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to any person or damage to any property,

(d)

if the disclosure is reasonably required for the purpose of referring any party or parties to a mediation session to any person, agency, organisation or other body and the disclosure is made with the consent of the parties to the mediation session for the purpose of aiding in the resolution of a dispute between those parties or assisting the parties in any other manner,

(e)

in accordance with a requirement imposed by or under a law of the State (other than a requirement imposed by a subpoena or other compulsory process) or the Commonwealth.

This section has been explored in a couple of court cases in New South Wales in the context of admissibility of material in later court proceedings. In Azzi v Volvo Car Australia Pty Ltd, 23 the court made it clear that the legislation only applied to cases that had been referred to mediation by the court under the section (for example, it did not apply to self-referred cases). Justice Brereton referred to a line of family cases and noted that: These cases establish, at least, that a provision similar to Civil Procedure Act 2005 s 30(4) … excludes evidence of what happens at a conciliation conference, even for the purposes of an application to enforce an agreement allegedly made at that conference. 24

His Honour concluded that evidence of what offers were made in a mediation was not admissible as a result of the broad application of the Civil Procedure Act 2005 (NSW) (which he noted did not have the costs exemption noted in the Evidence Act 1995). 25 At the Federal Court level, in Pinot Nominees Pty Ltd v Commissioner of Taxation 26 the issue of the admissibility of settlement offers in later proceedings was discussed in relation to costs. The court was dealing with s 53B of the Federal Court of Australia Act 1976 (Cth) and the question of whether this provision precluded the admission into evidence of anything said during the course of a mediation conference ordered by the court. The court noted that: The provisions of s 53B of the Federal Court Act 1976 and s 30(4)(a) of the Civil Procedure Act 2005 are substantially to the same effect. More particularly, both statutes preclude “anything said” during the course of a mediation conference from being admissible in a court proceeding. 27 23

Azzi v Volvo Car Australia Pty Ltd [2007] NSWSC 375.

24 25

Azzi v Volvo Car Australia Pty Ltd [2007] NSWSC 375, [15]. Evidence Act 1995 (NSW), ss 131(1), 131(2), 135.

26 27

Pinot Nominees Pty Ltd v Commissioner of Taxation [2009] FCA 1508. Pinot Nominees Pty Ltd v Commissioner of Taxation [2009] FCA 1508. [12.20] 483

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In that matter, the court was not prepared to hear anything about what had passed at the court-connected mediation, although it was prepared to, and did, consider “without prejudice” correspondence that arose separately from the mediation (and was therefore covered by the Evidence Act 1995 exception). 28 Where a matter is not conducted within the framework of s 53B it is clear that a court may consider many additional matters. In Pihiga Pty Ltd v Roche [2011] FCA 240 the scope of the “without prejudice” framework was considered where a mediation took place that was not court ordered and therefore not covered by s 53B of the Federal Court Act. In Pihiga, a voluntary mediation resulted in a settlement of an action and an application was made to set aside the agreement on the basis that false and misleading representations had been made in the mediation (see also Chapter 11). It was argued that the court could not consider the communication made in the mediation as a result of the “without prejudice” rule and also because the mediation agreement had a confidentiality clause that referred to the mediation communications being “without prejudice”. Justice Lander affirmed the exceptions to the “without prejudice” rule and did not consider that the mediation agreement added additional protection if a public policy exception was made out. His Honour noted: 29 However, the rule is not absolute and admits of exceptions. Lord Justice Robert Walker identified those exceptions in Unilever plc v Procter & Gamble Co 1 WLR 2436 where he said at 2444-45:

28 29

(1)

... when the issue is whether without prejudice communications have resulted in a concluded compromise agreement, those communications are admissible ...

(2)

Evidence of the negotiations is also admissible to show that an agreement apparently concluded between the parties during the negotiations should be set aside on the ground of misrepresentation, fraud or undue influence. Underwood v Cox (1912) 4 DLR 66, a decision from Ontario, is a striking illustration of this.

(3)

Even if there is no concluded compromise, a clear statement which is made by one party to negotiations, and on which the other party is intended to act and does in fact act, may be admissible as giving rise to an estoppel. That was the view of Neuberger J in Hodgkinson & Corby Ltd v Wards Mobility Services Ltd [1997] FSR 178 at 191, and his view on that point was not disapproved by this court on appeal ([1998] FSR 530).

(4)

Apart from any concluded contract or estoppel, one party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other “unambiguous impropriety” ... But this court has, in [Forster v Friedland [1992] CA Transcript 1052 and Fazil-Alizadeh v Nikbin (1993) Times, 19

Referring to Federal Court of Australia Act 1976 (Cth) ss 53A, 53A(1), 53B. Victorian Courts have also followed this approach in Forsyth v Sinclair (No 2) [2010] VSCA 195. Pihiga Pty Ltd v Roche [2011] FCA 240, [88].

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March], warned that the exception should be applied only in the clearest cases of abuse of a privileged occasion. (5)

Evidence of negotiations may be given (for instance, on an application to strike out proceedings for want of prosecution) in order to explain delay or apparent acquiescence. Lindley LJ in Walker v Wilsher (1889) 23 QBD 335 at 338, noted this exception but regarded it as limited to “the fact that such letters have been written and the dates at which they were written”. But occasionally fuller evidence is needed in order to give the court a fair picture of the rights and wrongs of the delay.

(6)

In Muller’s case (which was a decision on discovery, not admissibility) one of the issues between the claimant and the defendants, his former solicitors, was whether the claimant had acted reasonably to mitigate his loss in his conduct and conclusion of negotiations for the compromise of proceedings brought by him against a software company and its other shareholders. Hoffmann LJ treated that issue as one unconnected with the truth or falsity of anything stated in the negotiat[i]ons, and as therefore falling outside the principle of public policy protecting without prejudice communications. The other members of the court agreed but would also have based their decision on waiver.

(7)

The exception (or apparent exception) for an offer expressly made “without prejudice except as to costs” was clearly recognised by this court in Cutts v Head, and by the House of Lords in the Rush & Tompkins case, as based on an express or implied agreement between the parties. It stands apart from the principle of public policy (a point emphasised by the importance which the new Civil Procedure Rules, Pt 44.3(4), attach to the conduct of the parties in deciding questions of costs). There seems to be no reason in principle why parties to without prejudice negotiations should not expressly or impliedly agree to vary the application of the public policy rule in other respects, either by extending or by limiting its reach. In Cutts v Head Fox LJ said: ... what meaning is given to the words “without prejudice” is a matter of inter-pretation which is capable of variation according to usage in the profession. It seems to me that, no issue of public policy being involved, it would be wrong to say that the words were given a meaning in 1889 which is immutable ever after ... (See [1983] EWCA Civ 8; [1984] 1 All ER 597 at 613, [1984] Ch 290 at 316.)

(8)

In matrimonial cases there has developed what is now a distinct privilege extending to communications received in confidence with a view to matrimonial conciliation ...

It is clear than an interpretation of the new s 18 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) may support more applications under exception 2 noted above in respect of misleading representations (see Chapter 11). Similar decisions have been made in both Victoria and New South Wales. For example, s 24 of the Supreme Court Act 1986 (Vic) prohibits the admission into evidence “at the hearing of the proceeding” of anything said or done by a person [12.20] 485

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at a mediation and the Victorian Supreme Court has concluded that settlement offers made in a mediation cannot be considered in the context of a later costs application. 30 Similarly in the New South Wales Supreme Court, Harrison J found in Mundine v Brown (No 7) that: 31 it was at all times open to the first and third defendants to make an offer of settlement that was not subject to the disclosure constraints that applied to anything occurring within a mediation. The rationale behind maintaining the sanctity of what occurs at a mediation is clear: parties must feel free to negotiate in the confident expectation that nothing that is said or done within a mediation can be used at a later time to their disadvantage in the proceedings if they are not resolved. No part of that reasoning applies to the right or the entitlement of any party at any time outside the context of the mediation to communicate settlement offers and responses on without prejudice terms save as to the question of costs.

In general, courts (where overarching confidentiality provisions apply) have been protective of communication relating to mediation and any mediator reporting. For example, in Cook v Taing Elliott J referred to a report by a mediator as follows: 32 On 30 May 2014, the mediator sent a letter to the court stating that the mediation had concluded. The mediator also reported that the parties had settled the matter, subject to the parties “executing Deed of Settlement”. The letter said the parties would be seeking orders from the court in due course. A copy of this letter was not sent to the parties. It is unfortunate that the mediator reported to the court in the manner in which he did. The order of the court, consistent with the Supreme Court (General Civil Procedure) Rules 2005 (Vic), only sought a report as to whether or not the mediation had finished. Subject to any order or direction of the court to the contrary, a mediator should not go beyond stating whether or not a mediation has finished when reporting to the court. It is critical for the integrity of the regime of confidentiality pursuant to which a mediation is conducted that, save for stating whether or not a mediation is finished, mediators refrain from disclosing any details to the court of the outcome, or details of or relating to communications conducted before, during the course of, or after, the mediation.

In the same matter, the court considered the meaning of “mediation” to determine at what point the mediation had concluded and whether settlement negotiations that were conducted following a meeting in a mediation were part of the mediation. 33 In deciding that the mediation was no longer “on foot” the court noted that the mediation had not been adjourned, that the mediator was not involved in the negotiations (and had in fact departed overseas) and that

30 31

See Trkulja v Yahoo! Inc LLC (No 2) [2012] VSC 217. See Mundine v Brown (No 7) [2011] NSWSC 170.

32

See Cook v Taing [2014] VSC 428, [9], [10].

33

Cook v Taing [2014] VSC 428.

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there was nothing in the communication between the lawyers or from the mediation that suggested that the mediation was continuing. 34 Even where parties consent to disclose material about a mediation process, there may only be partial disclosure and in general evidence from mediators is not sought (see discussion below). In John Sheahan v Martin Thompson the court considered documentation and some limited evidence about what had occurred in a mediation that was held before a retired judge and noted that: 35 I should also remark that no notes were produced of the mediation from any source and I am by no means confident that Crossman’s account of what was said in whose presence is accurate after the passage of more than five years.

In the family dispute resolution area the issues are often different as so much of the communications may be protected by additional statutory protections. However, not all communication will be covered. For example, it is likely that some intake and assessment processes may not be covered by the “without prejudice” arrangements and may not be regarded as part of the mediation or dispute resolution process. In Rastall v Ball 36 a federal magistrate considered that an intake and assessment process was not covered by the confidentiality provisions that apply more generally to family dispute resolution (FDR) processes. In doing so, the magistrate considered that the legislation made a distinction between the assessment and FDR processes. There are also other issues in the family sector that are raised by the specific legislation. For example, a family dispute resolution practitioner’s (FDRP) views as to whether or not participants made a genuine effort in an FDR process may be open to scrutiny. Though communications are normally not admissible, they may be admissible under s 60I(8) of the Family Law Act 1975 (Cth) (see [12.45]). 37 NADRAC has also noted, in its 2011 report Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (Integrity Report) that: “In addition to the threat to their perceived neutrality, it has been noted that this provision may open up FDRPs to questioning about the basis of their decision to grant a particular certificate”. 38 34

35

Cook v Taing [2014] VSC 428. The mediation agreement that the parties and the mediator had signed included the following: “(1) ‘Mediation’ means all steps taken to attempt to resolve the Dispute by mediation and to secure the execution of a settlement agreement, whether prior or subsequent to the execution of this agreement” (emphasis added). John Sheahan v Martin Thompson [2015] NSWSC 871.

36

Rastall v Ball [2010] FMCAfam 1290, available on http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/ cth/FMCAfam/2010/1290.html?stem=0&synonyms=0&query=Rastall. See also Jireh International Pty Ltd t/as Gloria Jean’s Coffee v Western Export Services Inc (No 2) [2011] NSWCA 294 which considered whether a post mediation conversation was admissible. The court found that the conversation that took place after the mediator had left the room was not admissible as it was still “within the mediation”.

37

H Astor, “Making a “Genuine Effort” in Family Dispute Resolution: What Does It Mean?” (2008) 22 Australian Journal of Family Law 102 at 102.

38

NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (Report, Commonwealth of Australia, February 2011) p 94, available on http:// www.ag.gov.au/. NADRAC is aware of an apparent anomaly in relation to the use, by disputants in [12.20] 487

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Clearly, broader legislation dealing with evidence has an impact on ADR confidentiality and admissibility. Section 131(1) of the Evidence Act 1995 (Cth) codifies and adapts the common law without prejudice privilege. It provides that evidence may not be adduced in court of a communication made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute. 39 Documents prepared in connection with the negotiations are also not admissible. Section 131 provides a substantial number of exceptions: 131 Exclusion of evidence of settlement negotiations (1)

(2)

39

Evidence is not to be adduced of: (a)

a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or

(b)

a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.

Subsection (1) does not apply if: (a)

the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent; or

(b)

the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute; or

(c)

the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced; or

(d)

the communication or document included a statement to the effect that it was not to be treated as confidential; or

(e)

the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or

family law disputes, of collaborative practice processes. Although these processes are generally effective, no certificate can be issued to satisfy the requirements of the Family Law Act 1975 (Cth). “Communication” is not defined in the Evidence Act 1995 (Cth). One commentator has suggested that it should be interpreted in the context of the public interest in encouraging settlement of disputes and would include both oral and written communication: S Odgers, Uniform Evidence Law (6th ed, Lawbook Co, Sydney, 2004) p 538. Thus, it would include oral and written communications but not objective facts ascertained during the course of negotiations. This reflects the traditional common law position: Field v Commissioner for Railways (NSW) (1957) 99 CLR 285 at 291.

488 [12.20]

Confidentiality, admissibility and ADR practitioner liability in ADR

(3)

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(f)

the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue; or

(g)

evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or

(h)

the communication or document is relevant to determining liability for costs; or

(i)

making the communication, or preparing document, affects a right of a person; or

(j)

the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or

(k)

one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power.

the

For the purposes of paragraph (2)(j), if commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that: (a)

the fraud, offence or act was committed; and

(b)

a communication was made or a document was prepared in furtherance of the commission of the fraud, offence or act; the court may find that the communication was so made or the document so prepared. (4)

For the purposes of paragraph (2)(k), if: (a)

the abuse of power is a fact in issue; and

(b)

there are reasonable grounds for finding that a communication was made or a document was prepared in furtherance of the abuse of power; the court may find that the communication was so made or the document was so prepared. (5)

In this section: (a)

a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding; and

(b)

a reference to an attempt to negotiate the settlement of a dispute does not include a reference to an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding; and

[12.20] 489

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(c)

a reference to a communication made by a person in dispute includes a reference to a communication made by an employee or agent of such a person; and

(d)

a reference to the consent of a person in dispute includes a reference to the consent of an employee or agent of such a person, being an employee or agent who is authorised so to consent; and

(e)

a reference to commission of an act includes a reference to a failure to act.

In addition, Pt 3.11 of the Evidence Act 1995 (Cth) contains discretionary and mandatory exclusions. In this Part, s 135 provides that a court can refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) (b) (c)

be unfairly prejudicial to a party; be misleading or confusing; or cause or result in undue waste of time.

There are many cases that have noted the less stringent nature of the Evidence Act 1995 regime in relation to some of the State-based legislation (in particular, because the Act allows evidence in relation to cost and other applications). 40 NADRAC has made some specific recommendations for reform in the area of admissibility in the Integrity Report: “… [Federal] Parliament should confirm inadmissibility as the general rule for ADR communications [perhaps to be referred to, with the proposed approach to confidentiality, as the ‘mediation privilege’] and permit only one exception: in circumstances where a court or tribunal gives leave for ADR communications to be admitted or disclosed”. 41 In making this recommendation, it is intended that classes of possible exceptions be articulated to include the general exception areas previously noted; however, it was questionable whether this would include communications in ADR that might assist with cost applications. 42 NADRAC has also noted: The principal purpose of inadmissibility provisions should be to protect the participants in the ADR processes, and not the ADR practitioner. Accordingly, rules about inadmissibility should be framed to ensure that they do not protect ADR practitioners from the consequences of misconduct. 43 40

41

42

43

For example, see Silver Fox Co Pty Ltd (as Trustee for the Baker Family Trust) v Lenard’s Pty Ltd (No 3) (2004) 214 ALR 621, in which Justice Mansfield noted: “The effect of s 131(2)(h) [of the Evidence Act 1995 (Cth)] is to expose that issue to inspection when costs issues only are to be resolved”. NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (Commonwealth of Australia, February 2011) p 67, available on http:// www.nadrac.gov.au/. Some State-based legislation also raises questions about whether or not evidence about the agreement reached at a mediation can be used in court proceedings. It may be an issue in New South Wales but not necessarily in Victoria: See Al-Hakim v Monash University [1999] VSC 511. Thus avoiding the outcome of Cassel v Wasserman, Comden, Casselman & Pearson, LLP – Real Parties in Interest (unreported, Superior Court of Los Angeles Country, Case No B215215, 13 January 2011)

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Clearly, issues about admissibility are often raised in tandem with issues about mediator liability (see later in this chapter at [12.55]). It is for this reason that NADRAC, in the Integrity Report and previous reports, expressed the view that broad statutory immunity for mediators raises concerns about the inability of parties to bring actions against them for serious misconduct. 44 Judges were originally given such an immunity when acting in their judicial capacity, so that the public could be satisfied that they were making judgments free from fear and with complete independence. However, mediators have no decision-making or investigatory powers. Statutory immunity provisions place mediators in a distinctive and somewhat unassailable position that distinguishes them from other professions. However, NADRAC has also noted that it is common for Commonwealth, State and Territory courts to provide mediators with this immunity. 45 As noted above, it is possible that another area of exception in respect of some ADR communications relates to a lack of “good faith”. As noted in Chapter 11, many legislative regimes now require that participants in ADR processes are required to negotiate in good faith. In addition, many ADR agreements require “good faith” negotiations and discussions. In 2008, when reviewing the Supreme and County Courts of Victoria mediation schemes, the author raised questions about whether imposing a “good faith” negotiation requirement would be useful, and noted that: 46 6.58 … [this] may require Rule changes regarding confidentiality and general file access; and [it] is also contentious as mediators may fear that they will be required to “assess” and “judge” attitudes and behaviours (which may be regarded as incompatible with the mediator’s role). Mediators may also be concerned that they could be required to give evidence about matters relating to good faith requirements in a Court. 6.59 These are serious concerns that require further consultation before these recommendations are implemented. In addition, it may well be that safeguards can

44

SCOCAL, Cassel v Super Ct, 51 Cal.4th 113 available at: (http://www.scocal.stanford.edu//opinion/ cassel-v-super-ct-33932) (accessed 22 November, 2011). See also NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (Commonwealth of Australia, February 2011) p 94, available on http://www.nadrac.gov.au/. NADRAC, Primary Dispute Resolution in Family Law: A Report to the Attorney-General on Part 5 of the Family Law Regulations (AGPS, Canberra, 1997) pp 28–32; NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (Commonwealth of Australia, February 2011) Chapter 5 and Appendix 5.2, available on http://www.nadrac.gov.au/.

45

Some examples of legislative provisions are: Family Law Act 1975 (Cth), s 11D (judicial immunity); Federal Court of Australia Act 1976 (Cth), s 53C (judicial immunity); Farm Debt Mediation Act 1994 (NSW), s 18 (protected if good faith, for purposes of the Act); Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 89 (protected if good faith); Community Land Management Act 1989 (NSW), s 70A (protected if good faith and for purposes of Pt 4 Div 2 of Act); Dispute Resolution Centres Act 1990 (Qld), s 35 (protected if good faith); Magistrates Court Act 1991 (SA), s 27 (judicial immunity); County Court Act 1958 (Vic), s 48C (judicial immunity); Accident Compensation Act 1985 (Vic), s 58A(2) (legal practitioner at conciliation conference same protection and immunity as if appearing in Supreme Court).

46

T Sourdin, Mediation in the Supreme and County Courts of Victoria (Report, Victoria Department of Justice, 2009), available on http://www.civiljustice.info/cgi/viewcontent.cgi?article=1000&context= adreval. [12.20] 491

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be put in place that may give mediators, parties and representatives some comfort. For example, where a mediator reports that a party or representative has not acted in “good faith”, the file could be automatically referred to a Master (in the Supreme Court) or an allocated Judge in the County Court (who would have no further dealings with the matter other than in relation to ADR) so that decisions could be made about whether it was appropriate to refer a matter to another mediation or ADR process (where a good faith issue arose). 6.60 In addition, where good faith issues have been raised, a Court officer may make or defer a costs decision (in respect of the ADR session) or defer a costs decision until the matter had been dealt with finally. 6.61 It could be also be made clear that mediators would not be required to give any evidence about what had led to the formation of their views regarding good faith and that this would be a matter for a separate Judicial Officer to inquire into and determine without referring or requiring any input from a mediator.

Courts have considered behaviour in relation to good faith in a number of cases (see Chapter 11). The Victoria case of Valerie Case v Woolworths Limited [2011] VSC 635, involved an allegation that a mediation did not proceed because the plaintiff was not physically present in the same room. While this was not framed as a ’good faith’ case, it is interesting that the court accepted a detailed mediation report on this issue (by consent) in deciding to refer the matter to another mediation (also by consent). More recently, as was discussed in Chapter 11, additional legislation has been introduced to require good faith engagement in a number of different ADR schemes. In addition, NADRAC has recommended that good faith requirements be articulated in legislation. As noted in Chapter 11, courts have explored good faith requirements and behaviours in a range of contexts and there is now some emerging case law regarding this area of exception.

Confidentiality by agreement or based on privilege [12.25] Confidentiality may also be founded on a private agreement while admissibility is ordinarily regulated statutory schemes. 47 Many mediation agreements have specific provisions relating to confidentiality (see Appendix B at [17.195]) and these are discussed further below. In most situations, agreements to mediate are directed at requiring participants to a mediation (including mediators) not to disclose any information to people outside the mediation. If there is disclosure it is possible that an action could be commenced against a mediator (see [12.55]) or that participants in a mediation might take action. However, on a practical level, if participants wish to protect confidential material, ventilating these issues through court processes may be seen as undesirable in any event. 47

NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (Commonwealth of Australia, February 2011) p 94, available on http:// www.nadrac.gov.au/. See also V Vann, “Confidentiality in Court-sponsored Mediations: Disclosure at Your Own Risk?” (1999) 10 Australasian Dispute Resolution Journal 195, referring to Williamson v Schmidt [1998] 2 Qd R 317.

492 [12.25]

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In addition, most mediation agreements will require that mediators cannot be called to give evidence in court or tribunal proceedings. Some mediators use an agreement which has a separate confidentiality agreement (which is intended to bind all participants in a mediation – not just the parties and the mediator). Agreements to mediate can be negotiated and some key issues in preliminary mediation discussion can involve the level and extent of confidentiality (particularly where “field of intimacy” 48 issues may be present). In general, courts have shown a greater willingness to consider evidence about matters raised in mediation or offers that have been made where confidentiality is related to an agreement (rather than where required under legislative arrangements – often as a result of court-specific or civil procedure legislation). 49 There are however strong public policy reasons for supporting confidentiality. For example, Young J stated the public policy reasons for supporting these types of arrangements in Lukies v Ripley (No 2): 50 If parties have attempted to settle the whole or part of litigation and if they have agreed between themselves expressly or impliedly that they will not give in evidence any communication made during those discussions, then public policy makes those discussions privileged from disclosure in a court of law or equity. 51

48

49

That is where it is clear that material will be disclosed to someone who has a close relationship and who agrees to also be bound by the confidentiality arrangements (for example, in respect of husband and wife communications). See Abriel v Australian Guarantee Corp [1999] FCA 50.

50 51

Lukies v Ripley (No 2) (1994) 35 NSWLR 283. Lukies v Ripley (No 2) (1994) 35 NSWLR 283 at 287 per Young J. [12.25] 493

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Apart from the Evidence Acts the common law has traditionally recognised that statements made “without prejudice” during genuine negotiations to settle a dispute are privileged and cannot usually be put in evidence in subsequent proceedings without the consent of both parties. 52 However, there are exceptions where: • the parties directly or impliedly consent to the admission; 53 • the communication or document 54 is relevant to determining liability for costs (see also below); 55 • making the communication or preparing the document affects a right of a person; 56 • there is an action about whether a settlement was reached 57 (subject to any overiding legislative requirements – for example, as in Azzi v Volvo Car Australia Pty Ltd referred to above where the court held that evidence about settlement arrangements was not admissible); or • there is an application for relief or to set aside an agreement on the basis of misrepresentation, 58 oppression, 59 or misleading 60 or unconscionable conduct by a party, 61 or where the communications constitute criminal or tortuous conduct. For example, in Quad Consulting Pty Ltd v David R Bleakly and Associated Pty Ltd, 62 notes exchanged at a settlement meeting were discoverable because they referred to allegations of deceptive and misleading conduct on the part of the person claiming the privilege. There are many cases that deal with “without prejudice” communications in respect of ADR processes that are not covered by statutory arrangements. 63 It is possible that confidentiality may be available in many forms of ADR as a result of classifying communications as “without prejudice”, although if the party seeking to rely on the privilege is a corporation, rather than a natural human being, the situation is less clear. In a discussion regarding the extension of the coverage of privilege in Daniels Corporation International Pty Ltd v Australian Competition and Consumer 52

Field v Commissioner for Railways (NSW) (1957) 99 CLR 285.

53 54

Evidence Act 1995 (Cth), s 131(2). Capolingua v Phylum Pty Ltd (1991) 5 WAR 137.

55 56

Evidence Act 1995 (Cth), s 131(2)(h). See Bruinsma v Menczer (unreported, NSWSC, 14 December 1995). Evidence Act 1995 (Cth), s 131(2)(i).

57 58

Barry v City West Water Ltd [2002] FCA 1214. Williams v Commonwealth Bank [1999] NSWCA 345.

59 60

Abriel v Australian Guarantee Corporation Ltd [2000] FCA 1198. Quad Consulting Pty Ltd v David R Bleakley and Associates Pty Ltd (1990–1991) 98 ALR 659.

61 62

Pittorino v Meynert [2002] WASC 76. Quad Consulting Pty Ltd v David R Bleakly and Associated Pty Ltd (1990) 98 ALR 659.

63

See, for example, Marks v GIO Australia Holdings Ltd (No 2) (1996) 66 FCR 128, Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) (2002) ATPR 41-901 and Australian Competition and Consumer Commission v Black On White [2002] FCA 1605.

494 [12.25]

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Commission, 64 it was suggested that the scope of privilege may be somewhat limited where a corporation is involved. 65 The situation is even less clear where there are no legal proceedings but possible “other action”, such as police involvement directed at crime prevention, or even action to assist a victim, or where legal proceedings are not contemplated or current. In 789TEN Pty Ltd v Westpac Banking Corporation, 66 McDougall J held that “the analogy between without prejudice discussion and mediation [was] compelling” and that the question of confidentiality in both should therefore be treated in a similar fashion, the “relative formality” and “perceived need for greater frankness” in the mediation process not allowing a distinction to be drawn between the two processes. 67 The privilege may attach to communications in the absence of formal proceedings between the parties regarding the dispute and may, therefore, apply to a mediation or other ADR process whether or not related litigation is on foot. 68 However, on one view the common law privilege only applies to a communication relied on as an admission. 69 A number of decisions have discussed the scope of the without prejudice privilege. In Lukies v Ripley (No 2) 70 the New South Wales Supreme Court held that a conference conducted to settle only one aspect of a dispute attracts the privilege. In the AWA litigation 71 it was confirmed that a without prejudice privilege can apply to mediation. The House of Lords has also held that, in order to safeguard the public interest in protecting genuine negotiations, the without prejudice privilege can extend to documents that would not anyway be admissible in court. 72 There has been some limited consideration about how a mediation agreement may extend confidentiality parameters however whilst courts may be prepared to consider evidence about what occurs in a mediation in relation to a costs application, they may be less inclined to consider evidence in relation to other potential areas. 73 For example, in Silver Fox Company Pty Ltd as Trustee for the 64

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49.

65 66 67

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 at [102]. 789TEN Pty Ltd v Westpac Banking Corporation [2004] NSWSC 594. As noted above. However, where legal proceedings are not contemplated or the current position may be less clear, see the discussion in AWA Ltd v Daniels (unreported, NSWSC, Rolfe J, 18 March 1992).

68 69

S McNicol, Law of Privilege (Lawbook Co, Sydney, 1992) p 445. Field v Commissioner for Railways (NSW) (1957) 99 CLR 285, 291.

70 71

Lukies v Ripley (No 2) (1994) 35 NSWLR 283. AWA Ltd v Daniels (t/a Deloitte Haskins and Sells) (1992) 7 ACSR 463 (Comm Div): decisions of Rolfe J (18 March 1992) and Rogers CJ.

72

Rush & Tompkins Ltd v Greater London Council [1989] 1 AC 1280. See also Austotel Management Pty Ltd v Jamieson (unreported, FCA, 7 June 1995). See however Abriel v Australian Guarantee Corp [1999] FCA 50 and the matters raised more generally at [12.55].

73

[12.25] 495

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Baker Family Trust v Lenard’s Pty Ltd (No 3) 74 the court considered whether or not a mediation agreement extended the confidentiality provisions otherwise found in the Evidence Act 1995 (Cth). The Federal Court referred to the matters set out in the Agreement to Mediate and noted that: 75 Clauses 15 to 19 of the Mediation Agreement deal with confidentiality of the mediation process. Clause 15 imposes a confidentiality obligation upon the mediator. Clause 16 imposes a confidentiality obligation upon any information or document provided during the mediation unless disclosure is required by law or by clauses 17 or 21 of the agreement. Clause 17 permits a party to disclose information or documents to persons “‘within that party’s legitimate field of intimacy’. Clause 18 provides (inter alia) that, subject to clause 21, any settlement proposal made in the course of the mediation will be ‘privileged’ and will not be tendered as evidence in any proceedings relating to the dispute. The dispute is defined to include the present proceedings reflected in the applicants’ claims and the first respondent’s cross-claim. Clause 21 authorises disclosure to enforce any settlement made at the mediation. Notwithstanding the terms of the Mediation Agreement, the applicants seek to rely upon the communications at the mediation. They contend that the receipt of the evidence of those communications is authorised by s 131(2)(h) of the Evidence Act 1995 (Cth). In my judgment, the terms of the Mediation Agreement are clear. They do not permit the adducing of evidence of the course of the mediation or what offers were made in the course of the mediation.

However, in allowing evidence to be filed about what occurred in the mediation, the court noted that: Clearly, it is in the public interest that negotiations to explore resolution of proceedings should not be inhibited by the risk of such negotiations influencing the outcome on those primary issues. It is equally in the public interest that negotiations should be conducted genuinely and realistically. The effect of s 131(2)(h) [of the Evidence Act] is to expose that issue to inspection when costs issues only are to be resolved. There is no apparent public interest in permitting a party to avoid such exposure by imposing terms upon the communication, whether by the use of the expression “without prejudice” or by a mediation agreement. 76

Where agreements are made to enter into mediation with a mediator, they commonly include a confidentiality clause (see Appendix B at [17.195]). For the confidentiality to be waived, ordinarily the consent of the parties and the mediator would usually be required. For example, in ACCC v Pratt (No 3), 77 the

74

Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard’ s Pty Ltd (No 3) [2004] FCA 1570.

75

Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard’ s Pty Ltd (No 3) [2004] FCA 1570. Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard’ s Pty Ltd (No 3) [2004] FCA 1570.

76 77

ACCC v Pratt (No 3) [2009] FCA 407. This is similar to the approach taken in Valerie Case v Woolworths Ltd [2011] VSC 635.

496 [12.25]

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Federal Court received in evidence an affidavit from McHugh QC, the mediator. His affidavit was tendered with the consent of the parties. 78

Common law privilege and other forms of ADR [12.28] In relation to ADR other than mediation processes, the issues about “agreements” and common law privilege are very different. The High Court has previously held, in Esso Australia Resources Ltd v Plowman (Minister for Energy and Minerals), 79 that confidentiality is not an essential element of a private arbitration. While acknowledging that the efficacy of an arbitration depends in part on its private nature, 80 the then Chief Justice, Sir Anthony Mason AC, KBE, QC, stated: 81 I do not consider that, in Australia … we are justified in concluding that confidentiality is an essential attribute of a private arbitration imposing an obligation on each party not to disclose the proceedings or documents and information provided in and for the purposes of the arbitration.

In terms of arbitration, to address some of the issues that arose as a result of Esso, above, there have been significant amendments made to the commercial arbitration laws (see also Chapter 6). The International Arbitration Amendment Act 2010 (Cth) amended the International Arbitration Act 1974 (Cth) by setting out detailed provisions on arbitration confidentiality and privacy (International Arbitration Act 1974 (Cth)). The Commercial Arbitration Act arrangements that now apply around Australia (discussed in Chapter 6) have significantly clarified the situation in relation to confidentiality in respect of commercial arbitrations in Australia. For example, s 2 of the Commercial Arbitration Act 2011 (Vic) contains definitions of “confidential information” and “disclose”: Confidential information, in relation to arbitral proceedings, means information that relates to the arbitral proceedings or to an award made in those proceedings and includes the following: • the statement of claim, statement of defence and all other pleadings, submissions, statements or other information supplied to the arbitral tribunal by a party; • any information supplied by a party to another party in compliance with a direction of the arbitral tribunal; • any evidence (whether documentary or otherwise) supplied to the arbitral tribunal; • any notes made by the arbitral tribunal of oral evidence or submissions given before the arbitral tribunal; • any transcript of oral evidence or submissions given before the arbitral tribunal; • any rulings of the arbitral tribunal; 78

79

See also Gladstone Area Water Board & Anor v AJ Lucas Operations Pty Ltd [2014] QSC 311 where the court considered matters raised in mediation and offers made. As noted previously the mediation was not subject to legislation relating to confidentiality. Esso Australia Resources Ltd v Plowman (Minister for Energy and Minerals) (1995) 183 CLR 10.

80

Esso Australia Resources Ltd v Plowman (Minister for Energy and Minerals) (1995) 183 CLR 10, 27 per Mason CJ.

81

Esso Australia Resources Ltd v Plowman (Minister for Energy and Minerals) (1995) 183 CLR 10, 30. [12.28] 497

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• any award of the arbitral tribunal; … “disclose”, in relation to confidential information, includes publishing or communicating or otherwise supplying the confidential information.

Section 27E provides that the parties and the arbitral tribunal must not disclose confidential information in relation to the arbitral proceedings unless the parties consent or where disclosure is allowed under ss 27F, 27G, 27H or 27I. Parties can therefore “opt out” of the confidentiality requirements. Sections 27F and 27G enable an arbitral tribunal to make an order in relation to disclosure. Section 27F provides that: 1.

This section sets out the circumstances in which confidential information in relation to arbitral proceedings may be disclosed by– (a)

a party; or

(b)

an arbitral tribunal.

2.

The information may be disclosed with the consent of all the parties to the arbitral proceedings.

3.

The information may be disclosed to a professional or other adviser of any of the parties.

4.

The information may be disclosed if it is necessary to ensure that a party has a reasonable opportunity to present the party’s case and the disclosure is no more than reasonable for that purpose.

5.

The information may be disclosed if it is necessary for the establishment or protection of a party’s legal rights in relation to a third party and the disclosure is no more than reasonable for that purpose.

6.

The information may be disclosed if it is necessary for the purpose of enforcing an arbitral award and the disclosure is no more than reasonable for that purpose.

7.

The information may be disclosed if it is necessary for the purposes of this Act and the disclosure is no more than reasonable for that purpose.

8.

The information may be disclosed if the disclosure is in accordance with an order made or subpoena issued by a court.

9.

The information may be disclosed if the disclosure is authorised or required by a relevant law or required by a competent regulatory body, and the person making the disclosure gives written details of the disclosure (including an explanation of the reasons for the disclosure) to – (a)

if the person is a party — the other parties and the arbitral tribunal; and

(b)

if the arbitral tribunal is making the disclosure – all the parties.

Section 27G permits the arbitral tribunal to make an order allowing a party to disclose confidential information at the request of a party in circumstances other than those mentioned in s 27F after giving each of the parties the opportunity to be heard. 498 [12.28]

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Section 27H enables a court to make an order prohibiting a party from disclosing confidential information if the public interest in preserving the confidentiality of arbitral proceedings is not outweighed by other considerations that render it desirable in the public interest for the confidential information to be disclosed and s 27I enables a court may make an order allowing a party to disclose confidential information in relation to the arbitral proceedings if the court is satisfied that the public interest in preserving the confidentiality is outweighed by other considerations and provided that either the mandate of the arbitral tribunal has expired or the arbitral tribunal has refused a request under s 27G. In the context of other ADR processes there may also be legislation and guidelines that support the publication of decisions or deidentified decisions. For example, the Financial Ombudsman Service (FOS) issues deidentified determinations and has a searchable database. In New South Wales, all workers compensation arbitration decisions are publically available. 82 In other States, procedures vary.

Legal professional privilege [12.30] It is also important to note that some communications associated with, and even within, an ADR process may attract legal professional privilege, as they may encompass communications created for the purpose of seeking or providing legal advice as well as for the dominant purpose of use in legal proceedings. 83 For example, work prepared by a legal representative on behalf of a disputant in preparation for an ADR process may attract legal professional privilege in subsequent litigation. However, there is no certainty as to the extent to which legal professional privilege applies. The client is able to claim the privilege and it is probable that the type of ADR process will be a relevant factor in determining whether it applies. For example, evaluative and investigative processes may not attract the privilege. 84 In addition, there may be significant issues in collaborative processes where the dominant purpose is unlikely to be for use in legal proceedings. However, in Pratt Holdings Pty Ltd v Commissioner of Taxation, 85 the Full Federal Court held that where litigation was not pending or contemplated, privilege could attach to communications brought into existence between a solicitor or client and a third party, provided that the dominant purpose of the communication was to obtain legal advice.

82

83

See Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 365 and the policy on the publication of decisions available on http://www.wcc.nsw.gov.au/Policies-and-Publications/ Documents/Policies/Policy_on_Publication_Jan%202008.pdf. Grant v Downs (1976) 135 CLR 674; Baker v Campbell (1983) 49 ALR 385.

84 85

See Perry v Powercor Australia Ltd [2011] VSC 308. Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122. [12.30] 499

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STANDARDS AND ETHICAL CODES [12.35] Confidentiality may also be enshrined in practice requirements, standards, codes of conduct or ethical standards applying to mediators as well as other ADR practitioners who may have additional professional obligations pursuant to their own professional codes of conduct or ethical guidelines (for example, as a lawyer, counsellor etc). The parameters surrounding confidentiality may therefore be enshrined not only in agreements, legislation and case law but also operate as a result of the application of standards. For example, issues could arise for mediators who may have ethical or other professional obligations to report a threat or a crime, even where no legislative obligations exist. Such obligations may not be specifically enshrined in any mediation agreement and may conflict with legislative principles concerning possible mediator liability if a mediator breaches confidentiality without legislative or other support. Some United States and Australian commentators have noted that there can be tensions regarding ethical requirements, in particular, requirements relating to impartiality and fairness. 86

Confidentiality – National Mediator Accreditation System Standards [12.40] The National Mediator Accreditation System (NMAS) Australian National Mediator Standards (NMAS Standards), introduced in 2008 and revised in July 2015, provide some limited guidance in the area of confidentiality. The NMAS Standards recognise that in the various areas where mediation processes are used, there may be different requirements relating to confidentiality. The Practice Standards state: 87

9 – Confidentiality 9.1

86 87

A mediator must respect the agreed confidentiality arrangements relating to participants and to information provided during the mediation, except: (a)

with the consent of the participant to whom the confidentiality is owed; or

(b)

where non-identifying information is required for legitimate research, supervisory or educational purposes; or

(c)

when required to do otherwise by law;

(d)

where permitted to do otherwise by ethical guidelines or obligations;

See, for example, S Exon, “How Can a Mediator Be Both Impartial and Fair: Why Ethical Standards of Conduct Create Chaos for Mediators” (2006) University of Missouri Journal of Dispute Resolution 387. See NMAS, Australian National Mediator Standards: Practice Standards, s 9, available on http:// www.msb.org.au/sites/default/files/documents/NMAS%201%20July%202015.pdf. The question of what constitutes “reasonable steps” is open to some interpretation. For example, should mediators take steps to ensure that their technological devices cannot be hacked and what obligations might parties have to identify sensitive or other material? It is notable that the earlier Standards also stated that mediators were “not required to retain documents relating to a dispute”.

500 [12.35]

Confidentiality, admissibility and ADR practitioner liability in ADR

(e)

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where reasonably considered necessary to do otherwise to prevent an actual or potential threat to human life or safety.

2.

Before holding separate sessions with different participants, a mediator must inform participants of the confidentiality which applies to these sessions.

3.

With a participant’s consent, a mediator may discuss the mediation, or any proposed agreement, with that participant’s advisors or with third parties.

4.

A mediator is not required to retain documents relating to a mediation, although they may do so should they wish, particularly where duty-of-care or duty-to-warn issues are identified.

5.

A mediator must take care to preserve confidentiality in the storage and disposal of written and electronic notes and records of the mediation and must take reasonable steps to ensure that administrative staff preserve such confidentiality.

Ethical obligations? [12.45] Issues relating to the circumstances in which confidentiality may be breached by a mediator have not yet been fully explored in the context of ethical or other standards and this differs from many other more established professions where the reporting “rules” and guidelines appear to be somewhat clearer. The 2008 NMAS Practice Standards assumed that existing professional ethical requirements would prevail in relation to issues arising in relation to confidentiality. However, those existing professional ethical obligations may not be directed at ADR processes but oriented toward some other area of professional practice. Other than the reference to other ethical guidelines in 9.1(d), in the new NMAS Practice Standards (as set out above) there is no reference to “existing ethical guidelines” in the Standards. 88 In the 2004 Family Practitioner Standards Project that developed draft practice standards for facilitative family practitioners, this issue was raised in terms of general ethical obligations: 89 The family facilitative practitioner shall disclose a participant’s threat of suicide to the appropriate authorities, or a participant’s threat of violence against any person to the threatened person and/or the appropriate authorities if the family facilitative practitioner believes there is a reasonable possibility that such threat may be acted upon.

This draft clause did not explore how or when practitioners should or could report non-violent crime to police or others. This lack of certainty also exists where a crime may have already been committed (except in relation to the abuse 88

See NMAS, Australian National Mediator Standards: Practice Standards, s 9, available on http:// www.msb.org.au/sites/default/files/documents/NMAS%201%20July%202015.pdf.

89

T Sourdin, T Fisher and L Moloney, Draft Practice Standards for Facilitative Family Dispute Practitioners (La Trobe University, 2004) (funded by the Commonwealth Attorney-General’s Department). [12.45] 501

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of children), although s 10H of the Family Law Act 1975 (Cth) does discuss breaching confidentiality where there is a serious threat of damage to property and has greatly expanded reporting requirements. In the United States, there are some interesting approaches to this dilemma. The Florida State Courts Mediator Ethics Advisory Committee considered the issue in 1996. 90 It referred to a mediation involving a husband and wife suing the husband’s ex-wife, and noted: In the course of mediation ex wife jumps to feet and using a pencil (supplied by mediator) making stabbing motion and stated “I’ll kill you”. Mediator terminated mediation and had the case scheduled for trial.

The question before the Ethics Advisory Committee was: “Should the mediator report a threat?” And when the “[t]hreatened party subsequently filed a complaint with the sheriff … [s]hould or may the mediator voluntarily testify as to the threat made? No actual physical violence took place, only a verbal threat”. 91 The Panel noted as follows: 92 The Panel is of the opinion that the mediator should not voluntarily report this incident because to do so would be a violation of rule 10.080(a), which requires the mediator to preserve and maintain the confidentiality of all mediation proceedings except where required by law to disclose information. Section 44.102(3), Florida Statutes, which requires a mediator not to divulge communications made during a mediation proceeding unless all the parties otherwise agree, would be applicable to such communication. The Panel also believes that the mediator should not voluntarily testify, and, if subpoenaed, should either file a motion for a protective order, or notify the judge in accordance with local procedures, that the mediator is statutorily required to maintain the confidentiality of mediation proceedings. In a case where a court, notwithstanding the statutory provision, issues an order for the mediator to testify, the panel believes that the better approach would be to follow the court order.

This approach can be contrasted with a line of cases directed at medical and health professionals. For example, some court cases have dealt with these issues in the context of biomedical ethics (rather than statutory obligations), where, for example, doctors and other members of the “helping” professions are faced with similar dilemmas in a range of contexts. Examples include whether psychologists or counsellors should report circumstances in which they believe there is a

90 91 92

See Florida State Courts, Alternative Dispute Resolution (8 February 1997), available on http:// www.flcourts.org/resources-and-services/alternative-dispute-resolution/. See Florida State Courts, Alternative Dispute Resolution (8 February 1997), available on http:// www.flcourts.org/resources-and-services/alternative-dispute-resolution/. See Florida State Courts, Alternative Dispute Resolution (8 February 1997), available on http:// www.flcourts.org/resources-and-services/alternative-dispute-resolution/.

502 [12.45]

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reasonable prospect that a crime will be committed, or even whether data obtained from Nazi experimentation can be used by members of the medical profession. 93 One case frequently referred to by counsellors and psychologists in terms of defining their obligations to report a criminal threat or potential criminal threat is the United States case Tarasoff v Regents of University of California. 94 In Tarasoff, a psychologist working at an American university medical centre was informed by a patient that he wanted to kill his girlfriend. The psychologist alerted the campus police and his supervisor. The patient then went on to murder his girlfriend. The Californian Supreme Court concluded that the actions taken by the psychologist were not sufficient and stated that: 95 When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.

Essentially, the court referred to “clinical” experience, concluding that the special relationship that existed was based on the professional background and obligations of the therapist involved. It should be noted that Tarasoff has only been embraced by a small number of United States jurisdictions (although it has had an impact on ethical guidelines). Nevertheless, could such obligations ever be imposed on mediators in the non-family area? Clearly, in some jurisdictions (such as the Supreme Court of New South Wales) legislative requirements exist (see [12.20]). In other jurisdictions, or where mediations occur outside of any statutory scheme, the obligations may not be clearly supported by ethical or legislative obligations. It may be that recent developments in the ethical standards area will eventually produce more uniform requirements. In addition, in many jurisdictions of Australia there are already general obligations imposed by legislation that could require mediators to report offences or threatened offences. The 2008 NMAS Practice Standards did not address these issues, in part because in the consultations that led to the development of those standards significant concerns were raised about competing ethical requirements. One submission in that process noted (referring to the earlier version of the standards): 93

94

For a summary of issues and cases, see BA Fischer IV, “A Summary of Important Documents in the Field of Research Ethics” (2006) 32(1) Schizophrenia Bulletin 69. This ethical area is governed by the WMA Declaration of Helsinki – Ethical Principles for Medical Research Involving Human Subjects, available on http://www.wma.net/en/30publications/10policies/b3/index.html. Tarasoff v Regents of University of California 17 Cal 3d 425 (Cal 1976).

95

Tarasoff v Regents of University of California 17 Cal 3d 425 (Cal 1976). [12.45] 503

Alternative Dispute Resolution

Paragraph 6 of the Draft Australian National Mediator Practice Standards provides that a mediator shall not voluntarily disclose to anyone who is not a party to the mediation any information obtained except: (c)

when required to do so by law; or

(d)

when the information discloses an actual or potential threat to human life or safety. Insofar as sub-paragraph (d) permits voluntary disclosure by a mediator where disclosure is not required under law, it conflicts with paragraph 6.2 of the NSW Law Society Revised Guidelines for Solicitors who act as Mediators (updated 1/1/07), which provides that the obligations of a solicitor relating to confidentiality as between solicitor and client shall apply as between the mediator and the participants. It also conflicts with paragraph 5 of the Law Council of Australia’s Ethical Guidelines for Mediators (February 2006) which provides that, subject to the requirements of the law, a mediator must maintain the confidentiality required by the parties.

In practice, mediation and confidentiality agreements are common, and such agreements may set out information which may or may not be disclosed by the mediator or a party to the mediation. However, agreements requiring nondisclosure by a mediator of information relating to a serious offence committed by a party to the mediation may be void for illegality. As noted above, the 2015 NMAS Practice Standards provide that the exceptions to the confidentiality arrangements may arise “where reasonably considered necessary to do otherwise to prevent an actual or potential threat to human life or safety”. 96 Interestingly, a specific ruling about this issue was explored by the Florida Mediator Ethics Advisory Committee. In response to a question regarding a possible collision between the obligations that psychologists and others may have and legal obligations to protect confidentiality, it was suggested that no such collision existed. 97 This was because, first, “psychologists and mental health professionals are also allowed to disclose only when there is a ‘clear and immediate probability of physical harm to the patient or client, to other individuals, or to society’” 98 (and in the 1997 Florida Ethics Advisory Committee ruling referred to above, there was no finding of a clear and immediate probability); and, secondly, because Tarasoff has not been followed in Florida (which suggests that such ethical obligations will only arise in certain States).

Obligations of family dispute resolution practitioners [12.50] ADR practitioners may be required to report some matters as a result of legislative requirements around Australia that can be linked to occupation. For 96 97 98

See NMAS, Australian National Mediator Standards: Practice Standards, s 9, available on http:// www.msb.org.au/sites/default/files/documents/NMAS%201%20July%202015.pdf. See Ruling 97–006 referred to on http://www.flcourts.org/resources-and-services/alternativedispute-resolution/information-trainers-legal-professionals/meac-opinions.stml. See Ruling 97–006 referred to on http://www.flcourts.org/resources-and-services/alternativedispute-resolution/information-trainers-legal-professionals/meac-opinions.stml.

504 [12.50]

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example, teachers may have special reporting requirements in relation to children and young people. 99 Within Australia, however, substantive questions remain about the variations in terms of obligations and how mediators could be expected to be aware of these obligations. In the FDR area there are specific obligations in relation to reporting by FDRPs. While these obligations are mostly imposed by the Family Law Act 1975 (Cth), obligations may also arise under State laws (see s 10H(2)). 100 In some areas, there are questions about definitional dilemmas rather than awareness of obligations or any potential clash in ethical and other obligations although these issues have been clarified to some extent by law reform (at least at the Commonwealth level) over the past five years. For example, in the family law area, specific provisions relate to mediator obligations concerning the circumstances surrounding the abuse (or potential abuse) of children; however, despite this clear-cut exception to confidentiality, an FDRP must determine what constitutes “abuse” or “harm”. Section 10H of the Family Law Act 1975 (Cth) is fairly clear-cut and applies to appointed FDRPs, providing that: 10H Confidentiality of communications in family dispute resolution 1.

A family dispute resolution practitioner must not disclose a communication made to the practitioner while the practitioner is conducting family dispute resolution, unless the disclosure is required or authorised by this section.

2.

A family dispute resolution practitioner must disclose a communication if the practitioner reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.

3.

A family dispute resolution practitioner may disclose a communication if consent to the disclosure is given by: (a)

if the person who made the communication is 18 or over – that person; or

(b)

if the person who made the communication is a child under 18: (i)

each person who has parental responsibility (within the meaning of Part VII) for the child; or

(ii)

a court.

99

For a useful summary of reporting requirements, see Australian Institute of Family Studies, Mandatory Reporting of Child Abuse and Neglect, Resource Sheet (August 2014), available on https://aifs.gov.au/ cfca/publications/mandatory-reporting-child-abuse-and-neglect.

100

FDRP obligations can include discretionary obligations under s 10H of the Family Law Act 1975 (Cth) that include a threat to property and this could presumably include relatively minor matters. Reporting requirements under state laws may however differ and require mandatory reporting. Most standards and legislation specify what may constitute reportable criminal activity. There are references to a “crime”, “offence” or an “indictable offence” however, these vary between States within Australia. [12.50] 505

Alternative Dispute Resolution

4.

A family dispute resolution practitioner may disclose a communication if the practitioner reasonably believes that the disclosure is necessary for the purpose of: (a)

protecting a child from the risk of harm (whether physical or psychological); or

(b)

preventing or lessening a serious and imminent threat to the life or health of a person; or

(c)

reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or

(d)

preventing or lessening a serious and imminent threat to the property of a person; or

(e)

reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or

(f)

if a lawyer independently represents a child’s interests under an order under section 68L – assisting the lawyer to do so properly.

5.

A family dispute resolution practitioner may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988) for research relevant to families.

6.

A family dispute resolution practitioner may disclose information necessary for the practitioner to give a certificate under subsection 60I(8).

7.

Evidence that would be inadmissible because of section 10J is not admissible merely because this section requires or authorises its disclosure.

Note: This means that the practitioner’s evidence is inadmissible in court, even if subsections (2), (3), (4), (5) or (6) allows the practitioner to disclose it in other circumstances. 8. In this section: “communication” includes admission. 101

The section deals with a range of scenarios where a dispute resolution practitioner has been informed about a criminal acts or potential criminal acts that may not involve the actual or potential abuse of a child and has been expanded to threats of violence and also serious property damage. Under s 67ZA(2) of the Family Law Act 1975 (Cth) an FDRP must report child abuse: 102 101

102

For more information about the definition and meaning of each term see Family Relationships Online, Framework for Screening, Assessment and Referrals in Family Relationship Centres and the Family Relationship Advice Line, available on http://www.ag.gov.au/FamiliesAndMarriage/Families/ FamilyRelationshipServices/Documents/Framework%20for%20Screening%20Assessment %20and%20Referrals%20in%20FRCs%20and%20FRAL%20July%202008.pdf. Under reg 17 of the Family Law (Family Dispute Resolution Regulations) 2008, the accreditation of a FDRP can be cancelled if reporting does not take place and if the FDRP “has failed to comply with the

506 [12.50]

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If the person has reasonable grounds for suspecting that a child has been abused, or is at risk of being abused, the person must, as soon as practicable, notify a prescribed child welfare authority of his or her suspicion and the basis for the suspicion.

In the past there have been some definitional problems about what might constitute “abuse” of a child. Despite actively managed approaches to facilitated cases involving allegations of violence and child abuse that have been developed in the Magellan Project 103 in Melbourne and the Columbus Project 104 in Western Australia and elsewhere it was thought that there may still be some confusion about what might constitute “abuse” or “risk”. For example, during consultations in the “Australian Family Dispute Resolution Practitioner Draft Approval Standards” Project, one senior family dispute practitioner commented: 105 What constitutes abuse? If a mother of a very young child prevents the father from having access to the child – and a parental attachment does not form – is that emotional abuse? Is it reportable?

In response to these concerns legislative amendments were made in 2011 (Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (“Family Violence Act”) which amends the Family Law Act 1975 (Cth) (Family Law Act). The changes included a new definition of “family violence” that is closely aligned with the definition recommended by the Australian and New South Wales Law Reform Commissions in their report Family Violence – A National Legal Response (2010). A Fact Sheet was prepared for FDRPs that states: The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 amends the definitions of “family violence and abuse” under the Family Law Act to provide better protection for children and families at risk of violence and abuse … It is a requirement under the Regulations for FDR practitioners to conduct a comprehensive screening and assessment process to determine suitability of parties for FDR. The factors to consider include whether there has been a history of family violence among the parties, the likely safety of the parties and a risk that a child may suffer child abuse. Screening and assessment is continuous throughout the FDR process. Act or any obligation imposed on the practitioner by the Act”. Information about reporting (focused on state jurisdictions) and penalties (and the limited prosecutions that have taken place) is discussed in B Matthews, “Mandatory Reporting Laws For Child Sexual Abuse”, A Report for the Royal Commission for Institutionalised Responses into Sexual Abuse (Report, Commonwealth of Australia, 2014) p 40, available on http://www.childabuseroyalcommission.gov.au/documents/royalcommission-report-ben-mathews-for-rc-publica. 103

104 105

T Brown, R Sheehan, M Frederico and L Hewitt, Resolving Family Violence to Children: The Evaluation of Project Magellan: A Pilot Project for Managing Family Court Residence and Contact Dispute when Allegations of Child Abuse Have Been Made (Monash University and the Family Court of Australia, 2001). P Murphy, P Kerin and L Pike, “Columbus Pilot Project: Catalyst for an Emerging Model of an Integrated Family Court System in Western Australia” (2003) 64 Family Matters 82. These issues have been raised in a range of jurisdictions and it has been suggested that mandatory reporting is problematic in part because of an absence of feedback loops where abuse is suspected: see A Hinshaw, “Mediators as Mandatory Reporters of Child Abuse: Preserving Mediators Core Values” (2007) Florida State University Law Review 34, 211. [12.50] 507

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The definition is significant when FDR practitioners are screening and assessing whether it is appropriate for a client to participate in or continue participating in FDR. There may be cases where individuals who had previously been assessed as suitable, may now be assessed as unsuitable for FDR. This will depend on the individual circumstances of each case. In the assessment of suitability of FDR, an FDR practitioner also considers other relevant factors under the Regulations, including equality of bargaining power among the parties, the emotional, psychological and physical health of the parties and any other matter that the FDR practitioner considers relevant to the proposed FDR. The new definition of abuse includes if it involves causing a child to suffer psychological harm, including by the child being exposed to family violence. FDR practitioners need to be aware of this particular amendment, particularly for mandatory reporting purposes of child abuse.

The legislation amended both the definition of abuse and the definition of family violence. Abuse is defined under s 4 of the Family Law Act 1975 as follows: (a)

an assault, including a sexual assault, of the child; or

(b)

a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

(c)

causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

(d)

serious neglect of the child.

The definition incorporates a reference to family violence which is defined in s 4AB of the Family Law Act 1975: 1.

For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

2.

Examples of behaviour that may constitute family violence include (but are not limited to): (a)

an assault; or

(b)

a sexual assault or other sexually abusive behaviour; or

(c)

stalking; or

(d)

repeated derogatory taunts; or

(e)

intentionally damaging or destroying property; or

(f)

intentionally causing death or injury to an animal; or

(g)

unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

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(i) (j)

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unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or preventing the family member from making or keeping connections with his or her family, friends or culture; or unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

3.

For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

4.

Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child: (a) (b) (c)

(d)

(e)

overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

Approaches to reporting issues in FDR vary internationally and sometimes ethical codes and standards have been used to assist practitioners. For example, in some parts of Canada, a clear ethical code has been incorporated into an agreement to mediate, thus creating additional protections for mediators. 106 The duty of confidentiality in the Ontario Association for Family Mediation Code of Professional Conduct (revised in 2013), for example, states that: 107 The mediator shall not voluntarily disclose to anyone who is not a party to the mediation any information or documents obtained through the mediation process except: (a)

non-identifying information for research or education purposes; or

(b)

upon the written consent of all the parties to the mediation contract, which includes the mediator; or

(c)

when ordered by the court or required by law; or

106

See, for example, Ontario Association for Family Mediation, Code of Professional Conduct (1987), available on https://www.oafm.on.ca/membership/policies/standards-of-practice.

107

See, for example, Ontario Association for Family Mediation, Code of Professional Conduct (1987), available on https://www.oafm.on.ca/membership/policies/standards-of-practice. [12.50] 509

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(d)

when the information discloses an actual or potential threat to human life or safety.

This approach can be contrasted with the professional view adopted in the United States that appears to limit more substantively the circumstances in which mediators can breach confidentiality. The Association for Conflict Resolution Family Standards state: 108 Standard VII A family mediator shall maintain the confidentiality of all information acquired in the mediation process, unless the mediator is permitted or required to reveal the information by law or agreement of the participants. A. The mediator should discuss the participants’ expectations of confidentiality with them prior to undertaking the mediation. The written agreement to mediate should include provisions concerning confidentiality. B. Prior to undertaking the mediation the mediator should inform the participants of the limitations of confidentiality such as statutory, judicially or ethically mandated reporting. C. As permitted by law, the mediator shall disclose a participant’s threat of suicide or violence against any person to the threatened person and the appropriate authorities if the mediator believes such threat is likely to be acted upon. …

Many mediators working in areas such as family law will regularly encounter disputes where physical or other violence is a reality, and many mediators working in other areas will be likely to experience ethical and reporting dilemmas (the responses may be far less clear where the dilemmas involve tax or related improper financial arrangements and no threat). One way for mediators who are grappling with the issue of when and how to report serious crimes or potential threats is to adopt clearer ethical guidelines or standards that apply across a range of jurisdictions, which may also meet and address “reasonable belief” provisions. In Australia, it is clear that there are significant differences between the States and, for this reason, the issues of reporting need to be attended to in standards that may apply to mediators working in a range of jurisdictions. In view of the multidisciplinary nature of mediation, standards that are developed will clearly refer to a range of ethical codes, not just those that exist in the lawyer–client area. Various organisations have attempted to provide assistance in relation to the difficulties experienced by mediators as a result of the lack of uniformity around these confidentiality considerations. For example, support for mediators facing ethical dilemmas in relation to confidentiality and public interest issues, especially where a mediator is not legally trained, has been addressed in New York by the New York State Unified Court System, which established the Mediator Ethics Advisory Committee (MEAC) in 2006. Under this system, if a mediator cannot resolve an ethical dilemma, or if a mediator believes that a certain standard conflicts with another standard, the mediator is encouraged to 108

Association for Conflict Resolution, Model Standards of Practice for Family and Divorce Mediation, available on http://www.acrnet.org/Page.aspx?id=633.

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write to the MEAC. 109 With regard to confidentiality issues, the Standards of Conduct for New York State Community Dispute Resolution Center Mediators expressly state that the MEAC does not want to put a mediator in the position of determining as to what is legal because this would be beyond the mediator’s role. 110 So what might additional Australian ethical guidelines in this area involve? Will they follow a United States or Canadian approach? Based on current arrangements in relation to confidentiality and concealment, it is clear that there is no systemic or settled Australian view on these issues. There may, in fact, be differences between the States (based in part on variations in existing ethical obligations and mandatory reporting requirements) and the areas of federal jurisdiction as well as the family dispute resolution area that has set out much more onerous reporting requirements in recent years. Many Australian mediators may also have some discomfort with both the Canadian and United States approaches, and it may be that the response of mediators in the non-family area in Australia lies somewhere between those two variations. Australian ethical codes may also need to provide clear examples and fact sheets (given the range of different responses to ethical issues) and be supported by an “ethical framework” that enables mediators and parties to seek guidance and support when dilemmas arise. While professional industry-based organisations may provide some assistance, the range of more sophisticated mechanisms that exist in other jurisdictions has yet to be established in this area. In addition, there are issues about the extent to which “prescriptive” rules should be framed. In an industry that values flexibility, there are cogent reasons for rejecting “rigid regulation”. 111 However, regardless of how guidelines are framed, ethical guidelines and codes need to be understood – and followed. As Pou noted, “ethical behavior is critical in consensus-based dispute resolution”. 112

LIABILITY OF ADR PRACTITIONERS [12.55] The potential liability of third parties who assist in the resolution of disputes varies. There are a few cases where ADR practitioners have been sued 109

New York State Office of Alternative Dispute Resolution and Court Improvement Programs, Standards of Conduct for New York State Community Dispute Resolution Center Mediator (rev 2009) pp 3-4, available on www.nycourts.gov/ip/adr/Publications/Info_for_Programs/Standards_of_Conduct.pdf, cited in D Leimgruber “Confidentiality, Public Interest and the Mediator’s Ethical Dilemma” (2013) 24 Australasian Dispute Resolution Journal 187, 193.

110

New York State Office of Alternative Dispute Resolution and Court Improvement Programs, Standards of Conduct for New York State Community Dispute Resolution Center Mediator (rev 2009) pp 3-4, available on www.nycourts.gov/ip/adr/Publications/Info_for_Programs/Standards_of_Conduct.pdf, cited in D Leimgruber “Confidentiality, Public Interest and the Mediator’s Ethical Dilemma” (2013) 24 Australasian Dispute Resolution Journal 187, 193. See C Pou, “Enough Rules Already! Making Ethical Dispute Resolution a Reality” (2004) Dispute Resolution Magazine 19, 22, available on http://www.adr.gov/charliearticle.pdf.

111 112

See C Pou, “Enough Rules Already! Making Ethical Dispute Resolution a Reality” (2004) Dispute Resolution Magazine 19, available on http://www.adr.gov/charliearticle.pdf. [12.55] 511

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or found liable. One writer in the United States has noted that there are many legal hurdles in place to prevent lawsuits against mediators. The lack of law suits does not therefore mean that mediator misconduct is not an issue. 113 The obstacles include the fact that many ADR processes are confidential and this can limit opportunities for review. At present, many ADR practitioners cannot be held liable for actions that they take in an ADR process and at times they can have the same immunity as a judge. The National Alternative Dispute Resolution Advisory Council (NADRAC), had noted that it is appropriate for ADR practitioners to be held liable under certain circumstances, although it noted that if ADR practitioners can be held liable that this could impact adversely on ADR practitioner availability. However, on balance, NADRAC has recommended that consumers of mediation services should be able to pursue actions for serious misconduct against mediators. The arguments for and against immunity were initially summarised by NADRAC in a 1997 report Primary Dispute Resolution in Family Law. 114 NADRAC was primarily concerned about mediator immunity and considered that, as mediators do not make decisions, they may not require the same immunity as judges or arbitrators. Further, mediators may not value immunity, and it was noted that counsellors and many lawyers do not have such protection. 115 Where ADR practitioners operate within, or are closely located to, a court and tribunal system, it is possible that they could be covered by a common law form of immunity that could extend to quasi-judicial officers and bodies such as tribunals. 116 However, this immunity may not apply to practitioners who do not practise as a result of court referral, 117 although they may be covered by statutory immunity (where it is still available). Many practitioners, however, rely on a contractual form of immunity, that is, immunity effectively created by an agreement, which excludes civil liability and is entered into between practitioners and participants. This form of liability may be supported by statutory arrangements and may vary according to the nature of the agreement between the participants. 118 In 2004, NADRAC recommended that a review of statutory provisions should be undertaken by Commonwealth, State and Territory governments in respect of 113

See M Moffitt, “Suing Mediators” (2003) 83(1) Boston University Law Review 147; see also A Lynch, “Can I Sue My Mediator? Finding the Key to Mediator Liability” (1995) 6 Australian Dispute Resolution Journal 113.

114

NADRAC, Primary Dispute Resolution in Family Law: A Report to the Attorney-General on Part 5 of the Family Law Regulations (Report, AGPS, 1997).

115

NADRAC, Primary Dispute Resolution in Family Law: A Report to the Attorney-General on Part 5 of the Family Law Regulations (Report, AGPS, 1997) pp 30-31. See R Carroll, “Mediator Immunity in Australia” (2001) 23(2) Sydney Law Review 185. It may be necessary to establish the “judicial” function of the tribunal in order to claim the immunity.

116 117 118

R Carroll, “Mediator Immunity in Australia” (2001) 23(2) Sydney Law Review 185, 186. Some mediation agreements may purport to bind the parties and the mediator while other agreements may also have a standalone confidentiality agreement which binds all participants (including lawyers and experts) and bind those not present at a mediation.

512 [12.55]

Confidentiality, admissibility and ADR practitioner liability in ADR

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issues relating to immunity, liability, inadmissibility of evidence, confidentiality, enforceability of ADR clauses, and the enforceability of agreements reached in ADR processes. The objective of the review was to achieve clarity in respect of the legal obligations of parties, referrers and service providers, and to provide avenues for consumer redress. NADRAC has subsequently completed a review of the relevant Commonwealth provisions that provided a detailed analysis of these issues. 119 In 2011, NADRAC released the report Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (Integrity Report) which specifically explored issues relating to confidentiality, admissibility and the immunity of ADR practitioners. 120 A key recommendation from NADRAC was that statutory immunity should be removed for most ADR practitioners. In making this recommendation, the council noted that: 121 The pivotal consideration for NADRAC is that the nature of ADR, unlike litigation, already presents an issue for accountability, because the process takes place in private with “the potential to shield malpractice and unfairness unless … [ADR practitioners] can be held liable”. 122

NADRAC also considered insurance and other arrangements for ADR practitioners and the current statutory arrangements. The council summarised some of the legislative provisions that relate to mediator immunity and which apply in federal courts and tribunals as follows in Table 12.1. 123 Table 12.1 – Mediator immunity in federal legislation Legislation Federal Court of Australia Act 1976

Relevant section/s Section 53C

Summary of provision A mediator or an arbitrator, in mediating or arbitrating anything referred by the court in accordance with the Rules of Court, has the same protection and immunity as a judge has in performing the function of a judge. The Act allows the court to refer a matter to a “suitable person” for resolution.

119

NADRAC, Legislating for Alternative Dispute Resolution: A Guide for Government Policy-makers and Legal Drafters (AGPS, November 2006), available on https://www.ag.gov.au/.

120

NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (Commonwealth of Australia, February 2011) Chapters 3-5, available on https:// www.ag.gov.au/.

121

NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (Commonwealth of Australia, February 2011), available on https://www.ag.gov.au/. L Boulle, Mediation: Principles, Process, Practice (LexisNexis Butterworths, Sydney, 2005) p 535.

122 123

NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (Commonwealth of Australia, February 2011) Appendix 5.1 – Federal Legislation, available on https://www.ag.gov.au/. [12.55] 513

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Legislation Federal Magistrates Act 1999

Relevant section/s Sections 34 and 35

Administrative Appeals Tribunal Act 1975

Section 60

Native Title Act 1993

Section 94R

International Arbitration Act 1974

Section 28

Summary of provision A mediator or arbitrator appointed by the Federal Magistrates Court is given the same protection and immunity as a Federal Magistrate has in performing the functions of a Federal Magistrate. 124 An alternative dispute resolution practitioner has, in the performance of their duties as an ADR practitioner under the Act, the same protection and immunity as a Justice of the High Court. Under this Act the person conducting ADR must be a member or officer of the tribunal or as otherwise appointed by the Registrar (see sections 34C and 34H). Persons conducting mediation subject to a referral from the Federal Court under section 86B (tribunal members or otherwise) have, in the performance of their mediation duties, the same protection and immunity as a Justice of the High Court. Subsection 86B(1) allows the Federal Court to refer an “appropriate person or body” for mediation. An arbitrator is not liable for anything done or omitted to be done by the arbitrator in good faith in his or her capacity as arbitrator.

[Source: NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (2011), Appendix 5.1.] The current variable statutory immunity regime can provide protection to those who work in certain defined court related areas and therefore provides advantages to mediators who operate within a court-connected framework. This means that mediators who mediate in respect of disputes that have not been filed in a court or where the parties decide to mediate without a referral order may not have the protection of statutory immunity. In terms of actions that can be taken against mediators, NADRAC has noted that these can be founded on: • contract; 125 • negligence; • tort (including statutory torts: NADRAC has, for example, referred to discrimination and harassment);

124 125

Note: The Federal Magistrates Court is now called the Federal Circuit Court. NADRAC has noted that an action for breach of contract could include a breach of implied conditions.

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• fiduciary responsibilities (this may involve determining whether the ADR practitioner had a position of power and influence that would warrant fiduciary status – see below at [12.75]); 126 • misleading and deceptive actions (potential actions under the Australian Consumer Law are noted below at [12.75]). 127 Clearly, the confidentiality of ADR processes and the issues relating to the inadmissibility of evidence of anything said or done in ADR processes (see [12.10]) can make it difficult to make a claim against a practitioner. 128 Other variables that impact on the potential liability of ADR practitioners are discussed below.

The subject matter of the dispute and whether it is within any particular legislative framework [12.60] As noted above, generally liability provisions are clearer where the ADR practitioner operates within a statutory framework or the dispute is within the litigation system. For example, there are numerous examples in federal, State and Territory legislation that provide for the extension of immunity to some defined class of mediators. 129 This mainly confers statutory immunity on practitioners who conduct court-ordered or court-referred ADR. 130 NADRAC has recently recommended that this immunity be removed and that consideration also be given to removing the immunity for court employees, registrars and 126

See also R Clarke, “The Writing on the Wall: The Potential Liability of Mediators as Fiduciaries” (2006) Brigham Young University Law Review 113 and R Fisher, “Mediation and the Fiduciary Relationship” (1997) Australian Bar Review 16, 25.

127

R Carroll, “Mediator Immunity in Australia” (2001) 23(2) Sydney Law Review 185 at 189. The Australian Consumer Law (located in Competition and Consumer Act 2010 (Cth), Sch 2) could be used to found an action against a mediator.

128

See, for example, State Bank of NSW v Freeman (unreported, NSW Supreme Court, Badgery-Parker J, 31 January 1996) where the defendant argued that, despite engaging in mediation that resulted in an executed agreement, a certificate issued under the Farm Debt Mediation Act 1994 (NSW), certifying that a satisfactory mediation had taken place, should be set aside and the mediation reconvened. The defendant argued that the mediator had exceeded his proper functions and subjected the defendant to “sustained and unconscionable duress”. The court said that “section 15 would prevent a court from embarking upon an examination of what took place in the course of a mediation session” and that the matter would be “hamstrung to the point of impossibility”. See R Carroll, “Mediator Immunity in Australia” (2001) 23(2) Sydney Law Review 185, 212. Examples include: Federal Court of Australia Act 1976 (Cth), s 53C (a mediator or case appraiser has the same protections and immunity as a judge); District Court Act 1991 (SA), s 32(2) (a mediator has the same protections and immunity as a judge); County Court Act 1958 (Vic), s 48C. See also Supreme Court Act 1986 (Vic), s 27A and Victorian Civil and Administrative Tribunal Act 1998 (Vic) (a mediator is given the same immunity as a member of the tribunal (s 143(6)) who is also given the same immunity as a judge (s 143(1)); Mediation Act 1997 (ACT), s 12. Further examples can be found in Appendix 5.2 of NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (Commonwealth of Australia, February 2011) p 162, available on http:// www.ag.gov.au/.

129

130

See, for example, the Federal Court Act 1976 (Cth), Federal Magistrates Act 1999 (Cth), Administrative Appeals Tribunal Act 1975 (Cth), Native Title Act 1993 (Cth), Civil Procedure Act 2005 (NSW), Retail Leases Act 1994 (NSW), Supreme Court of Queensland Act 1991 (Qld), Dispute Resolution Centres Act 1990 (Qld), Supreme Court Act 1935 (SA), Alternative Dispute Resolution Act 2001 (Tas), Legal Profession Act 2007 (Tas), Supreme Court Act 1986 (Vic), and Supreme Court Act 1935 (WA). [12.60] 515

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others conducting mediations. 131 In its 2011 Integrity Report, NADRAC suggested that this issue be reviewed in three to five years and noted that “… there are pragmatic considerations supporting a qualified statutory immunity for court staff who act in ‘good faith’”. 132 NADRAC also recommended that Parliament consider amending s 53C of the Federal Court Act of Australia 1976 (Cth) to remove references in that provision to the mediator having the same protections as a judge. Instead, those mediators “should be granted immunity qualified by the good faith ‘requirement’”. 133 Recommendations made by various regulatory and professional bodies have also resulted in some legislation that addresses the liability of ADR practitioners. 134 However, many ADR practitioners may not be covered by any legislative scheme, particularly where the ADR practitioner does not appear on a court “panel” or where a matter is outside the court or tribunal system (for example, where parties approach their own expert or mediator). This issue was raised in the case of Tapoohi v Lewenberg (No 2) 135 where the mediator was arguably not covered by a statutory scheme (as no specific referral order had been made by a court and arguably no mediation agreement had been entered into that dealt with issues relating to mediator liability, see [12.65] below). Since 2008, the NMAS has required mediators who wish to be accredited to be either insured or operating with statutory or other immunity. This change reflects the fact that, increasingly, mediators are no longer “protected” by statutory immunity and this approach supports consumers of mediation services who would otherwise be unable to take action against a mediator. In terms of arbitration, the extensive amendments to the commercial arbitration laws made in 2010 136 clarify the situation of arbitrators in relation to immunity and provide (as noted in Table 12.1 above) that arbitrators in this scheme are immune from liability for acts done in good faith. 131

132

133

134

135 136

NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (Commonwealth of Australia, February 2011) p 89, Appendix 5.1 – Federal Legislation, available on https://www.ag.gov.au/. NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (Commonwealth of Australia, February 2011) p 89, Appendix 5.1 – Federal Legislation, available on https://www.ag.gov.au/. NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (Commonwealth of Australia, February 2011) p 89, Appendix 5.1 – Federal Legislation, available on https://www.ag.gov.au/. Examples of recommendations that address this issue are as follows: Law Society of New South Wales, The Law Society Guidelines for those Involved in Mediations (exclusion of liability in agreement, covered by Law Cover if incidental to practice as a solicitor); Law Council of Australia, Model Rules for Court-Annexed Mediation (judicial immunity to in-court mediators (ML3); lower standard for private mediators; not liable in negligence but liable in fraud); Family Law Council recommendation (1993) was that external mediators, in funded or approved organisations, should be protected from liability. Tapoohi v Lewenberg (No 2) [2003] VSC 410. The International Arbitration Amendment Act 2010 (Cth) which amends the International Arbitration Act 1974 (Cth) into effect on 6 July 2010 and is available on http://www.austlii.edu.au. Background to the legislation and submissions and amendments are available on http://www.ag.gov.au/ consultations/pages/ReformstotheInternationalArbitrationAct1974.aspx.

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Whether there is an agreement to use a particular dispute resolution process [12.65] Apart from legislative protection, there may also be protection that is afforded to parties, mediators, evaluators and even some arbitrators by written agreement. The extent of immunity or protection offered within agreements to mediate or evaluate will vary according to the individual agreements entered into by the parties to a dispute and the ADR practitioner who is dealing with the dispute. ADR training bodies as well as professional bodies have prepared differing model agreements. Most mediators who operate outside the litigation system use agreements to define the roles and responsibilities of those involved in mediation (see New South Wales Law Society Mediation and Evaluation Information Kit in Appendix B, and the Victorian Bar Agreement). However, it has been noted that agreements to mediate may be “somewhat vague, especially in relation to mediators’ functions” 137 and this may make it difficult for parties to a mediation to use such an agreement. 138 Agreements to arbitrate disputes can also provide some protection. 139 There is some case law relating to the effect of mediation liability clauses in mediation agreements. In Hadid v Lenfest Communications Inc, the following clauses in a mediation agreement were considered: 140 6.1 Except in the case of fraud, the Mediator shall not be liable to the parties or any of them upon any cause of action whatsoever for anything done or omitted to be done by the Mediator pursuant to this Agreement and [New World], the Shareholders and [LCI] jointly and severally hereby release and indemnify and keep indemnified the Mediator against all actions, suits, proceedings, disputes, differences, accounts, claims, demands, costs, expenses and damages of any kind whatsoever (including for, but not limited to, defamation, bias or other misconduct), whether: (a)

under or in any connection with contract;

(b)

in tort for negligence, negligent advice or otherwise;

(c)

otherwise at law (including by statute, to the extent that it is possible to so exclude liability) and in equity generally, including without limitation for unjust enrichment.

However, no final conclusion about the impact of these clauses was reached (the matter was determined on a different basis – see below). There are few cases that have considered the role and status of mediation agreements. In Tapoohi v Lewenberg (No 2), 141 a full agreement detailing liability 137 138

M Dewdney, The Laws of Australia (Thomson Lawbook Co, subscription service) Vol 13 Dispute Resolution, 13.2 “Mediation and Conciliation” at [65]. M Dewdney, The Laws of Australia (Thomson Lawbook Co, subscription service) Vol 13 Dispute Resolution, 13.2 “Mediation and Conciliation” referring to A Lynch, “Can I Sue My Mediator? Finding the Key to Mediator Liability” (1995) 6 Australian Dispute Resolution Journal 113.

139 140

See the commercial arbitration law discussion in Chapter 6 at [6.85]. Hadid v Lenfest Communications Inc [1999] FCA 1798 at [1076].

141

Tapoohi v Lewenberg (No 2) [2003] VSC 410. [12.65] 517

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was not entered into. The court in Tapoohi considered whether there were implied contractual obligations. In particular, the court considered Astley v Austrust Ltd 142 in support of the allegation that it was a term of the retainer that the mediator would “exercise all the due care and skill of a senior expert mediator”. 143 In Astley v Austrust Ltd, Gleeson CJ, McHugh, Gummow and Hayne JJ said: 144 The implied term of reasonable care in a contract of professional services arises by operation of law. It is one of those terms that the law attaches as an incident of contracts of that class … It is part of the consideration that the promisor pays in return for the express or implied agreement of the promisee to pay for the services of the person giving the promise. Unlike the duty of care arising under the law of tort, the promisee in contract always gives consideration for the implied term. And it is a term that the parties can, and often do, bargain away or limit as they choose.

Agreements that are entered into prior to the commencement of a mediation can assist to describe the process, include guidelines, and make provision for confidentiality, liability and enforcement processes. Confidentiality may also be dealt with in a separate agreement (see below). Some agreements require that parties to the mediation act in “good faith” and this may also imply obligations in relation to ADR practitioner conduct as well as in respect of confidentiality, although there is no case law on this issue (this is discussed further in Chapter 11 and below). 145 Mediation agreements differ in different jurisdictions and industry groups have suggested various model agreements. Where a statutory scheme outlines the obligations of the parties and the mediator, mediation agreements will not usually be used by court-based mediators or those conducting mediation pursuant to a court referral. For the same reason, agreements to conciliate are used infrequently.

The type of ADR processes [12.70] Where the third-party practitioner has given advice as to the likely outcome of a dispute (for example, in evaluation processes), additional liability issues may arise. 146 Where “evaluative” mediation models are used, it is more likely that mediators can be held liable. 147 In facilitative processes where there is no advice given, an action in respect of poor quality advice is unlikely to be pursued. Practitioners could also be held liable if they adopt a process that does 142

Astley v Austrust Ltd (1999) 197 CLR 1.

143 144

Tapoohi v Lewenberg (No 2) [2003] VSC 410 at [46]. Astley v Austrust Ltd (1999) 197 CLR 1 at [47].

145

“Good faith” has also been considered in the context of ADR practitioner obligations (relating to FOS): Patersons Securities Ltd v Financial Ombudsman Service Ltd [2015] WASC 321. See C Brabazon, “Dispute Resolvers’ Liability in Negligence” (1997) 15(4) Arbitrator 227.

146 147

This issue was raised but not dealt with in Tapoohi v Lewenberg (No 2) [2003] VSC 410. In that matter, the parties agreed in the preliminary hearing that the mediator was retained on terms whereby the mediator was to “advise” the parties. In one of the submissions made in Tapoohi, it was noted that: “It had never been determined by a court whether a mediator was still acting as a mediator if he or she stopped acting as a pure facilitator and started advising the parties” at [42].

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not comply with the accepted definitions or descriptions of mediation (see Chapter 3) or with guidelines that indicate what process is to be adopted (see below).

The nature of the service provided [12.75] ADR practitioners can attract liability in respect of the nature and extent of the service delivered. While there is little evidence that there are complaints about ADR practitioners 148 or legal action arising out of practitioner incompetence, negligence or other behaviour, there is no doubt that, as with the provision of any service, liability can arise. As noted above, ADR practitioners who give advice are more likely to attract liability and court action. As the former Chief Justice of the Federal Court of Australia, the Hon Justice Patrick Keane observed, “No party to a … dispute would be content to be bound by a dishonest or blatantly incompetent decision”. 149 Although some ADR practitioners may not make decisions but may give advice, liability issues may be raised for a range of reasons. For example, ADR practitioner liability can arise in respect of actions for negligence, contract and breach of fiduciary duty. 150 In terms of fiduciary duties, Clark has suggested that: 151 In at least some mediation proceedings a strong argument could be made that mediators owe some degree of fiduciary obligations to the parties – primarily confidentiality, disclosure of conflicts of interest, and good faith.

Other commentators think that it is unlikely that a mediator could be held liable under such circumstances: 152 … there would need to be a degree of judicial adaptation which was unlikely to be forthcoming to extend fiduciary obligations into the realm of mediation, and that there is the structural difficulty of asserting that a mediator owes simultaneous fiduciary obligations to participants with opposing interests. 153

Some United States cases 154 have accepted that mediators owe fiduciary duties and it is clear that the increasing professionalism of ADR practitioners, such as 148 149 150 151 152

153 154

NADRAC, Primary Dispute Resolution in Family Law: A Report to the Attorney-General on Part 5 of the Family Law Regulations (Report, AGPS, 1997) p 30. The Hon Justice P Keane, “Opening Address”, (Speech presented at the Financial Review International Dispute Resolution Conference, Sydney, 15 October 2010). See A Lynch, “Can I Sue My Mediator? Finding the Key to Mediator Liability” (1995) 6 Australian Dispute Resolution Journal 113. R Ryan Clark, “Writing on the Wall: The Potential Liability of Mediators as Fiduciaries” (2006) Brigham Young University Law Review 1035. M Moffitt, “Suing Mediators” (2003) 83 Boston University Law Review 147, 167, as quoted in DVC McMeekin, Suing Mediators – A Gathering Storm (Paper presented at the Janus Club Meeting, Brisbane, July 2007). DVC McMeekin, Suing Mediators – A Gathering Storm (Paper presented at the Janus Club Meeting, Brisbane, July 2007), at [30]. See, for example, Furia v Helm 4 Cal Rptr 3d 357 at 363–364 (Court of Appeal, 2003). [12.75] 519

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mediators, may raise issues about whether or not fiduciary duties are owed. 155 However, in Australia it seems more likely that action would be taken in accordance with the new Australian Consumer Law that sets out additional possible options for consumers. It seems that both practitioners and practitioner organisations could be held liable under the Australian Consumer Law, which appears as a schedule to the Competition and Consumer Act 2010 (Cth) that commenced in January 2011.This legislation has replaced the Trade Practices Act 1974 (Cth). The Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law will have an impact on ADR practitioners as well as legal practitioners and participants in some ADR processes, and may assist to address misleading, deceptive and unconscionable conduct. The Australian Consumer Law can apply in respect of unconscionable conduct (ss 20, 21 and 22) and in respect of misleading and deceptive conduct (s 18). These provisions mirror the previous Trade Practices Act 1974 (Cth) (and State legislative framework approach). However, the ACL also introduces additional requirements that agreed contracts be fair and also broadens the definitions of trade and commerce and includes “people” not just corporations. 156 The Australian Consumer Law raises issues in ADR in the context of enforceability (see Chapter 11 at [11.45] and [11.50]) as well as issues relating to ADR practitioner liability. In respect of goods and services for example, they must be “fit for purpose” and performed with “due care and skill”. In this regard, it is possible that a mediator could be found liable in a mediation involving businesses if they failed to act with a reasonable level of skill. Broad exclusion and limitation of liability clauses in mediator and ADR practitioner agreements may also require reconsideration. 157 In relation to unfairness, the Australian Consumer Law states that a term in a contract is “unfair” if it: 158 • causes a significant imbalance in the parties’ rights and obligations arising under the contract; and • is not reasonably necessary to protect the legitimate interests of the supplier; and • it causes financial or non-financial detriment to a party. 159 155

156 157

158 159

DVC McMeekin, Suing Mediators – A Gathering Storm (Paper presented at the Janus Club Meeting, Brisbane, July 2007), at [36]. See also L Boulle, Mediation Principles, Process, Practice (3rd ed, Lexis Nexis, 2011) pp 726, 727. The issue of mediator fiduciary duties was not determined in Hadid v Lenfest Communications Inc [1999] FCA 1798 discussed below. S Corones, Australian Consumer Law (2nd ed, Thomson Reuters, 2011) p 114. See commentary: Holding Redlich, The Application of the Australian Consumer Law to B2B Transactions, available on http://www.holdingredlich.com/competition-consumer/the-application-of-theaustralian-consumer-law-to-b2b-transactions. See Australian Consumer Law, s 24. The application of these requirements may vary according to the identity of the “consumer” and the nature of the contract. The Australian Consumer Law has a broad definition as to who is a “consumer” and it includes anyone who acquires:

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A court must have regard to the transparency of the terms and any agreement reached as a result of the ADR process as a whole in determining whether a term is “unfair”. Practitioners may also attract liability through ss 34 and 37 of the Australian Consumer Law if they make misleading representations about their services or possibly if they raise issues relating to the risk of proceeding in litigation. As noted above, there are also implied guarantees under the Australian Consumer Law relating to the supply of services (for example, s 60 provides that the services must be provided with due care and skill). 160 The liability of mediators has received very limited attention by Australian courts. Clearly, one of the critical issues is whether mediators are operating within a legislative scheme and what the protections might be within that scheme. However, outside the scheme areas the issue can be partly determined by what type of agreement a mediator had with the participants to a mediation and whether this has resulted in a limited form of immunity. In some cases, the “mediator” is not acting pursuant to any agreement or legislative scheme (see discussion relating to agreements in ADR at [11.35]) and the process utilised may not comply with a definition of “mediation”. The term “mediator” appears to be used somewhat loosely by some experts and negotiators who may be more correctly referred to as “advisers” or “facilitators”. For example, in Hadid v Lenfest Communications Inc, 161 the “mediator” may have been acting as either an underwriter or adviser. He had acted on behalf of, and had links to, one party and gave advice to the parties in respect of a range of matters. The mediator was sued under the existing legislation (the Trade Practices Act 1974 (Cth), now superseded by the Australian Consumer Law) in respect of his misleading and deceptive conduct (along with a number of other respondents who had separate allegations made against them). Lehane J noted that: There can be no doubt that, as a mediator, Dr Burt could not be regarded as impartial. He had a retainer from LCI [Lenfest Communications Inc]. He had a personal interest … There may, of course, be a separate question (though it is not one which is the basis of any claim in this case) whether one who undertakes a role as mediator in circumstances such as those which existed in this case owes fiduciary duties to the parties to the mediation. But, once again, the content of any such duty • goods or services that are priced at less than $40,000, • goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption, or • a vehicle or trailer for use principally in the transport of goods on public roads.

160

161

Interestingly suggested amendments in late 2015 to the Australian Consumer Law suggest that “unfair” requirements in relation to standard form low-value contracts be extended in some circumstances to small business. A standard form contract is typically one which is not negotiated and presented on a “take it or leave it” basis – see http://www.aph.gov.au/Parliamentary_Business/ Committees/Senate/Economics/Small_Business_Bill_2015. For a useful summary, see Commonwealth of Australia, The Australian Consumer Law: A Guide to Provisions (2010), available on http://www.consumerlaw.gov.au/content/the_acl/downloads/A_ guide_to_provisions_Nov_2010.pdf. Hadid v Lenfest Communications Inc [1999] FCA 1798. [12.75] 521

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must depend upon the terms on which the mediation is entered into and relevant to any question of breach of duty must be the extent of the disclosure, by the mediator, of any personal interest in the outcome. 162

There is a lack of consistency in defining the requisite standard of care and guidelines that bind mediators in different jurisdictions. At times, courts make orders that appear inconsistent with mediation definitions and guidelines (see Chapter 3). For example, in BT Australasia Pty Ltd v New South Wales and Telstra Corp Ltd, 163 the court ordered that: The mediator report back to the Court no later than 27 February 1998 (or such other time as may be agreed in writing between the parties) including such (if any) recommendations [emphasis added], not binding on the Court or any party, which the mediator regards as appropriate for the resolution of such (if any) disputes as may not have been resolved by the mediation. 164

The variations in terms of statutory schemes in respect of State and Territory arrangements were summarised by NADRAC as follows in Table 12.2. Table 12.2 – Examples of State and Territory legislation conferring immunity on ADR practitioners Jurisdiction ACT

Legislative provision Mediation Act 1997, s 12

NSW

Civil Procedure Act 2005, s 33

Summary of provision Registered mediators have the same protection and immunity as a judge of the Supreme Court in the exercise in good faith of his or her functions as mediator. A “registered mediator” is a person who is registered with an “approved agency” (s 5). “Approved agencies” may be declared by the Minister in writing (s 4). Mediators enjoy the same protection and immunity as a Judge when mediating proceedings referred to them by the court, and in the exercise of his or her functions as a mediator in relation to those proceedings.

162 163

Hadid v Lenfest Communications Inc [1999] FCA 1798, [851]. BT Australasia Pty Ltd v New South Wales and Telstra Corp Ltd [1997] FCA 1553.

164

BT Australasia Pty Ltd v New South Wales and Telstra Corp Ltd [1997] FCA 1553 per Sackville J.

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Jurisdiction

NT

Qld

SA

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Legislative provision Retail Leases Act 1994, subs 66(3)

Summary of provision A mediator has, in the exercise of functions performed as a mediator under this Act, the same protection and immunities as a Judge of the Supreme Court. Parties to a tenancy dispute are required under the Act to apply to the Retail Tenancy Unit of NSW Fair Trading for mediation before proceedings can commence in the Administrative Decisions Tribunal (ss 65 and 68). Community Justice Centres Nothing done or omitted to be done by a Act 1983, s 27 mediator shall (if the matter or thing was done in good faith for the purpose of executing the Act) subject any of them to any action, liability, claim or demand. Farm Debt Mediation Act Nothing done or omitted to be done by a 1994, s 18 mediator shall (if the matter or thing was done in good faith for the purpose of executing the Act) subject any of them to any action, liability, claim or demand. Supreme Court Amendment A person conducting or participating in (Mediation) Act 2010, mediation for a civil proceeding has the subs 83A(9) same immunity for an honest act, or an honest and temperate statement or act, done or made during the mediation, as is conferred by the Courts and Administrative Tribunals (Immunities) Act 2008 on a person conducting or participating in a proceeding. Civil Proceedings Act 2011, In performing the functions of mediator s 52 or case appraiser, an ADR convenor has the same protection and immunity as a judge performing the functions of a judge. Dispute Resolution Centres No matter or thing done or omitted to be Act 1990, paras 35(1)(a) and done by a mediator or director or (b) member of staff of a dispute resolution centre, if the matter or thing is done in good faith for the purpose of executing this Act, subjects any of them to any action, liability, claim or demand. Supreme Court Act 1935, A mediator appointed by the court under subs 65(2) the Act has the privileges and immunities of a judge and such of the powers of the court as the court may delegate.

[12.75] 523

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Jurisdiction Tas

Legislative provision Alternative Dispute Resolution Act 2001, s 12

Legal Profession Act 2007, s 439

Vic

Supreme Court Act 1986, s 27A

Civil Procedure Act 2010, s 68

WA

Supreme Court Act 1935, s 70

Summary of provision No matter or thing done or omitted to be done by a mediator or evaluator subjects the mediator or evaluator to any action, liability, claim or demand if the matter or thing was done in good faith for the purposes of a mediation session or neutral evaluation session under this Act. (1) A mediator has, in the performance of his or her duties under this Part, the same protection and immunity as a judge of the Supreme Court has in the performance of his or her duties as a judge. (2) No matter or thing done or omitted to be done by a mediator subjects the mediator to any action, liability, claim or demand if the matter or thing was done in good faith for the purposes of mediation under this Part. Special referees, mediators and arbitrators enjoy the same protection and immunity as a Judge when mediating proceedings referred to them by the court, and in the exercise of his or her functions as a mediator in relation to those proceedings. This applies despite anything to the contrary in the Commercial Arbitration Act 1984. A judicial officer performing duties in connection with any judicial resolution conference has the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge. A mediator carrying out mediation under direction has the same privileges and immunities as a judge of the Court has in the performance of judicial duties as a judge.

[Source: NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (Commonwealth of Australia, 2011) Appendix 5.2 – State and Territory Legislation, available on http:// www.ag.gov.au/. This table has been amended by the author in relation to the Northern Territory legislation.]

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CONCLUSIONS [12.80] ADR processes are used outside the court and tribunal system at all levels of Australian society. Often people are surprised that so few civil disputes are the subject of litigation and are resolved prior to any referral to the formal trial-based dispute resolution system (see [1.60] where it is noted that as early as 1989 it was estimated that only 5.7 per cent of all commercial disputes ended up within the court system). 165 However, the court and tribunal system plays an important role in respect of the broader and larger dispute resolution system (see Chapter 8). It is said to cast a “shadow” over the dispute resolution system as many disputes are resolved or not pursued on the basis of the potential outcomes and likely cost of litigation. The court and tribunal system also plays a significant preventative and precedent-setting role. In addition, it is increasingly involved in determining how ADR processes are to operate. In this respect, courts and tribunals play a substantial role in defining and clarifying the guidelines, processes and structures used in ADR. Because so much ADR occurs outside the court system, it is important to consider how the dispute resolution system can produce consistent guidelines and appropriate processes for consumers. It seems anomalous, for example, that participants in court-referred mediation might be unable to sue a mediator while those in a private mediation that takes place in the absence of a court referral may be able to do so. Likewise, as noted earlier in this chapter, it seems inappropriate that evidence of what transpired in a privately-run mediation might be adduced in a court in relation to an argument on costs but not if the mediation was court-ordered. NADRAC voiced concerns about the issues that arise in relation to the overlapping and, at times, confusing requirements that exist in respect of confidentiality. In its 2011 Report Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People, NADRAC recommended that: 166 NADRAC therefore considers that a uniform legislative provision should be introduced to confirm the existence and prescribe the scope of confidentiality within mandatory ADR processes. This would provide a clear direction to participants in these ADR processes about what is expected of them and of others involved in the processes.

165 166

M Fulton, Commercial Alternative Dispute Resolution (Lawbook Co, Sydney, 1989) p 6. NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (Commonwealth of Australia, February 2011) p 53, available at http://www.ag.gov.au/. [12.80] 525

Chapter 13 Dispute system design [13.05] [13.10]

Introduction................................................................................................................... 527 Systemic design issues ................................................................................................ 531 [13.15] Dispute management system design ............................................ 532

[13.20]

Macro system design – our courts and our ADR system .................................... 534 [13.30] Integrated approaches ..................................................................... 537

[13.35]

Multi-door systems ...................................................................................................... 538 [13.40] How do multi-door systems work? .............................................. 540 [13.45] Who refers? ....................................................................................... 542 [13.50] Referral screening ............................................................................ 543 [13.55] Should an ADR processes be used? ............................................. 545 [13.60] What type of ADR process? ........................................................... 547 [13.80] Ripeness for referral ........................................................................ 549 [13.85] Multi-option processes ................................................................................................ 552 [13.90] Other changes: multi-option or mandatory attendance? .......... 554 [13.95] Streamlining ADR referral systems .............................................. 556 [13.100] System design within organisations ....................................................................... 557 [13.105] Essential principles .......................................................................... 558 [13.110] Diagnostic processes ........................................................................ 559 [13.115] A risk assessment matrix in the health care setting – Severity Assessment Code .............................................................. 560 [13.120] A framework for system design .................................................... 561 [13.125] Essential system design components in organisations ............. 562 [13.130] Approaches in the United States ................................................... 564 [13.135] Conclusions ................................................................................................................. 567

INTRODUCTION [13.05] Even where conflict resolution processes are tailored to meet the needs of individuals and groups in conflict and well integrated into existing formal and informal systems, they may still not function effectively or be sustainable. Factors that will inevitably impact on dispute system operation include those identified by Burton 1 and Tillett 2 (among others), such as the broader influence of tradition, the political context, the role of institutions, power and ideology. A dominating rights-based discourse may mean, for example, that processes that foster more interest-based and reflective approaches are viewed as dissonant or “out of step”. 3 Elix has noted that organisational and political structures can 1

J Burton, Conflict Resolution and Prevention (St Martin’s Press, New York, 1990).

2 3

G Tillett, Resolving Conflict (Sydney University Press, Sydney, 1991). See generally MA Glendon, Rights Talk; The Impoverishment of Political Discourse (Free Press, New York, 1991). [13.05] 527

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have a profound impact on conflict resolution systems. In this regard, she has noted the following in relation to systems designed for intractable conflict: 4 Profound political change would be necessary to bring about a changed political system reliant more on consensus building than on adversarialism, and radical change is unlikely. 5 Indeed, the adversarial nature of political debate would even appear to be increasing, with oppositional politics being actively promulgated as a way of differentiating between increasingly similar major parties, and scaremongering about the alternatives.

In addition, if basic human needs cannot be met, arguably the dispute resolution system cannot operate (although a conflict management approach may function). Social needs and economic needs theories suggest that dispute resolution processes that cannot address underlying needs will fail to address the root causes of conflict. 6 Such needs may be met, in part, as a result of the cultural climate that exists. For example, a collectivist (rather than an individualistic) culture may be more focused on meeting general human needs. However, if a disputant has their needs met in relation to status and social identification but is unable to work, obtain food and shelter, then it cannot be said that the dispute resolution system can meet their needs. In a collectivist culture, it is arguable that it may be more likely that such needs are met (or there is at least some attempt to meet such needs). Clearly, economic factors in less self-sustainable communities will impact on the ability of any system to meet the underlying needs of the individuals within that community. There is little point in building individual and systemic conflict competency and capacity if the society is unable to meet the basic needs of individuals. The role of human needs in happiness and when in conflict have been considered by many theorists. 7 Much of this work has developed from the seminal work of Maslow 8 where the motivating factors in human behaviour were considered. Maslow suggested that a hierarchy of needs was present in all human beings and that the satisfaction or denial of these needs was responsible for motivating behaviour. Since Maslow’s work has been developed there has been some question about the order and status of various needs and an adapted pyramid of needs is shown below: 9

4

J Elix, More than resolution: System design for the management of intractable natural resource conflict in Australia (PhD thesis, 2005, La Trobe University).

5

Referring to S Dovers, “Institutions for Sustainability” (2001) 7 Tela: Environment, Economy and Society 3, available on https://digitalcollections.anu.edu.au/bitstream/1885/40972/3/een0101.pdf. See L Kriesberg, Constructive Conflicts: From Escalation to Resolution (2nd ed, Rowman and Littlefield, New York, 2003).

6 7

L Tay and E Diener, “Needs and Subjective Well Being Around the World” (2011) 101(2) Journal of Personality and Social Psychology 354.

8

AH Maslow, “A Theory of Human Motivation” (1943) 50(4) Psychological Review 370.

9

Summary of research presented L Tay and E Diener, “Needs and Subjective Well Being Around the World” (2011) 101(2) Journal of Personality and Social Psychology 354.

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These approaches suggest that in any conflict exploring the underlying needs and the extent to which they are “unmet” is critical in determining the sources of conflict. In addition, it could be suggested that transformative approaches to conflict resolution that focus on empowerment, recognition and building individual and group capacity are more likely to reduce the harmful effects of conflict which, in turn, can impact on whether needs can be met. Such processes may assist to address “bimodal alienation (isolation between the disputing groups and engulfment, or fusion, within each group)” 10 that are a cause of protracted conflict, and may not be identified by those engaged in the conflict. Scheff suggests that: 11 It is much easier to imagine union with the unknown members of one’s sect … than to do the demanding work of making relationships in one’s real interpersonal network more liveable.

However, effective conflict analysis and diagnosis that considers the characteristics of ADR processes is also essential. This approach (which is a core element in systemic design approaches to conflict) recognises that mediation and other ADR processes, while successful in a number of areas, may be less than effective “in resolving intractable conflicts involving deep-rooted value differences, very high-stakes distributional problems, or ‘pecking-order’ conflicts”. 12 Burgess and Burgess suggest that if mediation is used as the only 10

11

12

S Retzinger and T Scheff, “Emotion, Alienation and Narratives: Resolving Intractable Conflict” (2000) Mediation Quarterly 71, 76, citing also the work of T Scheff, Bloody Revenge: Emotions, Nationalism, and War (Westview Press, Boulder, 1994). S Retzinger and T Scheff, “Emotion, Alienation and Narratives: Resolving Intractable Conflict” (2000) Mediation Quarterly 71 at 76, citing also the work of T Scheff, Bloody Revenge: Emotions, Nationalism, and War (Westview Press, Boulder, 1994). G Burgess and H Burgess Constructive Confrontation Theoretical Framework (1996) p 1, available on [13.05] 529

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approach in such conflicts, it is unlikely to result in a resolution and may even lead to the process itself being devalued (if the focus is on resolution). In such conflicts, the Burgess concept of “constructive confrontation” is based on moving away from “the unrealistic goal of resolution” 13 toward the goal of handling these types of conflicts more constructively. One important stage in systemic design is therefore diagnostic, and involves the “identification and treatment” of the core conflict problems. Burgess and Burgess suggest that core issues in intractable conflicts generally contain “an irreducible win–lose element”, frequently related to deeply entrenched moral differences, or a “domination contest where only one party can be on top”. 14 These core conflict problems usually involve very high stakes: “one’s identity; one’s security; one’s way of life; one’s life chances or the life chances of one’s children”. 15 One important aspect of the Burgess analytical approach is their examination of the conflict management time frame. They contend that “traditional problem-solving mediation is linear. It goes through a predetermined series of steps, in a prescribed order”. 16 Burgess and Burgess see the constructive systemic approach as a cyclical process. A systemic approach to conflict management may, therefore, involve a recognition that resolution may not be the only systemic objective – rather that management and supporting constructive confrontation may be required, particularly where the conflict could be diagnosed as intractable. Such approaches may involve the use of mediation skills and the engagement of a third-party intervenor; however, the orientation, objectives and processes may be determined by the diagnostic proceedure that has been undertaken. In terms of systemic diagnosis, the work of Galtung 17 and his articulation of the conflict triangle is useful. Galtung’s work suggests that a systemic approach involves first diagnosing the conflict situation, considering the sources of the conflict and then responding to these wider approaches to conflict, which have emerged from exploring the incompatible values among the various different parties. The second stage could involve exploring the conflict attitudes of the participants that represent a subjective approach to conflict, consisting of the psychological and cognitive processes that relate to the conflict or support it. The third stage may involve examining the conflict behaviour, consisting of actual observed activities undertaken by one party and designed to injure or thwart http://www.colorado.edu/conflict/hwltap7.htm. 13 14 15 16 17

G Burgess and H Burgess Constructive Confrontation Theoretical Framework (1996) p 2, available on http://www.colorado.edu/conflict/hwltap7.htm. G Burgess and H Burgess Constructive Confrontation Theoretical Framework (1996) p 7, available on http://www.colorado.edu/conflict/hwltap7.htm. G Burgess and H Burgess Constructive Confrontation Theoretical Framework (1996) p 7, available on http://www.colorado.edu/conflict/hwltap7.htm. G Burgess and H Burgess Constructive Confrontation Theoretical Framework (1996) p 11, available on http://www.colorado.edu/conflict/hwltap7.htm. See J Galtung, Peace Thinking. In The Search for World Order (Appleton-Century-Crofts, New York, 1971).

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another individual or group. 18 These systemic issues are explored in more detail in the context of intra-organisational approaches at [13.100]. This diagnostic approach is directed at not only determining process suitability but may also be relevant in longer-term strategic planning in relation to intractable conflict. Other macro issues raised in respect of systemic design relate to uncertainty about definitions of dispute resolution processes (see Chapter 1) and the standards that regulate ADR practitioners, practice and organisations. In this regard, most growth in ADR has seen a development of practice standards for ADR practitioners. Much of the development has focused on the creation of codes, rules, guidelines and standards for mediators (rather than other ADR practitioners). Standards and associated accreditation issues are explored further in Chapter 14 and are an essential component in the design of dispute systems.

SYSTEMIC DESIGN ISSUES [13.10] Systemic design processes can be used to articulate dispute design objectives, for example, whether a system is oriented towards resolution, conflict prevention and management (or has all of these objectives). Dispute system design often involves the analysis of an entire existing dispute resolution and management system (formal and informal) so that new and existing procedures can be improved, adapted and implemented. Interest in the design of high-quality conflict and dispute management systems often arises in the context of peace-building and capacity-building, and may also arise as part of a risk management approach within organisations. The systemic design process will often take place with the assistance of experts, and ADR practitioners are increasingly involved in this work. 19 Clearly, within organisations, inter- and intra-organisational conflict can give rise to losses in management time, litigation costs, worker dissatisfaction, loss of profit and opportunity, as well as low morale. Where unconstructive conflict and disputes occur, opportunities, staff, profit and credibility can suffer or be lost. Dispute system design principles can also be applied across our broader dispute resolution system (rather than relating to specific sectors) and may inform the future development of our ADR system. However, dispute system design is often applied to selected sectors or parts of organisations and is promoted mainly if the cost of conflict is assessed and considered to be problematic. For example, governments and organisations are becoming increasingly aware of the impact of poorly managed conflict (internal and external) on their operations. As a result, systems and processes may also be 18

J Bercovitch, Social Conflicts and Third Parties: Strategies of Conflict Resolution (Westview Press, Boulder, Colorado, 1984) p 6.

19

See, for example, E Brahm and J Ouellet, “Designing New Dispute Resolution Systems” in G Burgess and H Burgess (eds), Beyond Intractability (Conflict Research Consortium, University of Colorado, Boulder, posted September 2003), available on http://www.beyondintractability.org/essay/ designing_dispute_systems. [13.10] 531

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designed to manage strategic change, stakeholder consultation and organisational development. Such systems may be “short-term”, designed to assist in a particular change, or may be longer-term and specifically developed to address external stakeholder issues. 20 Other systems are designed for complaints management and handling and may include more developed second-tier dispute handling as well as risk management approaches (complaints handling processes are discussed in more detail in Chapter 5). There have been a number of significant initiatives to support more coherent approaches to system design at the Federal Government level in Australia. The National Alternative Dispute Resolution Advisory Council (NADRAC) Report The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (the “Resolve to Resolve” Report) and the creation of a Dispute Management Plan framework are both oriented towards considering dispute resolution in a more systemic way 21 (each of these initiatives is discussed further below).

Dispute management system design

Description: Dispute management system [13.15] Dispute management system is a term used to describe a system that promotes a variety of alternative resolution and avoidance processes and procedures to ensure that conflicts and disputes are managed in appropriate and beneficial ways in organisations. The dispute management system design approach is a departure from the approach where a dispute or conflict is treated as an isolated incident, or where isolated and unrelated procedures designed to deal with only one type of conflict, source of tension or dispute are used. For example, in many workplaces one dispute process and set of procedures is used for a dispute or conflict between co-workers, another dispute process is used in connection with hierarchical conflict, another for industrial relations issues, another for a workplace injury and so on. There is often little cohesiveness between the processes and procedures, and it can be difficult for those within and outside organisations to understand the dispute system or culture of an organisation. 20

21

For example, in 2005 in the health care setting, comprehensive guidelines and a handbook were developed to manage health care complaints and disputes: see Australian Council for Safety and Quality in Health Care, Open Disclosure: Health Care Professionals Handbook (2005), available on http://www.safetyandquality.gov.au/former-publications/open-disclosure-health-care-professionalshandbook/. The author of this book developed much of the handbook material. See NADRAC, The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (Report, Commonwealth Attorney-General, September 2009), available on https:// www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Documents/NADRAC%20Publications/theresolve-to-resolve-embracing-adr-improve-access-to-justice-september2009.pdf.

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Further, there is often little coherence in the dispute avoidance approach adopted by organisations. Little is done in a holistic fashion to support workplace satisfaction by reducing or avoiding high levels of unproductive conflict. While many organisations promote “team building” with the use of external and internal group activities and spend large amounts of capital in providing benefits, hiring and acquiring staff, there is often little consideration of the important role that workplace conflict can have on productivity, creativity and staff retention. The system design approach considers the prevention, management and resolution of disputes and conflicts (removing the sources of problems insofar as it can), and is also oriented toward improving internal as well as external relations with customers, suppliers, partners, contractors and others. One of the leaders in designing and implementing dispute resolution systems in Australia was Professor Jennifer David. 22 David was consistent in her approach, which is that it is essential that those who are affected by a dispute system: • be involved in its design; and • have their concerns accommodated within the design and implementation stages of the dispute system. This approach suggests that system design involves a coordinated approach to ensure that consultation takes place at appropriate intervals. Costantino and Lewis recently suggested that dispute system design could benefit from 22

The late Professor David was at the University of Technology Sydney and then Adjunct Professor at Australian National University, Canberra. [13.15] 533

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well-recognised project management approaches. 23 They highlighted five main “lessons” from the project management sphere that could be applied to dispute system design: 24 Role delineation: project management offers clear definitions of various roles, such as project sponsor and project manager. This assists in the design process through setting role expectations and reducing the blending of roles. Scope management: project management adopts an explicit, understood and approved project scope. This reduces the risk of “scope creep”. Risk management: project management identifies and manages risk in the design process by using methodologies such as risk registers and risk management matrixes. Quality management: project management uses qualitative and quantitative metrics to identify and measure goals. Effective dispute system design also requires micro (or organisational) changes to be linked to the macro (or broader dispute resolution) framework. This linking assists the establishment of the cultural context and provides system parameters. This chapter considers dispute system design from the perspectives of both micro and macro frameworks.

MACRO SYSTEM DESIGN – OUR COURTS AND OUR ADR SYSTEM [13.20] The notion that our litigation system and related broader ADR system can be designed to promote choices and options in dispute and conflict resolution has been the subject of discussion for more than 40 years. In the United States, this suggestion has often been framed in language that has referred to “multi-door systems”. For example, in May 1997 Judge Earl Johnson of the California Court of Appeal stated: 25 At present, it is almost accidental if community members find their way to an appropriate forum other than the regular courts. Since these forums are operated by a hodgepodge of local government agencies, neighbourhood organisations and trade associations, citizens must be very knowledgeable about community resources to locate the right forum for their particular dispute.

This concern has been echoed in many other forums and a variety of options has been raised to address these issues. One response is to refer disputes to ADR processes after court or tribunal proceedings have been filed. Another response is to refer disputes to ADR prior to the commencement of any litigation. Each of 23 24 25

See C Costantino and MR Lewis, “What Dispute Systems Design Can Learn from Project Management” (2015) 31 Negotiation Journal 175. C Costantino and MR Lewis, “What Dispute Systems Design Can Learn from Project Management” (2015) 31 Negotiation Journal 175, 203–204. A Thrush, “Public Health and Safety Hazards versus Confidentiality: Expanding the Mediation Door of the Multi-door Courthouse” (1994) Journal of Dispute Resolution 235, 237, referring to Judge Earl Johnson of the California Court of Appeals, who addressed the problem of accessibility at the National Conference on Minor Dispute Resolution in New York in May 1977.

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these responses is a systemic response – one views the court system as the gateway to the system and the other focuses on community or local referral. Within Australia, both of these systemic approaches operate and can be described as “multi-door” or “multi-option” approaches respectively (see also discussion in Chapters 1 and 8).

Multi-door – within courts and tribunals [13.25] The multi-door court option focuses on “in court” referral and has attracted a great deal of interest in the United States since it arose after discussions in the 1970s and 1980s. Professor Frank Sander 26 suggested that cases could be referred to appropriate forums (or “doors”) for resolution or determination after entry into the court system: 27 One might envision by the year 2000 not simply a courthouse but a dispute resolution centre, where the grievant would first be channelled through a screening clerk who would then direct him/her to the process, or sequence of processes, most appropriate to his/her type of case.

In the multi-door system, litigation and ADR primarily operate in the same sphere, with the court as the epicentre of referral. This can cause tension. 28 For example, where lawyers represent clients in mediation and mediation is primarily offered within a litigation context, they may be inclined to maintain the adversarial nature of their litigator role. 29 As discussed in Chapter 8, many courts within Australia have a multi-door focus. For example, the Supreme Courts of Victoria and Western Australia refer disputes to internal mediators (associate judges or registrars respectively) and also refer disputes to external mediators under certain circumstances. 30 However, judicial involvement in ADR processes has been controversial, particularly in regards to judicial mediation. 31 This is largely due to the concern

26

27 28 29 30 31

F Sander, Bussey Professor of Law at Harvard University, “Address” (Speech presented at the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, 7–9 April 1976), reprinted in the Pound Conference 70 FRD 79, 111 (1976). R Reuben, “The Lawyer Turns Peacemaker” (1996) American Bar Association Journal 1. P Baron, L Corbin and J Gutman, “Throwing Babies Out with the Bathwater? – Adversarialism, ADR and the Way Forward” (2014) 40(2) Monash Law Review 283, 302. P Baron, L Corbin and J Gutman, “Throwing Babies Out with the Bathwater? – Adversarialism, ADR and the Way Forward” (2014) 40(2) Monash Law Review 283, 302. T Sourdin, “Five Reasons Why Judges Should Conduct Settlement Conferences” (2011) 37(1) Monash Law Review 145, 146. See T Sourdin, “Why Judges Should Not Meet Privately with Parties in Mediation but Should Be Involved in Settlement Conference Work” (2014) 4(2) Journal of Arbitration and Mediation 91; see also [13.25] 535

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that the impartiality of the judge will be or will appear to be compromised. The role of judges in ADR has been the subject of some controversy in Australia (see discussion in Chapter 8 at [8.105]). Another systemic approach focuses on supporting ADR processes outside of the courts (in industry, government and the community) and can be described as a “multi-option” response. In comparison, the multi-door court response locates ADR services within the court system with referral operating once litigation has commenced.

Multi-option – referral to ADR takes place mostly outside courts and tribunals The multi-option systemic approach supports external ADR agencies and processes so that options are available outside the courts and awareness levels about process availability are raised. Sometimes schemes are established to support this (for example, in the small business area or in terms of external dispute resolution schemes – see Chapter 9). Brochures, websites and government bodies such as NADRAC assist with this. Funding agencies that are located outside courts and tribunals are another form of support. This approach to supporting ADR can be referred to as a “multi-option approach”. Effectively, government, industry and other groups support the development of a range of ADR options. Many mandatory prelitigation approaches adopt this pathway which supports dispute resolution outside of the court and tribunal system. The support provided in multi-option models can be direct or indirect. Some policy-makers and others have recommended that ADR processes should be encouraged before proceedings are commenced. The pre-litigation approaches that are discussed in Chapter 11 reflect this approach. This approach encourages ADR use in a more general sense within a particular community setting or where certain disputes have occurred. The recent sweeping reforms in the family law area support and require referral to dispute resolution that occurs mostly outside the court system.

the Hon Justice P A Bergin, The Objectives, Scope and Focus of Mediation Legislation in Australia (Paper presented at the Mediation First Conference, Hong Kong, 11 May 2012) pp 23-24, available on http://www.austlii.edu.au/au/journals/NSWJSchol/2012/24.pdf. 536 [13.25]

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Integrated approaches [13.30] Arguably, a third approach can be used to most effectively support ADR outside courts and within courts: an integration of multi-door and multi-option models. 32 NADRAC commented on the Federal Civil Justice System Strategy Paper and noted that: 33 [D]ifferent forms of both judicial decision-making and ADR operate at multiple levels, and each has the potential to offer a “better” form of justice for particular disputes. For example, judicial officers themselves are increasingly applying alternative dispute resolution processes at an early stage in proceedings. Conversely, forms of ADR, such as appellate mediation and international commercial dispute resolution, operate at a relatively “high” level, and some forms, such as multi-party facilitation, may well be protracted. Such forms of ADR, however, may offer solutions that are not readily achievable through judicial determination. Describing the strategy as “resolving disputes through the most appropriate process” reflects more recent thinking about designing dispute systems, namely that an array of dispute resolution options should exist, and that the system should enable the most appropriate option or options to be used at the right stage in each situation taking into account matters such as cost, timeliness, accessibility, fairness and effective and durable resolution.

In the “Resolve to Resolve” Report, 34 NADRAC indicated that several key principles governed its approach to the ADR system that it placed within the justice system. The approach adopted is clearly a multi-option one in that access to ADR is encouraged at all stages in the life cycle of disputes within the justice system (from a pre-filing stage to the end stage of litigation). The key principles devised by NADRAC included: 35 • except where ADR processes are inappropriate, judicial determination of disputes should be regarded as a last resort; • people involved in civil disputes should be encouraged to first attempt to resolve their own disputes using facilitated “interest-based” dispute resolution processes; • litigants and their lawyers should be encouraged to use ADR processes to resolve, limit or manage their disputes, at all stages of the litigation process; and 32

33 34

35

See T Sourdin and N Burstyner, “Australia’s Civil Justice System: Developing a Multi-option Response” in C Flango, D Smith, N Sydow, C Campbell and NB Kauder (eds), Trends in State Courts 2013: 25th Anniversary Edition (National Center for State Courts, 2013) pp 78-84. See Justice M Kellam, comments to the Attorney-General (Cth), the Hon Philip Ruddock, on the Federal Civil Justice System Strategy Paper (December 2003), available on http://www.ag.gov.au/. NADRAC, The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (Report, Commonwealth Attorney-General, 2009), available on https://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Documents/NADRAC%20Publications/the-resolve-toresolve-embracing-adr-improve-access-to-justice-september2009.pdf. NADRAC, The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (Report, Commonwealth Attorney-General, 2009) p 1, available on https:// www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Documents/NADRAC%20Publications/theresolve-to-resolve-embracing-adr-improve-access-to-justice-september2009.pdf. [13.30] 537

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• barriers or disincentives in the civil justice system to the voluntary use of ADR should be removed.

MULTI-DOOR SYSTEMS [13.35] Clearly, there are savings of time and money if disputes are referred to the most appropriate method of resolution from the commencement of any litigation. 36 Disputants are less likely to become frustrated and dissatisfied with the litigation process if a matter is resolved quickly 37 and if a court or tribunal (or some other body) provides information and appropriate referral advice about available ADR processes and if these processes assist them to manage or resolve their disputes. 38 The development of multi-door systems was initially linked to broad concerns about accessibility to programs offering dispute resolution services 39 rather than cost and time concerns. The aims of the multi-door courthouse would be to inform the parties of the available alternatives and to assist them in choosing the appropriate mechanism for their particular dispute. The “multi-door” approach is also closely linked to the “multi-door courthouse” and assumes that the referral of disputes would take place with the court at the epicentre of the referral system. This assumption is somewhat unusual given that the bulk of disputes are currently dealt with away from the court and tribunal system (and arguably always have been). The multi-door courthouse also assumes that one court could coordinate referral to different processes; that is, that the courthouse would make all dispute resolution services available under one roof and also that a dispute would only arise in one court or jurisdiction. In fact, legal problems that are experienced by one individual or organisation can arise in multiple legal jurisdictions and may not always be readily contained within one court or tribunal. The multi-door courthouse proposal also assumes that courts will continue to act in particular ways with a continued focus on adjudication. However, some commentators have queried the accuracy of this assumption. For example, the author has commented that: 40 It is clear that the “multi-door” approach that emerged in the 1970’s was inextricably linked to the concept of the “multi-door courthouse” and the approach 36 37

38 39 40

There is much evidence to suggest that the savings can be greater if the referral takes place prior to the commencement of any litigation (see discussion in Chapter 11 at [11.10]). See T Sourdin and N Burstyner, “Justice Delayed is Justice Denied” (2014) 4 Victoria University Law and Justice Journal 1, 46, T Sourdin, “Using Alternative Dispute Resolution to Save Time” (2014) 33 The Arbitrator & Mediator 1, 61-72 and Australian Centre for Justice Innovation (ACJI), The Timeliness Project, Background Report (October 2013) available on http://www.civiljustice.info/access/31/. See discussion in Australian Law Reform Commission (ALRC), Review of the Adversarial System of Litigation: ADR – Its Role in Federal Dispute Resolution (Issues Paper No 25, ALRC, 1998). L Ray and A Clarke, “The Multi-door Courthouse Idea: Building the Courthouse of the Future … Today” (1985) 1(17) Ohio State Journal on Dispute Resolution 7, 9. T Sourdin, “The Role of the Courts in the New Justice System” (2015) Yearbook on Arbitration and Mediation University of Pennsylvania Law Review (forthcoming).

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was based on the assumption that the referral of disputes would take place with the court at the epicentre of the referral system. This approach, with the Court as the epicentre of dispute resolution, is no longer appropriate in many jurisdictions particularly where the vast bulk of disputes are referred, resolved and settled away from the court system and often before litigation has commenced.

Some commentators have noted that the court’s dominant purpose must continue to involve operation as a courthouse and that there are considerable benefits in placing ADR processes under the courthouse framework. 41 Those benefits include elevating ADR processes to a socially and judicially “acceptable” level, and ensuring that “market imperfections” do not adversely impact on ADR processes. 42 Certainly, ADR within a multi-door courthouse has the potential to be more regulated. It has been argued that quality control mechanisms can be introduced more readily within a court than where ADR operates outside of any structure or framework. 43 However, there are many issues about situating ADR processes within a court system. For example, locating ADR primarily within courts and not supporting ADR in the pre-litigation area means that people may be less likely to use ADR before commencing litigation. It may also reduce the number and scope of pre-litigation ADR options available (having different levels of immunity for ADR practitioners may make ADR more attractive for practitioners - higher levels of immunity within court referral frameworks and lower levels outside courts could therefore provide disincentives to pre-litigation ADR – see Chapter 12). Other critical issues relate to concerns about the institutionalisation of ADR processes and the potential loss of flexibility. In addition, there are more pragmatic issues relating to funding. For example, in an ideal multi-door courthouse would traditional adjudication continue to absorb most of the available funding? This approach assumes that the different processes would “compete” for funding; an assumption that may not be correct, particularly given the large amount of privately-funded ADR that currently takes place. 44

41 42 43 44

J Stempel, “Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood?” (1996) 11 Ohio State Journal on Dispute Resolution 297. J Stempel, “Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood?” (1996) 11 Ohio State Journal on Dispute Resolution 297, 395. This view is questionable given the onerous quality control mechanisms that exist in systems (such as the family system) that operate outside the court system. Stempel and others have discussed concerns that traditional adjudication could become obsolete; these concerns have been dismissed as impossible given the present structure of our society and the need for “norm articulators”; see J Stempel, “Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood?” (1996) 11 Ohio State Journal on Dispute Resolution 297. [13.35] 539

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How do multi-door systems work? [13.40] The multi-door model has been trialled in a number of courts in the United States. 45 The aspirational model suggested a certain style of operation. The main dispute resolution centre that disputants would go is intended to be located within a court and would have an intake or screening officer who would categorise the dispute and refer the disputants to one of a variety of dispute resolution processes. Each case would be individually assessed and referred to a process on the basis of its particular characteristics. Further, each “door” of the “multi-door courthouse” would represent one of the dispute resolution options to which parties may be referred, whether that be mediation, evaluation, arbitration, conciliation or adjudication. 46 The model was interpreted by some courts as including a capacity to refer matters to legal aid and mental health organisations as well as other bodies, so that individuals and organisations would not be referred to a sequence of different services. 47 As disputes and conflict can currently be litigated in a number of different courts that frequently have little, if any, contact or collaboration with each other, the possibility of such a model working in Australia is questionable, particularly given the hierarchical and federal/State court division that exists. The major elements required for a “multi-door program” based on Sander’s 48 vision are: • an intake or diagnosis/problem-solving mechanism, which would include specific referral criteria (this is probably the area where Sander’s vision has been the subject of most criticism – see below at [13.50]); • a diversity of dispute resolution processes to which cases would be referred once screened; and • one centre housing both the intake/diagnostic mechanism and the various dispute resolution processes. As noted previously the concept has been trialled in various United States courts since the 1980s. 49 Within Australia, courts and tribunals through their own

45 46

See the District of Columbia, which has operated a multi-door system since 1984, available on http://dcra.dc.gov/service/multi-door-dispute-resolution-services (accessed 18 September 2011). L Ray and A Clarke, “The Multi-door Courthouse Idea: Building the Courthouse of the Future … Today” (1985) 1(17) Ohio State Journal on Dispute Resolution 7.

47 48

The Houston Dispute Resolution Centres were intended to work in this way. See F Sander, Bussey Professor of Law at Harvard University, “Address” (Speech presented at the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, 7–9 April 1976), reprinted in the Pound Conference 70 FRD 79, 111 (1976).

49

For example, the District of Columbia Multi-door Courthouse Project established in 1984 (see fn 31) was one of three created by the American Bar Association Special Committee on Dispute Resolution, the others being in Houston and Tulsa: Alberta Law Reform Institute, Dispute Resolution: A Directory of Methods, Projects and Resources, Research Paper 19 (Alberta Law Reform Institute, Edmonton,

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initiative, 50 or as a result of other legislation, refer disputes that reach their doors to ADR processes. Australian courts and tribunals have not adopted a comprehensive “multi-door” approach in any jurisdiction although the New South Wales Land and Environment Court has indicated that it is attempting to move in this direction. 51 However, elements of this approach operate in many jurisdictions. 52 The Family Court of Australia has trialled a referral model with many of the features of Sander’s multi-door courthouse. The Integrated Client Service (ICS) scheme has, for example, a central intake and screening mechanism located at a “one-stop shop” desk. This scheme has, however, been somewhat overtaken by recent changes to the system that increasingly site dispute resolution services outside the Family and Federal Circuit Courts. However, the approach of client referral and shifts in the way that the adjudication process works (see Chapter 8) have led to significant changes in the adjudication model. Generally, most courts and tribunals have adopted a variety of referral strategies. One approach taken by some courts and tribunals is to do very little. That is, the court or tribunal leaves it to the parties to determine which ADR process, if any, should be used with limited (or no) judicial or court guidance. This approach treats ADR as essentially a matter for the parties to consider. Another strategy can involve the court or tribunal assessing cases and referring them to ADR processes, but only with the consent of the parties. The court acts as a filter by assisting parties to determine if their case is suitable for ADR and, if so, to choose the most appropriate ADR process. The court or tribunal may use cost incentives to encourage ADR use. Another option that is now fairly common in Australia (see Chapter 15 in relation to mandatory referral) is where choice is partly or completely removed and involves the court or tribunal requiring parties to apply to the court to be excused from attending ADR processes. The obligation to use ADR may be placed on parties either prior to, or as a prerequisite to, further court use or as part of a statutorily enabled referral scheme (see Chapter 8). It is increasingly common for courts and tribunals to assess and refer cases to ADR processes without the consent of the parties (see Chapter 8). ADR processes are often closely linked to the court or tribunal’s case management program. There is therefore an increasing emphasis on the identification of dispute

1990) p 58. See also a description of the Ohio project and a mediation program guide (2000) at http://www.sconet.state.oh.us/dispute_resolution. Multi-door court systems also operate in a range of other countries, such as Singapore: see “The Multi-Door Courthouse” in Subordinate Courts Annual Report 2001. 50

For example, under a general directions power as has been the case in Victoria.

51

See the Hon Justice B Preston, The Land and Environment Court of New South Wales: Moving Towards a Multi-Door Courthouse (Keynote Address to the LEADR NSW Chapter Annual Dinner, 15 November 2007), available on http://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/vwFiles/Paper_15Nov07_ Preston_LEC_Multi_door_Court.doc/$file/Paper_15Nov07_Preston_LEC_Multi_door_Court.doc.

52

For example, Victoria has experimented with a “portals” scheme. [13.40] 541

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characteristics that can assist courts and tribunals to manage this referral process, 53 although often referral is used in respect of all cases that possess certain characteristics.

Who refers? [13.45] If parties are required to attend a mandatory ADR process, or are “advised” about ADR, the issue arises about who is to screen cases for ADR referral. Sensitive diagnosis requires that those who screen disputes are well skilled and aware of ADR processes and their variations. This is probably the area where there has been the greatest criticism of Sander’s vision. Stempel has noted: 54 Most obviously, it places great authority in the screening clerk, a bureaucratic official lacking the stamp of approval provided by the nomination-and-confirmation appointments or elections used to select judges.

In the United States, it has been suggested that professional consultants could assist in this role. 55 In another approach, judges, registrars or court staff may review matters based on a questionnaire or court documents. When considering the use of judicial officers in referral, it should be noted that judicial officers may favour methods other than ADR or lack sufficient direct experience of ADR to make appropriate referrals. However, this will not be the case across the board, and judicial officers can also be seen to offer case management skills, as well as the authority and ability to make decisions under conditions of uncertainty. 56 Intake and assessment is increasingly used to assist in making decisions about referral to ADR and other services. Intake and assessment may be oriented towards the exclusion of some matters or the variation of process and introduction of safeguards (as in the case of violence in the family setting – see Chapter 3). Dispute counselling 57 and Dispute Resolution Advisory processes can be used in some contexts (for example, by the NSW Office of the Children’s Guardian) where a trained person can assess suitability and act as an advocate to obtain access to processes if required (see discussion at [6.50]). Dispute counselling can occur over the phone and will most often be used where the dispute or concern is not yet within a court or tribunal. In other contexts, referral can take place from outside agencies and involve an advisory element. For example, WorkCover in New South Wales has a telephone advisory service and 53

54 55 56 57

For a discussion relating to recent developments in multi-door courts in the United States, see E Gray “Creating History: The Impact of Frank Sander on ADR in the Courts” (2006) 22(4) Negotiation Journal 359. J Stempel, “Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood?” (1996) 11 Ohio State Journal on Dispute Resolution 297, 332. E Plapinger and M Shaw, Court ADR – Elements of Program Design (CPR Institute for Dispute Resolution, New York, 1992) p 21. K Mack, Court Referral to ADR: Criteria and Research (Australian Institute of Judicial Administration and the National Dispute Resolution Advisory Council, 2003) p 38. A discussion of dispute counselling, intake and assessment is located in Chapter 3. Skills used in this process are discussed in Chapter 7.

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a related advisory process that enables early referral of disputes to occur. It may be that the role of the advisory helpline in the family law context also comprises a dispute counselling component. 58 One of the critical issues in relation to the extension of pre-litigation obligations (see Chapter 11) that exist without reference to any particular ADR scheme is that there may be a lack of intake, assessment or referral processes. ADR practitioners and lawyers may support these processes but the lack of any framework may mean that these roles are not understood or supported. In dispute resolution advisory processes, the intake diagnosis and referral process can include one or more parties and resemble a mediation process. It may include: 59 1.

Introduction. An intake specialist creates a comfortable environment for the client(s), explains what the intake process involves, and establishes rapport with the client.

2.

Client comments. The client(s) and their lawyers explain the issues relating to the dispute. The intake specialist’s role at this stage is to create an open and sensitive climate conducive to eliciting the necessary information.

3.

Problem identification and clarification. The intake specialist takes a more active role, gathering more information about the dispute, its history and severity.

4.

Problem summary. The intake specialist summarises the main issues in the dispute.

5.

Consideration of options and consequences. The intake specialist and clients discuss process options for resolution, based on the client’s resources and the consequences of various alternatives.

6.

Option selection and assistance. The intake specialist and the clients jointly determine a plan of action.

Referral screening [13.50] The multi-door concept intended that a disputant would be channelled by intake screening to the correct “door” in the courthouse. It is at the referral level that a great deal of discussion takes place. The central question is how effective referral criteria can be devised. In the United States, this was referred to as fitting the “forum to the fuss”. 60 Appleby 61 focused on the “fuss” and sought 58 59 60

61

See Family Relationships Online, The Family Relationship Advice Line, available on http:// www.familyrelationships.gov.au/Services/FRAL/Pages/default.aspx. L Ray and P Kestner, “Alternative Methods of Dispute Resolution” (1986) 65 Michigan Bar Journal 875. From a comment made by Professor Rosenberg of the Columbia Law School, noted in the American Bar Association Publication, Court & Community: Partners in Justice – The Multi-Door Experience (United States, 1991) p 3. G Appleby in K Mackie (ed), A Handbook of Dispute Resolution: ADR in Action (Routledge, London, 1991) p 27. [13.50] 543

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to determine: “What sort of matters do courts do well, and what do they do badly?” He suggested that six factors may be relevant in the context of referral: 62 1.

the relationship between the parties – where it is continuing, a solution agreed to by the parties may be more acceptable than a decision imposed by a third party;

2.

the “nature of the dispute is important” – in this regard, Appleby referred to the Report of the Council on the Role of Courts UK (1984) wherein the Council determined that: [A] number of criteria dictate various axes of inclusion and exclusion [in the court system]. Two sets of criteria – functional and prudential [can be used]. The functional criteria are those factors that make a court peculiarly suited (or unsuited) to hear the matter in controversy. These include objectivity, the necessity for authoritative standards, and the need to determine past vs future events. Prudential criteria are those factors that make a court more or less suited than other institutions to hearing and resolving a dispute. Prudential criteria include costs, the need for particularised consideration, the preference of the parties, the vitality of another institution (including the family), the need for immediate resolution of a specialist problem, and the ability to act indirectly.

3.

a distinction between new disputes and “recurring examples of the same issue which might be handled less formally”;

4.

the amount at stake, and whether the costs of proceeding make certain dispute resolution mechanisms more attractive;

5.

the “need for speed and the reduction of costs”; and

6.

the “strength of bargaining power and availability and quality of legal services”.

Goldberg and other theorists focused on the characteristics of the particular forum, 63 whereas Mackie considered the problem by reference to a comparison of dispute resolution processes. 64 However, this approach may miss the individual characteristics of the “dispute” that may make processes such as mediation more attractive and standardise the approach to classification so that certain disputes are automatically mediated or arbitrated. It may also be important to consider the flexibility and variability in actual practices and features. Mediation, for example, could be viewed as having a cluster or core of ADR features. 65

62

G Appleby in K Mackie (ed), A Handbook of Dispute Resolution: ADR in Action (Routledge, London, 1991) p 28.

63

See H Astor and C Chinkin, Dispute Resolution in Australia (2nd ed, LexisNexis Butterworths, Sydney, 2002) p 276.

64 65

K Mackie (ed), A Handbook of Dispute Resolution: ADR in Action (Routledge, London, 1991) p 15. K Mack, Court Referral to ADR: Criteria and Research (Australian Institute of Judicial Administration and the National Dispute Resolution Advisory Council, 2003) p 11.

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Whether or not a generic classification system is more effective than an individual system of “tailor-made” 66 referrals is questionable. However, it is probable that a system that can combine the two types of referrals can create a general, and then ultimately specific, system of taxonomy. This might overcome some of the specific criticisms of general taxonomy such as that it may “reify conceptual dispute-processing categories, thereby overlooking difficult sociological, political, and legal complexities”. 67 General classification may also fail to take into account conflict theories and result in an over-simplified view of relationships between parties. 68 The lack of empirical research concerning the mediation process and the various alternatives also makes it difficult to identify whether cases may be more efficiently managed and resolved by one process rather than another. The Civil Justice Research Centre (now called the Justice Research Centre, which is housed under the Law and Justice Foundation in New South Wales) has stated: 69 ADR has propelled us into a situation in which policy makers cannot avoid making deliberate choices among alternatives for processing disputes. Therefore, there is the need for empirical enquiries to provide information which may help to guide such choices.

However, there is some research that suggests that certain factors (other than those listed above) can be important (see Chapter 15). For example, there are some research findings that support the view that mediation processes are most effective in multiple-issue disputes. 70

Should an ADR processes be used? [13.55] A threshold issue is whether an ADR processes should be used. It has been suggested that there are certain disputes that should never be referred to ADR processes. 71 NADRAC has indicated that this issue is an important one to consider when creating standards for mediators. 72 Many professional ADR organisations have also considered this issue. For example, the “Let’s Talk” 66 67 68 69 70

S Goldberg, F Sander and N Rogers, Dispute Resolution: Negotiation, Mediation and Other Processes (2nd ed, Little Brown and Co, Boston, 1992) p 436. RJ MacCoun, EA Lind and TR Tyler, Alternative Dispute Resolution in Trial and Appellate Courts (RAND Corporation, Santa Monica, 1992) p 96. J Folberg and A Taylor, Mediation: A Comprehensive Guide to Resolving Conflicts Without Litigation (Jossey-Bass, San Francisco, 1988) p 23. Civil Justice Research Centre, Researching Alternative Dispute Resolution (Law Foundation of New South Wales, August 1992) p 1.

71

R Whiting, “The Single Issue, Multiple Issue Debate and the Effect of Issue Number on Mediated Outcomes” (1992)10(1) Mediation Quarterly 57: an examination of 296 cases referred to mediation where outcomes for single-issue and multiple-issue disputes were determined. The evaluation materials referred to compliance issues and whether or not an agreement was reached. In the United States, courts are excluding a variety of cases or disputes from ADR processes. For example, social security and bankruptcy appeals (Western District of Missouri); requests for declaratory judgments, libel actions, asbestos injury claims (District of Columbia); see E Plapinger and M Shaw, Court ADR – Elements of Program Design (CPR Institute for Dispute Resolution, New York, 1992) pp 40-41.

72

NADRAC, A Framework for ADR Standards (Framework, AGPS, 2001) p 105. [13.55] 545

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group in Sydney has proposed a professional code of conduct for mediators. In the “Let’s Talk” code, and in respect of the National Mediation Accreditation System (see Chapter 14), there was some discussion about disputes where mediation may not be appropriate: 73 • Mediation may not be suitable for all conflicts or for all parties. If a mediator in consultation with the parties makes an assessment at any stage that mediation is not suitable, a mediator has a responsibility to not commence mediation or to end the mediation session. • Examples where such an assessment may occur include where: – a person is put at risk by the participation, or the safety of the person is in doubt, as a result of the mediation; – a participant’s mental capacity is impaired by drugs, alcohol, psychological disorder or emotional disturbance resulting in their inability or incapacity to negotiate in their best interests and on their own behalf; – the power imbalance is such that it will significantly and adversely affect the negotiating ability of the party; – the parties are not willing to participate or negotiate or are unable to reach a negotiated agreement; – another dispute resolution procedure may be more appropriate. Arguably, the emergence of much more comprehensive screening and assessment tools in the family law area (see Chapter 3) do not focus as much on whether ADR is appropriate but instead on how it takes place. 74 However, there are issues about whether intake and assessment are part of the mediation process and whether these processes are also covered by protections in relation to confidentiality and admissibility (see Chapter 12). In respect of all ADR processes, additional criteria have been proposed 75 that raise issues about the need for public, adjudicative, and binding processes. These criteria are: • when a definitive or authoritative resolution of the matter is required for precedential value, and the ADR process is not likely to be accepted generally as an authoritative precedent; 76

73

74

75 76

The “Let’s Talk” group includes representatives from various organisations such as LEADR, Australian Commercial Disputes Centre (ACDC), the Law Society of New South Wales, Unifam, Relationships Australia, Institute of Integrated Marketing Communication and Management (IINCM), and other groups. The author of this book has been a representative on the “Let’s Talk” group and has contributed to the development of the professional code in 1999, 2000 and 2001. See Attorney-General’s Department (Cth), For Family Dispute Resolution Practitioners, available on http://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyDisputeResolution/Pages/ Foraccreditedfamilydisputeresolutionpractitioners.aspx for some resources relating to assessment. See also ALRC, Review of the Adversarial System of Litigation: ADR – Its Role in Federal Dispute Resolution (Issues Paper No 25, ALRC, June 1998). For other excluding criteria, see the Administrative Dispute Resolution Act (1990, US) 5 USC §582(b).

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• when the matter significantly affects persons or organisations that are not parties to the ADR process; 77 • when there is a need for public sanctioning of conduct, or where repetitive violations of statutes and regulations need to be dealt with collectively and uniformly 78 (this could arguably promote a test-case approach where some disputes are determined within the court system and others are referred to ADR processes); • when a party or parties are not able to negotiate effectively themselves or with the assistance of a lawyer. 79 The Supreme Court of New South Wales ADR referral criteria were developed in 1995 by the author of this book. The criteria recommended that the premise of “no case is not suitable for referral” should operate in the first instance. 80 The decision to specifically advise and recommend parties about ADR options could be positively exercised after reference to a checklist of factors for each process.

What type of ADR process? [13.60] In its 1995 ADR Steering Committee Report, the Supreme Court of New South Wales recommended developing positive criteria for referral to ADR processes. 81 These were largely adapted by the Administrative Appeals Tribunal in 2006. 82 Factors favouring referral to mediation, evaluation and arbitration have been developed and are detailed below. Factors favouring mediation [13.65] Relevant factors favouring referral to mediation include whether: 83 • the matter is complex or likely to be lengthy; • the matter involves more than two parties; • the parties have a continuing relationship; 77

78

79

80

Administrative Dispute Resolution Act (1990, US) 5 USC §582 (b). See also, K Mack, Court Referral to ADR: Criteria and Research (Australian Institute of Judicial Administration and the National Dispute Resolution Advisory Council, 2003) p 78, where a reference is made to the importance of a “public interest” criteria. State Justice Institute, National Standards for Court-Connected Mediation Programs (State Justice Institute, United States, 1992) para [4.2]. Available on http://courtadr.org/files/ NationalStandardsADR.pdf. Although the standards are applicable only to mediation, some of the exclusion criteria are applicable generally. State Justice Institute, National Standards for Court-Connected Mediation Programs (State Justice Institute, United States, 1992) para [4.2], available on http://courtadr.org/files/ NationalStandardsADR.pdf. Supreme Court of New South Wales, ADR Strategies and Proposals for the Future – 1995 Recommendations of the ADR Steering Committee (Sydney, 1995).

81 82

The author of this book developed these criteria while a member of the ADR Steering Committee. See AAT Guidelines for Referral to ADR available on http://www.aat.gov.au/steps-in-a-review/ alternative-dispute-resolution/alternative-dispute-resolution-guidelines#select.

83

Supreme Court of New South Wales, ADR Strategies and Proposals for the Future – 1995 Recommendations of the ADR Steering Committee (Sydney, 1995). [13.65] 547

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• either party could be characterised as a frequent litigator, or there is evidence that the subject matter is related to a large number of other disputes; • the possible outcome of the matter may be flexible and differing contractual or other arrangements can be canvassed (poor compliance rates in similar types of matters could be considered in respect of this factor); • the parties have a desire to keep a matter private or confidential; • the parties can reach a view as to likely outcomes should the matter proceed further, that is, whether it is an appropriate time for referral; • the dispute has a number of facets that may be litigated or argued about separately at some time in the future. In the family law area, it was previously proposed that mediation not be used, or, more recently, (see Chapter 3) that safeguards be put in place where: 84 • there is a history of violence or fear of violence between parties; • there are allegations of child abuse or sexual abuse, or a serious personal pathology; • a party is unwilling to honour basic guidelines of the mediation process; • “one of the parties is so seriously deficient in information that any ensuing agreement would not be based on informed consent”; • the parties are not bona fide and the process is used as a “fishing expedition”; • counselling or therapy may be required; • the parties may reach an illegal agreement or disadvantage an unsuspecting third party. Factors favouring (non-binding) evaluation and conciliation [13.70] Relevant factors favouring evaluation and conciliation include whether: 85 • the matter involves expert or legal issues; • liability is not an issue; • an expert opinion has previously been sought (if it has, and the dispute relates to a difference in expert opinion, then evaluation by an expert may be particularly helpful); • a party to the dispute is a government entity or an insurer; • the parties have a desire to keep a matter private or confidential.

84

85

G Clarke and I Davies, “Mediation – When is it Not an Appropriate Dispute Resolution Process” (1992) 3(2) Alternative Dispute Resolution Journal 78. The first criterion was noted in recommendations contained in NSW Chief Justice’s Policy and Planning Sub-Committee, Court Annexed Mediation (1991). This criterion for exclusion was modified in the report of the ADR Steering Committee, ADR Strategies and Proposals for the Future – 1995 Recommendations of the ADR Steering Committee (Sydney, 1995). Supreme Court of New South Wales, ADR Strategies and Proposals for the Future – 1995 Recommendations of the ADR Steering Committee (Sydney, 1995).

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Factors favouring arbitration [13.75] Relevant factors favouring referral to arbitration include: 86 • • • •

whether an insurance company is liable in full or part; where receiving a binding opinion is relevant; where parties wish to avoid negotiations with the other side; where a matter involves the quantification of a dispute.

There is also a clear link between the objectives of different programs and the contents of the referral criteria. For example, the primary objective of the first Early Neutral Evaluation program that originated in the Northern District of California was: 87 not settlement but rather … to promote early, efficient and meaningful communication about disputes and to make parties and counsel confront and assess their situations early and realistically.

Under these circumstances, it is likely that the objectives of the program would dictate that broad referral criteria operate. The general objectives discussed in Chapter 1 may also assist to create additional referral criteria.

“Ripeness” for referral [13.80] The question of the timing of any referral process is usually acknowledged as an important factor in the eventual resolution of any dispute. “Ripeness” for mediation is said by some writers to be an important factor. 88 “Ripeness” refers to the presence of factors that may make the parties more likely to reach agreement or may make mediation more appealing. 89 This might relate to emotional ripeness or the degree of clarity in terms of understanding about the issues. However, this factor may be less important than previously thought. It is clear, for example, that many pre- action ADR schemes that apply in commercial and other areas result in early settlement via ADR. 90 Goldberg and others have indicated that it is not necessary for all issues to be apparent and readily addressed to enable processes such as mediation to succeed. 91 In relation to court and tribunal referrals to ADR, different courts and tribunals adopt different approaches, with some opting for early ADR referral 86

Supreme Court of New South Wales, ADR Strategies and Proposals for the Future – 1995 Recommendations of the ADR Steering Committee (Sydney, 1995).

87

E Plapinger and M Shaw, Court ADR – Elements of Program Design (CPR Institute for Dispute Resolution, New York, 1992) p 33. R Charlton and M Dewdney, The Mediator’s Handbook (Lawbook Co, Sydney, 1995) p 118. See also the 2nd edition published in 2004.

88 89

International Institute for Conflict Resolution, ADR Suitability Guide (Featuring Mediation Analysis Screen) (2006), available on http://www.cpradr.org/Portals/0/Resources/ADR%20Tools/Tools/ ADR%20Suitability%20Screen.pdf.

90

T Sourdin, “Using Alternative Dispute Resolution To Save Time” (2014) 33 The Arbitrator & Mediator 1, 61–72. S Goldberg, F Sander and N Rogers, Dispute Resolution: Negotiation, Mediation and Other Processes (2nd ed, Little Brown and Co, Boston, 1992) p 353.

91

[13.80] 549

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and others opting for late referral. 92 Early referral may not be productive if the parties have not had enough time to investigate issues and obtain advice; however, it has been suggested that, when disputes are not subject to an early ADR process, they may take longer to resolve when a process is eventually used. 93 In addition, the longer a case is litigated may have an impact on the likelihood that ADR will result in a resolution. This is because “adversarial” court-related processes may polarise disputants and make them more inclined to behave in an oppositional manner. 94 One study, conducted by Justice Bergin in New South Wales, suggested that in certain types of cases (complex commercial) later referral was appropriate. 95 Recent reforms in that jurisdiction and in Victoria have been focused on encouraging and requiring parties to exchange evidence at an earlier point in part because this may mean that earlier referral to ADR can take place. In the past, some mediation referral programs have cited “the stage which the case has reached” and the “extent of time pressure for resolution” as important factors in determining appropriateness for mediation. 96 This may be partly because, in some instances, disputants may need to incur costs to appreciate the issues involved in the litigation. Also, as one respondent to a survey relating to the Commercial Division of the Supreme Court of New South Wales has noted: “[t]he higher level of legal costs helps to focus a party’s mind on the ‘reality’ of expensive, time-consuming litigation”. 97 Awareness of legal costs and other potential costs (loss of opportunity and profit costs, costs in stress, management time costs) can be important in providing an incentive to negotiate or mediate. In addition, “ripeness” considerations may relate to the emotional state of the disputants and whether or not, for example, a grieving process has commenced or been completed (in respect of a lost relationship). Some ADR processes can assist parties to move through cycles of change and prompt development of outward-looking approaches. For those 92

93

94 95

96

97

See T Sourdin and N Burstyner, “Justice Delayed is Justice Denied” (2014) 4 Victoria University Law and Justice Journal 1, 46, T Sourdin, “Using Alternative Dispute Resolution to Save Time” (2014) 33 The Arbitrator & Mediator 1, 61-72 and Australian Centre for Justice Innovation (ACJI), The Timeliness Project, Background Report (October 2013) available on http://www.civiljustice.info/access/31/. T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (ACJI, Monash University, Melbourne, November 2012) pp 127-128, available on http://www.civiljustice.info/, see also discussion relating to time factors in T Sourdin, “Evaluating Alternative Dispute Resolution (ADR) in Disputes About Taxation” (2015) The Arbitrator & Mediator (forthcoming). T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (ACJI, Monash University, Melbourne, November 2012) pp 127-128, available on http://www.civiljustice.info/. See the Hon Justice PA Bergin, The Right Balance Between Trial and Mediation: Vision, Experiences and Proposals (Paper presented at Court of Cassation, Rome, 12 October 2012) at para 46, available on http://www.supremecourt.justice.nsw.gov.au/Documents/bergin_2012.10.19.pdf. New Jersey Bench Manual (1992). The most recent versions of this manual (September 2011) assumes that early intervention and assessment will be appropriate see http://www.judiciary.state.nj.us/civil/ CivilCDRProgramResourceBookOctober2007InternetVersion.pdf at 1.4. Survey respondent in T Sourdin, An Evaluative Study of the Commercial Division of the Supreme Court of New South Wales (PhD Thesis, University of Technology, Sydney, 1996) p 140.

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within the litigation system, the provision of hearing dates 98 and interlocutory events may provide a “sword of Damocles”.

Some commentators place importance on the “extent of time pressure for resolution” as a factor influencing the appropriateness for mediation or some other form of ADR. 99 This might be related to the idea that, sometimes, potential litigants will only become inclined to settle once they see how taxing the litigation process might be on them. Influential factors could include a realisation of the mounting cost and energy investment as litigation progresses, giving rise to an incentive to try to resolve the dispute. 100 A study on interstate disputes highlighted the curvilinear relationship between when the mediation occurs and the duration of dispute. 101 Recent studies by the Australian Centre for Justice Innovation have shown that later referral to ADR may impact on settlement and that late referral to ADR may mean that settlement is less likely. 102 It is probable that “ripeness” should be considered in the context of any referral process; however, it should also be weighed against the cost savings that may occur in any referral. It may be that re-referral mechanisms, which can be triggered after a determination that a matter is not “ripe”, are necessary. 98 99 100

101 102

T Sourdin, An Evaluative Study of the Commercial Division of the Supreme Court of New South Wales (PhD Thesis, University of Technology, Sydney, 1996) p 140. T Sourdin, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (ACJI, Monash University, Melbourne, November 2012) pp 127-128, available on http://www.civiljustice.info/. See T Sourdin and N Burstyner, “Justice Delayed is Justice Denied” (2014) 4 Victoria University Law and Justice Journal 1, 46, T Sourdin, “Using Alternative Dispute Resolution to Save Time” (2014) 33 The Arbitrator & Mediator 1, 61-72 and Australian Centre for Justice Innovation (ACJI), The Timeliness Project, Background Report (October 2013) available on http://www.civiljustice.info/access/31/. P Regan and A Stam, “In the Nick of Time: Conflict Management, Mediation Timing, and the Duration of Interstate Disputes”’ (2000) 44(2) International Studies Quarterly 239. See T Sourdin and N Burstyner, “Justice Delayed is Justice Denied” (2014) 4 Victoria University Law and Justice Journal 1, 46, T Sourdin, “Using Alternative Dispute Resolution to Save Time” (2014) 33 The Arbitrator & Mediator 1, 61-72 and Australian Centre for Justice Innovation (ACJI), The Timeliness Project, Background Report (October 2013) available on http://www.civiljustice.info/access/31/. [13.80] 551

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“Ripeness” will also be relevant in determinative processes such as arbitration although newer arbitration processes can provide for accelerated arbitration and envisage an early case management meeting (see Chapter 6). A lack of information in determinative processes can have an impact on whether they can proceed. However, ADR processes can have an important catalytic 103 effect and may prompt early action and discourage “languishing” by ventilating issues. “Ripeness” is also an important factor in determining where referral processes should operate – in a multi-door court, a multi-option site, or in combination with an array of referral procedures. In terms of the timing of referral, it has been noted that it seems to “… be accepted that there is no automatically right or wrong time for referral; however, a system of automatic referral at a certain stage in the litigation process will inevitably result in some inappropriate referrals”. 104

MULTI-OPTION PROCESSES [13.85] ADR processes are utilised away from courts and tribunals as a result of a raft of legislative devices (that may require ADR prior to entry into the court or tribunal system), funded agencies (for example, the Federal Attorney-General funds many family ADR agencies and family relationship centres), contractual requirements (which may specify that negotiation, mediation or arbitration be used in the event of a dispute), and persuasive structures and processes (such as benchmarks, standards, contractual requirements and codes). ADR is also utilised outside of the litigation system for many other complex reasons and may simply be used to avoid cost, save time and maintain a relationship. As noted in Chapter 1, a large number of disputes progress through a referral scheme although many disputes do not. The referral schemes are more closely explored in Chapter 9. Many schemes operate at the community level and are directed at family and community disputes. The multi-door approach that is discussed above assumes that there is a lack of coordination among these various bodies and individuals who can access ADR and that guidance is required from courts to enable those within our society to access the broad range of ADR processes. One critical issue in this regard is whether this coordinating function is best located inside or outside the court system. However, it is likely that the question could be broader, namely, whether a referral system can operate effectively at both levels (within and outside courts and at national, State and local levels) and what would be required to achieve this. At the level of policy formulation NADRAC previously assisted with the coordination of policy discussions; however, there was no equivalent at the State and local levels. Apart from these policy discussions and support, there are no integrated ADR processes across State and federal courts and tribunals that also link into external ADR agencies and this feature of the 103 104

R Coulson, “Arbitration” (1996) 195 New York Law Journal 26. K Mack, Court Referral to ADR: Criteria and Research (Australian Institute of Judicial Administration and the National Dispute Resolution Advisory Council, 2003) p 40.

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ADR system can make coordination and referral difficult. Despite this, the justice system has increasingly adopted a multi-option approach which assumes that ADR options will be available throughout the life cycle of a dispute. The “multioption” response has been described as: 105 The more modern approach that responds to the more evolved ADR system; the continuing rise in the use of ADR; a more sophisticated understanding of ADR options; as well as the availability of referral information on the internet.

The multi-option response relies on schemes, practitioners and industry groups to support ADR referral rather than a central referral point although some government websites may provide referral information. At present, dispute resolution schemes operate at local, State and federal levels. Outside the litigation arena, schemes operate in businesses, government and other organisations. For example, dispute resolution schemes have been set up in various industries to provide a free, effective and relatively quick means of resolving complaints about products and services. Such schemes can benefit all parties to the dispute. They save consumers the expense of legal action while helping industry members to improve business practices and the quality of their goods and services without government intervention. 106 These schemes are discussed further in Chapter 9. In addition, industry codes of conduct such as the Franchising Industry Code, Oilcode and benchmarks for dispute avoidance and resolution are increasingly focused on the resolution of disputes prior to the commencement of litigation. In the commercial area, more formal models of arbitration operate in different States and Territories under legislation (see Chapter 6 at [6.85]) such as the commercial arbitration laws. Other factors that encourage the use of ADR include benchmarks and standards. For example, in 1997 the former Minister for Customs and Consumer Affairs released benchmarks for industry-based customer dispute resolution schemes to guide industry in developing and improving these schemes. 107 From November 1996 to September 1997, the Australian Competition and Consumer Commission convened a series of round-table discussions on small and large 105 106

107

T Sourdin, “The Role of the Courts in the New Justice System” (2015) Yearbook on Arbitration and Mediation University of Pennsylvania Law Review (forthcoming). See Department of Industry, Science and Tourism, Benchmarks for Industry-based Customer Dispute Resolution Schemes (Consumer Affairs Division of the Department of Industry, Science and Tourism, Canberra, 1997) p 1. See Chapter 4 and Consumer Affairs Division, Department of Industry, Science and Tourism, Benchmarks for Industry-Based Customer Dispute Resolution Schemes (Benchmarks, DIST, 1997), available on http://www.anzoa.com.au/National%20Benchmarks.pdf. See also ASIC, Approval and Oversight of External Dispute Resolution Schemes, Regulatory Guide 139, available on http:// www.asic.gov.au. These benchmarks were developed prior to the Australian Standard 4608–1999: Guide to the Prevention, Handling and Resolution of Disputes (1999), which included negotiation criteria and was superseded by a standard that was directed less at processes and more at systemic design (AS 4608–2004: Dispute Management Systems), and drew upon the earlier standards on complaints handling. The updated 2015 Benchmarks can be found at http://www.treasury.gov.au/ PublicationsAndMedia/Publications/2015/benchmarks-ind-cust-dispute-reso. [13.85] 553

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business disputes in an attempt to find a better way for small businesses to resolve disputes in the marketplace. The round table resulted in the publication of guidelines intended to assist the business community to adopt benchmarks for avoiding and resolving disputes. 108 The guidelines aim to add value to and enhance commercial relationships – thereby avoiding many disputes arising – and minimise the costs, inefficiencies and damage that are often incurred through conventional and/or adversarial processes. 109 Guidelines on referralrelated issues have been developed for use in the New South Wales public sector. The guidelines provide for self-referral and for a series of questions to be asked about a dispute. 110 In 1999 and 2004, Standards Australia formulated Standards for use in the prevention, handling and resolution of disputes 111 (see [13.105]). The Standards are of particular interest as they examine not only processes that can be used to resolve disputes but also processes that can prevent and manage damaging forms of conflict. Changing patterns of dispute resolution can be detected in the broad community as well as in business. A variety of other trends are likely to impact on the way in which business deals with disputes and the associated risks of ineffective or “bad faith” communication (see Chapter 11). One trend can be categorised as an increasing emphasis on “self-help” rather than the use of third-party neutrals. This trend is allied to the growth in standards and benchmarks. Other trends have developed as a result of changes to the litigation “shadow” and technological revolution (see Chapter 10). Perhaps the most significant changes that have impacted on the location and role of services is discussed in Chapter 11 and is linked to the introduction of pre-litigation obligations.

Other changes: multi-option or mandatory attendance? [13.90] To some extent the changes that are discussed in Chapter 11 are now locating ADR at various points within the dispute resolution system and are making the multi-door court system somewhat less relevant. Clearly, changes in legislation continue to impact on patterns of business and social disputing. Some legislative requirements foster notification processes while others focus on ADR attendance in the pre-litigation area (that is, before court proceedings have commenced). For example, at one level, some legislation requires that parties 108

Australian Competition and Consumer Commission (ACCC), Benchmarks for Dispute Avoidance and Resolution – A Guide (ACCC, Sydney, 1997) p 7. The author of this book was a member of the round table and contributed to the development of the benchmarks.

109 110

ACCC, Benchmarks for Dispute Avoidance and Resolution – A Guide (ACCC, Sydney, 1997) p v. This criterion includes sub-issues that relate to a willingness to negotiate as well as continuing relationship features; see Chapters 3 and 11 of this text.

111

Standards Australia, AS 4608–1999: Guide to the Prevention, Handling and Resolution of Disputes (October 1999) and AS 4608–2004: Dispute Management Systems (August 2004).

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notify one another of a claim before a process is filed. 112 Other legislation requires mandatory attendance at some form of ADR as a pre-condition to litigation. 113 The legislation often requires different reporting standards and notice periods. As noted in Chapter 11, the largest pre-litigation scheme that imposes mandatory attendance at a dispute resolution process operates in the family law area in Australia. Initiatives that have been phased in since 2006 (under the Family Law Act 1975 (Cth)) represent a significant change in family law. 114 The explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) notes that “this is a key change to encourage a culture of agreement making and avoidance of an adversarial court system”. 115 Amendments made by the 2006 amending Act to the Family Law Act 1975 (Cth) require compulsory dispute resolution pursuant to Subdiv E of Div 1 of Pt VII. Section 60I provides for compulsory attendance at family dispute resolution in a range of circumstances, prior to lodging an application with the court. The requirement for compulsory certificates of family dispute resolution (FDR) as a prerequisite for the filing of all new parenting matters (subject to certain exceptions) came into force on 1 July 2007. The family requirements specify certain exceptions in terms of attendance at dispute resolution. As noted previously in Chapter 11, a party is not required to attend family dispute resolution if: 116 • they are applying for consent orders; • they are responding to an application; • the matter is urgent; • there has been, or there is a risk of, family violence or child abuse; • a party is unable to participate effectively (for example, due to incapacity or geographical location); or • a person has contravened and shown a serious disregard for a court order made in the last 12 months. At the federal level, there are also other examples of mandatory pre-litigation schemes. The National Native Title Tribunal (NNTT) facilitates the making of agreements among Aboriginal and Torres Strait Islander people, governments, industry and others whose rights or interests may co-exist with native title rights and interests. 112

See Supreme Court Civil Rules 2006 (SA), r 33. Under the rule, parties in most matters are required to serve unfiled process on another party 90 days before filing in a court.

113

For example, Retail Leases Act 1994 (NSW), Pt 8; Farm Debt Mediation Act 1994 (NSW); Supreme Court Practice Direction No 4 of 2002 (Qld). See Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) p 1.

114 115 116

See Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) p 20. See Family Relationships Online, Family Dispute Resolution, available on http:// www.familyrelationships.gov.au/Services/FamilyLawServices/FDR/Pages/default.aspx#q4. [13.90] 555

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The more significant recent changes at the federal level are produced through the operation of the Civil Dispute Resolution Act 2011 (Cth) (discussed in Chapter 11 at [11.10]), which requires that disputants file a “genuine steps” statement that sets out what attempts have been made to resolve their differences before commencing litigation in respect of a range of civil disputes. 117 As noted in Chapter 11, a number of States introduced and then withdrew or postponed similar legislation. However, in selected areas a number of States do have mandatory ADR pre-referral legislation in place. For example, New South Wales has adopted legislation in a number of different areas to prevent court proceedings being commenced without mediation occurring. The Farm Debt Mediation Act 1994 (NSW) provides that mediation must occur before a creditor can take possession of property or other action under a “farm mortgage”. Similarly, the Retail Leases Act 1994 (NSW) provides for the mediation of retail tenancy disputes. Under that Act, it is difficult to commence court proceedings until a certificate has been provided by the Registrar of Retail Tenancy or a court has satisfied itself that the dispute is unlikely to be resolved. 118 Courts can also encourage ADR processes by their interpretation of ADR clauses in contracts and in legislation that seeks to promote or mandate ADR (explored further in Chapters 9 and 11).

Streamlining ADR referral systems [13.95] As previously noted, there are difficulties involved in locating ADR referral systems within courts and tribunals. These include funding and other issues, as well as the impact that court structures and processes may have – in that the ADR processes may begin to “model” institutionalised processes and norms. Other concerns relate to the “grass roots” nature of ADR processes and the potential “legalisation” 119 of ADR as more evaluative forms of ADR are sponsored, or perhaps preferred, by those within courts and tribunals. Institutionalisation within a legal framework will almost inevitably produce greater uniformity, regulation and codification of ADR and this may have some benefits. However, as Press has pointed out, this can inhibit process flexibility. 120 Other options to streamline referral processes include a greater focus on coordination and cooperation among institutions, organisations and individuals. This approach assumes that ADR processes do not belong to any particular 117

118 119 120

The requirements in the “genuine steps statement” are modelled on the recommendations in NADRAC, The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (Report, 2009), available on https://www.ag.gov.au/LegalSystem/ AlternateDisputeResolution/Documents/NADRAC%20Publications/the-resolve-to-resolve-embracingadr-improve-access-to-justice-september2009.pdf. Retail Leases Act 1994 (NSW), s 68(2). Rapid mediation or “speediation” can be viewed as a response to the closer relationship between courts and community-based mediation. S Press, “International Trends in Dispute Resolution – A US Perspective” (2000) 3(2) ADR Bulletin 22.

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organisation or professional body but rather that they are available at all levels of society. If this approach – which situates ADR across the society – is adopted, then the primary issue relates to the provision of information and whether it is necessary for a coordinating body to provide information. This again raises issues about how collaboration and coordination can be most effectively fostered. 121 There are also implications for the development of referral criteria, which may assist those within courts and tribunals to refer matters to ADR processes. Referral criteria can also assist those within organisations who are seeking to design systems to avoid or resolve disputes. However, crafting a “one size fits all” set of criteria that can assist in the referral of disputes to “appropriate” dispute resolution processes is an exercise fraught with danger. This is principally the case because disputes will tend to reflect the individual and multifaceted nature of the human beings who are in conflict. Arguably no classification system can respond to these variables! However, it may be that referral criteria can assist in the development of more innovative ADR processes. For example, more sophisticated referral criteria could specify approaches to different “types” of processes such as mediation, as within the term “mediation” there are many different models (see Chapter 3).

SYSTEM DESIGN WITHIN ORGANISATIONS [13.100] Within Australia, the work of David and the committees that have produced the Australian Standards has been important in laying the groundwork for further development of system design work within organisations. 122 Many industries have adopted a system design approach to the handling of disputes in particular areas. The frameworks vary according to the relationships that are addressed and whether they are consumer or supplier oriented (or both). Some of the best-known examples include the Oilcode 123 arrangements, the Franchising Code, 124 and frameworks developed in the electricity and retail 125 areas (see Chapter 9). 121 122

123 124 125

An example of a collaborative approach has been developed by the Maryland Alternative Dispute Resolution Commission at http://www.marylandmacro.org. The author of this book was a member of the committee that produced Standards Australia, AS 4608–1999: Guide to the Prevention, Handling and Resolution of Disputes (1999) and, as a member of NADRAC, provided comment on Standards Australia, AS 4608–2004: Dispute Management Systems (2004) and the Round Table on Dispute Resolution that was supported by the ACCC and produced the Benchmarks for Dispute Avoidance and Resolution: A Guide (Commonwealth of Australia, 1997), available on http://www.accc.gov.au. See Dispute Resolution Adviser, Oilcode Dispute Resolution Adviser (DRA), available on http:// www.oilcodedra.com.au. See Office of the Franchising Mediation Adviser on http://www.franchisingmediationadviser.com.au. For example, see Produce and Grocery Industry Code Administration Committee, Produce and Grocery Industry Code of Conduct (December 2007), available on http:// www.produceandgrocerycode.com.au. [13.100] 557

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The Australian Standards AS 4608–1999: Guide to the Prevention, Handling and Resolution of Disputes and AS 4608–2004: Dispute Management Systems have suggested that six basic steps 126 are required to introduce systems for preventing, handling and resolving disputes. These steps are: 127 1. 2. 3. 4.

research existing system; consult about the existing system; design the system; consult on the designed system;

5. 6.

implement changes; evaluate the system.

The originating AS 4608–1999 notes (at s 6) that there are a number of principles that are essential for sound dispute management. The basic premise is that: Disputes may be effectively prevented where parties establish and maintain good working relationships. Disputes that do arise may be handled and resolved more effectively when parties are committed to achieving the best possible mutual outcome in preserving the working relationship.

Essential principles [13.105] The AS 4608–1999 stated that good working relationships are based on the “essential principles” of effective processes, open and effective communication and good faith. Each of these terms is defined by reference to “key elements”. Key elements of effective processes involve planning, choice and control over how disputes can be handled, timeliness (including time limits), cost efficiency, outside expert assistance, review and evaluation, and system transparency. The essential features of open and effective communication are said to be openness, access to procedures to ensure that communication is effective, a preparedness to listen, and interest in understanding the nature and effect that disagreements have on other parties. The essential features of good faith are said to be commitment to achieving mutual outcomes (see also Chapter 4), trust, respect, flexibility (in relation to original intentions) and confidentiality. Section 3 of the originating Australian Standard provides that as part of any dispute prevention management system, measures need to be implemented to minimise the number of problems that can escalate into disputes or larger conflicts. The measures noted relate to the creation and availability of clear policies on dispute prevention, handling and resolution, adequately resourced 126

Standards Australia, AS4608–1999: Guide to the Prevention, Handling and Resolution of Disputes (1999). This work drew on the work of Jennifer David who provided input to the committee. See also Standards Australia, AS 4608–2004: Dispute Management Systems (2004).

127

Standards Australia, AS 4608–1999: Guide to the Prevention, Handling and Resolution of Disputes (1999) s 6. The author of this book was a member of this committee. David has added a further step – “Study the Fundamentals”: see P Fritz, A Parker and S Stumm, Beyond Yes (Harper Collins, Sydney, 1998) p 148.

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and trained staff, prevention procedures that may include codes and clauses in contracts, established clear lines of communication to ensure that concerns can be aired, as well as ongoing and appropriate monitoring and review.

Diagnostic processes [13.110] AS 4608–1999 provides that it is necessary to have effective diagnostic processes in place to ensure that information and other needs are identified. In addition, the Standard places reliance upon, and supports principled negotiation strategies (see Chapter 2). The Standard notes that negotiation strategies can include self-evaluation processes and preparation for negotiation. In relation to preparation to negotiate, a number of key questions can be asked. The questions include: 128 • reference to determining the parties’ goals and priorities; • what the best or worst-case scenario should the matter not resolve is; • • • • •

whether interests can be met; whether or not the parties have been realistic; whether any external objective criteria can be used to “test” a view; whether further information is required; and whether there is anything that can prevent an agreement being reached or implemented.

Questions that are relevant may also relate to cultural approaches and the capacity of the disputants to negotiate. 128

The WAM, BAM, BATNA, WATNA or RATS: see Chapter 3. [13.110] 559

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The most recent Australian Standard (AS 4608–2004: Dispute Management Systems) has focused on risk management as an essential component of any dispute resolution system. 129 Risk management has evolved in recent years and is focused, in part, on the impact of a dispute on an organisation. Various standards of risk management are employed to diagnose risk levels and provide guidance in dispute handling. 130 This type of diagnosis will ordinarily involve assessing the probability of a dispute occurring and the consequences of the dispute. The risk matrix set out below at [13.115] has been used in the health care setting and is called the Severity Assessment Code. It is used to consider the likelihood and consequence of an incident to obtain a fixed rate ranking, which correlates with actions to be taken to address the incident.

A risk assessment matrix in the health care setting – Severity Assessment Code [13.115] The following is an example of a Severity Assessment Code which was used by the author following her work on standards in the health care setting. Table 13.1 – Severity assessment matrix

“Serious” incidents

“Major” incidents

“Moderate” incidents

A patient’s death is unrelated to the natural course of the illness and differing from the immediate expected outcome of patient management, death of a staff member or visitor, complete loss of service capability, huge financial loss. A patient has suffered permanent loss of function unrelated to the natural course of the illness and differing from the expected outcome of patient management, further treatment required, permanent injury to staff members or visitors, loss of service capability including cancelled appointments, major financial loss. A patient has suffered harm in the course of treatment, no further treatment is required, a staff member has been injured and requires medical treatment resulting in lost time or restricted duties, reduced efficiency or some disruption to services, significant financial loss.

129

See Standards Australia, AS 4608–2004: Dispute Management Systems (2004), s 4.

130

See Standards Australia, AS 4608–2004: Dispute Management Systems (2004), s 4.

560 [13.115]

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No harm to patients, staff or visitors requiring medical treatment, no loss of service, low financial loss.

An essential component of this risk management approach is that staff are trained, have clear protocols to follow and lines of communication are clear. 131 The numbers suggest reporting actions and escalation paths.

A framework for system design [13.120] An abbreviated guide to system design approaches is the focus of s 5 of the AS 4608–2004. In respect of this section, the first step is researching the existing system. The research requires an analysis of existing formal mechanisms as well as informal and indirect mechanisms. This identification can assist in clarifying what is working and what may not be. The second step is to consult widely. In relation to consultation, it is noted that there needs to be an assessment of the organisational culture and how this may be affected by a new system. In designing the system, little guidance is given. This is probably because each system should be idiosyncratic and adopt features that already work well. Using a dispute system that has been developed for another organisation has been referred to as a “cane toad” approach. 132 Also, some systems will need to incorporate statutory and regulatory frameworks; for this reason, a generic approach to system design cannot be formulated. However, a threshold suggestion is made in the AS 4608–2004 that the framework for the system design should use the least interventionist process of negotiation and facilitation first. This approach is predicated on the need for system-wide training and education and reflects the level of commitment required to make systems work well. The fourth step involves consultation in relation to the design system. In the 1999 originating Standard it was noted that “the people who are going to use [the system] frequently have practical ideas on how to make the system work better”. Other issues are concerned with implementation and evaluation. In relation to implementation, it is essential that all people who are affected by the dispute system design are informed. The step ordinarily involves training and education as well as the creation of literature to provide knowledge and skills necessary to use the new system. It is also noted that evaluation should ideally be carried out by an independent organisation. 133 The new Federal Government approach to system design which encourages all federal departments and agencies to plan and introduce systems for dispute management supports this approach. Rather than introduce a template plan or a defined set of criteria, NADRAC noted that: 134 131 132

See Standards Australia, AS 4608–2004: Dispute Management Systems (2004), s 4. A solution that works in one organisation may not work in another.

133 134

The evaluation of systems and processes is more closely considered in Chapter 15. NADRAC, Managing Disputes in Federal Agencies: Essential Elements of a Dispute Management Plan [13.120] 561

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The Plan should apply to the management of all forms of dispute, both internal and external to the agency … The Plan should also apply from the first point at which a conflict emerges. Indeed, an agency’s Plan might usefully deal with the topic of dispute avoidance as well as dispute management. An agency’s Plan should not be limited to management of litigated disputes or a particular sub-set of disputes. However, whilst the Plan should deal with all forms of dispute, this does not mean that a “one size fits all” approach should be taken to all disputes. It will be appropriate for different categories of dispute to be managed in different ways.

The report recommends that departments and agencies set out essential elements and processes. It also includes an associated toolkit and foreshadows future reporting by departments and agencies in the context of the plan: 135 The development of an effective Plan by each Commonwealth agency will require significant thought and effort. General aspirational statements or targets will not suffice. Each agency’s Plan should: • clearly set out how the agency proposes to manage its disputes; • be formulated in a way which enables the impact of the Plan to be measured and reported upon. NADRAC supports a requirement for agencies to provide meaningful reports each year to the Attorney-General on how disputes are managed under the Plan.

Essential system design components in organisations [13.125] David had also noted that there are a number of essential components required to make an organisation dispute system work effectively. Human resource managers have identified these as follows: 136 • demonstrated commitment of the chief executive officer and all senior managers; • training of all managers (and preferably all staff) in the techniques to handle disputes effectively; • provision of adequate resources to implement and operate the system. This includes adequate staffing, facilities, equipment and training for the specialist dispute handling staff and for all staff; • keeping of records to ensure that the system can be evaluated and to enable strategies to be developed to minimise problems arising; and • establishment of clear policy and objectives, which are well documented and publicised to make the system easily accessible to all. Other essential components have been discussed more extensively in the United States. Costantino and Sickles Merchant, leading writers in the area of conflict (Commonwealth of Australia, 2010), available on https://www.ag.gov.au/LegalSystem/ AlternateDisputeResolution/Documents/NADRAC%20Publications/managing-disputes-in-federalgoverment-agencies-essential-elements-september2010.pdf. 135

136

NADRAC, Managing Disputes in Federal Agencies: Essential Elements of a Dispute Management Plan (Commonwealth of Australia, 2010), available on https://www.ag.gov.au/LegalSystem/ AlternateDisputeResolution/Documents/NADRAC%20Publications/managing-disputes-in-federalgoverment-agencies-essential-elements-september2010.pdf. Standards Australia, AS 4608–1999: Guide to the Prevention, Handling and Resolution of Disputes (1999), s 6, referring to Jennifer David and Associates, Designing a Dispute Resolution System, Keynote Paper (Second International Mediation Conference, Adelaide, January 1996). See also Standards Australia, AS 4608–2004: Dispute Management Systems (2004), s 3 “Guidance on Structural Elements”.

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management system design have suggested that six principles are essential in relation to dispute system design architecture. These principles are as follows: 137 1. 2. 3. 4.

Develop guidelines for whether ADR is appropriate. Tailor the ADR process to the particular problem. Build preventative methods of ADR. Make sure that disputants have the necessary knowledge and skill to choose and use ADR. Create ADR systems that are simple to use and easy to access and that resolve disputes early, at the lowest organisational level, with the least bureaucracy.

5.

6.

Allow disputants to retain maximum control over choice of ADR method and selection of neutral wherever possible.

More generally, Costantino and others set out a framework as shown in the table below. 138 Table 13.2 – Dispute systems design process Stages

Key Activities

1. Design initiative 2. Basic planning steps 3. Key planning issues

4. Implementing and institutionalising the system or process

Assessing the stakeholders, their goals and interests, and contexts Creating processes and systems Planning how to select, engage, and prepare interveners and parties Determining the extent of confidentiality and openess in the process Dealing with desires for change, justice, accountability, understanding, safety, reconciliation Enhancing relationships Incorporating technology Implementing Using contracts Using law Evaluating, revising

The approach adopted in the Australian Standards is similar to the approaches that have been adopted in the United States. In particular, there is an emphasis on creating systems that are simple to use, easy to access, and that resolve disputes at the lowest organisational level. One feature that was considered to be essential in dispute system design is that the disputants have the necessary knowledge and skill to choose and use ADR. 139 137 138

139

C Costantino and C Sickles Merchant, Designing Conflict Management Systems (Jossey-Bass, San Francisco, 1996) p 121. The framework is set out in C Costantino and MR Lewis, “What Dispute Systems Design Can Learn From Project Management” (2015) 31 Negotiation Journal 175, 203–204 and derived from N Rogers, R Bordone, F Sander and C McEwen, Designing Systems and Processes for Managing Disputes (New York, Aspen Publishers, 2013). C Costantino and C Sickles Merchant, Designing Conflict Management Systems (Jossey-Bass, San Francisco, 1996) p 129. See also N Rogers, R Bordone, F Sander and C McEwen, Designing Systems and Processes for Managing Disputes (New York, Aspen Publishers, 2013) [13.125] 563

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Approaches in the United States [13.130] In the United States, a number of authors have approached system design issues from the perspective of impediments that can operate to prevent the operation of systems. These approaches suggest that it is essential that the framework is viewed from an organisation development perspective and that the socio-technical elements are considered. Important aspects include ensuring that the upper levels of an organisation commission and publicly support the ADR use. In addition, incentives that can motivate the use of the program and assignments of specific and key individuals to the ADR program are seen as essential. 140 Incentives to use ADR have been suggested in a number of design systems. These include, for example, the offer of a form of merit bonus to employees who utilise ADR to resolve difficult cases; recognition via public awards or organisational publicity for officers or divisions who regularly utilise ADR; and preferential conditions granted to customers who agree in advance to resolve any potential disputes with ADR. 141 Pilot programs have been used to test design assumptions in a number of models designed in the United States. 142 Pilot studies can be essential in determining whether any issues may arise in respect of the large-scale implementation of dispute system changes. Such programs can involve checking design changes and approaches with other experienced ADR practitioners and carefully determining the case selection criteria. With respect to general system design issues, it is noted that the introduction of any system will meet with resistance and that this should be anticipated. Costantino and Sickles Merchant emphasise that conflict is a “natural, inevitable, and effective part of life” but that it often generates “great fear and anxiety”. They state that resistance is a “natural phenomenon” that can be expected with any proposal for change in the status quo conflict management system. People often resist the new and the unknown and, therefore, change. 143 There has been a great deal of recent work relating to system design in the United States that suggests that conflict management systems evolve in certain ways. 144 For example, a committee of the ADR in the Workplace Initiative of the 140 141 142 143 144

C Costantino and C Sickles Merchant, Designing Conflict Management Systems (Jossey-Bass, San Francisco, 1996) p 151. C Costantino and C Sickles Merchant, Designing Conflict Management Systems (Jossey-Bass, San Francisco, 1996) p 162. David also supports pilot programs as an important element in system design: see P Fritz, A Parker and S Stumm, Beyond Yes (Harper Collins, Sydney, 1998). C Costantino and C Sickles Merchant, Designing Conflict Management Systems (Jossey-Bass, San Francisco, 1996) p 200. See Society for Professionals in Dispute Resolution (SPIDR), Guidelines for the Design of Integrated Conflict Management Systems Within Organizations (2000). Note that SPIDR merged with the Academy of Family Mediators, Conflict Resolution Education Network and the Society of Professionals in Dispute Resolution to form the Association for Conflict Resolution (ACR).

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Society of Professionals in Dispute Resolution (SPIDR) (this group is now part of the Association for Conflict Resolution (ACR)) as suggested that: 145 Organizations generally move through four phases in addressing conflict. Organizations in the first phase have no defined institutional dispute resolution processes. Organizations in the second phase have introduced rights-based grievance procedures – some ending in adjudication processes such as peer review and arbitration – for the resolution of conflict. Today, all unionized organizations, most government agencies, and most medium and large-sized non-unionized organizations have internal rights-based grievance processes. Some organizations have moved to the third phase, by introducing specific “interest-based” processes, often some form of mediation, to supplement rights-based processes. Increasingly, organizations are moving to the fourth phase, by developing “integrated conflict management systems”. These systems include both grievance processes and mediation, but go beyond them, introducing a systematic approach to preventing, managing, and resolving conflict.

This work considers integrated conflict management systems that introduce and focus on the more generic tools of conflict management: 146 [R]eferring, listening, anonymous problem identification and consultation, coaching, mentoring, informal problem-solving, direct negotiation, informal shuttle diplomacy, generic solutions, and systems change.

The approach is also directed at “provid[ing] a pervasive method for promoting competence in dealing with conflict throughout the organization”. 147 This whole-of-system approach also ensures that employees are treated in the same ways as customers, suppliers and others. This analysis suggests that effective integrated conflict management systems share five characteristics: 148 1.

2.

3.

Effective integrated conflict management systems provide options for preventing, identifying, and resolving all types of problems, including “non-hierarchical” disputes between employees or between managers; and are available to all persons in the workplace, such as workers, managers, professionals, groups, teams involved in disputes, and those close by (“bystanders”) who are affected. Effective integrated conflict management systems foster a culture that welcomes “good faith” dissent and encourages resolution of conflict at the lowest level through direct negotiation. Integrated conflict management systems provide multiple access points. Employees can readily identify and access a knowledgeable person whom they trust for advice about the conflict management system.

145

See Mediate.com, Guidelines For The Design Of Integrated Conflict Management Systems Within Organizations-Executive Summary, available on http://www.mediate.com/articles/spidrtrack1.cfm.

146

See Mediate.com, Guidelines For The Design Of Integrated Conflict Management Systems Within Organizations-Executive Summary, available on http://www.mediate.com/articles/spidrtrack1.cfm. See Mediate.com, Guidelines For The Design Of Integrated Conflict Management Systems Within Organizations-Executive Summary, available on http://www.mediate.com/articles/spidrtrack1.cfm.

147 148

See Mediate.com, Guidelines For The Design Of Integrated Conflict Management Systems Within Organizations-Executive Summary, available on http://www.mediate.com/articles/spidrtrack1.cfm. [13.130] 565

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4.

Effective integrated conflict management systems provide multiple options for addressing conflict, giving employees the opportunity to choose a problem-solving approach to conflict resolution, to seek determination and enforcement of rights, or to do both.

5.

Effective integrated conflict management systems provide necessary systemic support and structures that coordinate access to multiple options and promote competence in dealing with conflict throughout the organisation.

As with the Australian work, there is also recognition that support and structures are essential to ensure that the system works in a responsive and appropriate manner. According to the ACR/SPIDR work, such structures include: 149 • a demonstrated commitment by senior staff (this may also include union and other leaders). It may also include leadership by “one person who is the acknowledged ‘keeper of the flame’”; • the active involvement of a “continuous” oversight body composed of representatives from all key stakeholder groups; • the involvement of independent practitioners; • a central group or point that can coordinate activities; • evaluation and feedback systems; • training, which can include “critical mass training, ‘just-in-time’ on-the-spot training for individuals as needed, and educating managers, supervisors, union personnel and human services personnel”; • ensuring that the organisational ethos and values are aligned with the basic philosophies and that human resource and other strategies support the designed system. • encouraging “conflict competence” through performance management processes and providing incentives; • supporting interest-based communication strategies; • allocating costs and creating cost incentives to those within organisations that promote effective dispute resolution; and • ensuring that sufficient financial and human resources are allocated to the system. The approach taken assumes that each system must be tailored to meet individual and organisational needs. However, the design system that is proposed notes that some principles are “critical” to ensure that the system works well. These include “voluntariness, protection of privacy and confidentiality, impartiality of neutrals, qualifications and training of neutrals, 149

See Mediate.com, Guidelines For The Design Of Integrated Conflict Management Systems Within Organizations-Executive Summary, available on http://www.mediate.com/articles/spidrtrack1.cfm.

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diversity and accessibility, prohibition of reprisal and retaliation, respect for the role of collective bargaining agents, and non-preclusion of statutory and workplace rights”. 150

CONCLUSIONS [13.135] In its 2014 inquiry report, Access to Justice Arrangements, the Productivity Commission commented that “courts and tribunals are adopting increasingly innovative ways of incorporating ADR into their processes, and matching processes to the needs of disputes”, noting that mediation is the most popular form of ADR in this context. 151 Further, in its strong support of in-court referral to ADR processes, the Productivity Commission recommended that: 152 Where alternative dispute resolution processes have been demonstrated to be efficient and effective (such as in low value litigation), courts and tribunals should endeavour to employ such processes as the default dispute resolution mechanism, in the first instance, with provision to exempt cases where it is clearly inappropriate.

Clearly many courts and tribunals are keen users of ADR 153 and experiment in respect of ADR processes to meet their particular needs. Some have articulated ADR referral criteria. 154 In addition, forms of ADR can be created, trialled and evaluated within these systems. 155 The Productivity Commission also noted, and as discussed in Chapter 1, ADR options are now available at various levels within Australia and although courts and tribunals play an important role in the justice system, the system is also supported by ADR activities in a range of non-court and tribunal areas. Within this broader justice landscape, for the ADR systems to work effectively, and to enable the design and development of sophisticated dispute systems to take place, there is a need to balance the tensions between designing dispute systems that are flexible and allow for a “dynamic and procedurally fluid 150 151 152 153 154

155

See Mediate.com, Guidelines For The Design Of Integrated Conflict Management Systems Within Organizations-Executive Summary, available on http://www.mediate.com/articles/spidrtrack1.cfm. Productivity Commission, Access to Justice Arrangements (Report, Productivity Commission, 2014) p 292. Productivity Commission, Access to Justice Arrangements (Report, Productivity Commission, 2014) p 294 (Recommendation 8.1). T Sourdin, “The Role of the Court in Alternative Dispute Resolution” (2013) Asian Journal on Mediation 80, 93. For example, see VCAT, Practice Note – PNVACT5 Alternative Dispute Resolution (ADR) (2014) at [1], available on https://www.vcat.vic.gov.au/system/files/practice_note_vcat_4_alternative_dispute_ resolution_effective_1_october_2014_0.pdf. See VCAT, Guide to Short Mediation and Hearing (SMAH) (2013). SMAH is a shortened form of mediation that allows parties to explore options for resolving their dispute. Where the parties do not reach a resolution, the matter will proceed to a hearing that will occur on the same day as the mediation. In the 2013–2014 reporting year, approximately half of the cases referred to SMAH were resolved without a hearing. See guide available on https://www.vcat.vic.gov.au/system/files/guide_ to_short_mediation_and_hearing.pdf. [13.135] 567

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process” to be created 156 and those that can be regulated at the same time. NADRAC had articulated the tension as a need to balance two principles: the diversity principle (the need to recognise the diversity of contexts in which ADR is practised); and the consistency principle (the need to promote some consistency by identifying essential standards). 157 Some of these tensions have arisen as a result of the massive growth in ADR in recent years and the fact that ADR is now practised across society and is not “owned” by any particular organisation, industry or grouping. Many of the factors that are critical in terms of the health of an ADR system in the context of education, systemic and cultural issues are explored in the NADRAC “Resolve to Resolve” Report and it is clear that systemic change requires a consideration of these issues as well as the “tension” areas discussed below. 158 These tensions are most apparent in three areas of discussion that are relevant to ADR: 1.

the definitions that are adopted for ADR processes (see Chapter 1);

2.

the education, training and accreditation of ADR practitioners (see Chapter 14). One of the primary objections to the development of any rigid or overly prescriptive approach is that such an approach could “professionalise” ADR and move it out of the reach of many organisations and individuals. Peer mediation in the child and youth area, for example, has been said to flourish because of the lack of overly rigorous training and education requirements. Requiring “basic” training or competencies could stifle such developments and could also inhibit the growth in ADR process development;

3.

the guidelines or standards that operate to regulate ADR practice.

Many of the issues that are explored in Chapter 15 lie at the heart of dispute system design, which is also concerned with the cultural and implementation issues that can emerge in using ADR processes.

156

157 158

See the Society of Professionals in Dispute Resolution (SPIDR), Commission on Qualifications, Ensuring Competence and Quality in Dispute Resolution Practice, Report 2 (SPIDR, Washington, 1995) p 262. NADRAC, A Framework for ADR Standards (Framework Attorney-General’s Department, Canberra, 2001) Introduction. NADRAC, The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (Report, Commonwealth Attorney-General, 2009), available on https://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Documents/NADRAC%20Publications/the-resolve-toresolve-embracing-adr-improve-access-to-justice-september2009.pdf.

568 [13.135]

Chapter 14 Accreditation [14.05]

Introduction................................................................................................................... 569 [14.05] Standards in the ADR area ............................................................. 569 [14.10] Approval standards for mediators under the NMAS ........................................... 574 [14.15] Good character requirement .......................................................... 574 [14.20] Threshold training and education requirements ........................ 575 [14.25] Competency of mediators .............................................................. 577 [14.30] Continuing accreditation requirements ........................................ 578 [14.35] Recognised mediation accreditation body requirements...................................... 580 [14.40] [14.45]

Implementation of the NMAS ................................................................................... 582 Practice standards ........................................................................................................ 583 [14.50] Service standards ............................................................................. 585 [14.55] International approaches ................................................................ 586 [14.60] Other approaches to standards ..................................................... 587 [14.65] The application of standards beyond practitioners ............................................... 589 [14.70] The responsibilities of parties ........................................................ 591 [14.75] Court or tribunal-connected services ........................................... 591 [14.90] Standards used in evaluation, arbitration and conciliation processes ............... 595 [14.95] Education and training for ADR practitioners ....................................................... 597 [14.100] Overseas approaches ....................................................................... 599 [14.105] Conclusion................................................................................................................... 600

INTRODUCTION Standards in the ADR area [14.05] In recent years, extensive effort has been directed at establishing standards for ADR practitioners. This is one factor that is relevant from a systemic perspective. Essentially, if third-party intervenors are to be used, what is their role and how is “competence” to be defined? However, most efforts within Australia have largely been directed at mediators and related practitioners (such as, family dispute resolution practitioners [FDRPs]), the largest group of “third party intervenors” within the formal and informal dispute system. In January 2008, after more than a decade of discussion, the National Mediator Accreditation System (NMAS), which is a voluntary “opt in” scheme, became operational in Australia. 1 The scheme was developed following years of 1

See T Sourdin, Accrediting Mediators – The New National Mediation Accreditation Scheme, Report (September 2007), available at Social Science Research Network on http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=1134622 for the report on the NMAS and copies of the Australian National Mediator Standards Approval and Practice Standards. The NMAS Standards have also been reproduced in Appendix E of this book. [14.05] 569

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discussion regarding mediation accreditation and the development of standards in the sector. The NMAS Standards for accreditation and practice were updated on 1 July 2015. The development of this scheme followed increasing attempts “… at codifying what effective mediators should do and what they should know”, 2 and trends within the family dispute resolution area where an accreditation system has been phased in since 2007. 3 The accreditation system for FDRPs was developed following changes to the Family Law Act 1975 (Cth). The stated purposes of that accreditation system is to “ensure the provision of high quality dispute resolution services, and to recognise the professionalism of the sector”. 4 Regulation 83 of the Family Law Regulations 1984 (Cth) provides for minimum standards of education, training and experience to satisfy the requirements for accreditation. Since 1 July 2007, any practitioner wishing to be accredited under the family dispute resolution system is required to meet the new standards. The accreditation requirements have been fully implemented since 1 July 2009. These Australian developments can be contrasted with developments within the United States that remain fragmented and linked to sectoral interests in the mediation sector. The discussion about mediator accreditation has been more than robust, with one leading ADR expert in the United States describing the ongoing discussion as a “credentialing war”. 5 Others in the United States have described discussions relating to credentialing as “battles”. 6 As remarked by the consultant for a major report, “recent developments indicate that credentialing mediators in the name of promoting quality and protecting consumers is clearly a growth industry”. 7 The NMAS has been partly a response to ongoing concerns relating to credentialing and is directed at the creation of “basic standards”. In Australia, it has been assumed that in particular sectors there will be additional work done so that the basic standards are exceeded and that different sectors will seek to 2

M Herrman, N Hollett, D Goettler Eaker, J Gale and M Foster, “Supporting Accountability in the Field of Mediation” (2002) 18(1) Negotiation Journal 29 at 31.

3

See Attorney-General’s Department (Cth), For Family Dispute Resolution Practitioners, available on https://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyDisputeResolution/Pages/ Becomingafamilydisputeresolutionpractitioner.aspx.

4

See Attorney-General’s Department (Cth), Family Dispute Resolution, available on http:// www.ag.gov.au/fdrproviders.

5

D Hoffman, “Presentation” (LEADR Conference, Auckland New Zealand September 2007). See also R Barrett, Symposium: Certification of Mediators in California: Should California Enact Legislation? (Spring 1996) University of San Francisco Law Review 617.

6

J Nolan – Haley, Lawyers, “Non-Lawyers and Mediation: Rethinking the Professional Monopoly from a Problem-Solving Perspective, Harvard Negotiation Law Review”, Spring, 2002, 7 Harv Negotiation L Rev 235. See also E Waldman, “Credentialing Approaches: The Slow Movement Toward Skills-based Testing Continues” (2001) 8(1) Dispute Resolution Magazine (American Bar Association, Section of Dispute Resolution). C Pou Jr, Summary of Consultant’s Report on Mediator Quality Assurance to Macro and the Maryland Mediator Quality Assurance Oversight Committee (February 2002) p 1, available on http:// www.policyconsensus.org/tools/qualityassurance/docs/QAMDSummary.pdf.

7

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implement additional measures. For example, it is probable that additional “top up” requirements will be promulgated in the native title and other fields. Such additional requirements are likely to be expressed by reference to quality assurance and quality improvement. “Quality assurance” has been defined as “the means by which an organisation can assure its internal and external customers of consistent standards”. 8 The National Alternative Dispute Resolution Advisory Council (NADRAC) provides a useful working definition of “standards” as, in turn, “… rules, principles, criteria or models by which quality, effectiveness and compliance can be measured or evaluated.” 9 In this regard, clearly the core concepts of consistency, quality and public protection are central to the NMAS. However, some of the very strengths of mediation make such concepts difficult to test. The fact that mediation processes are often confidential and flexible in application, and are interest-based rather than rights-based, make them difficult to monitor. As one analyst has noted: 10 The absence of any structure of procedural or substantive rules, in a process conducted without direct public scrutiny, presents the real danger of harm from inept or unethical practitioners … [I]n mediation much more than in other dispute resolution processes, the quality of the process depends heavily on the quality of the practitioner.

In terms of encouraging quality mediators, it is clear that enhancing quality does not depend only on education and training. For example, to date it has been thought that no “… particular type or degree of prior education”, or as Astor and Chinkin state, “job experience had been shown to be an effective predictor of success as a mediator”. 11 Honeyman has remarked: 12 The argument that mediators need some understanding of the relevant law, of the dynamics of human relationships or of ethical issues that arise, is not necessarily an argument that mediation must be done by professionals in those fields. However it is an argument for training mediators.

Clearly, once a practitioner has achieved the required qualifications or experience in the NMAS (sometimes referred to as “hurdle” requirements) 13 – there are two additional issues to consider, which are: 8

9

10 11 12 13

D Syme, Culture and Quality Assurance: An Exploration of the Relationship Between Organisational Culture and the Introduction of Quality Assurance in Small Training Organisations (unpublished MA thesis, 1999) p 39. National Alternative Dispute Resolution Advisory Council (NADRAC), A Framework for ADR Standards (Framework, Attorney-General’s Department, Canberra, April 2001) p 10, available on http:// www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/NADRACpublications.aspx. R Baruch Bush, The Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and Policy Implications (National Institute for Dispute Resolution, Washington, 1992) p 3. H Astor and C Chinkin, Dispute Resolution in Australia (2nd ed, LexisNexis Butterworths, Sydney, 2002) p 31. C Honeyman, “A Consensus on Mediators’ Qualifications” (1993) 9(4) Negotiation Journal 295. C Pou Jr, Summary of Consultant’s Report on Mediator Quality Assurance to Macro and the Maryland Mediator Quality Assurance Oversight Committee (February 2002) p 2, available on http:// www.policyconsensus.org/tools/qualityassurance/docs/QAMDSummary.pdf. [14.05] 571

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1.

how the competency be can maintained at the standard, or indeed continually improved; and

2.

what the consequences are if a practitioner falls below those standards.

In the Australian context, NADRAC also considered that provision for client feedback and complaints is an essential part of a quality system, and recommended it form part of any code of practice in the ADR field. 14 Another important issue relates to the cost of surveying and the need to ensure that practitioners are not unduly burdened by requirements to seek customer inputs (see also discussion in Chapter 15 relating to ADR evaluation). 15 Most designers of quality systems suggest that in order to entrench quality systems and outcomes, it is important to create a “quality culture” rather than a “compliance culture”. This means a culture committed to continual enhancement of its quality rather than just making sure that a framework meets the minimum standards required. 16 However, creating standards for practice in mediation and other fields of ADR is not without difficulty. As has been noted in the family dispute resolution area: [I]n fields of work such as mediation “… we will never find one perfect, elegant solution to questions of quality assurance and accountability”. 17 Nevertheless, the complex and serious nature of primary dispute resolution tasks and of the nature of family conflict with which practitioners work, demands quality practice and clear lines of accountability. Thus, in recent years, there have been increasing attempts “… at codifying what effective mediators should do and what they should know,” 18 and there seems to be a general trend in this direction. … However, the task is not simple, for in addition to the difficulties of definition, assessment, and monitoring, various industry stakeholders 19 may have mutually incompatible interests. 20 14

National Alternative Dispute Resolution Advisory Council (NADRAC), A Framework for ADR Standards (Framework, Attorney-General’s Department, Canberra, April 2001) Recommendation 3, pp 63 and 73, available on http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/ NADRACpublications.aspx.

15

Pou has noted that bureaucratic hurdles can impede the development of flexible practices and reduce the practitioner base: C Pou Jr, Summary of Consultant’s Report on Mediator Quality Assurance to Macro and the Maryland Mediator Quality Assurance Oversight Committee (February 2002) p 19, available on http://www.policyconsensus.org/tools/qualityassurance/docs/QAMDSummary.pdf.

16

D Syme, Culture and Quality Assurance: An Exploration of the Relationship Between Organisational Culture and the Introduction of Quality Assurance in Small Training Organisations (unpublished MA thesis, 1999, Ch 2). M Herrman, N Hollett, D Goettler Eaker, J Gale and M Foster, “Supporting Accountability in the Field of Mediation” (2002) 18(1) Negotiation Journal 29, 30.

17 18 19 20

M Herrman, N Hollett, D Goettler Eaker, J Gale and M Foster, “Supporting Accountability in the Field of Mediation” (2002) 18(1) Negotiation Journal 29, 31. R Pipkin and J Rifkin, “The Social Organization in Alternative Dispute Resolution: Implications for Professionalization of Mediation” (1984) 9(2) The Justice System Journal 222, 222–224. T Sourdin, T Fisher and L Moloney, Towards Quality Standards for Family Dispute Practitioners – Research Report 2004 (La Trobe University, Melbourne, 2004), available on http://www.ibrarian.net/ navon/paper/Towards_Quality_Standards_for_Family_Dispute_Prac.pdf?paperid=2810804.

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NADRAC has played a key role in the development of ADR standards and has, in the past, formulated a series of recommendations on standards that draw on an extensive consultative process. 21 It is recognised that standards can: • identify competencies, knowledge and skills required for ADR; • assist in the promotion of monitoring, review and complaint processes for ADR; • serve as a guide for the conduct of ADR sessions, particularly in assisting practitioners to identify and address difficult ethical and other issues that may arise; • assist in the education of participants and others about ADR processes; • assist in the promotion of confidence in ADR; • promote a policy environment; • assist in the promotion of a more cohesive regulatory environment. The NMAS is directed at establishing “hurdle” or approval requirements as well as practice standards. In addition, the scheme has established a framework that is directed at enabling the largely self-regulated mediation area to manage issues relating to credentialing and quality improvement into the future in a coherent manner. The NMAS scheme comprises the following elements: 22 1.

Approval Standards which specify the training, assessment, personal qualities and experience required of a NMAS accredited mediator and for their renewal of accreditation;

2.

Practice Standards which specify the minimum practice and competency requirements of a NMAS accredited mediator;

3.

a framework in respect of Recognised Mediator Accreditation Bodies (RMABs) which accredit mediators according to the Approval and Practice Standards;

4.

a Register of Nationally Accredited Mediators (National Register), which is the authoritative list of NMAS accredited mediators; and

5.

the creation and maintenance of the Mediator Standards Board (MSB), which oversees the NMAS. Members of the MSB comprise RMABs, professional, government, community and consumer organisations; and education and training providers.

21

NADRAC, A Framework for ADR Standards (Framework Attorney-General’s Department, Canberra, April 2001), available on http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/ NADRACpublications.aspx. See Mediators Standards Board, National Mediator Accreditation System (NMAS) – A History of the Development of the Standards, available on http://www.msb.org.au/sites/default/files/documents/ NMAS%201%20July%202015.pdf.

22

[14.05] 573

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The MSB was established to fully implement the NMAS. It is also involved in developing complaints handling processes, the improvement of standards, the governance and funding of the MSB, and the continuing actions of the NMAS. 23

APPROVAL STANDARDS FOR MEDIATORS UNDER THE NMAS [14.10] To accredit a mediator under the national scheme, an RMAB must satisfy itself that the mediator meets the NMAS criteria. To work as mediators under the scheme, mediators must be “mediating” (the definition of mediation has previously been set out in Chapter 3). The NMAS Australian National Mediator Standards: Approval Standards (NMAS Approval Standards) s 2 states that applicants must make disclosures and provide written references to the RMAB and that: 24 An applicant must be of good character and possess appropriate personal qualities and experience to conduct a mediation process independently, competently and professionally ...

Under the definition of “mediation”, a mediator does not act in an advisory capacity. However, it is recognised that mediators may provide “information”. Those practitioners who do provide advice through the use of a blended process such as conciliation or “evaluative mediation” (which some writers have labelled a misnomer) must be properly qualified to provide “advice” and must also expressly seek the consent of participants before providing advice (such consent should ordinarily be given in writing).

Good character requirement [14.15] To be accredited, the RMAB requires a mediator to provide evidence of “good character”. Section 2.1 of the NMAS Approval Standards states: 25 (a)

provide written references from two members of their community who have known them for more than three years to the effect that they are of good character, or demonstrate that they already satisfy this requirement under another system;

(b)

disclose if they have been disqualified from any type of professional practice;

(c)

disclose any criminal conviction;

(d)

disclose any impairment that could influence their capacity to discharge their obligations in a competent, honest and professional manner;

23

See Mediators Standards Board, National Mediator Accreditation System (NMAS) – A History of the Development of the Standards, available on http://www.msb.org.au.

24

See Mediator Standards Board, Australian National Mediator Standards: Approval Standards (November 2008) s 3(1), available on http://www.msb.org.au/sites/default/files/documents/ NMAS%201%20July%202015.pdf.

25

NMAS, Australian National Mediator Standards: Practice Standards (July 2015), available on http:// www.msb.org.au/sites/default/files/documents/NMAS%201%20July%202015.pdf.

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(e)

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disclose if they have ever been refused NMAS accreditation or accreditation renewal or had their accreditation suspended or cancelled.

These requirements suggest a range of optional approaches that RMABs can use to assess “good character.” The NMAS also requires mediators to make undertakings and either be insured, if working as an independent contractor, or have employee status: 26 (f)

comply with the Approval Standards and Practice Standards, with any relevant legislation, professional standards and any other requirements that may be relevant to them;

(g)

pay the MSB registration fee in accordance with their RMAB’s practices;

(h)

become and remain a member of an RMAB or a member or employee of an organisation with a relevant ethical code or standard and a complaints and disciplinary procedure that can address complaints against mediators;

(i)

acknowledge that an RMAB can disclose information about them to the MSB and the MSB can release it to other RMABs upon request; and

(j)

be covered by relevant professional indemnity insurance or have statutory immunity …

Threshold training and education requirements [14.20] The NMAS provides two pathways for accreditation. Mediators can become accredited by attending a course that meets the requirements and being satisfactorily assessed as “competent” following the conclusion of the course that has a duration of 38 hours or more. The training and education does not have to be provided by an RMAB but may be conducted by a provider who meets the requirements, such as industry training providers, universities and other training teams. The training must have certain characteristics as set out in ss 2.2 and 2.3 of the NMAS Approval Standards. It must consist of: 27 (a)

a training course of a minimum of 38 hours in duration which may be conducted as a single course or in modules over a period of up to 24 months;

(b)

a training team of at least two trainers in which the principal trainer has more than three years’ experience both as a NMAS accredited mediator and as a trainer;

(c)

sufficient coaches for each trainee to be observed performing the role of mediator by different coaches in two simulated mediations each of at least 1.5 hours in duration;

(d)

coaches who are accredited as mediators under the NMAS and have at least two years or 50 hours mediation experience and who provide written feedback to the trainees they have observed;

26

NMAS, Australian National Mediator Standards: Practice Standards (July 2015), available on http:// www.msb.org.au/sites/default/files/documents/NMAS%201%20July%202015.pdf.

27

NMAS, Australian National Mediator Standards: Practice Standards (July 2015), available on http:// www.msb.org.au/sites/default/files/documents/NMAS%201%20July%202015.pdf. [14.20] 575

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(e)

each trainee participating in at least nine simulated mediations, in at least three of which they perform the role of mediator; and

(f)

content that includes the knowledge, skills and ethical principles articulated in the Practice Standards.

Unless applicants fall into the category of experienced mediators as set out in ss 2.5(b) and 2.5(c) (discussed below) they must also complete an assessment which requires the following: 28 (a)

an applicant, at a minimum, performing the role of a mediator in a simulated mediation of at least 1.5 hours;

(b)

an assessor observing a simulation (in real time, digitally or video recorded for later observation) without providing any coaching to the applicant during the simulated mediation;

(c)

an assessor who is an NMAS accredited mediator with at least 3 years mediation experience and with no conflict of interest with respect to the applicant and who is independent of the training team;

(d)

assessment criteria reflecting the knowledge, skills and ethical principles articulated in the Practice Standards;

(e)

an applicant being found competent by an assessor using an assessment form documenting the extent to which the applicant has met or has not met the assessment requirements; providing written feedback on the applicant’s performance and indicating the assessment outcome; and

(f)

in so far as circumstances allow, a copy of the assessment form being supplied to the applicant a reasonable time prior to the conduct of the assessment.

The other pathway to accreditation is through “experience” (which will usually involve some education and assessment components). The applicant “experience qualified” mediator must, under the NMAS, be assessed by an RMAB as demonstrating a level of competence by reference to the competencies expressed in the NMAS Australian National Mediator Standards: Practice Standards (NMAS Practice Standards). An experience qualified mediator must provide evidence to the RMAB of either (extracted from s 2.5 of the NMAS Approval Standards): 29 Experience, education and assessment (i)

providing evidence to an RMAB of having conducted at least 100 hours of mediation, and otherwise met the continuing accreditation requirements described in Section 3 below within the two years prior to application; and

(ii)

providing two references attesting to the mediator’s competence; and

(iii)

having completed mediator training, supervision or education to the satisfaction of the RMAB; and

28

NMAS, Australian National Mediator Standards: Practice Standards (July 2015), available on http:// www.msb.org.au/sites/default/files/documents/NMAS%201%20July%202015.pdf.

29

NMAS, Australian National Mediator Standards: Practice Standards (July 2015), available on http:// www.msb.org.au/sites/default/files/documents/NMAS%201%20July%202015.pdf.

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having been found competent in the assessment as described in Section 2.4.

OR CALD knowledge, experience and assessment (i)

providing evidence to an RMAB that the applicant possesses appropriate mediation experience and knowledge of the unique values and traditions within the culturally and linguistically diverse (CALD) community with which the mediator identifies; and

(ii)

providing two references attesting to the mediator’s competence; and

(iii)

having been found competent in the assessment as described in Section 2.4.

Competency of mediators [14.25] These criteria require the RMAB to consider whether mediators have the core competencies that were originally developed by NADRAC and then refined in 2006, 2007 and 2015. That is, mediators who have received training and an “experience qualified” mediators are to be competent in terms of (extracted from s 10.1 of the NMAS Practice Standards): 30 (a)

(b)

30

Knowledge (i)

the nature of conflict, including the dynamics of power and violence;

(ii)

the circumstances in which mediation may or may not be appropriate;

(iii)

preparing for mediation; assessing suitability; preliminary conferencing or intake;

(iv)

communication negotiation;

(v)

negotiation dynamics in mediation, including manipulative and intimidating tactics;

(vi)

cross-cultural issues;

(vii)

the principles, stages and functions of a mediation process;

patterns

in

conflict

and

(viii)

the roles and functions of mediators;

(ix)

the roles and functions of support persons, lawyers and other professionals in mediation; and

(x)

the law relevant to mediators and to the mediation process.

(i)

preparation for and dispute diagnosis in mediation;

(ii)

intake and screening of participants and disputes to assess mediation suitability;

Skills

NMAS, Australian National Mediator Standards: Practice Standards (July 2015), available on http:// www.msb.org.au/sites/default/files/documents/NMAS%201%20July%202015.pdf. [14.25] 577

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(c)

(iii)

the conduct and management of the mediation process;

(iv)

communication skills, including listening, questioning, reflecting, reframing and summarising, as required for the conduct of mediation;

(v)

negotiation techniques and the mediator’s role in facilitating negotiation and problem-solving;

(vi)

ability to manage high emotion, power imbalances, impasses and violence;

(vii)

use of separate meetings;

(viii)

reality-testing proposed outcomes in light of participants’ interests, issues, underlying needs and long-term viability; and

(ix)

facilitating the recording of the outcome of the mediation.

Ethical Principles (i)

competence, integrity and accountability;

(ii)

professional conduct;

(iii)

self-determination;

(iv)

informed consent;

(v)

safety, procedural fairness and equity in mediation including withdrawing from or terminating the mediation process;

(vi)

impartiality including the avoidance of conflicts of interest;

(vii)

confidentiality, privacy and reporting obligations; and

(vii)

honesty in the marketing and advertising of mediation and promotion of the mediator’s practice.

Competencies can be difficult to assess – particularly when referenced to experienced mediators from CALD communities. However, the larger question is: How should an RMAB assess applications against these competencies? Industry RMABs have taken varying approaches to assessing mediators under these criteria. All RMABs have asked for information from intending applicants about training and experience as a mediator. Some have asked for references from other mediators and some have also sought declarations.

Continuing accreditation requirements [14.30] Experienced qualified mediators who are not applying under the culturally and linguistically diverse category are also required to have a certain amount of experience and to have completed a certain amount of continuing professional development in the two years prior to making an application. This requirement is set out in s 3 of the NMAS Approval Standards (see Appendix E): 578 [14.30]

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3. Accreditation renewal requirements 3.1

An accredited mediator (a mediator) seeking renewal of accreditation must satisfy the approval requirements set out in Section 2.1 (except for 2.1(a)) above, and provide evidence to the RMAB that within the two years preceding application for renewal they have been conducting mediations and have engaged in continuing professional development (CPD) as described below.

3.2

A mediator must have conducted at least 25 hours of mediation, co-mediation or conciliation within the two-year cycle.

3.3

A mediator who has not met the requirement in Section 3.2 due to lack of work opportunities, health or career circumstances or residence in non-urban or CALD communities, must have conducted at least 10 hours of mediation, co-mediation or conciliation and must attend such supplementary training, coaching and/or assessment as the RMAB considers necessary, in addition to the CPD required in Section 3.5 below, to address the shortfall.

3.4

Renewal of accreditation in terms of Section 3.3 cannot be sought or granted for more than three consecutive renewals.

3.5

A mediator must undertake CPD of at least 25 hours that contributes to the knowledge, skills and ethical principles contained in the Practice Standards. This may be made up as follows: (a) Participating in Education (up to 20 hours) This means participating in formal structured activities such as training seminars and workshops (up to 20 hours) or attending conferences (up to 15 hours). (b) Reflecting on Practice (up to 15 hours) This means receiving professional supervision or coaching or participating in structured peer-based reflection on mediation cases. (c)

Providing Professional Development (up to 15 hours) This means delivering presentations on mediation or related topics, including two hours of preparation time for each hour delivered, or providing professional supervision, assessment, coaching or mentoring of mediator trainees and mediators. (d)

Credit for related professional CPD (up to 10 hours) This means [10] hours of CPD completed to maintain professional licensing or accreditation related to their mediation practice, such as in law or in the behavioural or social sciences or in the professional field in which they mediate, such as building or engineering. (e) Learning from Practice (up to 8 hours) This means participating in up to four mediations as a client representative or in a formal learning capacity (up to two hours per mediation) or role-playing for [14.30] 579

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trainee mediators and candidates for mediator assessment (up to two hours per simulation). (f) Self-directed Learning (up to 5 hours) This means private study such as reading, listening to or viewing pre-recorded content such as podcasts, or writing articles or books relevant to mediation that are published in recognised journals or by recognised publishers. (g) Other (up to 5 hours) This means such other activities as may be approved by the MSB on application by an RMAB. 3.6

A mediator who does not meet in full the requirements set out in Section 3.5 due to health or career circumstances or residence in non-urban or CALD communities, must undertake sufficient supplementary CPD to meet the requirements before renewal of accreditation can be granted.

3.7

A mediator must pay to the relevant RMAB the MSB registration fee at the time of accreditation renewal (unless the RMAB pays that fee to the MSB on their behalf).

3.8

A mediator must meet these requirements within two months of the due date for renewal of accreditation or their accreditation automatically lapses

3.9

CPD hours relied upon for any one renewal of accreditation must not be used for any subsequent renewal of accreditation.

Anecdotal evidence from experienced mediators suggests that this is the most problematic area of the new Standards and it is notable that some RMABs have imposed additional requirements. The NMAS also requires that mediators undertake to comply with the NMAS Practice Standards. These are reproduced in Appendix E and discussed later in this chapter.

RECOGNISED MEDIATION ACCREDITATION BODY REQUIREMENTS [14.35] Under the NMAS, an RMAB is required to have certain characteristics. These are set out in Part IV of the NMAS Approval Standards and referred to below with some commentary. Under s 1, an RMAB must have “at least 10 mediators accredited under the NMAS who are bona fide members, panellists or employees” and must also be have: 31 the capacity and expertise to assess whether training, education, assessment and CPD undertaken by applicants for accreditation or renewal of accreditation meet the respective requirements specified in the Approval Standards … [and] the ability to provide or refer members to CPD activities as outlined in section 3.5 of the Approval Standards 31

NMAS, Australian National Mediator Standards: Practice Standards (July 2015), available on http:// www.msb.org.au/sites/default/files/documents/NMAS%201%20July%202015.pdf.

580 [14.35]

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This criterion requires the RMAB to provide member services or provide a referral to member services. Examples are given of possible services in the standards document. In terms of the possible application of each of these services, the debriefing and mentoring of mediators is discussed in detail in Chapter 7. The NMAS also requires (under s 1.4 of the NMAS Approval Standards) each RMAB to have: 32 … a complaints system that either meets Benchmarks for Industry-Based Customer Dispute Resolution or the ability be able to refer a complaint to a scheme that has been established by Statute …

The Benchmarks for Industry-Based Customer Dispute Resolution were originally produced by the Department of Industry, Science and Tourism in 1997 33 and were revised in 2015 and released by the Minister for Small Business. The Benchmarks are are discussed in some detail in Chapter 5 at [5.20]. The six industry benchmarks that would need to be met if the RMAB does not have an existing statutory complaints scheme are in respect of: 34 1. Accessibility – Underlying principle The office makes itself readily available to customers by promoting knowledge of its services, being easy to use and having no cost barriers. Purpose – To promote access to the office on an equitable basis. 2. Independence – Underlying principle The decision making process and administration of the office are independent from participating organisations. Purpose – To ensure that the processes and decisions of the office are objective and unbiased, and are seen to be objective and unbiased. 3. Fairness – Underlying principle The procedures and decision making of the office are fair and seen to be fair. Purpose - To ensure that the office performs its functions in a manner that is fair and seen to be fair. 4. Accountability – Underlying principle The office publicly accounts for its operations by publishing its final determinations and information about complaints and reporting any 32

33

34

Mediator Standards Board, Australian National Mediator Standards: Approval Standards (November 2008) s 3(5)(c), available on http://www.msb.org.au/mediator-standards/standards. See Mediator Standards Board, RMAB Checklist, available on http://www.msb.org.au/accreditation-bodies/rmabchecklist. See Chapter 4 and Consumer Affairs Division, Department of Industry, Science and Tourism, Benchmarks for Industry-Based Customer Dispute Resolution Schemes (Benchmarks, DIST, 1997), available on http://www.anzoa.com.au/National%20Benchmarks.pdf. See also ASIC, Approval and Oversight of External Dispute Resolution Schemes, Regulatory Guide 139, available on http:// www.asic.gov.au. These Benchmarks were developed prior to the Australian Standard 4608–1999: Guide to the Prevention, Handling and Resolution of Disputes (1999), which included negotiation criteria and was superseded by a standard that was directed less at processes and more focused on systemic design (AS 4608–2004: Dispute Management Systems), and drew upon the earlier standards on complaints handling. The updated and revised 2015 Benchmarks are available onhttp:// www.treasury.gov.au/PublicationsAndMedia/Publications/2015/benchmarks-ind-cust-dispute-reso. 2015 Benchmarks available on http://www.treasury.gov.au/PublicationsAndMedia/Publications/2015/ benchmarks-ind-cust-dispute-reso. [14.35] 581

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systemic problems to its participating organisations, policy agencies and regulators. Purpose – To ensure public confidence in the office and allow assessment and improvement of its performance and that of participating organisations. 5. Efficiency – Underlying principle The office operates efficiently by keeping track of complaints, ensuring complaints are dealt with by the appropriate process or forum, and regularly reviewing its performance. Purpose – To give the community and participating organisations confidence in the office and to ensure the office provides value for its funding. 6. Effectiveness – Underlying principle The office is effective by having an appropriate and comprehensive jurisdiction and periodic independent reviews of its performance. Purpose – To promote community confidence in the office and ensure that the office fulfils its role.

The NMAS requires RMABs to have certain other characteristics including (see s 1 of the NMAS Approval Standards): 35 1.5

Sound governance structures, financial viability and appropriate administrative resources; and

1.6

Sound record-keeping in respect of mediators accredited under the NMAS.

As noted previously, an RMAB can be a professional body, a mediation agency or centre, a court or tribunal, or some other entity. There are clearly some marked differences in the approaches of the various RMABs.

IMPLEMENTATION OF THE NMAS [14.40] As noted in the 2007 report 36 on the NMAS, an implementation body called the National Mediator Accreditation Council (NMAC) operated until 2010. In late 2010, this body was replaced by the Mediator Standards Board (MSB). The MSB has members that include members of RMABs, training and education providers, and consumers of ADR services (community, government and business). It plays a core role in: • developing and reviewing the operation of the Standards; • developing a national register; • monitoring and supporting complaints handling processes; and • promoting mediation. Into the future, the MSB could consider that RMAB recognition will involve external rather than self-recognition, and may also enable a more cohesive 35

36

NMAS, Australian National Mediator Standards: Practice Standards (July 2015), available on http:// www.msb.org.au/sites/default/files/documents/NMAS%201%20July%202015.pdf. See Mediator Standards Board, RMAB Checklist, available on http://www.msb.org.au/accreditation-bodies/rmabchecklist. T Sourdin, Accrediting Mediators – The New National Mediation Accreditation Scheme (Report, 2007), available at SSRN on http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1134622.

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certification system and/or consider more advanced certification systems. The issue of more advanced certification has been raised in consultations with emergent international mediator certification bodies and may also become a more prominent issue. The work of NADRAC noted that, up until 2010, the development of standards was hampered by the lack of a national representative body in the ADR area, and it is hoped that the MSB can assist in the future. However, as there is no peak body for all ADR practitioners (see Chapter 1) and as ADR processes can be conducted at various levels throughout society, setting more uniform standards has been difficult. NADRAC also noted that standards have been developed by a range of organisations, including governments, courts, associations, advisory bodies and others. 37 This is likely to continue in different sectors, although there is perhaps potential for the various groups to adopt more consistent standards across the sector in relation to key ethical areas that could include: • • • •

conflict of interest; fiduciary obligations; publicity and advertising; reporting; and

• continuing education, debriefing and complaints.

PRACTICE STANDARDS [14.45] Under the NMAS, mediators must also comply with the NMAS Australian National Mediator Standards: Practice Standards (NMAS Practice Standards). These are set out in Appendix E and discussed below. Although the NMAS scheme is a national one, other ethical standards will continue to be applied (at least in the short term) and will continue to inform the NMAS Standards. 38 In this regard, the NMAS Practice Standards draw on standards that have previously been developed within Australia and overseas, and this is intended to facilitate the transition to the new NMAS Practice Standards. A selection of the relevant Australian Standards is set out in the table below. Selection of Australian ADR standards Body or statute ACT Community Services and Health Industry Training Board

37

38

Standard ACT Competency Standards for Mediators, 2000

NADRAC, A Framework for ADR Standards (Framework Attorney-General’s Department, Canberra, April 2001) p 41, available on https://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/ Documents/NADRAC%20Publications/Framework%20for%20ADR%20Standards%20Preliminaries.pdf. See discussion regarding ethical understandings and approaches in J Crowe, “Ethics and the Mediation Community” (2015) 26 Australasian Dispute Resolution Journal 20-25. [14.45] 583

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Body or statute Chartered Institute of Arbitrators Family Law Act (1975) (Cth) Resolution Institute Law Council of Australia Attorney-General’s Department/ Department of Family and Community Services Treasury Standards Australia

Standards Australia

Standard Code of Professional and Ethical Conduct for Members Family Law (Dispute Resolution Practitioner) Regulations 2008 Practice Note on Arbitrator Conduct Expert Determination Rules Australian Collaborative Guidelines Family Services Quality Strategy

Benchmarks for Industry Customer Dispute Resolution Schemes AS 4608:1999: Australian Standard Guide to the Prevention, Handling and Resolution of Disputes AS/NZS 10002:2014 Customer Satisfaction – Guidelines for Complaint Management in Organizations

In the past, the conduct provisions and standards developed by ADR service providers and professional bodies have been expressed in a variety of forms. Some appear as “rules” that are annexed to or form part of an agreement between the neutral and the disputing parties. For example, it is common for mediation agreements to outline the roles and responsibilities of the practitioner and the parties, particularly relating to the costs, confidentiality, conflicts of interest, authority, privilege, liability and enforceability of any agreement reached. 39 Other standards appear as separate guidelines or “codes”. For example, a group that includes representatives of all major ADR bodies in Australia developed standards for mediators. The “Let’s Talk” 40 project was responsible for the formulation of a standard for mediation that was influential in the development of the NMAS Standards. Most conduct provisions and standards set out core principles with a detailed explanation of what those principles mean. The NMAS Standards follow this approach and there was much discussion about whether the NMAS Practice Standards should be “standards” or “guidelines”. Where the ADR processes are related to the court system or are community-based, many “standards” are in the

39 40

The New South Wales Retail Tenancy Unit Agreement to Mediate incorporates these matters (2008). The “Let’s Talk” group included representatives from various organisations such as LEADR, Australian Commercial Disputes Centre (ACDC), the Law Society of NSW, Family Mediation Centres such as UNIFAM, Relationships Australia and other groups.

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form of codes of conduct; 41 others are expressed as guidelines 42 or as best-practice models. 43 Some standards are contained in legislation and expressed as statutory obligations. 44 In the collaborative practice area, “guidelines” rather than standards have been adopted (see Appendix E). 45

Service standards [14.50] Discussion about standards has also related to the extent to which they need to be developed and whether lawyers and others are “capturing” ADR processes and attempting to over-regulate those processes (see Chapter 15). In this regard, in the past NADRAC has expressed concerns about creating a national regulatory action or exclusionary standard. 46 Practitioner standards and guidelines generally focus on the expected service to be provided and will often make provision for: • the appropriateness of the ADR process – whether any matters should be excluded; • the role, function and competence of the practitioner; • the conduct and a description of the ADR process – what steps are followed; • the ADR practitioner’s responsibility to the parties – this element relates to the their duty to maintain impartiality, neutrality, confidentiality and to avoid conflicts of interest; there will often be a reference to fees and party liability in respect of fees (in some instances, for example, an employer may pay all fees of the mediator rather than the parties to the dispute paying any fees); • the approach of the organisation and any contact information; there may also be details about the ADR practitioner’s responsibility to the organisation or to other neutrals 47 as well as information relating to the management systems, quality control and assurance, and facilities available; • the responsibilities of the parties to each other and to the process – confidentiality, authority, representation and conduct. 41

42 43 44 45

46

47

For example, the NSW Community Justice Centres, Code of Professional Conduct for Community Justice Centre Mediators; ACT Conflict Resolution Service (CRS), Code of Professional Conduct; and Queensland Department of Justice and Attorney-General (Alternative Dispute Resolution Division), Code of Ethics for Mediators for the ADR Division (May 1994). For example, the NSW Law Society, Revised Guidelines for Solicitors Who Act as Mediators (29 July 1993). The Law Council of Australia has adopted the model entitled Ethical Standards for Mediators (7 December 1996). Family Law Regulations 1984 (Cth), regs 59–73. See Law Council of Australia, Collaborative Practice Committee, available on http:// www.lawcouncil.asn.au/lawcouncil/index.php/divisions/legal-practice-division/collaborativepractice. NADRAC, A Framework for ADR Standards (Framework Attorney-General’s Department, Canberra, April 2001) p 50, available on http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/ NADRACpublications.aspx. For example, the NSW Community Justice Centres, Code of Professional Conduct for Community Justice Centre Mediators; ACT Conflict Resolution Service (CRS), Code of Professional Conduct; and Queensland Department of Justice and Attorney-General (Alternative Dispute Resolution Division), Code of Ethics for Mediators for the ADR Division (May 1994). [14.50] 585

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NADRAC has noted that the key principles outlined in its earlier discussion paper and final report were influenced by ongoing discussion about standards and organisational responsibilities that has occurred in the United States. 48 In particular, the work of the Association for Conflict Resolution (ACR) (in its previous form as Society of Professionals in Dispute Resolution [SPIDR]) in respect of competency and quality, as well as standards for ADR practitioners, has been relevant. 49

International approaches [14.55] In the United States, a number of different standards have been adopted for mediation. For example, under ACR’s standard, ADR practitioners have responsibilities to be “honest and unbiased, act in good faith, be diligent, and not seek to advance their own interests at the expense of their parties”. 50 Practitioners also have an obligation to ensure that, where necessary, parties consider the interests of others who may be affected by the mediation outcomes. In addition, practitioners have particular responsibilities to parties relating to their obligations to: 51 • maintain impartiality and confidentiality; • ensure that all parties understand the nature of the process, the procedures, the role of the practitioner and the parties’ relationship to the practitioner; • avoid conflicts of interest; • be prompt in the carriage of the process; • ensure that the parties consider the terms of the agreement (where relevant) and where the practitioner has concerns about the consequences of the agreement, to inform the parties of such concerns. In the United Kingdom, there are similar issues to those raised by NADRAC, and self-regulation, through a series of codes, has been supported. 52 The European Union has also published a code for mediators. 53

48 49 50 51

52

See J D Feerick, “Standards of Conduct for Mediators” (1996) 79(6) Judicature 314, for an overview of the development of standards in the United States. Society of Professionals in Dispute Resolution (SPIDR), Ethical Standards of Professional Responsibility (adopted June 1986), available on http://www.dod.gov/dodgc/doha/adr/ethical_standards.html. SPIDR, Ethical Standards of Professional Responsibility (adopted June 1986), available on http:// www.dod.gov/dodgc/doha/adr/ethical_standards.html. SPIDR, Ethical Standards of Professional Responsibility (adopted June 1986), available on http:// www.dod.gov/dodgc/doha/adr/ethical_standards.html; see also Australian Law Reform Commission (ALRC), Review of the Adversarial System of Litigation. ADR – Its Role in Federal Dispute Resolution, Issues Paper 25 (ALRC, Sydney, June 1998) p 143. See discussion in L Mistelis, “ADR in England and Wales: A Successful Case of Public Private Partnership”, available on http://www.academia.edu/262766/ADR_In_England_and_Wales_12_Am and referring to The Lord Chancellor’s Department, which originally published an Alternative Dispute Resolution Discussion Paper in 1999. Self regulation has continued in the UK (in contrast with many

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Other approaches to standards [14.60] Other standards for mediation, such as the Australian Family Dispute Resolution Practitioners Draft Approval Standards, 54 draw more on the American Bar Association standards 55 and Canadian family standards. Standards developed by organisations such as the United Kingdom College of Family Mediators (UKCFM), 56 which have a registration or certification focus, also typically include professional accountability as a purpose. In addition, as a professional body, the UKCFM also includes professional development and professional support as integral to their standards. In the United States, the main ADR umbrella organisation is the Association for Conflict Resolution (ACR). The ACR board recently approved the introduction of “universal Ethical Principles for ACR that will guide practice standards for all ACR neutrals and be in compliance with existent behavioral standards for dispute resolution processes contemplated by the various Sections of the organization”. 57 Another influential group is the International Mediation Institute (IMI) which has promulgated a professional code of conduct. 58 This resembles the NMAS content although it also provides for a conduct assessment process. There are also specialist standards that are linked to particular work areas and may be derived from international outreach work. For example, the Elder Mediation Australasian Network (EMAN) 59 is related to the Elder Mediation International Network (EMIN) and has accepted a draft conduct code for elder mediators which incorporates additional educational, practice and ethical requirements. 60 Judicial bodies may have additional agendas. For example, in Canada the Ontario non family court mediators have a point system for accreditation and other European States, for example, France). The two main bodies involved in mediation accreditation are the Civil Mediation Council (CMC) and the Family Mediation Council. For a summary of the developments in the UK, see https://e-justice.europa.eu/content_mediation_in_member_states-64EW-en.do?clang=en. 53

54

55

56 57

58 59 60

See Nationwide Academy for Dispute Resolution (UK) Ltd, European Code of Conduct for Mediators, available on http://www.nadr.co.uk/articles/published/mediation/european-code-of-conduct-formediators.pdf. See T Sourdin, T Fisher and L Moloney, Towards Quality Standards for Family Dispute Practitioners – Research Report 2004 (La Trobe University, Melbourne, 2004), available on http://www.ibrarian.net/ navon/paper/Towards_Quality_Standards_for_Family_Dispute_Prac.pdf?paperid=2810804. See “Model Standards of Practice for Family and Divorce Mediation”, in S Goldberg, F Sander and N Rogers, Dispute Resolution – Negotiation, Mediation and Other Processes, 2002 Supplement (Aspen Publishers, New York, 2002) p 83. See College of Mediators on http://www.collegeofmediators.co.uk/. Association for Conflict Resolution, Final Report of ACR Ethics Committee (May 2010), available on http://www.imis100us2.com/acr/ACR/Resources/Model_Standards/ACR/Resources/Model_ Standards.aspx?hkey=315fc2bd-2cac-422b-82bf-b3160b6a1b08. Available on https://imimediation.org/imi-code-of-professional-conduct. See Elder Mediation Australasian Network (EMAN), available on http://elder-mediation.com.au/. See the Code for Professional for Mediators Specializing in Issues of Aging, available on http://eldermediation.com.au/wp_files/wp-content/uploads/2014/02/Code-of-Professional-Conduct-June2015.pdf. [14.60] 587

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have quality control as the stated purpose of this arrangement. 61 The Ontario Association for Family Mediation adheres to a more extensive set of accreditation arrangements than in the non-family area and revised their Code of Professional Conduct in April 2010: Standards of Practice are intended to govern the relations of family mediators with their clients, their professional colleagues, and the general public so that all will benefit from high standards of practice in family mediation. 62

Rather than simply promoting public understanding of mediation, in the United States the Florida Rules for Certified and Court-Appointed Mediators 63 aim, by their inclusion of a requirement of “good moral character”, to protect participants in mediation and the public. In some contexts, uniformity is a driving force. The peak Canadian national body, Family Mediation Canada, states that the purpose of its Practice, Certification and Training Standards is to create “national uniform standards that apply in relation to family mediation across Canada”. 64 In the United States, under the Uniform Mediation Act 2001 (US), which has been ratified in some American States, the primary purpose is to create a standard nationwide framework for protecting the confidentiality of mediation communications and create more certainty for participants in the process. 65 The NMAS Practice Standards incorporate some of the earlier work, as outlined in Table 14.1 above (Selection of Australian ADR standards), and also are directly responsive to the feedback received from practitioners in the consultation that was undertaken. The NMAS Practice Standards note that the scheme is voluntary and, in the application section, note that mediators support participants in a mediation process to identify, clarify and explore issues, to generate and consider options and to make decisions about future actions and outcomes. The NMAS Practice Standards also describe the purpose of mediation and set out key principles (see Appendix E for detailed Standards): • The purpose of a mediation process is to maximise participants’ decision-making. • Before mediating, a mediator will ensure that an outline of the mediation process has been given to the participants. • Mediators shall have completed training that assists them to recognise power imbalances and issues relating to control and intimidation, and to take appropriate steps to manage the mediation process accordingly. 61 62 63

See Ontario Ministry of the Attorney General, http://www.attorneygeneral.jus.gov.on.ca/english/ courts/manmed/guidelines.asp. See Ontario Association for Family Mediation, Standards of Practice (revised April 2010), available on http://www.oafm.on.ca/mediators/Standards_Of_Practice.html#Foreward.

64

See Florida State Courts, Rules for Certified and Court-Appointed Mediators (July 2011), available on http://www.flcourts.org/gen_public/adr/certrules.shtml. See Family Mediation Canada, Certification, available on http://www.fmc.ca/index.php?page=18.

65

See Uniform Law Commission, available on http://www.nccusl.org/Act.aspx?title=Mediation%20Act.

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• A mediator must conduct the dispute resolution process in an impartial manner and adhere to ethical standards of practice. • A mediator must respect the confidentiality of the participants. • Mediators must be competent and have relevant skills and knowledge. • Mediators should respect the relationships with professional advisers, other mediators and experts which complement their practice of mediation. • A mediator will conduct the mediation process in a procedurally fair manner. • The mediator has no advisory or determinative role in regard to the content of the matter being mediated or its outcome. The mediator can advise on and determine the mediation process. • The mediator may suspend or terminate a mediation process if continuation of the process might harm or prejudice one or more of the participants. • The mediator must make explicit to parties all charges related to the practitioner’s services and how they are calculated. • The mediator must ensure that public statements made by the mediator promoting business are accurate.

THE APPLICATION OF STANDARDS BEYOND PRACTITIONERS [14.65] ADR Standards can be applied beyond practitioners and may relate to service organisations that engage ADR practitioners. Standards can also be applied to the participants, support people, representatives and organisations that may be involved in the actual ADR process (see also discussion relating to good faith and other obligations in Chapter 11 at [11.30]). In the past, NADRAC has referred to this broader application as a framework approach and primarily referred to practitioner and ADR service provider obligations. In this regard, NADRAC has noted that developing standards is an evolutionary process that can be supported by creating a “framework” approach that does not support prescriptive standards. 66 The framework is comprised of: • guidelines that can be used to develop and implement standards; • a requirement for codes of practice to be developed and, where applicable, the enforcement of a code through appropriate means. 67 “Code of practice” includes reference to a code of ethics, rules, guidelines, benchmarks, policies and procedures. The central approach taken by NADRAC is that ADR providers should adopt and comply 68 with a code of practice that takes into account the following matters: 66

67

68

NADRAC, A Framework for ADR Standards (Framework Attorney-General’s Department, Canberra, April 2001) p 70, available on http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/ NADRACpublications.aspx. NADRAC, A Framework for ADR Standards (Framework Attorney-General’s Department, Canberra, April 2001) p 71 Recommendation 1, available on http://www.ag.gov.au/LegalSystem/ AlternateDisputeResolution/Pages/NADRACpublications.aspx. NADRAC, A Framework for ADR Standards (Framework Attorney-General’s Department, Canberra, [14.65] 589

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• The process to be used. This includes information relating to all participants, how and when the process may or should be terminated, as well as obligations after the process is concluded. • Informed participation. This includes obligations to make informed choices about participation, obligations relating to advertising and promotion, and how and when parties will be informed about service provision. • Obligations in respect of access and fairness to: – determine the appropriateness of the process; – ensure the accessibility of the service; – achieve fairness and confidentiality; – maintain confidentiality. • Service quality. A description of the knowledge, skills and ethics required as well as quality assurance information. • Complaints and compliance information and obligations. 69 The NADRAC approach was directed at all Australian ADR service providers. As NADRAC is a body created by the federal Attorney-General, it has made recommendations that are also specific to the Commonwealth. These recommendations include that, in any Commonwealth contract, compliance with the code of practice should form part of the contract provisions. In addition, NADRAC has recommended that Commonwealth government departments and agencies encourage other government agencies to support this approach and encourage compliance through consumer education activities. 70 The recent work by NADRAC in relation to dispute management plans at the federal level are also oriented towards creating a policy and action framework to address these areas (see Chapter 9). 71 This approach is also consistent with the organisational accreditation framework that operates in respect of funded family services. The approval of organisations under the Family Law Act 1975 (Cth) is mainly linked to funding under the Family Relationship Services Program (FRSP). The publication Operational Framework for Family Relationship Centres, 72 was produced by the Department of Family and Community Services and describes the standards for organisations seeking funding and approval. Funded organisations must comply

69

April 2001) p 71 Recommendation 2, available on http://www.ag.gov.au/LegalSystem/ AlternateDisputeResolution/Pages/NADRACpublications.aspx. NADRAC, A Framework for ADR Standards (Framework Attorney-General’s Department, Canberra, April 2001) pp 98-99, available on http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/ Pages/NADRACpublications.aspx.

70

NADRAC, A Framework for ADR Standards (Framework Attorney-General’s Department, Canberra, April 2001) Recommendations 6, 7 and 8, available on http://www.ag.gov.au/LegalSystem/ AlternateDisputeResolution/Pages/NADRACpublications.aspx.

71

NADRAC, Dispute Management Plan, available on https://www.ag.gov.au/LegalSystem/ AlternateDisputeResolution/Pages/DisputemanagementinAustralianGovernmentagencies.aspx. See Department of Families, Housing, Community Services, and Indigenous Affairs, Operational Framework for Family Relationship Centres, available on https://www.ag.gov.au/FamiliesAndMarriage/ Families/FamilyRelationshipServices/Documents/ Operational%20Framework%20for%20Family%20Relationship%20Centres.pdf.

72

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with a number of core (or essential) standards, based on those initially developed by the Australian Quality Council framework. 73 The Framework asks four key questions about service delivery: 1.

how much did we do (outputs)?

2.

how well did we do it (processes)?

3. 4.

did we make a difference in the short term (immediate outcomes)? did we make a difference in the longer term (intermediate outcomes)?

The responsibilities of parties [14.70] NADRAC’s past recommendations and the NMAS as well as other ADR guidelines particularly concern ADR practitioners, and there are issues about how and whether standards can also be developed for parties. Recent changes that impose “good faith” requirements can seek to address this area (see Chapter 11); however, sometimes participant obligations are also contained in guidelines that accompany practitioner guidelines. The Law Society of NSW proposed a charter for mediation practice, which outlined the rights and responsibilities of the participants of the Law Society’s mediation program. As well as outlining what parties can expect of mediators, the charter also outlines what is expected of the parties. This includes their: 74 • attendance at mediation in good faith; • attendance at both preliminary and mediation sessions; • authority to negotiate and settle; • willingness to adopt a positive attitude; and • being prepared to give and take. The charter also provides for consumer feedback by giving parties the option of completing a questionnaire about the mediation session. This approach would appear to be one way in which a service provider could meet the code of practice requirements suggested by NADRAC. To some extent, the work of the Victorian Law Reform Commission in respect of “good faith” requirements and participant obligations (discussed in Chapter 11) is directed at party “standards”.

Court or tribunal-connected services [14.75] Where ADR processes are related to the court and tribunal system, there has been an additional focus on the need to develop standards. Standards (and objectives – see Chapter 1) can assist in informing and guiding the implementation, conduct and evaluation of court-related programs. 75 To date, 73 74 75

See also the Auditor-General, Implementation of the Family Relationship Centres Initiative: Audit Report No 1 2010–11 (Australian National Auditor’s Office, 2010) p 18. Law Society of NSW, Charter for Mediation Practice – A Guide to the Rights and Responsibilities for Participants to Mediation (1998); see also Appendix B of this book. Centre for Dispute Settlement, The Institute of Judicial Administration and the State Justice Institute (SJI), National Standards for Court-connected Mediation Programs (SJI, Washington, 1992) p i. [14.75] 591

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most standards have focused only on mediation and are primarily directed at the practitioner (rather than the court or tribunal as a service provider). The Access to Justice Advisory Committee (AJAC) recommended that minimum standards for court and tribunal ADR programs, particularly court-connected mediation, be developed. The view of the Committee was that: 76 … governments have a special responsibility for the quality, integrity and accountability of the ADR processes provided by their courts and tribunals. [This responsibility] extends to all ADR programs funded by the government.

AJAC proposed that various issues need to be considered in the formulation of such standards. 77 However, the consideration appears to have been limited to mediation rather than a wide-ranging discussion of ADR processes. The various issues considered were as follows: • access to mediation services, including the costs, the need for policies to account for cultural diversity, and the circumstances in which people should be advised of the availability of mediation services; also, the training of staff on the availability and nature of mediation programs and the location and hours of operation of mediation services; • the responsibilities of courts and tribunals (and other mediation service providers) to users and participants of ADR programs, including the provision of information about the programs, who are responsible for them and the complaints systems; • the suitability of certain types of cases or users for mediation; • conduct of a mediation; • • • • • •

qualification and ethical standards for mediators; confidentiality of mediation conferences; the role of lawyers in mediation; the inappropriateness of coercion to settle; communications between the mediator and the court, tribunal or other body; funding of programs and compensation of mediators;

• liabilities and immunities of mediators; • the enforceability of mediation agreements; • the need for regular evaluation of programs. National best practice guidelines for court-connected mediation were proposed some years ago. 78 The guidelines were designed to be broad-based and applicable to all jurisdictions. They are divided into three sections covering the mediation process, the mediator’s role and the participants in mediation. 76 77 78

Access to Justice Advisory Committee (AJAC), Access to Justice – An Action Plan (AGPS, Canberra, 1994) p 294. AJAC, Access to Justice – An Action Plan (AGPS, Canberra, 1994) pp 295–296. T Sourdin, J David and M Scott, Court-connected Mediation National Best Practice Guidelines – Draft for Comment (UTS, Sydney, 1994). The draft guidelines were developed at a National Best Practice Workshop held in Sydney on 6–7 August 1994.

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Guidelines relating to the mediation process can provide for: • a definition of mediation; 79 • objectives to be broadly stated; • the mediation process to be voluntary but attendance at information sessions mandatory; • ongoing quality control of any mediation program involving regular user surveys, ongoing structured feedback from users and ongoing training requirements. As for the mediator’s role, the guidelines provide for: • a definition of the mediator’s function; • each court and tribunal to develop its own complaints-handling guidelines including, for example, providing for the refund of moneys or the suspension or removal of a mediator; • immunity from civil liability for internal mediators; protection for external mediators to be developed by individual courts and tribunals, and may include protection in defined circumstances or on the certification of insurance; • accreditation and re-accreditation criteria. The guidelines relating to the participants in mediation provide for: • all participants to be given guidelines concerning the process, which should set out the definition of the process, the mediator’s role, information about the process and grievance and evaluation procedures; • all participants to be advised that they may withdraw from the process at any time and that they must observe rules of courtesy; • observers to be present if the parties and the mediator agree. Other guidelines relating to who should attend mediations and the use of “shuttle mediation” were also provided for. Approaches in the family dispute area [14.80] In 2004, draft standards were developed for family dispute resolution practitioners (FDRPs). The draft standards dealt with approval (or hurdle) as well as practice (or maintenance) standards. They were developed following the exploration of a quality framework approach and the publication of research and literature review reports. 80 The draft standards were developed at the request of the Commonwealth Attorney-General’s Department with the specific objective of ensuring that 79

Defined as “a voluntary and confidential process in which a mediator independent of the disputants facilitates the negotiation by the disputants of their own solution to their dispute by assisting them systematically to isolate the issues in dispute, to develop options for their solution and to reach an agreement which accommodates the interests and needs of all disputants”.

80

See T Sourdin, T Fisher and L Moloney, Towards Quality Standards for Family Dispute Practitioners – Research Report 2004 (La Trobe University, Melbourne, 2004), available on http://www.ibrarian.net/ navon/paper/Towards_Quality_Standards_for_Family_Dispute_Prac.pdf?paperid=2810804. [14.80] 593

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primary dispute resolution (PDR) referral mechanisms in the family area are effective and may be the subject of additional modification. The draft standards and background research reports also assist to summarise some current approaches to standard setting. The draft approval standards deal with the following three categories of practitioners who seek approval under the Family Law Act 1975 (Cth) to act as: 1.

2.

3.

counsellors to assist individuals or families to manage or resolve separation-related family disputes through the use of counselling processes that are designed to assist individuals to resolve personal and interpersonal issues (“family counsellor practitioners”); facilitators to assist two or more individuals to manage, settle or resolve separation-related family disputes through the use of facilitative processes, such as mediation – this involves the practitioner acting as a third party to assist the parties in dispute to identify disputed issues, develop options and consider alternatives through a process of self-determination, the facilitator having no advisory role in terms of the content of the dispute (“family facilitative practitioners”); advisers to assist two or more individuals to manage, settle or resolve separation-related family disputes through the use of advisory processes, such as conciliation and forms of conferencing. Here the practitioner acts as a third party, considers and appraises the dispute and provides advice relating to the area of the adviser’s expertise (for example, in tax or law) as to the facts, possible or desirable outcomes and how these might be achieved (“family dispute advisory practitioners”).

Practitioners who act in these roles were referred to in the draft approval standards as “family dispute resolution practitioners” and this terminology has since been adopted in the extensive family law amendments. The draft approval standards specified different qualifications and competencies for each category of practitioner. In addition, all categories of practitioners were required to have some basic characteristics, personal qualities and sufficient life, social and work experience to conduct the process independently and in a professional manner. 81 Approaches in the United States [14.85] In the United States, the National Standards for Court-Connected Mediation Programs 82 were developed to guide and inform courts interested in initiating, expanding or improving their mediation programs. The standards were directed at mediation service provision as well as practitioners, and recommended that court programs should: • provide for access to mediation on the same basis as other court services; 81

82

See T Sourdin, T Fisher and L Moloney, Towards Quality Standards for Family Dispute Practitioners – Research Report 2004 (La Trobe University, Melbourne, 2004), available on http://www.ibrarian.net/ navon/paper/Towards_Quality_Standards_for_Family_Dispute_Prac.pdf?paperid=2810804. Developed in 1992 as a joint project of the Center for Dispute Settlement in Washington, DC, the Institute of Judicial Administration (New York) and the State Justice Institute (SJI).

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• provide general and process information about mediation to all court personnel, lawyers and users, including information about options; • establish criteria for when and which cases are referred to mediation; • have mandatory attendance only at initial session; where mandatory mediation programs operate, they should be evaluated on a regular basis; • establish criteria for the selection, training, accreditation and monitoring of mediators’ performance; • establish ethical standards for mediators; • have clear written policies on the confidentiality of the mediation process and on communications between mediators and the court; • encourage lawyers to advise clients about mediation as an ADR mechanism and allow lawyers to be present at mediations; • make mediation available to parties regardless of the parties’ ability to pay; • provide protection from civil liability for internal court mediators; • provide that mediated agreements should be enforceable to the same extent as agreements reached without mediators; and • monitor and evaluate programs on a regular basis.

STANDARDS USED IN EVALUATION, ARBITRATION AND CONCILIATION PROCESSES [14.90] ADR practitioners involved in ADR processes other than mediation have few specific practice standards to guide them. 83 However, there are some isolated examples. For example, in the collaborative practice area there are now guidelines that apply (see Appendix E) that are loosely modelled on the NMAS but which also set out disqualification requirements. In relation to evaluators, there is also some guidance in institutional rules. For instance, where a dispute is evaluated by an expert member of the Resolution Institute (formerly the Institute of Arbitrators and Mediators Australia (IAMA) and LEADR), the parties agree to be bound by the standards, expressed as “rules”, of the institute. 84 The rules set out the procedures to be followed in the conduct of an evaluation and the responsibilities of the expert and the parties. Experts must conduct the process in a fair and impartial manner. The Resolution Institute has also developed standards for commercial arbitrators that are mainly concerned with the procedural framework 85 that is

83

As noted previously, they may be guided by professional standards (for example, as medical or legal or other practitioners).

84

Institute of Arbitrators and Mediators Australia (IAMA) and LEADR, now named the Resolution Institute, Rules for Expert Determination (2001), available on https://www.iama.org.au/resources/ expert-determination-rules.

85

For example, the procedure relating to the appointment of an arbitrator, the notification of an arbitration, the payment of money by way of security for costs etc. [14.90] 595

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used in arbitration. 86 Essentially, arbitrators are able to conduct arbitration in any manner they see fit, subject to agreement by the parties. The Resolution Institute has also developed a structure of professional rules, which provide for various matters that are referred to in the NADRAC framework. 87 Many arbitrators are not bound by any specific ethical rule mechanisms although they may be bound by rules and practice notes and guidelines in relation to schemes (and contractual requirements). This is because a great deal of the referral work that occurs involves referral to solicitor or barrister arbitrators who may not be governed by specific arbitration practice standards. Most law societies provide little guidance on standards in this area. In the United States, more extensive arbitration rules have been developed. For example, the American Arbitration Association and American Bar Association have prepared The Code of Ethics for Arbitrators in Commercial Disputes. 88 The Code provides that an arbitrator should: • uphold the integrity and fairness of the arbitration process; • disclose any interest or relationship likely to affect impartiality or which might create an appearance of partiality or bias; • in communicating with the parties, avoid impropriety or the appearance of impropriety; • conduct the proceedings fairly and diligently; • make decisions in a just, independent and deliberate manner; • be faithful to the relationship of trust and confidentiality inherent in that office. Where conciliation is the process adopted, there have been a few attempts to develop standards. One example is a Code of Practice that has been developed by the New South Wales Health Conciliation Registry for its staff and conciliators. Under the code, conciliators are required to: 89 • • • •

maintain and enhance their professional skills; avoid any conflicts of interest or appearance of a conflict of interest; conduct the conciliation in a diligent manner; maintain the confidentiality of the conciliation; 90

• maintain impartiality and neutrality. 86 87

88 89

90

The IAMA Arbitration Rules (effective 2 May 2014), available on https://www.iama.org.au/resources/ adr-rules-guidelines/iama-arbitration-rules. IAMA, “Rules of Professional Conduct” (1997) 16(1) The Arbitrator 89. NADRAC, A Framework for ADR Standards (Framework Attorney-General’s Department, Canberra, April 2001), available on http:// www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/NADRACpublications.aspx. Initially adopted in 1977 and updated in 2003 and 2004. See http://www.abanet.org/dispute/ commercial_disputes.pdf. See NSW Government Health Care Complaints Commission, Code of Practice, available onhttp:// www.hccc.nsw.gov.au/About-Us/About-the-Commission/Code-of-Practice/Code-of-Practice/ default.aspx. This requirement is reinforced by legislation, which states that any unauthorised disclosure of information is an offence: Health Administration Act 1982 (NSW), s 22.

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EDUCATION AND TRAINING FOR ADR PRACTITIONERS [14.95] As a result of the NMAS, there are now national minimum standards in the mediation area together with a structure that will enable future standards development. However, in the evaluation and arbitration ADR areas there is no national approach. Given the diversity in ADR practice in these areas, this is seen by many ADR practitioners as appropriate. Training programs currently can include a focus on areas such as ethics, practice, theory and substantive knowledge where appropriate (for example, in respect of legal, cultural and gender issues). Usually an experiential component is present, which engages trainees in role-plays under supervision, and where feedback and assessment is provided. Such training programs vary according to the ADR environment. For example, ADR professionals who work within the court and tribunal system require a high level of understanding of the operation, practice and procedure of the relevant court or tribunal. Similarly, ADR professionals working in the family area need sufficient knowledge about family law and the Family Court to understand the impact of those matters on the work that they undertake. The role of “institutionalised” ADR also needs to be considered. Undoubtedly, courts and tribunals have particular needs but should this drive the development of ADR processes, standards and codes? Arguably, they should not, particularly given that much ADR occurs outside such bodies. Many ADR service providers have addressed these issues by establishing their own education, training and accreditation schemes that may rest “on top” of NMAS or other requirements. Other courts and tribunals, law societies and Bar associations, and some professional bodies, 91 have established their own ADR training and accreditation criteria. 92 Government-funded bodies, such as Community Justice Centres, may be required as part of their funding conditions to provide training and accreditation for their panels of ADR practitioners. Some tertiary institutions have recently offered ADR courses. A few offer graduate diploma, degree and Masters courses specialising in ADR. Others, such as Monash University, also offer ADR subjects and NMAS and collaborative training programs that are designed to meet standards, as well as PhD programs that support deeper research. In addition, some universities offer short training courses in dispute resolution and arbitration. With the increasing use of ADR, the need for minimum standards of education, training and accreditation becomes more compelling. This is particularly relevant as often courts and tribunals require the parties to use ADR processes with or without their consent (see Chapter 8 and Chapter 11). ADR practitioners will often require specialised training to practise in a particular area. For example, as noted above practitioners working in the family law area 91

For example, the Resolution Institute (formerly IAMA and LEADR) and the Australian Disputes Centre (ADC).

92

ALRC, Review of the Adversarial System of Litigation: ADR – Its Role in Federal Dispute Resolution (Issues Paper No 25, ALRC, Sydney, June 1998) pp 126–139. [14.95] 597

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may require specialised training in relation to domestic violence, sexual abuse, child–parent psychology and interpersonal disputes. NADRAC has suggested that a variety of basic competencies in knowledge, skills and ethics can be used to underpin more cohesive approaches to education and professional development. 93 A full statement of the key competency areas that have been developed by NADRAC is located in Appendix F. The key practitioner competency areas apply to all ADR processes and include references to ethical implications. The key practitioner areas of competencies are grouped under specific headings with their key characteristics described in some detail. The NMAS competencies reflect these general groupings: 94 • Knowledge: – conflict – culture – negotiation – communication – context – procedure – self – decision-making – ADR • Skills: – assessing a dispute for ADR – gathering and using information – defining the dispute – communication – managing the process – managing the interaction between the parties – negotiation – being impartial in the making of a decision (in appropriate circumstances) – concluding the ADR process • Ethics: – promoting services accurately – ensuring effective participation by parties – eliciting information – managing continuation or termination of process – exhibiting lack of bias – maintaining impartiality – maintaining confidentiality 93

94

NADRAC, A Framework for ADR Standards (Framework Attorney-General’s Department, Canberra, April 2001) p 86 Recommendation 17, available on http://www.ag.gov.au/LegalSystem/ AlternateDisputeResolution/Pages/NADRACpublications.aspx. NADRAC, A Framework for ADR Standards (Framework Attorney-General’s Department, Canberra, April 2001) pp 100-114, available on http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/ Pages/NADRACpublications.aspx.

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– ensuring appropriate outcomes (with particular reference to statutory and other frameworks). NADRAC noted: 95 NADRAC does not believe that there should be a single pathway for recognition and … different systems have evolved to meet the needs of particular sectors and services.

Overseas approaches [14.100] In the United States, the ACR (formerly SPIDR and other organisations) have proposed some basic eligibility requirements for mediators relating to minimum traits, abilities, education, skills, experience, training and demonstrated competencies. 96 The model standards of conduct for mediators are intended to perform three major functions: serve as a guide for the conduct of mediators, inform the mediating parties, and promote public confidence in mediation as a process for resolving disputes. 97 ACR has recommended that all training programs should: 98 • be tailored to the context, process, culture and jurisdiction; • be directly relevant to the values and goals of the program; • be developed with input from all stakeholders; • set forth the tasks involved in the practice and the type and extent of substantive knowledge required; and • articulate fair procedures for selection, screening, assessment, retraining and dismissal of practitioners in the program. In particular, ACR has noted that, where dispute resolution programs are mandated and practitioners are assigned to parties without their input, there is a “high obligation” to ensure the competence of those practitioners. 99 ACR has recommended that training programs include ethics, practice, theory, substantive knowledge (where appropriate), an experiential component 95

NADRAC, A Framework for ADR Standards (Framework Attorney-General’s Department, Canberra, April 2001) p 81, available on http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/ NADRACpublications.aspx.

96

See SPIDR, Commission on Qualifications, Report 2, Ensuring Competence and Quality in Dispute Resolution Practice (SPIDR, Washington, 1995); K Pankey, “What’s it Take to be a Neutral? Requirements for ADR Practitioners” (1997) 12(1) Court Manager 48.

97

Model Standards of Practice for Mediators of the American Bar Association (ABA), SPIDR and American Arbitration Association (AAA). SPIDR, Commission on Qualifications, Report 2, Ensuring Competence and Quality in Dispute Resolution Practice (SPIDR, Washington, 1995); K Pankey, “What’s it Take to be a Neutral? Requirements for ADR Practitioners” (1997) 12(1) Court Manager 48, Recommendation C(1). See also the discussion in ALRC, Review of the Adversarial System of Litigation. ADR – Its Role in Federal Dispute Resolution (Issues Paper No 25, ALRC, Sydney, 1998) p 133.

98

99

SPIDR, Commission on Qualifications, Report 2, Ensuring Competence and Quality in Dispute Resolution Practice (SPIDR, Washington, 1995); K Pankey, “What’s it Take to be a Neutral? Requirements for ADR Practitioners” (1997) 12(1) Court Manager 48, Recommendation C(5). [14.100] 599

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that engages trainees in role-plays with supervision, feedback and assessment, and should address issues of cultural differences. 100

CONCLUSION [14.105] The rapid growth of ADR and its spread to include professionals and others from diverse backgrounds as ADR practitioners has meant that setting up threshold and continuing accreditation arrangements for practice has been a difficult task. Some professional fields have well developed existing ethical standards and naturally there is a concern that overarching accreditation requirements could result in conflicting educational or ethical standards. The accreditation approach within Australia has been to recognise these differences and to try and find a pathway forward for ADR practitioners. However, most standards are directed at maintaining and enhancing quality and the lack of research into ADR means that the extent to which accreditation is successful, or the extent to which ADR practitioners depart from developed standards is not known across the ADR sector (although some sound research and evaluation exists in some areas). Clearly accreditation alone will not produce high quality ADR. ADR will be effective and of high quality where practitioners are engaged, passionate and persistent about their work and not too weighed down by onerous reporting or other requirements (producing a quality culture not a compliance culture). For the future, ADR practitioners may need clear overarching values to ensure that their ethical responses are clearer (for example, mediator values relating to respect, reciprocity and the like can be articulated). Sometimes however, it is not just up to the ADR practitioner. The ADR area may also need systemic support to ensure that processes are understood and not derailed by the participants, their representatives or the external environment. The accreditation environment also needs to respond to changing practice and feedback about participant experiences so that education and training is responsive (this requires sound evaluation and research). There may also need to be more work done to weed out poor quality practice (through responsive accreditation and education) to ensure that ADR services are of a high quality.

100

SPIDR, Commission on Qualifications, Report 2, Ensuring Competence and Quality in Dispute Resolution Practice (SPIDR, Washington, 1995); K Pankey, “What’s it Take to be a Neutral? Requirements for ADR Practitioners” (1997) 12(1) Court Manager 48, Recommendations E(2) and E(5).

600 [14.105]

Chapter 15 Future trends [15.05] [15.10] [15.15] [15.20]

Introduction................................................................................................................... 601 Global changes ............................................................................................................. 604 Cultural context............................................................................................................ 607 Social trends .................................................................................................................. 610 [15.25] Changes in the business sector ...................................................... 612 [15.30] Changes in the litigation and court areas ................................... 614 [15.50] Technology .................................................................................................................... 620 [15.55] Evaluating ADR processes ......................................................................................... 622 [15.60] What is being evaluated? ............................................................... 625 [15.95] Conclusions ................................................................................................................... 645 … there is nothing more difficult to carry out, nor more doubtful of success, nor more dangerous to handle, than to initiate a new order of things. 1

INTRODUCTION [15.05] ADR use has greatly expanded in Australia in recent years and this has sometimes been accompanied by criticism and concern that traditional litigation systems or justice will be adversely effected by the promotion of this “new order”. 2 However, these perspectives have been countered by the continuing and enthusiastic uptake of ADR in a range of areas as well as a series of State, federal and judicial initiatives. ADR has also not remained static and there are emergent forms of ADR that have been established as a result of a perceived need to vary ADR practice. Some of these emergent forms, such as collaborative practice, are directed at multidisciplinary approaches to conflict resolution. Other forms of ADR that focus on facilitative processes are directed at group decision-making and planning and may involve technological processes (see Chapter 10). There are many factors that will continue to support the expansion and extension of ADR processes in future years. Changing communication trends 1

N Machiavelli, The Prince (RDMc Publishing, USA, 2008, originally written in 1532 – English translation by L Ricci in 1903) p 22.

2

See discussion in H Genn, “What Is Civil Justice For? Reform, ADR, and Access to Justice” (Winter 2012) 24 Yale Journal of Law and the Humanities 397 and J Resnik, “The Privatization of Process: Requiem For and Celebration of the Federal Rules of Civil Procedure” (2014) 162 University of Pennsylvania Law Review 1793 where Resnik voices broader concerns about the lack of public debate about legal norms that may occur as a result of declining activity in the court system. For alternate views, see Chapter 1 and T Sourdin, “A Broader View of Justice” in M Legg (ed), The Future of Dispute Resolution (LexisNexis, Chatswood, 2013) pp 155–166. See also T Sourdin, “The Role of the Courts in the New Justice System” (2015) Yearbook on Arbitration and Mediation, Penn State Dickinson School of Law (forthcoming). [15.05] 601

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with the input of new and emerging technologies are likely to produce and encourage the adaptation of ADR processes. An increased focus on the causes of conflict, the impact of conflict on society, and conflict–avoidance approaches will result in the continued evolution, expansion and use of ADR processes at all levels of Australian society. In terms of the relationship between ADR processes and the litigation system, there are also likely to be continuing changes. In the past, the primary issues in ADR growth related to: • whether mandatory referral to facilitative processes should occur; • whether ADR processes could be better defined; • how training, education and accreditation of ADR practitioners could take place; and • whether ADR processes could be evaluated and whether there is “proof”, or under what circumstances, such processes are quicker, cheaper or more satisfying than more traditional litigation processes. These issues have been explored in a number of different contexts. In regard to the first issue, there are now many examples within and outside the Australian litigation system of referral provisions (without consent) to ADR processes (either at the court or tribunal level, or as a precondition to commencing litigation). The most striking example of an extensive mandatory pre-litigation ADR system now exists in the family relationship area, and for many ADR practitioners when involved in ADR, it is now common that participants attend as a result of some mandatory requirement (see Chapter 11). The issue of whether parties should or can usefully be referred, without their consent, to ADR processes is no longer regarded as an issue in most Australian jurisdictions although it remains a significant issue in New Zealand and in the United States (although in both of those jurisdictions there is some limited mandatory ADR referral in both the pre-litigation and post court filing areas). The definition of ADR processes has also advanced so that clearer definitions now exist (one notable exception is in the area of conciliation). Issues relating to training and accreditation are now also more settled, particularly where mediators are concerned (and also in respect of family dispute resolution practitioners [FDRPs]). The introduction of the National Mediator Accreditation System (NMAS) together with the FDRP registration program have produced greater certainty for many ADR practitioners, and these schemes will no doubt continue to attract attention and comment. The NMAS, which is a voluntary “opt in” scheme, became operational in Australia in January 2008 after more than a decade of discussion regarding mediation accreditation and the development of standards in the sector (see Chapters 3 and 14). 3 In the family 3

See T Sourdin, Accrediting Mediators – The New Australian National Mediator Accreditation Scheme (Report, 2007), available at Social Science Research Network on http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=1134622.

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dispute resolution area, an accreditation system has been phased in since 2007 4 following extensive changes to the Family Law Act 1975 (Cth) in 2006. The work of the National Alternative Dispute Resolution Advisory Council (NADRAC) was significant and addressed many issues in the accreditation area and also in respect of the quality of ADR. With the demise of NADRAC, it is anticipated that further reforms are more likely to be “industry led”. In 2015 the Australian Dispute Resolution Advisory Council (ADRAC) was established by former members of NADRAC to support education and reform in relation to ADR. 5 NADRAC had also played a leading role in relation to policy research concerning ADR and although this role has now been subsumed within the Commonwealth Attorney-General’s Department it seems likely that continuing overarching work is less likely to be carried out at that level. In terms of research and the empirical evaluation of ADR processes, there is now considerable evidence that has been provided by a number of studies to support the extension of ADR into a range of areas. 6 However, as noted previously, there are continuing gaps so much of what happens in ADR is not measured or evaluated. (A summary of evaluation studies is located at Appendix G and is discussed further in this chapter.) Many ADR processes are now “mainstream” and as a large number of Australians have been exposed to ADR there has been a “paradigm shift” in the way that dispute resolution processes are viewed by many Australians. 7 This change means that relevant future issues focus on the impact of the continuing institutionalisation and legitimisation of ADR processes and, importantly, how the integrity of ADR processes can be supported. 8 This has been a significant focus in recent years, particularly as accreditation issues have settled and more clarity in this area has been achieved. In 2009, NADRAC released its report The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (Resolve to Resolve Report), which focused on the supporting structures and cultural change required to enable ADR growth to continue. 9 In 2011, NADRAC released Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People 4 5 6

7

8 9

Attorney-General’s Department (Cth), Family Dispute Resolution, available on http://www.ag.gov.au/ FamiliesAndMarriage/Families/FamilyDisputeResolution/Pages/default.aspx. See the ADRAC website, at http://www.adrac.org.au/. See, for example, Parliament of Victoria, Law Reform Committee, Inquiry into Alternative Dispute Resolution and Restorative Justice (Report, Parliament of Victoria, 2009); see also, in terms of ADR expansion more generally, J Macfarlane, “The New Lawyer: Moving from Warrior to Conflict Resolver” (2009) 10(8) ADR Bulletin 178, available on http://epublications.bond.edu.au/adr/vol10/ iss8/. L Fong, “New Paradigms in Mediation: Thinking About Our Thinking” (1992) 10(2) Mediation Quarterly. In this context, the paradigm was about how disputants perceived ways of resolving disputes and conflict. S Press, “International Trends in Dispute Resolution – A US Perspective” (2000) 3(2) ADR Bulletin 23. NADRAC, The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (Report, Commonwealth of Australia, 2009), available on http://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Pages/NADRACpublications.aspx. [15.05] 603

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(Integrity Report), which specifically explored issues relating to confidentiality, admissibility and the immunity of ADR practitioners. 10 One theme that has emerged in recent years noted by NADRAC is that although ADR has “expanded into a large, highly diverse and innovative field … it is still significantly under-utilised in many areas”. 11 NADRAC suggested various approaches to support ADR in a number of areas, as follows: 12 • developing strategies to encourage greater use of ADR – including pre-filing requirements and other obligations; • achieving greater consistency in ADR – including creating national protocols and principles (see Chapter 14); • improving public and professional awareness of ADR – including ensuring that websites, courts and tribunals have information about ADR, and that legal and judicial education is expanded to include a focus on ADR; • developing mechanisms to provide quality ADR services – including how to strengthen existing ADR services and improve data collection, evaluation and research in the ADR field; • using ADR techniques in court and tribunal processes – including how ADR processes can be blended and used in the court environment (see Chapter 6); and • using ADR in government disputes (see Chapter 11).

GLOBAL CHANGES [15.10] Other changes in the ADR area are likely to be driven by changes in the broader environment. We are increasingly part of a regional and global community and societal change means that the global context is of increasing importance in terms of shaping domestic ADR growth. For example, the European Union (EU) directive on mediation has impacted on the way in which mediation has been used throughout Europe in recent years and will have a flow on impact within the Asian region. The EU directive (IP/04/1288) was proposed in October 2004 and approved by the European Parliament on 23 April 2008. It is designed to facilitate access to dispute resolution and to promote the settlement of cross-border disputes by encouraging the use of mediation and ensuring a sound relationship between mediation and judicial proceedings. 10

NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People (February 2011), available on http://www.ag.gov.au/LegalSystem/ AlternateDisputeResolution/Pages/NADRACpublications.aspx.

11

NADRAC, The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (Report, Commonwealth of Australia, 2009) p 15, available on http://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Pages/NADRACpublications.aspx. A number of these have now been implemented – see, for example, Chapter 11 in respect of pre-litigation requirements.

12

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The directive sets out certain obligations and member states of the EU have been required to convert the new rules into national laws. The obligations are as follows: 13 • The Directive obliges Member States to encourage the training of mediators and the development of, and adherence to, voluntary codes of conduct and other effective quality control mechanisms concerning the provision of mediation services. • The Directive gives every Judge in the Community, at any stage of the proceedings, the right to suggest that the parties attend an information meeting on mediation and, if the Judge deems it appropriate, to invite the parties to have recourse to mediation. • The Directive enables parties to give an agreement concluded following mediation a status similar to that of a Court judgment by rendering it enforceable. This can be achieved, for example, by way of judicial approval or notarial certification, thereby allowing such agreements to be enforceable in the Member States under existing Community rules. • The Directive ensures that mediation takes place in an atmosphere of confidentiality and that information given or submissions made by any party during mediation cannot be used against that party in subsequent judicial proceedings if the mediation fails. This provision is designed to give parties confidence in, and to encourage them to make use of, mediation. To this end, the Directive provides that the mediator cannot be compelled to give evidence about what took place during mediation in subsequent judicial proceedings between the parties. • The provision of the Directive on periods of limitation and prescription ensures that parties that have recourse to mediation will not be prevented from going to court as a result of the time spent on mediation. The Directive thus preserves the parties’ access to a court should mediation not succeed. The ordering of the directive makes it more likely that mediation will be used more extensively within Europe. National laws have now been enacted that give effect to the directive. 14 Importantly another directive on consumer ADR (Directive 2013/11/EU of 21 May 2013) and a Regulation on Consumer Online Dispute Resolution 15 published in July 2013 have both led to a flurry of activity in Europe relating to ADR 16 (the Regulation on Consumer Online Dispute Resolution is discussed in Chapter 10). EU member states had 24 months to 13 14 15 16

See European Parliament Formally Approved the Council’s Common Position on the New Mediation Directive, available at http://www.ec.europa.eu/civiljustice/adr/adr_ec_en.htm. See, eg, the Cross-Border Mediation (EU Directive) Regulations 2011 (UK) made as a result of the directive in May 2011, available on http://www.legislation.gov.uk/uksi/2011/1133/made. Available on http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:165:0001:0012:EN:PDF. In the United Kingdom a report by the Department for Business, Innovation and Skills, Alternative Dispute Resolution for Consumers (2014, United Kingdom), sets out material relating to the United Kingdom response, available on https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/377522/bis-14-1122-alternative-dispute-resolution-for-consumers.pdf. In March 2015, government regulations were published that included requirements for traders to provide certain information to consumers regarding ADR by 9 July 2015. [15.10] 605

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transpose the regulation into national legislation (that is by mid-2015) and a further six months for ODR platforms to become operational (that is by early 2016). It is unclear how well the operation will work particularly given the very different legal system parameters in various European countries. 17 The UK has already begun the implementation process. 18 It is probable that within the Asia-Pacific region there are also likely to be significant changes with new legislation currently being considered in China and elsewhere in respect of mediation and more generally in respect of ODR (see Chapter 10). On a global level, it is also likely that international arbitration will increase, perhaps resulting in a rise in domestic arbitration in its various forms. An increase in bilateral investment treaties has led to an expansion and dramatic growth in the international arbitration area in recent years, particularly in the absence of an international commercial court. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) has now been ratified by many Asian countries and although there are some enforcement issues, the arbitral system has become the preferred way of dealing with many international commercial disputes. 19 As noted in Chapters 1 and 6, there are issues about these arrangements. In the arbitration area, for example, the Philip Morris Asia Arbitration that was pursued against the Government of Australia regarding tobacco plain packaging legislation followed Australian court cases that found that the legislation was valid. 20 The arbitration was conducted pursuant to a 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments (Hong Kong Agreement) that effectively ousts the jurisdiction of domestic courts 21 and provides that arbitration can be conducted

17 18

19

20

21

See P Cortes, “The Impact of EU Law in the ADR Landscape in Italy, Spain and the UK: Time for Change or Missed Opportunity?” (2015) 16(2) ERA Forum 125. The United Kingdom government has transposed the core provisions of the ADR Directive through the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 and the Alternative Dispute Resolution (Amendment) Regulations 2015. See also Policy Paper, June 2015 available at https://www.gov.uk/government/publications/alternative-disputeresolution-for-consumers/alternative-dispute-resolution-for-consumers. G Triggs, “Triggs Declares ’New York Convention One of the Success Stories of Public and Private International Law’” (2008) 6 The Australian ADR Reporter 7. Whilst arbitration may be preferred in many jurisdictions, the very small number of international commercial arbitrations within Australia may be linked to the popularity of mediation in that jurisdiction. See Attorney-General’s Department (Cth), Tobacco Plain Packaging – Investor-State Arbitration, available on http://www.ag.gov.au/tobaccoplainpackaging#_paad. Note the High Court hearing took place in April 2012 and a decision was made on 7 August 2012 (see JT International SA v Commonwealth of Australia [2012] HCA 43). The arbitration panel was appointed on 7 June 2012 and has dealt only with procedural matters to early 2015 (as the arbitral proceedings are subject to confidentiality arrangements there is little other information available). The Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments provides for arbitration in Arts 10 and 11, see http:// www.austlii.edu.au/au/other/dfat/treaties/1993/30.html.

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to challenge the capacity of a State to deal with some domestic law as an arbitral decision may be made that overturns both legislative intention and a judicial decision. 22 The ousting or limiting of the courts’ jurisdiction as a result of specific arbitral agreement (or as in the Philip Morris case via more generalised investor state arrangements) raises issues for States and courts about the boundaries of ADR 23 and where limits should be placed regarding determinative ADR processes 24 that can exist outside domestic courts. There are also general issues raised about the role of international arbitration into the future (see also discussion in Chapter 6). There has also been a growth in the use of ADR and related processes in dealing with non-commercial disputes and international conflict more generally. Many capacity building programs have as their base a focus on facilitative processes and building informal as well as rights-based processes in countries that have internal and external conflict. 25 Disputes over water and the environment as well as decision-making processes dealing with changes and reform are increasingly facilitated and these trends appear likely to continue. However, the increased focus on ADR processes highlights the importance of cultural understandings when conducting these processes.

CULTURAL CONTEXT [15.15] The changing nature of our business and social networks means that our interactions are more likely to involve a range of different cultures. Mediation and facilitation are increasingly seen as useful processes where conflict that has a cultural component arises. This is because such processes are often viewed as more adaptable and flexible than advisory and adjudicative processes that may fail to support capacity growth or interest-based outcomes. As noted in Chapter 1, the evolution of ADR processes has varied across the modern world. In many respects, however, ADR processes are linked to 22

The controversy relating to “Fair Trade” Agreements is partly based on the concerns relating to arbitral arrangements. These concerns have been expressed in some jurisdictions and there is some commentary concerning these agreements – see, for example, B McGrady, Trade and Public Health. The WTO, Tobacco, Alcohol and Diet (Cambridge University Press, New York, 2011); See also DI Fletcher, “JT International SA v Commonwealth: Tobacco Plain Packaging” (2013) 35(4) Sydney Law Review 827 and C Olivet and P Eberhardt, Profiting from Injustice (Report, Transnational Institute, 2012), available on https://www.tni.org/en/briefing/profiting-injustice. See also, for example, Eli Lilly and Company v The Government of Canada, Notice of Intent to Submit a Claim to Arbitration under NAFTA (7 November 2012), available on http://italaw.com/sites/default/files/case-documents/ italaw1172.pdf. Other concerns that have been raised relate to the both the secrecy and the duration of agreements (the Hong Kong agreement noted above had a term of 15 years).

23

See Chief Justice French, Investor-State Dispute Settlement – a Cut Above the Courts (Paper presented at the Supreme Court and Federal Courts Judges Conference, Darwin, 9 July 2014). See T Sourdin, “The Role of the Courts in the New Justice System” (2015) Yearbook on Arbitration and Mediation, Penn State Dickinson School of Law (forthcoming). See, for example, G Johnstone and D Van Ness (eds), Handbook of Restorative Justice (Willan Publishing, Collumpton (UK), 2007). Appreciative inquiry and dialog work are also related to these changed ADR domains.

24 25

[15.15] 607

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traditional forms of practice. There are concerns, though, that modern forms of ADR processes may be used inappropriately or may fail to respond to cultural differences, or even ignore or supplant traditional ADR practices. There are also varied ways in which ADR may be used in different cultures as many traditional methods of ADR may be located within small societies and not involve any state involvement. As Hassal has noted: 26 Traditional systems of customary law often incorporated a sliding scale for conflict resolution: different approaches were applied to conflicts inside the village and the kin-group, in distinction to conflicts with others: the former were solved through ceremonies (including sorcery), compensation and exchange; the latter, through endemic warfare.

In recognition of the many varied cultural and traditional conflict resolution processes that operate within societies, ADR practitioners are increasingly focused on a threshold analysis of issues before undertaking ADR processes or engaging in techniques that may be culturally inappropriate or uncomfortable for participants. In this regard, there are many different ways in which an analysis of culture can take place. One approach is to explore culture from the perspective of individualist and collectivist behaviours. The factors affecting these behaviours have been identified by Wright as socialisation and demographic factors: 27 While all people manifest individualist and collectivist characteristics in varying degrees, the extent to which they exhibit one set of traits more than another usually depends upon their socialization. All children begin their lives in a collectivist context, dependent on their parents and any other adults who rear them. In individualist societies, however, children often are encouraged to identify personal preferences and to pursue personal goals and achievements.

Another approach is to consider culture in the context of communication with particular reference to “high” or “low” contexts. 28 In this regard, low-context cultures, such as the United States and Australia, are said to prefer directness, specificity, frankness in stating demands, confrontation and open self-disclosure, while more high-context cultures, such as China and Japan, may tend toward indirect, ambiguous, cautious, non-confrontational and subtle communication. 29 This approach involves an ADR practitioner considering the perceptual, cognitive and linguistic features of culture which frame conflict and its resolution. 30 A recognition of the cultural orientations in respect of time, risk, space, affect, hierarchy, power or authority is therefore required which may 26

G Hassal, “Alternative Dispute Resolution in Pacific Island Countries” (2005) 9(2) Journal of South Pacific Law, available on http://www.paclii.org/journals/fJSPL/vol09no2/4.shtml.

27

W Wright, Cultural Issues in Mediation: A Practical Guide to Individualist and Collectivist Paradigms: see http://www.mediate.com/articles/wright.cfm. E Hall, Understanding Cultural Difference (Intercultural Press, New York, 1990) pp 6-10. D W Augsburger, Conflict Mediation Across Cultures: Pathways and Patterns (Westminster John Knox Press, Louisville, 1992) p 92. K Avruch, “Type I and Type II Errors in Culturally Sensitive Conflict Resolution Practice” (2003) 20(3) Conflict Resolution Quarterly 362, 353.

28 29 30

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mean that individualist or collectivist approaches, 31 universalism and particularism, 32 and high or low power distance factors also need to be considered. 33 However, analysis can be difficult and ADR practitioners also require cultural fluency and adaptability if they are to work in cross-cultural or multicultural settings. LeBaron suggests that: 34 As helpful as the distinction between high and low context may be, it is important not to see it as explanatory across times and contexts. The tendency to directness varies not only by gender but by region generation and many other dimensions of difference. It is more helpful to use the distinction more a way of making an educated guess than as a means of assigning classifications.

Davidheiser also suggests that a mediator should build extensive internal awareness before gathering facts about other cultures and that cultural awareness and competency is essential in all multicultural societies. 35 Culture may also have an impact upon conflict because conflict arises as a result of social interaction and is therefore in many ways a product of cultural construction. 36 Conflict may, for example, be related to cultural perceptions. Clearly, culture may therefore play a role in generating conflict 37 and, under these circumstances, the conflict can be described as intercultural conflict. Toomey describes the main characteristics of an intercultural conflict as follows: 38 • conflict involving intercultural perception in which perceptions are filtered through our lenses and stereotypes; • conflict involving interaction in which conflict is sustained and managed through behaviours that are culturally related. In terms of any analysis of culture, Avruch discussed two types of cultural errors that can be made in conflict resolution. Type I errors undervalue culture, underestimating its significance in a conflict or dispute. A Type I error may suggest that the dispute resolution practitioner is “culturally insensitive”. 39 In 31

H Triandis, Individualism and Collectivism (Westview Press, Boulder, 1995) pp 13-67.

32

C Hampden-Turner and F Trompenaars, Building Cross Cultural Competence: How to Create Wealth from Conflicting Values (Yale University Press, New Haven, 2000). G Hofstede, Culture’s Consequences: Comparing Values, Behaviors, Institutions, and Organizations Across Nations (Sage Publications, Thousand Oaks, 2001) pp 79-137. M LeBaron, Bridging Cultural Conflict: A New Approach for a Changing World (John Wiley & Sons Inc, Canada, 2003) p 57. M Davidheiser, “Race, Worldviews, and Conflict Mediation: Black and White Styles of Conflict Revisited” (2008) 33(1) Peace and Change Journal of Peace 60. K Avruch, Culture and Conflict Resolution (United States Institute of Peace Press, Washington, 1998) pp 61-63. K Avruch, Culture and Conflict Resolution (United States Institute of Peace Press, Washington, 1998) p 9.

33 34 35 36 37 38 39

S T Toomey, Communicating Across Cultures (Guilford Press, New York, 1999) p 194. K Avruch, “Type I and Type II Errors in Culturally Sensitive Conflict Resolution Practice” (2003) 20(3) Conflict Resolution Quarterly 362. [15.15] 609

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contrast, Type II errors “overvalue culture, overestimating its impact on a conflict or dispute”. Such errors may occur “[w]here the conflict or dispute involves parties from self-evidently different identity groups; that is, the conflict is self evidently interethnic or interracial”, or “[i]n a social setting with an institutional bias or emphasis on multiculturalism as a legal prescription and/or a valued ideal”. 40 Practitioners may therefore also need to have an awareness of the broader issues when contemplating cultural aspects of dispute resolution (see also Chapter 13 where systemic factors and needs analysis work are explored), and may need to be aware of the broader rights and interests at play. One way to avoid such errors is to develop not only cultural awareness but also “cultural fluency” when dealing with such conflict. In addition, articulating values that can be used to measure outcomes and govern interactions may help to avoid Type II errors as described by Avruch. 41

SOCIAL TRENDS [15.20] Other factors that will impact upon the future of ADR processes relate to general social trends and the way that communication takes place. Already, most Australians are active on the internet and a preferred method of communicating in the business setting, and in a social setting, is through a connected device or computer. Increasingly “e justice” platforms are developing (particularly in Europe 42) to deal with consumer issues and most online transactions have online complaints and dispute handling support systems (see Chapter 10). Social networking sites also have developed dispute resolution platforms and the American Bar Association set up a committee that was focused on gaming disputes in 2010. 43 There is also a growing use of social media which has the capacity to transform dispute resolution (see discussion at [15.50]). Trends in the context of supportive, replacement and disruptive technology (see Chapter 10) and other societal communication trends have implications for our dispute resolution processes and may mean that ADR processes are adapted so that ADR communication via the internet becomes much more common than in the past decade. In view of the difficulties in communication that arise partly as a result of technology but more particularly as a result of societal changes (see Chapter 1) an expanded focus on the importance of communication skills will continue. Some societal changes include changes to work practices, increased violence within society (as measured by domestic violence and suicide) and the 40

K Avruch, “Type I and Type II Errors in Culturally Sensitive Conflict Resolution Practice” (2003) 20(3) Conflict Resolution Quarterly 362, 363.

41

L Olejabi, “Transforming Communities Through Conflict Resolution Practices” (2007) 7(2) The International Journal of Diversity in Organisations, Communities and Nations 67. See European e-Justice Portal, available on https://e-justice.europa.eu/home.do?plang=en&action= home.

42 43

See American Bar Association, Section of Science and Technology Law: Video Games, available on http://apps.americanbar.org/dch/committee.cfm?com=ST252000.

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continued growth in diagnosis of mental illness (for example, depression continues to expand as a major illness affecting Australian society). It is therefore to be expected that alternative ways of addressing many social problems will become even more important than in the past. These developments can also be linked to therapeutic justice approaches and are embodied in the development of problem-solving courts which are designed to support more collaborative approaches to problem solving in the criminal justice area. The judicial role in a problem-solving court is considerably different to that of a judge in civil litigation and these courts are said to embody “justice in its purest sense”. 44 According to Judge Peggy Hora: 45 … the whole idea of this approach is you have people who have a disease called alcoholism and/or addiction. And what is just is getting them well rather than punishing them for their disease.

Processes that include incarceration, medication and isolation, which do not appear to have prevented spiralling problems associated with health and contentment, are likely to be challenged further. Changing trends to adopt “facilitative” dispute resolution processes that impact on the use of communication skills can be viewed as one response to these issues and problem-solving courts may support a range of facilitative processes such as mediation as well as adjusted determinative processes (for example, teen courts). 46 Other changes in conflict patterns are also reshaping the ADR landscape. For example, cultural conflict causes our society to consider not only internal social conflict but also external global conflicts that are characterised by cultural misunderstandings. The growing divide between Muslim and western communities has led to power- and rights-based responses as well as communities attempting to bridge this divide through more productive and engaged discussion (for example, through inter-faith dialogue) and a renewed call for more effective and culturally responsive conflict resolution processes. 47 The media will also continue to impact on the way that complex disputes are perceived. Multiparty, multidimensional disputes continue to be portrayed on television with simple, condensed “sitcom” resolutions or with actual violence as a primary strategy in conflict. Media and government reporting of wars and terrorist acts depict power, rather than rights or interest-based, approaches to

44

J Nolan, “Redefining Criminal Courts: Problem-Solving and the Meaning of Justice” (2003) 40 American Criminal Law Review 1553 (comments made by Drug Court judge at a national drug court conference in Washington DC).

45

J Nolan, “Redefining Criminal Courts: Problem-Solving and the Meaning of Justice” (2003) 40 American Criminal Law Review 1553 (comments made by Drug Court Justice Peggy Hora).

46

See M King, A Freiberg, B Batagol, R Hyams, Non Adversarial Justice (2nd ed, Federation Press, Sydney, 2014).

47

See M Le Baron, Bridging Cultural Conflicts (John Wiley & Sons, San Francisco, 2003). [15.20] 611

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conflict. 48 However, the continuing trend toward reality television may impact on the way that negotiation is conducted and provide some opportunities to explore continuing relationships and negotiation processes. Interestingly, in 2011 a major and successful Australian movie that explored mediation (Face to Face) again highlighted the important role that the media can play in educating the broader population about ADR. 49 Other trends that are relevant include those that promote individual negotiation processes. In the workplace, for example, increasingly it is workers, as well as bodies that traditionally operated as advocates (such as unions), who are involved in direct negotiation processes. Systemic and structural changes to workplaces also mean that hierarchical patterns and workplace expectations are undergoing revision. Shifts in expectations and workplace changes can often promote conflict. How will individuals respond to these societal changes? On the one hand, there is an increased emphasis on communication, negotiation and dispute resolution in schools and in youth-oriented programs. Interest in conflict resolution and enhanced communication skills continues to increase across society. On the other hand, there are more opportunities for conflict as workers increasingly have little “down time” and operate in isolation, and with the use of email and more “remote” forms of communication. Changes in family units, such as the increase in blended families, can also provide greater opportunities for conflict, and families with older members as the population ages (including grandparents and great-grandparents) may highlight intergenerational conflict issues. One-child families are increasing and, despite more formal training mechanisms, there may be less opportunity for children in these families to develop and practise communication and dispute resolution skills in the home environment. Technology increasingly offers children and young people opportunities to “do battle” in simulated war zones while, at the same time, many net-based games rely on enhanced negotiation and collaborative team work among players. While these changes support collaboration they also support “othering” and magnified cyberbullying which may in turn generate more conflict. There is also social change being experienced in every sector of our community and these changes impact on how ADR is perceived and how conflict is experienced.

Changes in the business sector [15.25] As noted in Chapter 9, the business sector is increasingly focused on the reduction of risks that impact adversely upon the operation of businesses. This 48

See B Mayer, Beyond Neutrality (Jossey-Bass, San Francisco, 2004) pp 41–81: Mayer also notes that in recent conflict situations there has been marked ambivalence towards consensus-focused conflict resolution techniques.

49

See Face to Face on http://www.facetofacethemovie.com.

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approach means that businesses are designing systems to reduce the harmful impact of disputes – an identified key risk area (see also Chapter 13). Government concern with business/industry dispute resolution processes is evidenced by initiatives in the following areas: • benchmarks (such as the revised 2015 Benchmarks for Industry-Based Customer Dispute Resolution Schemes); 50 • guidelines; • standards; • codes; • supportive legislation (such as the Competition and Consumer Act 2010 (Cth), the Farm Debt Mediation Act 1994 (NSW) and the Retail Leases Act 1994 (NSW)); and • government contractual requirements and systems. An increased interest in ADR by the business sector has also been driven by changing business management approaches and the employment of strategies that foster relationship-based dispute resolution processes. Conflict is increasingly viewed as “destructive” and capable of diverting time and attention away from opportunities and profit. The increased management time that can be devoted to poorly managed disputes is also seen as increasing the attractiveness of internal and external dispute resolution processes. There are issues about the impact that these factors will have on business dispute processes. To a large extent, growth in this area will depend on business attitudes and cultures (which, in turn, are being informed by business continuity approaches and attitudes to negotiation). However, there is evidence that there are changing norms of operation. This means that the expected responses to a dispute include cooperative responses (not necessarily a positional negotiation response, or even compromissory or submissive patterns of response) and will often not include reference to the litigation system. 51 The elaborate and comprehensive nature of many complaints handling schemes (see Chapter 5) support these changes, although the motivation, often linked to increasing a return on investment, risk management, assessment, reporting and quality, is often markedly different from the motivators that drove change in the litigation arena (where, initially, the motivation for introducing ADR was primarily the cost and delays in litigation).

50

51

See Commonwealth Consumer Affairs Advisory Council (CCAAC), Review of the Benchmarks for Industry-based Customer Dispute Resolution Schemes (Report, CCAAC, 2015), available on http:// ccaac.gov.au/2013/04/24/review-of-the-benchmarks-for-industry-based-customer-dispute-resolutionschemes/. See David’s work referred to in P Fritz, A Parker and S Stumm, Beyond Yes (Harper Collins, Sydney, 1998). [15.25] 613

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Changes in the litigation and court areas [15.30] At present, courts and tribunals offer very different ADR processes and referral options. 52 There is an uneven spread across Australia in terms of State and regional use of ADR processes. In Victoria, there is much greater use made of mediation. Mandatory mediation has been used widely at both the County Court and Supreme Court levels for many years. In New South Wales, mandatory court-annexed arbitration was previously used, mostly in personal injury disputes at the District Court and Supreme Court levels, and it has only been over the last decade that mediation has become more widespread. Also, recently there have been jurisdictional shifts that have led to greater numbers of disputes being dealt with by tribunals or bodies such as Workers Compensation Commissions. In many States, there is a greater use of mediation at the community level. 53 One vision for the future of civil justice sees ADR and the courts in an increasingly interdependent partnership (see Chapter 1). 54 To be successful in increasing access to dispute resolution, courts may need to continue to articulate and enforce the substantive law, to consider questions in relation to “good faith” and genuine effort, and to set appropriate legal parameters for ADR; for example, in relation to the finality of private dispute resolution and the confidentiality and admissibility of ADR communications. 55 Over the past five years there has been increased commentary about the relationship between courts and ADR with some concerns expressed that ADR has become so prevalent that it potentially threatens court-based systems. In the United States for example, objections have related to ensuring that public adjudication is retained in view of its importance in relation to supporting society. 56 In the United Kingdom the concerns have related also to the quality of justice that ADR may provide. Genn, for example, asks if ADR processes can ever deliver justice because outcomes are not tested and the quality of a settlement is questionable. According to Genn: 57 Access to justice is an essential element in the rule of law. Despite the private nature of ADR, it is argued that diverting legal disputes away from the courts and into mediation is, in fact, a strategy that will increase access to justice. But this is a claim that requires some scrutiny. Mediation does not contribute to access to the courts 52 53

See Chapter 8 for a summary. See Chapter 9.

54

K Werdegar, “The Courts and Private ADR: Partners in Serving Justice” (1996) 51 Dispute Resolution Journal 52. C McCarthy, “Can Leopards Change Their Spots? Litigation and its Interface with Alternative Dispute Resolution” (2001) 12 Australasian Dispute Resolution Journal 35.

55 56

57

See J Resnik, “The Privatization of Process: Requiem for and Celebration of the Federal Rules of Civil Procedure” (2014) 162 University of Pennsylvania Law Review 1793, where Resnik voices broader concerns about the lack of public debate about legal norms that may occur as a result of declining activity in the court system. H Genn, “What Is Civil Justice For? Reform, ADR, and Access to Justice” (2012) 24 Yale Law Journal 397, 411.

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because it is specifically non-court-based. It does not contribute to substantive justice because mediation requires the parties to relinquish ideas of legal rights during mediation and focus, instead, on problem-solving. Mediators are not concerned about substantive justice because the mediator’s role is to assist the parties in reaching a settlement of their dispute. The mediator does not make a judgment about the quality of the settlement. Success in mediation is defined in the mediation literature and by mediators themselves as a settlement that parties “can live with.” The outcome of mediation, therefore, is not about just settlement it is just about settlement. [emphasis added]

The concerns about the expanding role of ADR in these jurisdictions mirror some matters raised previously in Australia. Some concerns are also linked to budgetary issues and the perception that courts may need to compete with ADR services. As noted in Chapter 1, these issues require close consideration and management to ensure that the justice system as a whole is supported and so that one part of the justice system is not supported to the detriment of another. 58 Policy decisions about justice, as the Productivity Commission noted in its 2014 Report on Access to Justice Arrangements, require consideration of the core overriding objective of the justice system, which is “to enhance community wellbeing”. 59 This objective clearly requires a better understanding of how the system is currently functioning (see discussion relating to evaluation below). 60 The symbiotic nature of the justice system must be understood in the context of ADR. In this regard, ADR may have a role to play in promoting a more positive cooperative culture within courts as well as helping them deal with their caseloads. Where disputes do end up in the court system, there is clear evidence that they are increasingly subject to litigation arrangements that include ADR requirements. Most annual court and tribunal reports provide information about ADR; however, much ADR that is court-annexed is still unmeasured. The litigation system is also managing information in different ways and has the capacity to better measure ADR and target ADR initiatives. It may be that some types of cases, or some types of plaintiffs or defendants, and potentially at a much earlier time, 61 should be targeted for inclusion in an ADR program 62 particularly in response to a burst or growth in litigiousness. For example, in the commercial context, where a plaintiff or defendant may spawn a large number of similar actions, early targeting may reduce the burden on the courts and the litigants. Further, the establishment of a mediation referral 58

59 60 61 62

See T Sourdin, “A Broader View of Justice” in M Legg (ed), The Future of Dispute Resolution (LexisNexis, Chatswood, 2013) pp 155-166. See also T Sourdin, “The Role of the Courts in the New Justice System” (2015) Yearbook on Arbitration and Mediation, Penn State Dickinson School of Law (forthcoming). Productivity Commission, Access to Justice Arrangements (Report No 72, Productivity Commission, 2014) p 7. Productivity Commission, Access to Justice Arrangements (Report No 72, Productivity Commission, 2014) p 33. See T Sourdin, “Using Alternative Dispute Resolution to Save Time” (2014) 33(1) The Arbitrator and Mediator 61. See T Sourdin, “Evaluating Alternative Dispute Resolution (ADR) in Disputes About Taxation” (2015) The Arbitrator and Mediator (forthcoming). [15.30] 615

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program that involves heavy and frequent users of the court system may result in the changed priority of alternatives for those frequent litigants and in a positive change in settlement behaviour. In addition, there is also the possibility of adopting “blended” dispute resolution processes that incorporate elements of ADR within conventional adjudication. In the changing litigation system, judges may actively facilitate certain aspects of a dispute and adjudicate others. This approach recognises that although there are important differences between some aspects of ADR, these aspects can be compatible with adjudication. This approach has become a reality for some courts 63 and the debate about judicial mediation has resurfaced 64 (see Chapter 8 at [8.105] and in respect of blended judicial and ADR processes see also Chapter 6 at [6.145]). The role of lawyers [15.35] Lawyer-led negotiation has always played a part in resolving many disputes and lawyers have a key role to play in educating clients about avoiding disputes and on alternatives to litigation. Lawyers and other experts can also ensure that “informed” decisions are made about resolving disputes. However, there are also issues about the role of lawyers in dispute resolution processes. In the United States, the following question was asked: 65 Do lawyers facilitate dispute resolution or do they instead exacerbate conflict and pose a barrier to the efficient resolution of disputes?

These concerns have been raised with respect to ADR processes and the more widespread involvement of lawyers in those processes. In facilitative processes, lawyers negotiate and act as facilitators. It has been said that, at times, ADR processes can be adversely affected by lawyer involvement. Menkel-Meadow has noted that, in the United States, ADR has been “captured” by the legal profession: 66 ADR was just another stop in the “litigotiation” game which provides an opportunity for the manipulation of rules, time, information and ultimately, money. … ADR has become just another battleground for adversarial fighting rather than multi-dimensional problem solving.

Other commentators have noted that there has been little focus on the role that lawyers can play. Instead, a “dominant popular view” has emerged that 63 64 65 66

See T Sourdin and A Zariski, The Multi Tasking Judge (Thompson Reuters, Pyrmont, 2013). See T Sourdin, “Why Judges Should Not Meet Privately With Parties In Mediation But Should Be Involved In Settlement Conference Work” (2014) 4(2) Journal of Arbitration and Mediation 91. R J Gilson and R H Mnookin, “Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation” (1994) 94 Columbia Law Review 509. See Australian Law Reform Commission (ALRC), Review of the Adversarial System of Litigation: ADR – Its Role in Federal Dispute Resolution, Issues Paper 25 (ALRC, Sydney, June 1998), referring to C Menkel-Meadow, “Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or ’The Law of ADR’” (1991) 19 Florida State University Law Review 17.

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“lawyers magnify the inherent divisiveness of dispute resolution”. 67 These views have also found favour in some parts of Australia as legislators seek to minimise the role of lawyers in some types of disputes. However, such opinions are not the ones concerning the role of lawyers. Many lawyers and others 68 have indicated that lawyers can play a very useful and constructive role in resolving disputes. 69 This is evident in the collaborative practice area (see Chapter 4) where lawyers are increasingly establishing an environment that aims to support interest-based negotiation and where there is a redefinition of the role of the lawyer. It may be that different factors in different States and jurisdictions can promote a culture of cooperation. The Australian Law Reform Commission has noted that institutional features promoting a culture of cooperation 70 can include the following: • The size of the legal community. It has been noted that “regulars” who regard themselves as “forming a loose, informal fraternity of specialist peers” and who litigate against one another are more likely to engage in respectful communication than litigators whose relationships with their peers are likely to be one off or of a shorter duration. As a result in smaller legal communities practitioners may be less likely to engage in “tactical jockeying”, harassment, evasion and other adversarial excesses. • The incentives available to lawyers. If lawyers are paid by the hour rather than the outcome, non-cooperative structures can be encouraged. • Complexity. As litigation and the legal environment become more complex, it is more difficult for lawyers to identify cooperative behaviour. • The legal culture. In different legal communities, the dominant legal culture may support cooperative problem-solving or more adversarial and positional approaches. It has been noted that in California “the dominant culture among matrimonial lawyers in some communities is much more adversarial than in other communities that are much larger”. 71 Other factors may relate to how mediation and other processes are integrated into the legal system. 72 For example, a legal system that promotes more facilitative forms of ADR and problem-solving approaches has an impact on the way that lawyers engage in dispute resolution and litigation. At the same time, a 67

R J Gilson and R H Mnookin, “Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation” (1994) 94 Columbia Law Review 509, 511.

68

J Wade, “In Search of New Conflict Management Processes – The Lawyer as Macro and Micro Diagnostic Problem Solver” (1995) 10 Australian Family Lawyer 23, Part I. R J Gilson and R H Mnookin, “Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation” (1994) 94 Columbia Law Review 509, 509.

69 70

ALRC, Review of the Adversarial System of Litigation: ADR – Its Role in Federal Dispute Resolution (Issues Paper No 25, ALRC, Sydney, 1998) p 156.

71

R J Gilson and R H Mnookin, “Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation” (1994) 94 Columbia Law Review 509, 549. See, for example, T Sourdin, “Evaluating Alternative Dispute Resolution (ADR) in Disputes About Taxation” (2015) The Arbitrator and Mediator (forthcoming), where the outcomes of ADR in different States of Australia is discussed.

72

[15.35] 617

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legal system that encourages (and even rewards) certain types of negotiation behaviour is more likely to promote less adversarial approaches to negotiation. 73 The 2011 federal changes in the areas of pre-litigation and other obligations in respect of ADR (discussed in Chapter 11) and requirements in government litigation that support a more planned approach to dispute management and resolution (see Chapter 13) as well as increased “model litigant” requirements (through the legal services directions, see Chapter 12), are oriented towards rewarding particular negotiation behaviours, supporting transparent negotiations and also creating a more robust system of obligations for lawyers, disputants and others involved in litigation and ADR. Clearly also, aside from practitioner obligations, there is an ongoing focus on law school education with many commentators querying why ADR is still not yet a mandatory educational requirement in Australian law schools. 74 Self-represented parties in litigation – the role of ADR? [15.40] It is said that the number of self-represented parties in the litigation system is increasing. 75 The presence of self-represented parties may affect ADR process development as well as the development of ADR referral processes. Decisions about screening cases for ADR processes at the court and tribunal level have often referred to legal representation as a determinative referral factor. 76 Some court-connected ADR programs include or exclude self-represented parties. 77 Initially, many program developers raised concerns that selfrepresented parties could suffer as a result of a detrimental power imbalance where they face represented parties at the negotiating table. Concerns about power imbalance can be addressed by various ADR processes. In mediation, “shuttle” models (see Chapter 3 at [3.30]) may be more appropriate (at least in the early stages of a mediation process) as this may mean that a self-represented party will not feel “overwhelmed” by a number of parties. Skilled dispute resolvers will also use a number of techniques to address power imbalance issues. In addition, choosing particular ADR processes – for 73

74

75 76 77

See C Menkel-Meadow and M Wheeler (eds), What’s Fair: Ethics for Negotiators (Jossey-Bass, San Francisco, 2004); in particular E Norton, Bargaining and the Ethics of Process (p 270). See also Chapter 2 at [2.80] where the recent efforts of the Victorian Law Reform Commission to impose obligations are discussed. This topic has been the subject of much rich commentary relating to the role of lawyers. See J Macfarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (UBC Press, Vancouver, 2008) and O Rundle, “Barking Dogs: Lawyer Attitudes Towards Direct Disputant Participation in Court Connected Mediation of General Civil Cases” (2009) 8 Queensland University of Technology Law and Justice Journal 77, as well as more specific commentary related to legal education. See also T Sourdin, “Not Teaching ADR in Law Schools? Implications for Law Students, Clients and the ADR Field” (2012) 23(3) Australasian Dispute Resolution Journal 148. E Richardson and T Sourdin, “Mind the Gap: Making Evidence-based Decisions about Self-represented Litigants” (2013) 22(4) Journal of Judicial Administration 191. T Sourdin and N Wallace “The Dilemmas Posed by Self-represented Litigants: The Dark Side” (2014) 24(1) Journal of Judicial Administration 61. E Richardson and T Sourdin, “Mind the Gap: Making Evidence-based Decisions about Self-represented Litigants” (2013) 22(4) Journal of Judicial Administration 191.

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example, counselling over mediation or neutral evaluation – and the provision of separate advice to self-represented parties about the processes and possible outcomes of ADR can assist in ensuring that power imbalance issues are addressed. Pro bono legal assistance in these areas can also be of significant assistance. As noted in Chapter 11, “cooling off” periods are also inserted into some agreements made at mediation. In addition other supports can be linked to “unbundled” legal service provision and it may be that technological support arrangements will also assist self-represented people into the future (see Chapter 10). Some standards that have been developed for dispute resolution practitioners provide specific guidance for situations of power imbalance (see Chapters 3 and 7). For example, the Association for Conflict Resolution specifies that a family mediator “shall recognise a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly”. 78 The Family Mediation Canada competencies also sit at this end of the spectrum, including not just the ability to assess the degree of power imbalance, but also the “ability to use techniques to redress power imbalances”. 79 However, a particular issue where self-represented parties are concerned relates to the tension between preserving party self-determination and attending to power imbalances. 80 More recently, the participation of self-represented parties in ADR programs has been encouraged on the basis that they may benefit from ADR’s flexible processes and outcomes. 81 It can be argued that it is unfair to exclude self-represented parties from ADR processes as these are the very dispute resolution processes that are likely to be cost and time-effective and that such parties are most likely to be able to comprehend and effectively participate in. ADR processes can also enable self-represented parties to access information in an informal way and reality-test possible hearing outcomes. As the parties define the dispute, interests and needs that cannot be defined within the context of legal action (and which may be driving the dispute) can be explored. The expansion of mandatory referral processes [15.45] Mandatory referral schemes that operate within and outside court and tribunal systems have grown considerably over the past two decades. The reasons for this relate partly to budgetary concerns as well as a continuing interest in, and requests for, ADR processes (community, government and industry). These are areas of potential and continuing change into the future. The expansion of mandatory referral approaches particularly in the pre-litigation area has the capacity to create new norms in communications and disputing patterns. 78 79 80 81

See Association of Family and Conciliation Courts, Model Standards of Practice for Family and Divorce Mediation, available at Mediate.com on http://www.mediate.com/articles/afccstds.cfm. See Family Mediation Canada on http://www.fmc.ca. T Fisher, “Advice By Any Other Name …” (2001) 19(2) Mediation Quarterly 197. See ALRC, Review of the Adversarial System of Litigation: ADR – Its Role in Federal Dispute Resolution (Issues Paper No 25, ALRC, Sydney, 1998) p 161. [15.45] 619

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In terms of future developments, particularly given the recent policy and legislative focus on pre-litigation requirements, it is likely that the current range of referral options will continue to expand. For example, current court-connected legislative requirements can foster notification processes while others focus on ADR attendance. Further, at one level, some legislation requires that parties notify one another of a claim before the process is filed (see Chapter 11). Other legislation requires mandatory attendance at some form of ADR as a precondition to litigation. 82 This is particularly relevant in the family law area where mandatory pre-litigation ADR is now used extensively. The ADR forms that are most likely to be expanded will be determined, in part, by the evaluation of current approaches taken by parties, policy-makers, lawyers and courts. The incorporation of ADR into the mainstream justice system could be regarded as transforming forms of ADR, such as mediation, into a “discipline” or a means of organisation that “contributes to the insertion of disciplined, orderly individuals into the machineries of production and the dominant economic, political, and legal relations of power”. 83 This incorporation, which may reinforce existing power relationships, may indirectly lead to the growth of newer ADR processes – such as transformative mediation – as well as technologically supported ADR.

TECHNOLOGY [15.50] As noted in Chapter 10, changing technological trends will have significant implications for dispute resolution processes and may mean that ADR processes will change so that distance communication becomes more common. Technological changes have also led to the creation of new online dispute resolution and produced new ways in which people can be in dispute. “Email rage” has, for example, become an identifiable problem. Software has been produced to assist in the prevention of abusive and spam “bomb” emails being sent. Many, if not most, workplace conflicts will be played out, in part, via email and social media. Cyberbullying is now a significant issue and a feature of many disputes within the community and in schools. There is now a body of evidence that suggests that social media use can result in more disputes and this has prompted a greater focus on education mainly targeted at younger social media users: 84 Cybersecurity firm McAfee released a study (in 2014) saying 87% of the kids aged 10 to 18 that it surveyed said they’d witnessed cruel behavior online, a huge jump

82 83 84

See Chapter 9 – for example, the Family Law Act 1975 (Cth); Retail Leases Act 1994 (NSW), Pt 8; Farm Debt Mediation Act 1994 (NSW). L Pinzon, “The Production of Power and Knowledge in Mediation” (1996) 14(1) Mediation Quarterly 3. See J O’Toole, “Facebook’s Other User Experiment: Conflict Resolution”, CNN Money (online) (1 July 2014), available on http://money.cnn.com/2014/07/01/technology/social/facebook-compassionresearch/index.html.

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from last year’s figure of 27%. Half of those surveyed said they’d been involved in an argument offline based on something posted on social media, with 4% saying the posting had led to a physical fight.

Social media may also have a significant impact on workplace, family and other disputes and may incorporate cyber abuse and stalking 85 and may increase disputes in some areas. Social media use can also raise issues about the confidentiality of ADR processes as well as ethical issues (such as conflict of interest issues, for example, if the ADR practitioner has LinkedIn or Facebook friends who are involved with a dispute). 86 There are also issues about how ADR practitioners may deal with complaints and feedback delivered via social media where generally fast responses are required. In addition, the use of social media can raise issues in the context of more investigative, advisory and decisional dispute resolution particularly where large quantities of data may be relied upon by disputants and where e-discovery or similar processes may be required. Technology can clearly impact on the way that we deal with disputes. In patent or intellectual property, family, workplace and commercial disputes, ADR processes that involve internet-based conferencing are now more common. It is probable that these schemes will impact on business dispute systems in the future. Various forms of video-conferencing are now used extensively as a replacement for face-to-face conferencing. Online dispute resolution (ODR) has the capacity to shift disputant perceptions by using techniques that are different to many conventional facilitative processes. For example ODR may not require participants in an ADR setting to meet in a neutral space and may use technology to support the building of agendas, summaries and to brainstorm options online. In addition, online processes may assist in addressing issues that can arise from cultural differences and power imbalances by promoting the more flexible delivery of ADR. Online systems also enable disputants to access information about ADR processes and practitioners that assist in the promotion of ADR options. In this regard, as noted in Chapter 10, ODR is sometimes referred to as the “fourth party” (as distinct from the third party that is often the ADR practitioner in most ADR schemes). This approach recognises that emergent technology can play the role of a “practitioner”, as distinct from technology merely supporting an ADR process. Increasingly, dispute resolution schemes are emerging in response to technological developments. As noted in Chapter 10 at [10.50], Artificial Legal Intelligence (ALI) can be viewed as a form of dispute resolution or a system that has the capacity to render expert advice or decision-making. Artificial Intelligence 85

See S Donovan, “Family Mediation in the Digital Age” (2015) Mediate.com (online), available on http://www.mediate.com/articles/DonovanS2.cfm.

86

The American Bar Association has raised issues about judges and the use of social media. In 2014 issues were raised about a judge using social media. See J Gershman, “Judge Disqualified Over Facebook ‘Friend’ Request”, The Wall Street Journal – Law Blog (online), (27 January 2014), available on http://blogs.wsj.com/law/2014/01/27/judge-disqualified-over-facebook-friend-request/. [15.50] 621

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(AI) refers to computer systems that perform tasks and/or solve problems that usually require human intelligence. 87 As with many other forms of ADR, this system has the capacity to be blended with determinative and advisory, as well as non-adjudicatory, processes. Technology can be used to facilitate dispute resolution or avoid disputes by providing ADR services that are available through computer programs or the internet. Already there are many dispute resolution services that are aimed at solving problems related to the use of the internet. 88 While many websites act as referral and information points, 89 (and are primarily focused on supportive technologies), others provide online services and suggest that online ADR may have many benefits, such as saving on travel costs and keeping parties separate (particularly in domestic violence situations). There are real issues about whether technology-based services can replace “face-to-face” processes because the essence of many ADR processes is their capacity to open communication channels. However, technology also has the capacity to provide globalised dispute resolution services. This is particularly important as transactions are increasingly being conducted across borders and with little reference to domestic dispute resolution systems. The growth in existing internet and global dispute resolution systems means that consumer, political and social disputes are more likely to be resolved outside traditional court and litigation systems.

EVALUATING ADR PROCESSES [15.55] In recent years, there has been an increasing focus on how dispute resolution processes work, how participants within the broader dispute resolution system regard outcomes and processes, and how effective these processes are. In particular, with the introduction of ADR into the litigation system, there have been calls for a greater evaluation of these processes and “proof” that they are quicker, cheaper or more satisfying. Such “proof” has been difficult to obtain, partly because there has been little empirical evidence about how the traditional system works and the costs 90 and benefits of more traditional adjudicatory processes. However, evaluation work conducted to date 87

88 89 90

R Susskind, The Future of Law: Facing the Challenges of Information Technology (Clarendon Press, Oxford, 1998) p 120. See also R Susskind (ed), Transforming the Law: Essays on Technology, Justice and the Legal Marketplace (Oxford University Press, Oxford, 2004). See Chapter 10 and references to Modrai, Youstice, Smartsettle and Guided Resolution. See Chapter 10. There is some evidence that the process of seeking compensation in relation to personal injury can have lasting impacts on claimants and that these impacts are significantly worsened by engagement in more adversarial and drawn out disputes – see M O’Donnell, G Grant, N Alkemade, M Spittal, M Creamer, D Silove, A McFarlane, R Bryant, D Forbes and D Studdert, “Compensation Seeking and Disability After Injury: the Role of Compensation-related Stress and Mental Health” (2015) 76(8) Journal of Clinical Psychiatry 1000; G Grant, M O’Donnell, M Spittal, M Creamer and D Studdert, “Relationship Between Stressfulness of Claiming for Injury Compensation and Long-term Recovery: A Prospective Cohort Study” (2014) 71 JAMA Psychiatry 446.

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in Australia (see Appendix G) indicates that litigants, when made aware of ADR, may have a preference for ADR processes over traditional litigation and that a high degree of disputant satisfaction is often achieved through the use of ADR. 91 Outside the litigation system, there has been limited focus on how disputes are resolved. Every day, decisions are made in business environments that can impact on business, employees and external parties in a number of direct and indirect ways. These are often measured by cost–benefit analyses. However, the analysis of these decisions may not necessarily address issues about compliance or satisfaction with the decisions made. Further, it is not clear how the disputes that arise in these environments are resolved and although there appears to be considerable use of ADR research, evaluation remains limited. Often where programs are evaluated, the evaluations may not be made public as they may be oriented towards strategic improvements (rather than oriented towards publication which might support more comparative analysis). There is some evidence that there has been a decline in civil litigation although it is unknown how many people access ADR before commencing litigation (see Chapter 1). Clearly, the evaluation of ADR processes will continue to play a major role in determining how ADR develops and expands. In the information-rich society that is developing, it will be difficult to determine where evaluation has occurred and to consider the choices available to determine policy and funding. For this reason, NADRAC sponsored a fourth ADR Research Forum in 2010 and a fifth non-NADRAC event was held in association with the National Mediation Conference in 2014. Each of the past NADRAC research forums was designed to bring researchers and policy-makers together to explore ADR research. There is some continuing focus on ADR research in Australia at least at the academic level. The ADR Research Network is, for example, a group that holds annual research-focused forums and is comprised of academics and research students who are involved in ADR research and evaluation activities. 92 The Federal government has made it clear that policy decisions should be based on evidence and that institutional frameworks are essential to support effective evidence-gathering and sharing. Two recent reports have discussed the high level of interest in this area as courts and policy-makers increasingly seek high quality information: 1.

The 2009 A Strategic Framework for Access to Justice in the Federal Civil Justice System Report 93 noted that data collection about the courts and ADR processes remained a significant issue and that there was a need to have high quality data about the civil justice system to inform analysis and understanding.

91 92

See Appendix G. See ADR Research Network, available on http://adrresearch.net/.

93

Attorney-General’s Department (Cth), A Strategic Framework for Access to Justice in the Federal Civil Justice System: A Report by the Access to Justice Taskforce Attorney-General’s Department (Commonwealth of Australia, 2009), available on http://www.ag.gov.au/a2j. [15.55] 623

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2.

NADRAC stated in its 2009 Resolve to Resolve Report 94 that it “considers that the Federal Government should address the significant and longstanding lack of comparable data, evaluation and research about ADR, to ensure that future policies are built upon a strong evidence base” and that the government should ensure that mechanisms are in place to “provide a clearing house for civil justice evaluation and research” and “institute, on a user pays system, independent evaluations of civil justice programs, including ADR programs, whether by public or private bodies or partnerships between them”. 95

In 2012, a working group was set up by the Commonwealth Attorney-General’s Department to develop a framework to guide the collection of consistent data to create an evidence base for the civil justice system. The work is intended to be “… a long-term project that aims to remedy the current lack of consistent and comparable data across the civil justice system”. 96 This more systemic approach is focused on more formal justice providers (courts and tribunals) as well as those involved in the informal justice system. A number of reports have been commissioned as part of the project that have explored the data gaps that currently exist. Draft objectives were promulgated in 2012 that can be broken down to consider sub-objectives and criteria for measurement. The objectives that have been identified are: 97 Overarching objective: The Australian civil justice system contributes to the well-being of the Australian community by fostering social stability and economic growth and contributing to the maintenance of the rule of law.

94

95

96

97

1.

People can solve their problems before they become disputes.

2.

People can resolve disputes expeditiously and at the earliest opportunity.

3.

People are treated fairly and have access to legal processes that are just.

4.

People have equitable access to the civil justice system irrespective of their personal, social or economic circumstances or background.

5.

People benefit from a civil justice system that values the well-being of those who use it.

NADRAC, The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (Report, Commonwealth of Australia, 2009), available on http://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Pages/NADRACpublications.aspx. NADRAC, The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (Report, Commonwealth of Australia, 2009) at [6.51], available on http://www.ag.gov.au/ LegalSystem/AlternateDisputeResolution/Pages/NADRACpublications.aspx. See Attorney-General’s Department (Cth), An Evidence Base for the Civil Justice System, available on http://www.ag.gov.au/LegalSystem/Pages/Anevidencebasefortheciviljusticesystem.aspx. The author is a member of this working group. See Attorney-General’s Department (Cth), An Evidence Base for the Civil Justice System, available on http://www.ag.gov.au/LegalSystem/Pages/Anevidencebasefortheciviljusticesystem.aspx.

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6.

People can be confident that the civil justice system is built on and continuously informed by a solid evidence base. The word “People” includes any legal entity which may use services provided by the civil justice system including corporations, incorporated associations etc.

There are other research efforts that are directed at improving ADR research quality and approaches in specific areas. For example, the American Bar Association Task Force on Mediator Techniques that was set up in 2013 is reviewing 89 empirical studies of mediator effectiveness and hopes to report in 2016 and inform future research in this area. 98 There are some critical issues that surface in the ADR research area. These include the following: • Those who currently evaluate and research in the ADR field come from a range of backgrounds. Evaluation can be conducted by those with no expertise in ADR or, conversely, with no expertise in evaluation. • Few ADR programs specify how, when and by whom evaluation is to take place. Researchers can have backgrounds in law, the social and other sciences, or almost any other discipline areas. • Disputants and representatives may be reluctant to disclose information about ADR processes because they are concerned about confidentiality. • In past years, issues about funding evaluation, who evaluates, how evaluations occur and what is evaluated have meant that much ADR that occurs (particularly outside the immediate vicinity of the litigation system) remains “unmeasured”. This is a particular issue where ADR work is conducted by private practitioners who are independent from court, tribunal or external dispute resolution schemes. 99 • It can be costly to conduct research, particularly if observational studies are involved. Such studies may be necessary to consider the interventions used by ADR practitioners and the behaviours of those involved in ADR.

What is being evaluated? [15.60] In addition to difficulties in terms of defining what is evaluated –for example, ADR processes within the litigation system (that is, a system governed by courts and tribunals, or where parties simply opt out of existing processes without informing the court of their intentions); ADR processes that may discourage litigation from commencing or that deal with issues and concerns that would not ordinarily be dealt with by the litigation system; or interventions and behaviours or broader systemic issues (relating to education and engagement) – there are significant methodological and conceptual difficulties in comparing ADR with traditional litigation and in terms of evaluating and defining processes. One obvious problem in comparing the cost and benefits of ADR processes with those of traditional litigation is that any comparison with the cost of those 98 99

The author was a member of this Taskforce. T Sourdin, “Thematic Issue – Reporting on Research from the NADRAC Forum – Introduction” (2011) 22 Australasian Dispute Resolution Journal 1. [15.60] 625

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cases that go to trial will be flawed because many civil cases are settled out of court. 100 In addition, some of the possible benefits of ADR are difficult to measure. The increased use of ADR may lead to a decrease in litigious or adversarial behaviour, 101 foster better relationships between parties to disputes or result in higher levels of compliance with outcomes. Some recent evaluations have compared different ADR and litigation processes – however, large-scale research has not been undertaken. 102 What is ADR? Just “mediation”? Or case conferences too? [15.65] In some jurisdictions, the definition of ADR remains unclear. For example, dispute resolution processes that are “alternative” to traditional court proceedings are often referred to as ADR. As noted in Chapter 1, ADR is also used as an acronym for “assisted”, “additional”, or “appropriate” dispute resolution processes, terms that encompass similar processes. 103 However, for many practitioners ADR can be synonymous with “mediation”, and a court “conference” may not be defined as ADR. Within Australian courts, non-adjudicative dispute resolution processes have long been used in a case management context to facilitate agreement between the parties on issues, define outstanding issues and explore the possibilities of settlement. In this regard, case management schemes can be related to more general practice and procedure issues as well as issues that relate to dispute resolution process availability. Case management schemes may foster the streaming of cases into mediation, conciliation, evaluation or arbitration, or may involve specific conference techniques that are also aimed at resolving issues and settling cases. Practice and procedure issues that govern interlocutory processes may be interlinked with case management and dispute resolution schemes. These variations can also mean that it is difficult to determine what is meant by

100

101

102

103

For a discussion of the methodological difficulties in evaluating ADR programs, see T Sourdin, “Thematic Issue – Reporting on Research from the NADRAC Forum – Introduction” (2011) 22(1) Australasian Dispute Resolution Journal p 1; T Matruglio, Researching Alternative Dispute Resolution (Justice Research Centre, Sydney, 1992); S Caspi, “Mediation in the Supreme Court – Problems with the Spring Offensive Report” (1994) 5(4) Australian Dispute Resolution Journal 4; S Keilitz (ed), National Symposium on Court Connected Dispute Resolution Research – A Report on Current Research Findings – Implications for Courts and Research Needs (State Justice Institute, USA, 1994). It has been suggested that those exposed to cooperative dispute resolution processes develop more constructive communication patterns and less obstructive behaviour: P Wanger, “The Political and Economic Roots of the “Adversary System” of Justice and ’Alternative Dispute Resolution’” (1994) 9(2) The Ohio State Journal on Dispute Resolution 203. See T Sourdin and T Matruglio, Evaluating Mediation – The NSW Settlement Scheme (La Trobe University and the Law Society of New South Wales, Melbourne, 2004); J Elix and T Sourdin, Review of the Financial Industry Complaints Scheme – What are the Issues? (La Trobe University, Melbourne 2002). For example, both the Federal Court of Australia and the Commonwealth Administrative Appeals Tribunal (AAT) have referred to their ADR programs as “assisted dispute resolution”.

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“ADR” in any given context. In the online ADR area, this is a particular concern. Is it complaints handling processes or something else that is being evaluated? 104 Definitional variations – what is “mediation”? [15.70] Evaluation is made even more difficult as significant definitional variations occur in different States, courts and tribunals in relation to the range and variation in processes. A difficulty with research about processes is that they are often described similarly in legislation and rules but their application may vary greatly in practice. This factor may mean that research findings are not comparable across jurisdictions or in different regions. For this reason, research into ADR processes may have significant specific use but little general utility, although some research has focused on specific definitions and practice variations and the differences between schemes. 105 Despite the aforementioned issues, there have been numerous attempts in the past decade to evaluate ADR processes. Many Australian empirical studies have focused on specific industries, cultural groups and demographic areas. These evaluative studies vary in terms of their objectives and are often not comparable because of different contexts. For instance, there have been evaluative studies 106 addressing ADR in the financial industry, 107 taxation disputes, 108 family disputes, 109 for credit consumers 110 and in association with small business. 111 Court-connected ADR evaluation projects 112 often will include an analysis of 104

See M Conley Tyler and D Bretherton, Research into On-line Alternative Dispute Resolution, Exploration Report (Department of Justice, University of Melbourne, Victoria, 2003).

105

T Sourdin and N Balvin, “Mediation Styles and their Impact: Lessons from the Mediation in the Supreme and County Courts of Victoria Research Project” (2009) 20(3) Australasian Dispute Resolution Journal 142, 152. See full report, available at SSRN on http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1395550.

106

See generally: T Sourdin, Mediation in the Supreme and County Courts of Victoria (Department of Justice, University of Queensland, 2008); NL Hollett, MS Herrman, DG Eaker and J Gale, “Assessment of Mediation Outcomes: The Development and Validation of an Evaluative Technique” (2002) Justice System Journal; N Paulsen, D Rooney and P Ashworth, An Evaluation of the Primary Dispute Resolution Services of the Federal Magistrates Court (unpublished paper, 2004); T Sourdin, Dispute Resolution Processes for Credit Consumers (La Trobe University, Melbourne, 2007); T Sourdin and J Elix, Review of the Financial Industry Complaints Scheme – What are the Issues? (La Trobe University, Melbourne, 2002); T Sourdin and T Matruglio, Evaluating Mediation – New South Wales Settlement Scheme 2002 (La Trobe University and the Law Society of New South Wales, Melbourne, 2004); T Sourdin and A Shanks, Gauging the User Experience Report (Report, ACJI, 2013); T Sourdin, Resolving Disputes without Courts: Measuring the Impact of Civil Pre Action Obligation (Background Paper, Monash University, 2012). J Elix and T Sourdin, Review of the Financial Industry Complaints Service 2002 – Final Report (Community Solutions, La Trobe University and University of Western Sydney, 2002); P Khoury, D Russell and F Guthrie, Independent Review: Banking and Financial Services Ombudsman (The Navigator Company Pty Ltd, November 2004).

107

108

See T Sourdin and A Shanks, Evaluating Alternative Dispute Resolution in Taxation Disputes: Exploration of Selected ADR Processes that Took Place From 1 July 2013 – 30 June 2014 (Report, ACJI, Monash University, 2014) and see also T Sourdin, “Evaluating Alternative Dispute Resolution (ADR) in Disputes About Taxation” (2015) The Arbitrator and Mediator (forthcoming).

109 110

T Sourdin and A Shanks, Gauging the User Experience Report (Report, ACJI, 2013). T Sourdin, Consumer Experience on Complaints Handling and Dispute Resolution – A Research Study [15.70] 627

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aspects of ADR relating to the system of litigation, 113 civil justice 114 and case management. 115 There are also more general evaluations of ADR processes such as arbitration and conciliation 116 and the pre-trial aspects associated with these, 117 as well as discussion of developments in ADR by the comparison of programs over time. 118 Further analysis of ADR in relation to market forces affecting its use and effectiveness has been conducted over the past few years, 119 much of which has fed into research of quality assurance of ADR. 120

Undertaken in Victoria, Australia (La Trobe University, 2007) available on http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=1134483. 111 112

113 114

115

116

117

Marsden Jacob Associates, Survey of Small Business Attitudes and Experience in Disputes and their Resolution (Attorney-General’s Department (Cth), Canberra, 1999). See Appendix G; S Davidson, “Court-Annexed Arbitration in the Sydney District Court: An Evaluation of the Effectiveness of Court-Annexed Arbitration in the Disposal of Cases in the Sydney Registry (Civil) of the District Court of New South Wales” (1995) 6 Australian Dispute Resolution Journal 195; R Ingleby, In the Ball Park: Alternative Dispute Resolution and the Courts (Australian Institute of Judicial Administration, Melbourne, 1991); F Kingham, Evaluating Quality in Court Annexed Mediation (Fleur Kingham, Deputy President, Land and Resources Tribunal, Queensland, September 2002); K Mack, Court Referral to ADR: Criteria and Research (Australian Institute of Judicial Administration Inc and the National Dispute Resolution Advisory Council, 2003). ALRC, Review of the Adversarial System of Litigation: ADR – Its Role in Federal Dispute Resolution (Issues Paper No 25, ALRC, Sydney, 1998). District Court Civil Jurisdiction Steering Committee, Civil Claims in the District Court of South Australia: A Review of Court Management Processes and Practices (Report, Courts Administration Authority, Adelaide, September 1997); T Matruglio, Researching Alternative Dispute Resolution (Civil Justice Research Centre and Law Foundation of New South Wales, Sydney, August 1992). Law Institute of Victoria, Mediation in the Spring Offensive 1992: An Initiative of the Supreme Court of Victoria (Law Institute, Melbourne, February 1993); Magistrates Court (Civil) General Jurisdiction Steering Committee, General Civil Claims in South Australia: A Review of Court Management Processes and Practices (Courts Administration Authority, Adelaide, September 1997). Department of Justice, Alternative Dispute Resolution in Victoria – Community Survey 2007 Report (Department of Justice, State of Victoria, Melbourne, 2007), available on http:// www.consumer.vic.gov.au/library/publications/resources-and-education/research/disputeresolution-in-victoria-community-survey-2007.pdf. M Delaney and T Wright, Plaintiffs’ Satisfaction with Dispute Resolution Processes: Trial, Arbitration, Pre-trial Conference and Mediation (Justice Research Centre and Law Foundation of New South Wales, Sydney, January 1997).

118

M Dewdney, B Sordo and C Chinkin, Contemporary Developments in Mediation within the Legal System and Evaluation of the 1992–3 Settlement Week Program (Law Society of New South Wales, Sydney, April 1994); National Alternative Dispute Resolution Advisory Council (NADRAC), ADR Research: A Resource Paper (Attorney-General’s Department, Canberra, March 2004); NADRAC, ADR Statistics: Published Statistics on Alternative Dispute Resolution in Australia (Attorney-General’s Department, Canberra, 2003); NADRAC, ADR Research: Background Paper for Research Round Table (AttorneyGeneral’s Department, December 2002); NADRAC, Online ADR Background Paper (Attorney-General’s Department, Canberra, January 2001); and T Sourdin and T Matruglio, Evaluating Mediation – New South Wales Settlement Scheme 2002 (La Trobe University and University of Western Sydney, 2004).

119

I McEwin, Cost of Legal Services and Litigation Access to Legal Services: The Role of Market Forces, Background Paper (Senate Standing Committee on Legal and Constitutional Affairs, February 1992). T Sourdin and N Harding, A Review of Manly Council’s Development Application (DA) Process (La Trobe University and Nina Harding Mediation Services, 2006).

120

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Specific areas of law which utilise ADR are also addressed in these projects. Areas such as family law 121 are popular candidates for ADR evaluation, as are cases that deal with children and custodial issues. 122 Mediation and conferencing in relation to violence, 123 juvenile offenders 124 and restorative justice programs 125 also feature in evaluative studies. Many of these programs have 121

122

123 124

125

S Bordow and J Gibson, Evaluation of the Family Court Mediation Service, Research Report No 12 (Family Court Research and Evaluation Unit, Sydney, March 1994); Denis Muller & Associates and Relationships Australia (Victoria), Use of, and Attitude to, Mediation Services Among Divorcing and Separating Couples (Report, Commonwealth Department of Family and Community Services, Canberra, 1998); Family Court of Western Australia, Family Court of Western Australia Mediation Service Evaluation (Family Court, Perth, August 1996); Attorney-General’s Department (Cth), Evaluation of the Marriage and Relationship Counselling Sub-Program (Report, Legal Aid and Family Services, Family Services Branch, August 1996); Family Court of Australia, Self-Represented Litigants: A Challenge, Project Report (December 2000); J Fisher and M Blondel, Couples Mediation: A Forum and A Framework (New South Wales Marriage Guidance, 1993); L Moloney, A Love and T Fisher, Managing Differences: Federally-funded Family Mediation in Sydney. Outcomes, Costs and Client Satisfaction (Legal Aid and Family Services, Attorney-General’s Department (Cth), Canberra, July 1996); N Mushin, “Court-annexed Mediation in the Family Court of Australia: The Experience of Working with Cultural Diversity” in D Bagshaw (ed), Second International Mediation Conference: “Mediation and Cultural Diversity”, Conference Proceedings 18–20 January 1996 (South Australia Group for Mediation Studies, University of South Australia, Adelaide, 1996); T Sourdin and A Shanks, Gauging the User Experience Report (Report, ACJI, 2013). See generally T Brown, B Batagol and T Sourdin, Family Support Program Literature Review: Review of the Family Support Program Family Law Services (Literature Review, ACJI, Monash University, 2013). Commonwealth Department of Family and Community Services, Through a Child’s Eyes: Child Inclusive Practice in Family Relationship Services (Canberra, 2001); Commonwealth Department of Family and Community Services, Family and Child Mediation Survey March 1998 – Final Report (Legal Aid and Family Services, March 1998); A Love, L Moloney and T Fisher, Federally-funded Family Mediation in Melbourne: Outcomes, Costs and Client Satisfaction (Legal Aid and Family Services, Attorney-General’s Department (Cth), Canberra, January 1995); J Peirce, “Mediators, Children’s Access Services, Violence and Abuse” in D Bagshaw (ed), Second International Mediation Conference: “Mediation and Cultural Diversity”, Conference Proceedings 18–20 January 1996 (South Australia Group for Mediation Studies, University of South Australia, Adelaide, 1996). Keys Young, Research/Evaluation of Family Mediation Practice and the Issue of Violence: Final Report (Legal Aid and Family Services (Cth), Attorney-General’s Department, Canberra, July 1996). K Daly, M Venables, M McKenna, L Mumford and J Christie-Johnson, Research on Conferencing, Technical Report No 1: Project Overview and Research Instruments (South Australian Juvenile Justice, 1998); K Daly, Research on Conferencing, Technical Report No 2: Research Instruments in Year 2 and Background Notes (South Australian Juvenile Justice, 2001); K Daly, B Bouhours, S Curtis-Fawley, L Weber, R Scholl, South Australia Juvenile Justice and Criminal Justice (SAJJ-CJ), Technical Report No 3 – Sexual Assault Archival Study: An Archival Study of Sexual Offence Cases Disposed of in Youth Court and by Conference and Formal Caution (School of Criminology and Criminal Justice, Griffith University, Brisbane, Queensland, 2003); K Daly, Sexual Offence Cases Finalised in Court, by Conference, and by Formal Caution in South Australia for Young Offenders, 1995–2001, Final Report (School of Criminology and Criminal Justice, Griffith University, Brisbane, Queensland, August 2003); J People and L Trimboli, An Evaluation of the NSW Community Conferencing for Young Adults Pilot Program, NSW Bureau of Crime Statistics and Research (Attorney General’s Department, Sydney, 2007). For a review of the literature, see M King, A Freiberg, B Batagol, R Hyams, Non Adversarial Justice (2nd ed, Federation Press, Sydney, 2014). See also the ACJI Video Project and supporting full-text material relating to the Neighbourhood Justice Centre (NJC, Melbourne, 2013), available on http:// www.civiljustice.info/; MS King, “Therapeutic Jurisprudence Initiatives in Australia and New Zealand and the Overseas Experience” (2011) 21 Journal of Judicial Administration 19. Other past Australian material includes H Hayes and K Daly, Conferencing and Reoffending in Queensland (Paper, School of Criminology and Criminal Justice, Griffith University, 2004); L Sherman, H Strang and D Woods, [15.70] 629

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been associated with Community Justice Centres. 126 Evaluation of these initiatives involves varying methodologies and results. ADR evaluation research has also focused on native title disputes and Indigenous Australian and Torres Strait Islander issues. 127 Many of these studies are reports on pilots and provide qualitative and/or quantitative feedback about the effectiveness of the resolution process from the perspective of the parties and other stakeholders. Some studies regarding Aboriginal Australians and Torres Strait Islanders have a particular focus on family law, 128 although more recent case study work has considered a wider range of dispute resolution areas. Restorative justice and related peer mediation programs in schools 129 have also been evaluated, where studies have involved questionnaires for children and their parents. Decisions in relation to legal aid or other funding 130 have been based on some of the research conducted over the past few years. These are largely qualitative studies. WorkCover has also been the focus of evaluation of Recidivism Patterns in the Canberra Reintegrative Shaming Experiments (RISE) (Report, Centre for Restorative Justice, Australian National University, 2000); L Sherman and H Strang, Restorative Justice: What We Know and How We Know It, Jerry Lee Program on Randomized Controlled Trials in Restorative Justice (Working Paper, University of Pennsylvania, Lee Center of Criminology and Australian National University, Centre for Restorative Justice, 2004); H Strang, Restorative Justice Programs in Australia: A Report to the Criminology Research Council (Report, Australian National University, 2001); and H Strang, G Barnes, J Braithwaite and L Sherman, Experiments in Restorative Policing: A Progress Report on the Canberra Reintegrative Shaming Experiments (RISE) (Report, Law Program, Research School of Social Sciences, Australian National University, 1999): see http:// www.aic.gov.au/criminal_justice_system/rjustice/rise.aspx. Extensive literature relating to evaluations of problem-solving courts can be found at the Centre for Court Innovation (New York) available on http://www.courtinnovation.org/. 126

C Bourne, Mediation and Community Justice Centres: An Empirical Study, Research Report 12 (NSW Law Reform Commission, October 2004); and J Schwartzkoff and J Morgan, Community Justice Centres: A Report on the New South Wales Pilot Project 1979–81 (Law Foundation of New South Wales, Sydney, 1982).

127

T Bauman and R Williams, The Business of Process Research Issues in Managing Indigenous DecisionMaking and Disputes in Land, Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) Research Discussion Paper No 13 (AIATSIS, Canberra, 2004); Indigenous Facilitation and Mediation Project (IFaMP), Community Mediation Centres, Native Title Representative Bodies Forum: Summary of Proceedings and Outcomes (AIATSIS, Native Title Research Unit, October 2004). See also NADRAC, Indigenous Dispute Resolution and Conflict Management and Solid Work Report – Case Studies in Indigenous Dispute Resolution and Conflict Management in Australia (January 2006 and August 2009) at http://www.ag.gov.au.

128

C Cunneen, J Luff, K Menzies and N Ralph, “Indigenous Family Mediation: The New South Wales ATSIFAM Program” (2005) Australian Indigenous Law Reporter 1, available on http:// www.austlii.edu.au/au/journals/AILR/2005/1.html; NADRAC, Indigenous Dispute Resolution and Conflict Management (Attorney-General’s Department, Canberra, January 2006) and Solid Work Report – Case Studies in Indigenous Dispute Resolution and Conflict Management in Australia (August 2009), available on http://www.ag.gov.au. S Grose and W Alford, “The Dispute Resolution Project: Peer Mediation in Schools” in D Bagshaw (ed), Second International Mediation Conference: “Mediation and Cultural Diversity”, Conference Proceedings 18–20 January 1996 (South Australia Group for Mediation Studies, University of South Australia, Adelaide, 1996). Commonwealth Attorney-General’s Department, Legal Aid Funding Model (Canberra, December 1999); Rush Social Research Agency and John Walker Consulting Services for Family Law. Legal Assistance Needs Phase I: Estimation of a Basic Needs-Based Planning Model (prepared for Family Law and Legal Assistance Division, Legal Aid Branch, Commonwealth Attorney-General’s Department,

129

130

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ADR processes, with an emphasis on the types of processes used and the effectiveness perceived by those involved. 131 In addition, research data is increasingly being produced by performance measurement technology that is in place within some courts and tribunals and which will at least indicate where intervention and resolution may occur. Refinements in these areas in future years will enable a clearer analysis of ADR referral processes to take place. The studies referred to in Chapter 1 note that empirical evaluations have shown significant benefits in using ADR. In Canada, the Ontario study (which analysed more than 3000 cases in Ontario) found that there were positive impacts on the pace, costs and outcomes of litigation when ADR processes were used. 132 Some key evaluation attempts are explored in this chapter; however, many evaluation reports remain “unreported” as part of internal court or tribunal circumstances, or are not comparable in the Australian setting. 133 It is partly for this reason that the Australian Centre for Justice Innovation (ACJI) set up the Civil Justice Research Online website, which acts as a free downloading point for material that might not otherwise be available. 134 One study that could be regarded as not comparable was an American study done by the RAND Institute for Civil Justice in 1996. This study is one of the few comprehensive empirical studies currently available on the effects of court-related ADR on cost, delay and perceptions of fairness. The research evaluated six federal district courts that had mediation or early neutral evaluation programs. The study found that there was no strong statistical evidence that these ADR programs significantly affected or reduced time to disposition or litigation costs. 135 However, in many of the mediations studied the mediator gave an opinion on the likely outcome of litigation. The processes used tended to be evaluative rather than facilitative. The more facilitative programs appear to have performed better. Many studies suggest some benefits for some types of disputes. 136 In another 1996 study of Family Court cases in Queensland, the average legal fee paid by

131 132 133

Canberra, 1999): Rush Social Research Agency and John Walker Consulting Services for Family Law, Legal Assistance Needs Project: Phase II Summary Report (prepared for Family Law and Legal Assistance Division Legal Aid Branch, Commonwealth Attorney-General’s Department, Canberra, 1999). T Beed, The Role of Conciliation (Civil Justice Research Centre and Law Foundation of New South Wales, Sydney, November 1990). R Hann and C Baar, Evaluation of the Ontario Mandatory Mediation Program (Queen’s Printer, Ontario, 2001) p 3. See, eg, N Paulsen, D Rooney and P Ashworth, An Evaluation of the Primary Dispute Resolution Services of the Federal Magistrates Court (Communication Partners, July 2004).

134 135

See Civil Justice Research Online, available on http://www.civiljustice.info/. J Kakalik, M Oshiro, D McCaffrey, M Vaiana, N Pace, T Dunworth and L Hill, An Evaluation of Mediation and Early Neutral Evaluation Under the Civil Justice Reform Act (RAND Institute for Civil Justice, Santa Monica, 1996).

136

R Ingleby, In the Ball Park: Alternative Dispute Resolution and the Courts (Australian Institute of Judicial Administration, Melbourne, 1991); Family Court of Australia, Evaluation of the Family Court Mediation Service (1994); C Chinkin and M Dewdney, “Settlement Week in New South Wales: An Evaluation” [15.70] 631

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clients involved in family law disputes was examined. The study found that the average fee paid (including disbursements) was: 137 • $1729 for matters resolved by negotiation or mediation without court involvement; • $4459 for matters resolved after a court-arranged conciliation or counselling session; • $7204 for matters resolved after a final court hearing was scheduled, by settlement between the parties; • $16,832 for matters resolved by an order of the court after a contested final hearing. Clearly, ADR processes can reduce costs and be less expensive than litigated options if the dispute is resolved. The benefits increase where disputes are likely to consume proportionally large amounts of time in a hearing. Where agreement is not reached and the matter is then litigated, costs can be inflated. However, ADR can narrow the issues, reduce the need for interlocutory hearings or pre-trial processes and contribute to a shorter hearing. The evaluation of the New South Wales Settlement Scheme suggested that ADR processes, such as mediation, could provide great benefits even in older, more complex cases where significant legal costs had been expended. In this regard, the report noted that even if a mediation was not attended, a mediation scheme may still have “a catalytic effect, as parties in many disputes went on to resolve their disputes without attending a mediation conference”. 138 Many ADR processes are evaluated in a court-connected context and, for this reason, many studies have a comparative context. Some of the specific advantages of mediation over litigation are seen as speed, convenience, informality, costs saving, greater control of the process, confidentiality, preservation of ongoing relationships, and compliance with the outcome. The degree to which processes meet objectives and the priority given to objectives varies according to the areas where ADR is used. The indicators that could be employed in evaluating ADR processes have been summarised by Ingleby as follows: 139

137

(1992) 2 Australian Dispute Resolution Journal 93; M Dewdney, B Sordo and C Chinkin, Contemporary Developments in Mediation Within the Legal System and Evaluation of the 1992–3 Settlement Week Program (Law Society of New South Wales, 1994); Law Institute of Victoria, Mediation in the Spring Offensive 1992 (Law Institute, 1993); J Kelly, “A Decade of Divorce Mediation Research. Some Answers and Questions” (1996) 34(3) Family and Conciliation Courts Review 373–385; and L Moloney, A Love and T Fisher, Managing Differences: Federally-Funded Family Mediation in Sydney – Outcomes, Costs and Client Satisfaction (National Centre for Socio-Legal Studies, La Trobe University, 1996) p xiv. M Cunningham and T Wright, The Prototype Access to Justice Monitor, Queensland, A Joint Project of the Department of Justice, Queensland and the University of Wollongong (Justice Research Centre, Sydney, 1996) p 29.

138

T Sourdin and T Matruglio, Evaluating Mediation – The NSW Settlement Scheme (La Trobe University and the Law Society of New South Wales, Melbourne, 2004) p 77.

139

R Ingleby, Why Not Toss a Coin? Issues of Quality and Efficiency in Alternative Dispute Resolution, Conference Paper (Ninth Annual Australian Institute of Judicial Administration (AIJA) Conference, Melbourne, 1991).

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• user rates; • settlement and compromise rates; • compliance; • time savings; • cost savings; • reduction in court backlogs; • community development; and • removal of the sources of the problem. Additional areas that may be considered can be scheme-specific. For example, in 2003 the Financial Industry Complaints Service (FCIS) evaluation 140 considered six benchmark areas developed as Benchmarks for Industry-Based Customer Dispute Resolution. 141 The revised 2015 benchmarks 142 are discussed in Chapters 5, 9 and 14 and are relevant as external evaluations of EDR schemes rely on the articulated benchmark measures. 143 In the family law area, developed benchmarks can be more specific. For example, it was suggested that ADR practitioners in this area could develop their own value statements. Currently agencies, professional associations and even sole practitioners develop policies that guide their practice and service delivery. 144 Many family dispute resolution services within Australia are committed to ensuring that their services are evaluated and measured. Services are required to document client feedback and evaluation methods and must establish complaints handling procedures that comply with natural justice. This information must then be used to improve services. There are also standards in this area that apply to data collection, including confidentiality and privacy issues, and ongoing assessment and monitoring of performance. A number of government reports have indicated that there are significant gaps in the context of ADR and civil justice. The Productivity Commission Report 140

J Elix and T Sourdin, Review of the Financial Industry Complaints Scheme – What are the Issues? and Final Report (La Trobe University, Melbourne 2002 and 2003, respectively).

141

See Consumer Affairs Division, Department of Industry, Science and Tourism, Consumer Affairs Division, Department of Industry, Science and Tourism, Benchmarks for Industry-Based Customer Dispute Resolution Schemes (Benchmark, DIST, 1997). See also recent revisions at Commonwealth Consumer Affairs Advisory Council (CCAAC), Review of the Benchmarks for Industry-based Customer Dispute Resolution Schemes (Report, CCAAC, 2015), available on http://ccaac.gov.au/2013/04/24/ review-of-the-benchmarks-for-industry-based-customer-dispute-resolution-schemes/.

142

Australian Competition and Consumer Commission (ACCC), Benchmarks for Dispute Avoidance and Resolution – A Guide, available on https://www.accc.gov.au/publications/benchmarks-for-disputeavoidance-resolution. See also Australian Securities and Investments Commission (ASIC), Approval and Oversight of External Dispute Resolution Schemes, Regulatory Guide 139, available on http://asic.gov.au/regulatoryresources/find-a-document/regulatory-guides/rg-139-approval-and-oversight-of-external-complaintsresolution-schemes. Attorney-General’s Department (Cth), Raising the Standard: A Quality Framework for Primary Dispute Resolution under the Family Law Act 1975 (Consultation Paper, 2001), Appendix 32.

143

144

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on Access to Justice Arrangements 145 noted in 2014 that there were numerous problems with data about the civil justice system. The Commission noted that, “[i]t is widely acknowledged that data on the civil justice system are seriously deficient for policymaking and evaluation purposes.” 146 The Commission noted that data that was gathered was often “patchy”, there were inconsistencies in definitions, inadequate management systems and a lack of resourcing. 147 The Commission made a number of recommendations about civil justice data as well as some specific recommendations in relation to ADR: 148 The efficacy of ADR is not well understood as data collection is poor. Courts and tribunals should collect more information on where ADR is used, and undertake evaluations to determine whether ADR is more efficient and effective than other means of resolving disputes. Targeted pre-action protocols, and the possibility that they can narrow the issues in dispute, means that courts need to collect more information about when they are used in order to identify best-practice.

In recommending a data clearing house, the Commission also noted that there was a need for more coordinated evaluation of ADR programs and processes which is “critical to improving civil justice outcomes and the efficiency of the system”. 149 The Commission recommended the establishment of a Civil Justice Evaluation Advisory Committee to advise on priority areas for quantitative research. 150 The matters raised by the Productivity Commission are not new (as acknowledged by the Productivity Commission). More than a decade earlier the Australian Law Reform Commission (ALRC) 2002 report, Managing Justice – A Review of the Federal Civil Justice System highlighted the need for ongoing empirical evaluation research in the general civil justice area. As a general observation, the ALRC also noted the following in its executive summary: 151 The Commission acknowledges the importance of ADR as a tool in resolving cases quickly, less expensively and to the satisfaction of parties. However, the Commission also cautions against uncritical acceptance of ADR as a panacea for all ills of litigation, much in the same way that tribunals were intended to provide the “solution” to litigation problems in the 1970s. The Commission makes some 145 146 147 148 149 150 151

Productivity Commission, Access to Justice Arrangements (Report No 72, Productivity Commission, 2014) Volume 2 Chapter 25. Productivity Commission, Access to Justice Arrangements (Report No 72, Productivity Commission, 2014) Volume 2 p 879. Productivity Commission, Access to Justice Arrangements (Report No 72, Productivity Commission, 2014) Volume 2 Chapter 25. Productivity Commission, Access to Justice Arrangements (Report No 72, Productivity Commission, 2014) Volume 2 Chapter 25 p 895. Productivity Commission, Access to Justice Arrangements (Report No 72, Productivity Commission, 2014) Volume 2 Chapter 25 p 901. Productivity Commission, Access to Justice Arrangements (Report No 72, Productivity Commission, 2014) Volume 2 Chapter 25 p 901. Australian Law Reform Commission (ALRC), Managing Justice – A Review of the Federal Civil Justice System (Report No 89, ALRC, 2000) p 14.

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targeted recommendations aimed at ensuring that the benefits of ADR are realised but it is not taken to substitute for appropriate adjudication.

The ALRC’s research into the Family Court, Administrative Appeals Tribunal (AAT) and Federal Court areas concentrated on timing, case management and costs. Its focus on ADR formed a small part of the research. This is partly because the amount of mediation practised in each of these jurisdictions is small (this finding alone is of considerable interest and could arguably have attracted further comment), and because the prime focus of the Commission was judicial adjudication, case disposal and outcomes rather than other key issues of relevance to ADR practitioners and theorists (for example, findings as to satisfaction and compliance with outcomes). However, some findings, particularly in the family law area, are of interest. In this regard, the ALRC noted: 152 On the Commission’s analysis, consensual resolution was more likely to be achieved if both parties were represented. Lawyer-led negotiation appeared a significant factor encouraging settlement. Parties made repeated attempts at settlement at all stages of the process, including before filing their applications. Settlements were often achieved later in the process. As stated in Chapter 5, unrepresented parties were more likely to withdraw, cease defending or have their cases determined following a hearing. They were much less successful in brokering a consent outcome. Unrepresented parties most frequently nominated to the Commission “frustration with the process” as the important reason they withdrew or settled their cases.

These conclusions in the family context are of interest to ADR and legal practitioners as they suggest that, in many circumstances, lawyers are aiding the negotiation process in somewhat unexpected ways. This conclusion is at odds with suggestions that lawyers can hinder negotiation. However, once again, the focus in the ALRC research was not on mediation but rather on litigation and the processes of negotiation with a limited focus on ADR. In this regard, mediation and other ADR processes can often be regarded as an “alternative” to negotiation processes, which can promote positional bargaining and inadequate compromise rather than cooperative solutions. Past evaluations [15.75] A large number of evaluations have now been conducted into ADR processes. However, most have adopted differing methodologies and, as each has examined very different processes, it is difficult to formulate conclusions either about methodological approaches or the utility of ADR in different contexts. Some researchers adopt methodologies that are linked to a procedural justice framework approach if surveying of some type is to be conducted 153 (see discussion below). 152

Australian Law Reform Commission (ALRC), Managing Justice – A Review of the Federal Civil Justice System (Report No 89, ALRC, 2000) p 14.

153

L Akin Ojelabi, “Mediation and Justice: An Australian Perspective Using Rawls’ Categories of Procedural Justice” (2012) 31 Civil Justice Quarterly 318. [15.75] 635

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As noted previously, it is rare to have studies that involve observational recording or an in-depth analysis of mediator, participant or lawyer behaviours. Evaluations have most often considered material from the following two sources: 1.

statistical data obtained from court, tribunal and agency files, such as: • settlement rates (this is often the sole evaluation criterion used by courts); • activity markers; • timeliness data; 154

2.

• compliance with outcomes (rarely tested); • gender issues; • reporting on the use of different models, for example co-mediation models of mediation. qualitative and quantitative data that is received from online surveys, feedback surveys, telephone surveys, interviews and focus group analysis, which may relate to: • costs; • perceptions of fairness; • • • •

satisfaction; compliance; power imbalance; mediation or other ADR micro skills;

• disputant characteristics. 155 For example, some schemes have used comparable data from the Australian Bureau of Statistics, as well as other comparable statistical reports (including reports about other ADR schemes) to establish the characteristics of the surveyed groups and to compare approaches taken. 156 As noted above, survey questions will often include a set of questions relating to procedural fairness, 157 which can be linked to work by Lind and Tyler 158 and Thibaut and Walker that suggests that if people consider that they have been treated fairly they are more likely to 154

See T Sourdin, “Using Alternative Dispute Resolution to Save Time” (2014) 33(1) The Arbitrator and Mediator 61 and T Sourdin, Timeliness Innovation Report (Report, ACJI, 2015).

155

See, for example, attempts to develop a disputant taxonomy: T Harrison, “Victims, Targets, Protectors, and Destroyers: Using Disputant Accounts to Develop a Grounded Taxonomy of Disputant Orientations” (2003) 20(3) Conflict Resolution Quarterly 307.

156

See T Sourdin and T Matruglio, Evaluating Mediation – The NSW Settlement Scheme (La Trobe University and the Law Society of New South Wales, Melbourne, 2004) p 77. See, for example, T Sourdin and A Shanks, Gauging the User Experience Report (Report, ACJI, 2013); T Sourdin, Resolving Disputes Without Courts: Measuring the Impact of Civil Pre Action Obligation (Background Paper, Monash University, 2012); T Sourdin, Evaluating Mediation in the Supreme and County Courts of Victoria (Report, Department of Justice and Australian Centre for Peace and Conflict Studies, 2008).

157

158

A Lind and T Tyler, The Social Psychology of Procedural Justice (Plenum Press, New York, 1988).

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accept a decision and outcome. 159 This dichotomy between levels of satisfaction with procedural and outcome fairness is demonstrated by past research that has explored procedural fairness perceptions of mediation compared to perceptions of more formal adjudicatory procedures. For example, Bingham, Raines, Hedeen and Napoli conducted a study relating to dispute design systems in 2010, which included measurement of respectfulness, impartiality, fairness, and performance for supervisors and employees involved in employment disputes which underwent EEOC Mediations (as opposed to the traditional more formal EEOC proceedings or other grievance procedures including arbitration). Employees were more frequently satisfied or very satisfied with the mediation process overall (59 per cent) than with the more formal grievance arbitrations or traditional EEO processes (46 and 35 per cent, respectively). In particular, and in the context of procedural fairness indicators, they were satisfied with their control over mediation, their ability to participate in it, and the fairness of the mediation process. Based on these indicators, mediation outperformed other more legalistic and adjudicatory processes. However, satisfaction with the fairness of the outcome was slightly higher for the grievance procedure (40 per cent) than for mediation (36 per cent). 160 Again, extrapolating these findings to all “mediations” is difficult as the processes used had particular advisory and shuttle negotiation characteristics (and as a result might not even be regarded as mediation by Australian researchers). In Bingham, Raines, Hedeen and Napoli’s employment dispute study, for those participating in the informal mediation processes, between 95 and 98 per cent of all complainants, and between 96 and 98 per cent of all supervisors were either somewhat satisfied or very satisfied with the mediators. 161 However, the most significant gap between complainants’ and supervisors’ perceptions related to reporting on the fairness of the outcome; 59.7 per cent of complainants and 69.8 per cent of supervisors reported satisfaction with outcome fairness. In light of this, the researchers noted that “this difference is consistent with the great body of procedural justice research; moving parties expect more”. 162 Other procedural justice research also supports these findings. It has been noted that: A large body of research supports the argument of the procedural justice 159

160

161

162

See, for example, K Van den Bos, L Van der Velden and A Lind, “On the Role of Perceived Procedural Justice in Citizens’ Reactions to Government Decisions and the Handling of Conflicts” (2014) 10(4) Utrecht Law Review 1; the base work of J Thibaut, “Procedural Justice: A Psychological Analysis” (1978) 6 Duke Law Journal 1289; J Thibaut and L Waler, Procedural Justice: A Psychological Analysis (Erlbaum, New Jersey, 1975). L Blomgren Bingham, S Summers Raines, T Hedeen and L Napoli, “Mediation in Employment and Creeping Legalism: Implications for Dispute Systems Design” (2010) 1 Journal of Dispute Resolution 6, 147. L Blomgren Bingham, S Summers Raines, T Hedeen and L Napoli, “Mediation in Employment and Creeping Legalism: Implications for Dispute Systems Design” (2010) 1 Journal of Dispute Resolution 6, 142. L Blomgren Bingham, S Summers Raines, T Hedeen and L Napoli, “Mediation in Employment and Creeping Legalism: Implications for Dispute Systems Design” (2010) 1 Journal of Dispute Resolution 6, 142. [15.75] 637

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model, that is, the argument that people’s reactions to their experiences with legal authorities are strongly shaped by their subjective evaluations of the justice of the procedures used to resolve their case (Lind & Tyler 1988; Tyler 2006a; Tyler & Huo 2002). The procedural justice literature has generally focused on people with personal experiences with legal authorities and has been concerned with their post experience evaluations of the legal system and willingness to accept its decisions. This literature, which might therefore be broadly characterized as a literature on post use “consumer satisfaction,” demonstrates that people are strongly influenced by the justice of the procedures they experience when they go to court or deal with the police. The argument that people’s willingness to defer to a procedure’s decisions is linked to their views concerning the procedures by which those decisions are made and implemented is widely supported by research on legal (Paternoster et al. 1997; Pruitt et al. 1993; Sunshine & Tyler 2003; Tyler 2006b; Tyler & Fagan 2008; Tyler & Mitchell 1994), political (Grimes 2006; Hibbing & Theiss-Morse 1995, 2002; Tyler et al. 1985), managerial (Elsbach 2001; Tyler & Blader 2000), and environmental (Hunt & McFarlane 2007; Manger et al. 2000; Mueller et al. 2008) decision-making procedures. 163

It has been suggested that a shift towards more facilitative processes may enhance perceptions of fairness and justice partly because procedural justice concerns are arguably more likely to be attended to in facilitative processes. This is because those involved in the process may have an opportunity to put their viewpoint forward and in the context of procedural justice theory, this factor may enhance fair process perceptions. The importance of fairness in dispute resolution processes is also recognised throughout literature relating to court and ADR processes. 164 In this context the definition of fairness can be linked to perceptions of a “fair” process (that is, procedures, participation and timeliness of arrangements are viewed as “fair”: NADRAC has suggested that “fairness” could involve an ADR practitioner conducting a “process in a fair and even-handed way”) as well as the quality of the outcome whether or not the outcomes reached as a result of the process are fair by reference to objective or other standards. As noted in Chapter 1, determining whether a result in an ADR process is substantively fair has been the subject of discussion in a number of reports, 165 in the context of pre-action requirements, 166 and in many recent access to justice arrangement inquiries. 167 The issues in researching this topic are numerous and 163

T Tyler and D Markell, “The Public Regulation of Land-Use Decisions: Criteria for Evaluating Alternative Procedures” (2010) 7 Journal of Empirical Legal Studies 541.

164

For example, NADRAC, Report to the Commonwealth Attorney-General: A Framework for ADR Standards (Report, Commonwealth of Australia, 2001) pp 13–14; Supreme Court of Victoria, Courts Strategic Directions Report (Report, Supreme Court of Victoria, 2004) p 2.

165

R Kaspiew, M Gray, R Weston, L Moloney, K Hand and L Qu, Evaluation of the 2006 Family Law Reforms (Report, Australian Institute of Family Studies, 2009) p 60. NADRAC, Maintaining and Enhancing the Integrity of ADR Processes (Report, NADRAC, 2011) p 34, available on http://www.ag.gov.au/.

166 167

See ALRC, Discovery in Federal Courts (Consultation Paper No 2, ALRC, 2010) (the “Discovery Report”) p 286. The ALRC referred to the Victorian Law Reform Commission (VLRC), Civil Justice Review

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can include restrictions on reporting outcomes (as a result of the confidential nature of agreements that may be reached in an ADR process). Perhaps more importantly, however it is arguably impossible to objectively test for outcome fairness unless an expert reviews all the material relating to a dispute and makes a determination about substantive outcomes. This is particularly difficult where matters progress to ADR as often all information that would be necessary to make a comprehensive assessment is not available and even if it was, arguably the views of substantive experts may differ. 168 In addition, it may be that disputants in some forms of ADR are prepared to consider areas of doubt and develop options that are more future focused in some disputes that are therefore considered to result in “substantively fair” outcomes (see Chapter 7). In the area of taxation disputes, for example, a more future focused outcome could include ensuring that a definition of future business activity is agreed upon and it may be that a taxpayer is prepared to forgo a focus on substantive fairness where there is doubt about possible legal or policy interpretations. 169 In general however, there is extensive research to suggest that, where a disputant is able to have their voice “heard” and where there is respect and impartiality shown, it is much more likely that the disputant will perceive the process to be “fair” or “just”. 170 Perceptions may also vary among those who attend the ADR event. For example, lawyers may consider that a process is fair where much of the discussion is directed by lawyers however disputants and decision makers may not. 171 In this regard, it is quite likely that different participants in a process may have different views about whether a process was “procedurally fair” and even about how much disputants and others participated. Future work in this area will develop with the use of more consistent methodologies, survey approaches and instruments. However, some significant difficulties remain. One difficulty in conducting research in regard to ADR processes is that there is no consistent data gathering among private ADR (Report No. 14, VLRC, 2008) pp 109–110, and noted that: “The VLRC Report identified that the implementation of pre-action protocols may be challenged on the basis that such protocols are a barrier to accessing the courts, and therefore incompatible with the right to ‘have the charge heard or proceeding decided … after a fair trial’ pursuant to s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). However, this concern was dismissed by the VLRC on the grounds that pre-action protocols: would not bar the commencement of proceedings; are triggered before the commencement of proceedings; and support the facilitation of a fair hearing”. 168

169 170

171

See T Sourdin, “Facilitative Judging: Science, Sense and Sensibility”, in T Sourdin and A Zariski (eds), The Multi-tasking Judge: Comparative Judicial Dispute Resolution (Thomson Reuters, Pyrmont, 2013) pp 231–247. See T Sourdin, “Evaluating Alternative Dispute Resolution (ADR) in Disputes About Taxation” (2015) The Arbitrator and Mediator (forthcoming). See, for example, K Van den Bos, L Van der Velden and A Lind, “On the Role of Perceived Procedural Justice in Citizens’ Reactions to Government Decisions and the Handling of Conflicts” (2014) 10(4) Utrecht Law Review 1; the base work of J Thibaut, “Procedural Justice: A Psychological Analysis” (1978) 6 Duke Law Journal 1289; J Thibaut and L Waler, Procedural Justice: A Psychological Analysis (Erlbaum, New Jersey, 1975). T Sourdin and A Shanks, Evaluating Alternative Dispute Resolution in Taxation Disputes: Exploration of Selected ADR Processes that Took Place From 1 July 2013 – 30 June 2014 Final Report (Report, ACJI, Monash University, 2014) pp 41–42. [15.75] 639

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practitioners and there may be a reluctance to do so. Further, if the process is conducted independently of a scheme or court, it is difficult to gather any data about participants or processes. This issue is highlighted where access to ADR processes are concerned. The lack of systematic research means that access may not be considered and the resources and supportive framework for those who engage in ADR may not be adequately developed. 172 Who evaluates? [15.80] As noted previously, there are also issues about who should evaluate ADR processes. These issues stem in part from the very different implementation processes at work in the Australian context. In the federal area, in the past, much ADR has taken place with the support and involvement of court, tribunal and/or government-related bodies or organisations (as in the family sector). In many State jurisdictions, the position may not be as clear. This has been highlighted in a Victorian government report that analysed how ADR services were delivered in Victoria. 173 In New South Wales, as in other States, in addition to court-based and community-based dispute resolution schemes, ADR has also been institutionalised through the creation and growth of professional organisations that include the Mediator Standards Board (MSB), the Resolution Institute, the Australian Disputes Centre (ADC), the Victorian Dispute Resolution Association (VADR), the West Australian Dispute Resolution Association (WADRA), the Australian Dispute Resolution Association (ADRA), the Chartered Institute of Arbitrators Australia, the Australian Centre for International Commercial Arbitration (ACICA) and the Australian Mediation Association (AMA) as well as the extensive network of industry-based schemes. At present, the ADR industry bodies fund little ADR research. Professional bodies such as the law societies and institutes, bar associations and the Law Council of Australia have fostered ADR processes within the ranks of the legal profession, been responsible for introducing pilot schemes in some courts around Australia, and have supported some limited evaluations. 174 Surveys in Queensland 175 and Western Australia 176 have indicated that awareness and use of ADR processes varies among practitioners in different jurisdictions and practice areas. The same studies have indicated that many 172

173 174 175 176

See T Sourdin and L Thorpe, “Perceptions of Dispute Resolution Processes” (2008) Competition and Consumer Law Journal; T Sourdin and L Thorpe, “How Do Financial Services Consumers Access Complaints and Dispute Resolution Processes?” (2008) Australasian Dispute Resolution Journal 19, 25–41 and T Sourdin, “An Alternative For Who? Access to ADR Processes” (2007) 10(2) ADR Bulletin 26. See C Field, Alternative Dispute Resolution in Victoria: Supply-Side Research Project (Research Report, 2007) available on http://www.consumer.vic.gov.au. See, for example, in New South Wales, B Sordo, “A Law Society Perspective of Law and Lawyers in Mediation” (1995) 2(2) Commercial Dispute Resolution Journal 77. N Spegel, Report on Survey to Ascertain Practitioner Attitudes and Practices Regarding Mediation (unpublished paper, University of Queensland, 1997). A Zariski, “Survey Finds Strong Support for ADR” (1997) 24(5) Law Society of Western Australia Brief 29.

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practitioners support the use of ADR processes and play an active role in encouraging their clients to use them. 177 As noted previously, those who evaluate ADR include university-aligned researchers and students, independent researchers and large research organisations. Only the industry programs specify more clearly and articulate how evaluation is to take place. For example, the industry schemes that must be approved by the Australian Securities and Investments Commission (ASIC) include insurance and financial sector schemes. ASIC’s Regulatory Guide 139 requires that a scheme commission an independent review of its operations and procedures after three years of operation and every five years after that time (unless ASIC requests an earlier review). The regulatory requirements concerning reviews indicate that schemes must consult with ASIC about the reviewer and the terms of reference. In addition, the Regulatory Guide specifies the review areas (in some detail in the 2013 revisions) and indicates that: RG 139.160: The review should include some form of qualitative assessment of the scheme’s performance in addition to quantitative measures of a scheme’s performance. RG 139.161: The results of the review must be made available to us and to other stakeholders. 178

In past years, issues about who evaluates ADR, how evaluations occur and what is evaluated, have meant that much of the ADR that occurs in the community (particularly outside the immediate vicinity of the litigation system) remains unmeasured. This is a particular issue where ADR work is conducted by private practitioners. For example, the research report Towards Quality: Standards for Family Dispute Resolution Practitioners 179 noted that: 180 Surveying consumers about services in the family conflict resolution and management area is a complex issue. This is a result of: • Service variation – some services may offer facilitative processes, others may offer structured mediation services and other services may provide a focal point for community outreach. • Practitioner variation – practitioners may vary from the lone barrister practitioner who provides mediation services in the family conflict area on an irregular basis to groups of practitioners who may not receive Family Relationship Service Program funding, but may be dependent upon a mix of funding arrangements.

177

178 179 180

F Neilson, Lawyers as the Gatekeepers to PDR Services in Family Law: Are They Fulfilling Their Duty? (unpublished paper, Sydney, 1997). In some instances, practitioners may play less active roles, thereby discouraging ADR participation. ASIC, Approval and Oversight of External Dispute Resolution Schemes (Regulatory Guide No 139, June 2013), available on http://download.asic.gov.au/media/1240742/rg139-published-13-june-2013.pdf. T Sourdin, T Fisher and L Moloney, Towards Quality: Standards for Family Dispute Resolution Practitioners (La Trobe University, 2004) p 48. Family Relationship Services Program (FRSP), Approval Requirements Compliance Guide (2003) Standards 10 and 11. [15.80] 641

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• Client variation – clients accessing family conflict processes come from all sectors of the community. As with any widely drawn sample in the Australian community, clients will have special vulnerabilities that may be related to disability, isolation (including geographical isolation), literacy levels as well as issues that may arise as a result of cultural and other factors.

These factors mean that no single survey approach can be recommended for assessing consumer perspectives about services – rather a multi-dimensional approach may be required. This is already recognised in some current standards which specify that feedback needs to be obtained in a variety of ways and that procedures need to encourage the participation of culturally diverse clients.

Recent evaluations suggest that a more coherent policy approach is emerging and that the government and other key sectors are supporting quantitative and qualitative research in the ADR area. The work of NADRAC in bringing together researchers was significant and important in this regard. The long-term impact of such measures combined with policy change is difficult to determine particularly in the absence of NADRAC (however, see previous comments relating to ADRAC and the ADR Research Network). However, it appears likely that a continued growth in ADR and in evaluations will mean that there will not only be more ADR to measure in the future, but that methodologies will be improved. This may lead to a greater focus on micro-skills and ADR process improvements. What do parties want? [15.85] There is little information about what parties want in dispute resolution processes. The evaluation work conducted to date (see Appendix G) shows a preference for ADR over traditional litigation in many cases. It also shows that a high degree of satisfaction is often achieved in the use of ADR processes. ADR processes lead to the resolution of many disputes. However, there is little information on the type of ADR that disputants may want. In the past, lawyers, courts and tribunals have shown a preference for advisory and determinative forms of ADR such as evaluation, conciliation and arbitration rather than mediation. 181 Some research reports provide additional information about litigant and disputant preference. In the United Kingdom, the National Consumer Council (which was abolished in 2014) report (1996), Far From Wanting Their Day in Court: Civil Disputants in England and Wales, is of particular interest. In that report, the research findings suggested that parties preferred someone who sat down with them and “helped them sort out their problems” rather than the intervention of someone who “told them what to do”. The New South Wales study by the Justice Research Centre titled Plaintiffs’ Satisfaction with Dispute Resolution

181

In some Australian States, such as Victoria, there has also been a growth in the use of mediation processes. This has occurred largely through the advent of compulsory mediation at the County Court and Supreme Court levels.

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Processes: Trial, Arbitration, Pre-trial Conference and Mediation 182 described and evaluated in detail plaintiffs’ perceptions of four dispute resolution procedures: trial, arbitration, pre-trial conference in the New South Wales District Court’s Sydney Registry, and private mediation through the Law Society of New South Wales mediation program. In that study, a clear preference for pre-trial conference and mediation was expressed (rather than a preference for arbitration or trial). Another survey in Australia found that company directors felt that ownership and control of conflict management was lost during litigation, and that there was wide agreement that conflict could be better resolved using a mechanism other than litigation. The respondents had positive attitudes towards mediation. 183 The Financial Industry Complaints Service (FICS) evaluation suggested that many participants preferred face-to-face and facilitative, rather than advisory, processes. That research suggested that while outcome can be an important factor in determining levels of satisfaction, other factors such as levels of participation, perceptions of fairness, costs, delay and control are important in determining levels of satisfaction and positive perceptions about processes. For example, participants who consider that they “lose” in a process may still have positive perceptions of that process. 184 The New South Wales Settlement Scheme evaluation found that the parties involved in the scheme had very positive perceptions of the mediation process and outcomes, based on the way the process was handled, the way the dispute was dealt with, the outcome, feeling comfortable with the process, and the fairness of the process. This evaluation also considered mediator approaches in a comparative analysis of four different processes – mediation, arbitration, between-parties agreement and trial. 185 In 2011, a comparison of material relating to surveys that had been conducted on ADR used in three schemes and four courts found that: 186 … generally participatory styles of mediation tend to be preferred by disputants in contrast to approaches that involve rights-based, advisory, shuttle negotiation or exclusionary approaches (this information was also supported by focus group comments) … Disputants who participated more in the mediation and considered that they had some process control also considered that the mediation process was 182

183 184 185 186

M Delaney and T Wright, Plaintiffs’ Satisfaction with Dispute Resolution Processes: Trial, Arbitration, Pre-trial Conference and Mediation (Law Foundation of New South Wales for Justice Research Centre, 1997). Australian Institute of Company Directors (AICD) and KPMG, The Boardroom Report (Report, AICD and KPMG, 1996). J Elix and T Sourdin, Review of the Financial Industry Complaints Scheme – What Are the Issues? and Final Report (La Trobe University, Melbourne 2002, 2003, respectively). T Sourdin, and T Matruglio, Evaluating Mediation – The NSW Settlement Scheme (La Trobe University and the Law Society of New South Wales, Melbourne, 2004). T Sourdin and N Balvin, “Mediation Styles and their Impact: Lessons from the Mediation in the Supreme and County Courts of Victoria Research Project” (2009) 20(3) Australasian Dispute Resolution Journal 142 at 152. See full report on this scheme, available on http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=1395550. [15.85] 643

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fairer and were more satisfied not only with the process, but also the outcomes. These factors – the extent to which participants considered they could participate and felt respected – appeared to be most relevant in shaping litigant perceptions.

How can ADR processes be evaluated successfully and usefully? [15.90] Developments in sound evaluation research will ensure that ADR processes develop and respond to the needs of disputants. At present there are no clear methodological approaches to ADR evaluation and often evaluation does not take place using comparable methodologies. Work by the author over the past two decades has focused on developing standard comparable questions that can be used in the broader justice setting and are based on a procedural justice approach originally extended by the RAND Institute’s data collection approach and the methodology that was used in the RAND reports referred to at [15.70]. Surveys that provide uniform statements (with “strongly agree”/ “strongly disagree” responses variations), such as: • • • •

“I was able to participate during the negotiation/process”; “I would have liked to particpated more”; “The process was fair”; “I felt I had control over the outcome”;

and so on, can assist to ensure that future survey work elicits comparative data that informs researchers, policy-makers and disputants about process variations. Such work can also assist to ensure that dispute system objectives are realised and reassessed. Better information technology (see Chapter 10) will support the capture of some data; however, there are still outstanding issues about those disputes that are not related to court, tribunal or legislative schemes. Such issues can be resolved through supported evaluative research. Other research is likely to focus on the role of the ADR practitioner “in the room”, and the personal characteristics and style of the mediator. 187 This approach can be supported by qualitative and quantitative research, and at present is the focus of increasing interest in the United States (see previous discussion relating to the ABA taskforce). Ongoing research and evaluation can also promote an understanding of ADR processes and will encourage experimental change, develop understandings and appropriate policy approaches that recognise the need for flexibility in this area. As one commentator has suggested: 188 Good policy provides the parameters and guidelines that support the practice of mediation. Good mediation practice helps to inform policy.

Good ADR practice is likely to remain undetected without a continuing focus on ADR research. 187

188

See S Jacobs and M Aakhus, “What Mediators Do With Words: Implementing Three Models of Rational Discussion in Dispute Mediation” (2002) 20(2) Conflict Resolution Quarterly 177; D Bowling and D Hoffman, Bringing Peace into the Room (Jossey-Bass, San Francisco, 2003). D Syme, From Policy to Practice; The Role of Legislation, Regulation and Policy in Supporting Mediation Practice (Paper presented at the World Mediation Forum, Buenos Aires, 2003) p 1.

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CONCLUSIONS [15.95] In our broad dispute “system” that is made up of elements of prevention, assessment, handling and resolution, it seems clear that there is little coherence. However, as usual, one thing is certain – change. There are changes occurring in the way in which our structures, individuals and organisations communicate and deal with disputes. These changes are in response to external and internal stimuli, but may also be a result of general societal trends and an increasing emphasis on more relational communication approaches. 189 Burton, a leading Australian theorist, suggested that change is often perceived to be threatening and that: 190 Interactive, analytical problem solving processes of conflict resolution may be the key to solving this problem of social evolution.

However, conflict resolution processes can play a pivotal role in enabling social change by finding means of change that are continuous, non-threatening and generally beneficial. Burton and others have counselled that much ADR development and use remains focused on settlement rather than resolution or even evolution. This approach means that the orientation of much ADR theory and practice is directed at maintaining social structures and “adding” to or expanding these rather than developing and expanding different ideologies and paradigms. 191 The relationship between ADR and conventional processes can also be viewed as a relationship where processes exert change on each other and develop and expand to reflect societal needs. However, concerns continue to be expressed about the legalisation and institutionalisation of ADR. Clearly, the recognition of ADR processes as valid options (rather than alternatives) and the increasing acceptance of ADR across all levels of our society raise issues about continuing flexibility. The increased focus on ADR standards has the capacity to create more rigid and more costly processes because ADR practitioners require professional indemnity protection and the legal system increasingly regulates ADR elements such as confidentiality, competency and good faith. 192 Boulle has noted that: 193 The result is a host of competing and at times conflicting motivations in the promotion and development of mediation services. Where the interests of governments, courts and legal aid bodies coalesce around the paramountcy of efficiency objectives, mediation is transformed into forms not countenanced by those who developed the system as an expression of alternative philosophies of conflict management. 189

See, for example, S Caspi Sable and E Kornhauser, “Some Reflections on a Relational World View” (1999) 2(7) ADR Bulletin 65. This development can also be linked to a greater focus on system design (see Chapter 13).

190 191 192

J Burton, Conflict Resolution and Provention (St Martin’s Press, USA, 1990) p 238. J Burton, Conflict Resolution and Provention (St Martin’s Press, USA, 1990) pp 269 and 277. See Chapters 2 and 11.

193

L Boulle, Mediation: Principles, Process, Practice (3rd ed, LexisNexis, Chatswood, 2011) p 99. [15.95] 645

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This progress has the potential to stifle flexible development and promote rigidity with a continued focus on narrowly defined outcomes (settlement rather than resolution, as noted above) that promote more directive evaluative ADR processes. 194 In addition, such an emphasis can impact not only on processes (with a focus on more evaluative and often shorter ADR sessions) but may also have an impact on the way in which people participate in ADR; namely simply “going through the motions”. As more ADR is mandatory, a greater focus on the behaviours of ADR practitioners and all participants 195 in ADR may assist to balance the competing motivations to use ADR in the first place and ensure that the processes meet their broader objectives. It may be, as David 196 has suggested, that ongoing cycles of ADR will produce new empowering ADR processes in response to institutionalisation and that such cyclical behaviour will ensure that flexibility is maintained. In the race to find the “new”, however, there is value in remembering what has passed so far. Many innovative ADR programs have blossomed and then died. Much good work has been done and has not always been recorded. There are reasons why some programs have flourished and grown while others have faded, and many of these can be linked to the fact that ADR was previously perceived as operating on the periphery of the justice system. The placement of ADR as a critical focus for achieving justice is changing the role and importance of ADR and moving it into the epicentre of justice delivery. However, as the ADR area continues to mature, Santayana’s aphorism on repetitive consequences – that “those who cannot remember the past are condemned to repeat it” 197 – is worthwhile contemplating. To ensure that ADR remains effective and supports the dignified, careful and serious resolution of disputes, we need to ensure that we not only look to the future but also to the past, and continue to learn through critical reflection.

194 195

L Boulle, Mediation: Principles, Process, Practice (3rd ed, LexisNexis, Chatswood, 2011) p 99. See R Buth, “Zombie Mediations” (2015) 26 Australasian Dispute Resolution Journal 104.

196

The late Professor J David, Adjunct Professor, Australian National University.

197

G Santayana, The Life of Reason - Reason in Common Sense, (Volume 1 of The Life of Reason) (Archibald Constable, London, 1906) p 284.

646 [15.95]

Appendix A Further reading and exercises Suggested additional reading ............................................................................................... 647 Active listening exercise (see Chapter 7) ............................................................................ 648 How do you respond to conflict? ........................................................................................ 649 A sample opening statement ................................................................................................ 650 Mediation listening (see Chapter 3) .................................................................................... 651 Mediator vocabulary .............................................................................................................. 652 Role playing ............................................................................................................................. 653 ADR referral checklist ............................................................................................................ 654 Decision-making skills questionnaire (see Chapter 6) ..................................................... 656 Assessing mediator competency – Resolution Institute Checklist ................................ 657

SUGGESTED ADDITIONAL READING Skills information can be supplemented by a variety of excellent texts. These include: N Alexander, and J Howieson and K Fox, Negotiation: Strategy, Style, Skills (LexisNexis, Australia, 2015). EA Fox, Winning from Within: A breakthrough method for Leading, Living and Lasting Change (HarperCollins Publishers, New York, 2013). R Baruch Bush and J Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (Rev ed, Jossey-Bass, San Francisco, 2005). R Bolton, People Skills, How to Assert Yourself, Listen to Others and Resolve Conflicts (Simon and Schuster, Sydney, 1987). L Boulle and N Alexander, Mediation Skills and Techniques (2nd ed, LexisNexis, Sydney, 2011). D Bowling and D Hoffman, Bringing Peace into the Room (Jossey-Bass, San Francisco, 2003). R Charlton and M Dewdney, The Mediator’s Handbook: Skills and Strategies for Practitioners (2nd ed, Lawbook Co, Sydney, 2004). R Charlton and M Dewdney, The Mediator’s Handbook: Skills and Strategies for Practitioners (3rd ed, Lawbook Co, Sydney, 2014). P Condliffe, Conflict Management (2nd ed, Butterworths, Sydney, 2002). R Fisher and S Brown, Getting Together – Building a Relationship that Gets to Yes (Business Books, London, 1989, 1991). R Fisher, W Ury and B Patton, Getting to Yes – Negotiating an Agreement Without Giving In (2nd ed, Random House, Sydney, 1991 (originally Fisher and Ury, Houghton Mifflin, Boston, 1981).

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T Jones and R Brinkert, Conflict Coaching – Conflict Management Strategies and Skills for the Individual (Sage Publications, Thousand Oaks, 2008). M Le Baron, Bridging Cultural Conflicts (John Wiley & Sons, San Francisco, 2003). R Lewicki, B Barry, D Saunders and J Minton, Negotiation (4th ed, McGraw Hill, New York, 2003). B Madonik, I Hear What You Say But What Are You Telling Me? The Strategic Use of Nonverbal Communication in Mediation (Jossey-Bass, San Francisco, 2001). B Mayer, Beyond Neutrality: Confronting the Crisis in Conflict Resolution (Jossey-Bass, San Francisco, 2004). C Menkel-Meadow and M Wheeler (eds), What’s Fair: Ethics for Negotiators (Jossey-Bass, San Francisco, 2004). C Moore, The Mediation Process (3rd ed, Jossey-Bass, San Francisco, 2003). A Parker, Negotiator’s Toolkit (Peak Performance, Sydney, 1998). M Roberts, Developing the Craft of Mediation – Reflections on Practice and Theory (Jessica Kingsley Publishers, Philadelphia, 2007). T Sourdin and A Zariski, The Multi Tasking Judge (Lawbook Co, Sydney, 2013). P Tesler and P Thompson, Collaborative Divorce (Harper Collins, New York, 2006). W Ury, Getting Past No – Negotiating with Difficult People (Random House, Sydney, 1991). W Ury, Getting to Yes with Yourself (and Other Worthy Opponents) (HarperCOllins Publishers, USA, 2015).

ACTIVE LISTENING EXERCISE (SEE CHAPTER 7) Find a partner and practise active listening for at least five minutes. During that time, as a listener do not interrupt the speaker but listen as closely and as carefully as you can (using active listening techniques but not speaking). Repeat the experience using the range of listening approaches noted below and compare the interaction in terms of outcomes and processes used. In particular, compare the facial expressions, volume of the exchange and amount of information exchanged. Check how each party relates to the other following each exchange.

Like me listening Respond by telling the other person that everything that has happened to them is just the same as what happened to you. Begin to talk about your experiences.

Stern and judgmental listening Show a stern and critical expression, say nothing and never take your eyes off the individual, shake your head and appear judgmental when appropriate. 648

Appendix A Further reading and exercises

| APP A

Critical listening Be combative, confrontational and quick to challenge. Disagree with all major and minor points, fiddle with material and appear impatient.

Sympathetic listening Make sympathetic statements such as “Oh you poor thing”, “I’m so sorry”, “That’s too bad”. Touch the person frequently on the arm or shoulder.

Patronising listening Be patronising. Give lots of advice. Indicate that you know the best behaviour under the circumstances. Use lots of “You should” statements. Do not hesitate to diagnose.

HOW DO YOU RESPOND TO CONFLICT? The following material has been adapted from material prepared by Kathleen Severens – Kathleen Severens (Office of Dispute Resolution – Nebraska), IINCM Mediation Training Module (IINCM, Sydney, 1998) and has been reprinted with her permission. In the space at the right, put the initials of the people with whom you may have conflicts. List people from various groups, such as family, workplace, community, etc. Then place a tick to indicate the way in which you deal with conflicts with that individual.

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THE INTRODUCTION STAGE: A SAMPLE OPENING STATEMENT (This statement is intended to be used as a guide. Naturally all mediators will develop their own statements and may use a very different order of words and additional content.) It’s good to see you all here. I am Tania Sourdin and I am your mediator this morning. You can call me by my first name; how would you like me to address you? The purpose of our meeting here today is to make a smart decision about how to deal with the situation that has brought you here today. First, I would like to explain how we will proceed today, so that you know what is happening next. I will start by asking each of you to explain the situation as you understand it. This will be a time for each of you to explain how you see things. I 650

Appendix A Further reading and exercises

| APP A

will do my best to understand how it looks from your point of view and will check back with you to make sure that I understand what you have said. After that, we will try to identify and agree on what the basic issues of disagreement are and why they are important to you so that we can set an agenda for our discussions. Then each of you will have a chance to discuss each of the issues and ask questions of each other before looking at options and alternatives. We are aiming to help you figure out your own solution to your problems. So I won’t be telling you what to do or trying to judge who is right or wrong. Mainly, I am interested in having a conversation that helps you talk about past issues and matters that are important to each of you before beginning to explore whether there are any options that you can both live with. To have this conversation each of you needs to have authority to enter into discussions and to make an agreement. Is there anybody that you would need to talk to before you could respond or raise any options? If so, please, let me know now. This mediation is voluntary and confidential. This means that you can feel free to leave at any stage. Naturally, we encourage you to stay and if you feel uncomfortable please discuss this with me. It is also confidential unless the law requires otherwise. Can I just check what each of you understand by confidentiality. (Parties will often have signed an agreement or be bound by legislation. Many mediators may refer to agreements that document a range of issues: see the Law Society agreement in Appendix B.) I will be taking notes from time to time so that I can remember things, but when we finish today, I will destroy those notes. If you wish, either of you may ask to take a break at any time during our discussion today. At some stage during the mediation I will probably have a private session with each of you in turn, to give you an opportunity to have a cup of coffee and explore any options for agreement in more detail. If you wish, anything said in those private meetings will be kept confidential. When we get together again in joint session, we should be moving towards negotiation and agreement. Last of all, I would like to discuss ground rules. The one ground rule, which is often helpful in these types of processes, is that one person speaks at a time. Do you both feel comfortable with that? Lastly, are there any time constraints that I should know about? Mediations usually last about four hours and we can schedule another meeting if you both think that could be helpful. I’d like to begin now with hearing each of you explain your perspective on this situation and how this has affected you. Alexei, I believe you requested mediation, so let’s begin with you. When Alexei is finished, Ella, you will have the same opportunity. Ella, I will ask you to listen with us now in trying to understand Alexei’s perspective.

MEDIATION LISTENING (SEE CHAPTER 3) A mediator is always listening for: (1) issues, (2) interests, and (3) options. Try using this format, allowing about half a page per person:

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MEDIATOR VOCABULARY It is sometimes said that mediators who use a facilitative model of mediation develop a different vocabulary. They develop language skills which enable them to raise issues in a tentative and appropriate manner with parties and to check their understanding of what has been said. Example of language used by facilitative mediators: WORDS perspective NOT position option NOT offer concern NOT complaint issue NOT problem how NOT why adviser NOT advocate perhaps NOT obviously alternatives if you cannot reach agreement NOT best case/worst case possibly NOT definitely and NOT but TOPICS Language used in framing an Agenda/List of Topics/List of Issues should, ideally, be neutral and mutual. Examples of headings used in a “Topics list” could include: 652

Appendix A Further reading and exercises

| APP A

The Business Reputation Impact Quality Timing Sound The incident The product Title Land House Safety Value History Working arrangements Work happened?

ROLE PLAYING Most ADR training courses use experiential learning processes to develop and extend skills. In most programs, students will “role play” – that is, they will be given a fact scenario and will play the role of a disputant or ADR practitioner. If you are playing the role of a disputant: • be natural – do not over-play your role; • listen to the information that is put on the table by the other party and build on it; • allow the practitioner to ask questions; • stay in the role; • listen and respond naturally in the role.

Role play scenario Rick and Norah – a workplace dispute Rick and Norah have worked together for four years. The organisation that they work for is large with offices around Australia, but they are part of a smaller team (six people) located in Melbourne. About a year ago, Rick was promoted to a supervisory position. No-one expected Rick to get the job and Norah did not apply for the position because she thought that her friend Monique would get it. Monique has since left the organisation. Rick and Norah were once on friendly terms and even used to have dinner at each other’s houses. Their children were friends. About eight months, ago things began to change in the office. Another work colleague, Bianca, has described the situation as “open warfare – and when they are not openly being awful to each other and saying horrible things, it is a cold war situation. The office is toxic”. 653

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Rick says that Norah is openly undermining his position and that she is disorganised and her work output has almost ceased. Norah says that Rick has become a dictator – she can’t work, sleep or think. She now hates her job – she used to love it. About two weeks ago, Norah sent an email to Rick indicating that she was going to “sue Rick for defamation” in relation to a newsletter that he published on the website that said that the “team is working as well as it can considering it has the blonde issues on board”. Both Rick and Norah have received advice that any defamation action is unlikely to be successful but there is “always a chance”. The employer of Rick and Norah has organised this ADR process through the HR section of the organisation.

Conducting the process Conduct the process in a co-mediation style in groups of four. Select who will play Norah and Rick, and decide who will be Mediator 1 and Mediator 2. The co-mediators will stay together and will be equal participants for the whole session. Allow at least one-and-a-half hours for the session.

Suggested break-up of co-mediation roles • Mediator 1 and Mediator 2 introduce themselves personally and each delivers part of the mediator opening statement. • Mediator 1 listens to party opening statements while Mediator 2 takes notes. • Mediator 2 reflects back opening comments to parties. • Mediator 1 prepares a list of topics for discussion, checks them with the parties and notes them on the whiteboard. • Mediator 1 and 2 then assist the parties to explore the topics for discussion and remain together throughout the rest of the mediation process.

ADR REFERRAL CHECKLIST The following is a checklist that can be used to assist in determining under what circumstances a matter can be referred to an ADR process. The premise that “no case is not suitable for referral” should operate in the first instance. 654

Appendix A Further reading and exercises

| APP A

Factors that may suggest that ADR processes may not be appropriate (or which may require referral to more sophisticated models – for example, “impasse” mediation) are as follows:

Factors favouring non-ADR process

Factors favouring mediation

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Factors favouring (non-binding) evaluation and conciliation

Factors favouring arbitration

DECISION-MAKING SKILLS QUESTIONNAIRE (SEE CHAPTER 6) Robert Burns has devised a questionnaire to determine decisiveness: see R Burns, Psychology for Effective Managers: Understanding and Managing Human Behaviour in the Workplace (Business and Professional Publishing, Sydney, 1997) p 190.

656

Appendix A Further reading and exercises

| APP A

Questionnaire

Often fear of making the wrong choice can impact on decision-making. Also, people have varying backgrounds and psychologies that can impact upon their capacity to make decisions. Some people require a lot of information while others may require little information and are more tolerant of a higher rate of “error”. Answer the following items by grading them as: 1 = Often 2 = Sometimes 3 = Rarely

1. 2. 3. 4. 5. 6. 7. 8.

I tend to go over things a lot until all the flaws are ironed out. I forget to do the things I am supposed to do. I change my mind at the last moment about what to wear when I go out. I repeat my New Year’s resolutions from year to year. I buy clothes with enthusiasm, but a short time later I lose interest in wearing them. When dining out with a friend, I’m always last to select from the menu. I usually have a list of projects to do which is more than six months old. I still have an undesirable habit I decided to stop over six months ago (nail-biting, smoking, going to bed late).

Score 20–24 points 13–19 points 8–12 points

[Total all the numbers.] You are a highly decisive person. Study your options carefully, for you may have a tendency to be too sure of yourself. This is in the range of the average person. Your lack of resolve may impact on the time taken for you to reach a decision. You may also find that decision-making is enhanced if a range of outcomes is discussed with others within a set time frame.

ASSESSING MEDIATOR COMPETENCY – RESOLUTION INSTITUTE CHECKLIST The following assessment material has been reproduced with permission from the Resolution Institute (combining LEADR and IAMA), https://

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www.resolution.institute/.

658

Appendix A Further reading and exercises

| APP A

659

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660

Appendix A Further reading and exercises

| APP A

661

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662

Appendix A Further reading and exercises

| APP A

663

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664

Appendix A Further reading and exercises

| APP A

665

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666

Appendix A Further reading and exercises

| APP A

667

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668

Appendix A Further reading and exercises

| APP A

669

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670

Appendix B Dispute Resolution Kit and Private Arbitration Kit II. The Law Society Mediation Model ................................................................................ 671 III. The Law Society Guidelines for those involved in Mediations .............................. 675 IV. The Law Society Mediation Precedents ....................................................................... 687 V. The Law Society Neutral Evaluation Model ................................................................. 698 VI. The Law Society Neutral Evaluation Precedents ....................................................... 702 VII. Hybrid Processes ............................................................................................................. 709 Guidelines for Arbitrators ..................................................................................................... 712 The Law Society Conveyancing Arbitration Rules ........................................................... 713 The Law Society of New South Wales Rules for the Conduct of Commercial Arbitrations ....................................................................................................... 720 The Law Society Arbitration Agreement ............................................................................ 730

This Dispute Resolution Kit has been designed by The Law Society of New South Wales to disseminate information among the legal profession on the use of mediation and evaluation to promote the negotiated settlement of disputes and the early resolution of litigated matters. The Model Clause making Mediation Mandatory has been drafted in association with the Bar Association of NSW in order that the clause be applicable for use in Law Society and Bar Association documents. [This Kit is reproduced with the kind permission of the Law Society of New South Wales and is available on http://lawsociety.com.au/cs/groups/public/ documents/internetcontent/675694.pdf © Law Society of New South Wales.]

II. THE LAW SOCIETY MEDIATION MODEL 1. Definition of mediation Mediation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntarily, under a court order, or subject to an existing contractual agreement. 1 1

This is the definition of ‘mediation’ provided by the National Alternative Dispute Resolution Advisory Council (NADRAC). 671

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2. Description of The Law Society Mediation Model The Law Society’s Mediation Model comprises a preliminary conference and a mediation session. The preliminary conference is scheduled to last for up to one hour and a mediation session for an average of three hours. The stages of the preliminary conference and the mediation session are outlined below. A co-mediation model (where two mediators are appointed instead of one) is available for interpersonal disputes involving family disputes under the Succession Act 2006. Co- mediation, which involves no additional cost to the parties, may also be adopted in other appropriate cases such as complex multi-party matters.

3. The Law Society mediation model Preliminary Conference – Stages and Features The preliminary conference may be conveniently divided into seven stages. 1.

2.

3.

4.

5.

672

The Mediator’s Role The role of the third party neutral is explained in terms of neutrality, impartiality and being in control of the process with the parties controlling the outcome. Features and Objectives of Mediation The features of mediation are outlined to the parties (such as voluntariness, confidentiality, and the status of the final agreement reached by the parties). Parties are also alerted to the fact that new information often emerges in the course of a mediation. Objectives of mediation are outlined including: • seeking common ground and a range of possible solutions • empowering parties to settle their dispute to their mutual satisfaction. The Role of Legal Practitioners The role of legal practitioners in mediation is explained. Their role includes assisting their clients define their issues and to develop possible solutions. Authority to Settle In order to provide the other party with the opportunity to make an informed decision whether or not to proceed with the mediation, each party to the mediation is required to define to the other the scope of his or her authority to settle, including any limitation of that authority. While it is reasonable to come to mediation with a perceived fair settlement figure in mind, full authority means, in principle, the ability to settle up to 100% of the claim if the mediation proceeds. Finalising Approval for Mediation Participants The same representatives present at the preliminary conference should ideally attend the mediation session. Agreement should be reached as to whether absentees from the preliminary conference (eg, barristers) will be present at the mediation. If parties request the attendance of observers at the mediation, their

Appendix B Dispute Resolution Kit and Private Arbitration Kit

| APP B

attendance should occur only with the consent of the parties and the mediator. Support persons may attend, provided advance consent is sought and obtained from the mediator and all parties to the mediation. Support persons generally do not take part in the negotiations and are present only to give moral support to the party. 6.

Signing the Agreement to Mediate Signing the Agreement to Mediate allows parties to give informed consent to proceed to mediation and formalises their commitment to mediation. It also provides an opportunity to clarify any questions about the mediation process. All parties, support persons, observers and legal practitioners will be asked to sign the Confidentiality Agreement.

7.

Preparation for Mediation A timetable is set for pre-mediation undertakings to ensure maximum substantive readiness for the mediation as well as preparation for good faith bargaining. Preparation could include agreeing on the major issues to be dealt with at the mediation and updating and exchanging relevant documents.

Mediation Session – Stages and Features Stages 1-4 and 6-7 are generally conducted in joint session with all participants present. Stages 1-4 focus on the present and stages 6-7 focus on the future. Stages 1-4 are seen as necessary sequential stages. All seven stages are identified in the diagrammatic representation which follows the description. 1.

Mediator’s Opening Statement The opening statement includes brief reminders of the role of the mediator, features of mediation and establishing the protocols and etiquette of participation/conduct. The process of mediation is explained.

2.

Parties’ Statements and Mediator’s Summaries Each party to the dispute has the opportunity to present a brief statement of their concerns. This may be followed, if appropriate, by his or her legal practitioner commenting on the legal issues. Parties’ statements are noted and summarised back by the mediator checking with the parties for accuracy. The advantages of this procedure include: • providing the basis for the agenda/issues to be discussed during the exploration phase; • assuring the parties that their concerns have been heard by the mediator and each other; • providing opportunities to create an atmosphere conducive to effective negotiation; • providing two opportunities for an appreciation of each party’s perspective; and • acknowledgement of emerging needs and options for settlement for use later in the mediation. 673

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3.

Identification and Listing of Issues (Agenda Setting) Use of a whiteboard or equivalent allows parties to have their issues and concerns listed by the mediator. The issues are expressed in neutral and, whenever possible, mutual terms. The listed issues form the basis for more effective negotiation and co-operative problem- solving.

4.

First Joint Exploratory Session The focus at this stage is on clarification of issues which contributed to the dispute. Parties are encouraged to select items from the list of issues for exploratory discussion and negotiation. The mediator encourages parties to communicate directly with each other, pinpointing and listing any proposed options emerging from the dialogue.

5.

First Private Meeting Parties are provided with the opportunity to express opinions and explore further issues and options privately with the mediator. The private meeting can also assist parties to rehearse negotiation, generate options and to ensure that particular proposals are realistic. Parties are encouraged to explore options which are both personally and mutually satisfying.

6.

Principal Joint Negotiation Session This provides a forum for making an agreement and can be followed by further private meetings and joint sessions where necessary.

7.

Concluding the Mediation The mediator facilitates final negotiations and terms of agreement, if appropriate. For example: who does what, when and how. Sometimes only a partial agreement may be reached. In such cases it is useful to formulate a statement of unresolved issues. In some cases, the mediation may need to be adjourned or terminated.

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III. THE LAW SOCIETY GUIDELINES FOR THOSE INVOLVED IN MEDIATIONS 1. Guidelines for Legal Practitioners who act as Mediators The responsibilities of legal practitioners when acting as mediators in the ordinary course of providing legal services in private practice are set out in the following Guidelines. A legal practitioner insured with LawCover and being the holder of an unrestricted practising certificate who, as part of carrying on business as a lawyer in private practice in Australia, acts as a mediator will be entitled to indemnity pursuant to the terms and conditions of the LawCover Professional Indemnity Insurance Policy issued to that legal practitioner or relevant law practice. In this capacity, mediation is considered a ″legal service″ within the meaning of the defined term in the LawCover Professional Indemnity Insurance Policy. A legal practitioner on a restricted practising certificate is covered only as an employee of an insured law practice where he/she is supervised when acting as a mediator. 675

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The Guidelines do not purport to prescribe the legal requirements which should be observed by a person who undertakes to act as a mediator. Legal practitioners who intend to practice as mediators in the area of alternative dispute resolution should inform themselves of the licensing provisions of any relevant legislative requirements, including any requirements for national accreditation or alternative insurance arrangements. The Guidelines 1. Introduction 1.1 1.2

These guidelines are intended to assist and guide legal practitioners acting as mediators. These guidelines do not derogate from the usual obligations of legal practitioners.

2. Definition of mediation 2.1

Mediation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntarily, under a court order, or subject to an existing contractual agreement. 2

3. Qualification 3.1

3.2 3.3

No legal practitioner shall act as a sole mediator unless he/she has satisfactorily completed an approved course and has obtained national mediator accreditation or has such appropriate mediation experience as may be approved by the Dispute Resolution Committee of The Law Society of New South Wales. Italicised terms in 3.1 are defined in Schedule 1. It is the responsibility of legal practitioner mediators to engage in annual continuing professional development in mediation as part of their CLE program to ensure that their mediation skills are current and effective.

4. Initial Duties of Mediators The mediator should define and describe the process of mediation and its cost to the parties before they reach an agreement to mediate. He/she should give an overview of the process and assess the appropriateness of mediation for the participants. Amongst the topics covered, it is recommended that the mediator should address the following: 4.1

2

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The mediator should define the process in context so that the parties understand the differences between mediation and other means of conflict resolution available to them. It is important that the mediator stress that This is the definition of ‘mediation’ provided by the National Alternative Dispute Resolution Advisory Council (NADRAC).

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the process is “without prejudice” and that in general, unless both parties consent, communications during the course of the mediation process cannot be used as evidence in court proceedings. 4.2

The mediator should obtain sufficient information from the participants to enable them mutually to define the issues to be resolved in mediation.

4.3

The mediator in consultation with the parties, should establish the following procedures: 4.3.1

the right of each party to talk without interruption;

4.3.2

the order of presentation;

4.3.3

any other conduct protocols of the proceedings as may be appropriate.

4.4

It should be emphasised that the mediator may assist in generating options for the participants to consider, such as alternative ways of resolving problems, but that all decisions are to be made voluntarily by the participants themselves.

4.5

The duties and responsibilities that the mediator and the parties accept in the mediation process should be agreed upon. The mediator should inform the parties that either of them or the mediator has the right to suspend or terminate the process at any time. It is recommended that the mediator include in any written agreement to mediate, a provision that he/she has a discretion to terminate or suspend the process at any time.

4.6

It is strongly recommended that a written agreement to mediate be entered into by the parties and the mediator prior to commencement of the process. The mediator may include a provision in the agreement excluding his/her liability. 3

4.7

The mediator should explain the fees for mediation and reach an agreement with the parties regarding payment.

4.8

The mediator should explain to the parties that he/she might consult with each of them in separate sessions and that information divulged during such separate sessions will be kept confidential unless he/she has that party’s specific agreement to disclose to the other party. He/she should reach an understanding with the participants as to the circumstances in which he/she may meet alone with either of them or with any third party. The mediator should inform the parties that they have the right at any time to obtain and may need to obtain, independent legal or other professional advice during the mediation process.

4.9

4.10 4.11

The mediator should also raise the matters referred to in 6.5 and 6.6 below. The good faith provision prevails in all cases, including mandatory referral to mediation.

5. Impartiality 3

The Law Society Agreement to Mediate provides for the exclusion of mediator liability in Clause 25. 677

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5.1

The mediator shall maintain impartiality towards all participants at all times during the mediation process. Impartiality means freedom from favouritism or bias in word or action. The mediator shall not play an adversarial role.

5.2

If the mediator believes, or any one of the participants states, that the mediator’s background or personal experiences or relationships would prejudice the mediator’s performance or detract from his/her impartiality, the mediator shall withdraw from the mediation unless all parties agree to proceed following full disclosure of all relevant facts relating to the issue of neutrality.

5.3

If the mediator has at any time prior to the mediation provided legal, counselling or any other services or has had any social or professional relationship with any of the participants, he/she shall not proceed with the mediation. However, if after full disclosure, all parties to the mediation agree, the mediator may proceed.

5.4

The mediator shall disclose any circumstances to the participants which may cause, or have any tendency to cause, a conflict of interest. In particular a mediator who is a business partner or an associate of any legal counsel retained by either of the parties should not act as mediator.

6. Confidentiality 6.1

The mediator shall not voluntarily disclose information obtained during the mediation process without the prior consent of all parties.

6.2

The obligations of a legal practitioners relating to confidentiality as between legal practitioners and client shall apply as between the mediator and the participants.

6.3

If subpoenaed or otherwise notified or requested to testify, the mediator shall inform the remaining participants immediately.

6.4

Information received by the mediator in private session shall not be revealed to the other parties without prior permission from the party from whom the information was received.

6.5

The mediator shall, prior to entering into the mediation process, obtain all parties’ agreement that the mediator shall not be required to give, in any subsequent legal proceeding, evidence of or to produce documents concerning the issues to be mediated upon.

6.6

The mediator shall inform the parties that, in general, communications between them, and between them and the mediator, during the preliminary conference and the mediation, are agreed to be confidential. In general, these communications cannot be used as evidence if the matter does not settle at the mediation and goes to a court hearing. The mediator shall also inform the parties that they should consult their legal practitioners if they want a more detailed statement or if they have any specific questions in relation to confidentiality. The mediator shall render anonymous all identifying information when materials are used for research or training purposes.

6.7

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The mediator shall maintain confidentiality in the storage and disposal of records. The mediator shall determine from the parties whether they are required to make available a copy of the agreement reached and, if so, to whom. This should be documented in the Agreement to Mediate and/or the final agreement.

7. Disclosure 7.1 7.2

The mediator should if he/she considers it would facilitate settlement, recommend disclosure of relevant information. The mediator may encourage participants to obtain independent expert information and advice.

8. Conclusion of Mediation 8.1

Where full agreement has been reached, the mediator should discuss with the participants the process for formalisation and implementation of the agreement.

8.2

Where the participants have reached a partial agreement the mediator should discuss with them procedures available to resolve the remaining issues. Where the mediator believes the agreement being reached may be impossible to uphold or may be illegal, he/she should recommend to the parties that they obtain independent legal advice.

8.3

9. Termination of Mediation 9.1 9.2

9.3

Each of the parties and the mediator has the right to withdraw from mediation at any time and for any reason. If the participants reach a final impasse, the mediator should not prolong unproductive discussions, which will merely result in additional unnecessary costs to the participants. If mediation has terminated without agreement, the mediator should suggest that the parties obtain additional professional services as may be appropriate.

10. Responsibilities to Other Mediators 10.1

A mediator may, if the parties desire, act where another mediator is already employed. He/she may consult with the other mediator with the parties’ consent.

11. Observers 11.1 11.2

The attendance of observers should occur only with the consent of all parties and the mediator. Observers should sign a Confidentiality Agreement.

12. Support Persons 679

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12.1

Support persons generally do not take part in the negotiations but are present to give moral support to the party.

12.2

Support persons should sign a Confidentiality Agreement.

Schedule I 1.

“satisfactorily completed” means that the legal practitioner has been formally assessed during an approved course as able to act as a sole mediator.

2.

“an approved course” is a mediation education and training course that: a)

is conducted by a training team comprised of at least two instructors where the principal instructor[s] has more than three years’ experience as a mediator and has complied with the continuing accreditation requirements set out in Section 6 of the Australian National Mediator Standards – Approval Standards for that period and has at least three years’ experience as an instructor; and

b)

has assistant instructors or coaches with a ratio of one instructor or coach for every three course participants in the final coached simulation part of the training and where all coaches and instructors are accredited; and

c)

is a program of a minimum of 38 hours in duration (which may be constituted by more than one mediation workshop provided not more than nine months has passed between workshops), excluding the written skills assessment process referred to below; and

d)

involves each course participant in at least nine simulated mediation sessions and in at least three simulations where each course participant performs the role of mediator; and

e)

provides written, debriefing coaching feedback in respect of two simulated mediations to each course participant by different members of the training team.

A mediator must also have completed to a competent standard a written skills assessment of mediator competence that has been undertaken in addition to the 38- hour training workshop referred to above, where mediator competence in at least one 1.5 hour simulation has been undertaken by either a different member of the training team or a person who is independent of the training team. The written assessment must reflect the core competency areas referred to in the Australian National Mediator Standards – Practice Standards. The final skills assessment mediation simulation may be undertaken in the form of a video or DVD assessment with role players, or as an assessed exercise with role players. The written report must detail: a)

the outcome of the skills assessment (in terms of competent or not yet competent); and

b)

relevant strengths and how they were evidenced; and

c)

relevant weaknesses and how they were evidenced; and

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d)

relevant recommendations for further training and skills development. 4

3.

“national mediator accreditation” means accreditation as a mediator under the National Mediator Accreditation System as administered by the National Alternative Dispute Resolution Advisory Council (NADRAC) and the Mediator Standards Board (MSB). “appropriate mediation experience as may be approved by the Dispute Resolution Committee of The Law Society of New South Wales”: Factors which the Dispute Resolution Committee would take into account when exercising its discretion to approve experience and qualifications other than national mediator accreditation include any one or more of the following: (i) experience in representing parties at a mediation; (ii) regional factors, eg, isolation; (iii) relevant legal experience; and/or

4.

(iv)

public interest factors such as urgency.

Note: Before undertaking a mediation training course and continuing professional development, it is important that legal practitioners satisfy themselves as to whether the course fulfills the criteria in paragraph 2 of this Schedule.

2. Professional Standards for Legal Practitioners in Mediation 5 The Law Society actively encourages legal practitioners to advise clients of the advantages of alternative dispute resolution. 1. Preparing Clients for Mediation The legal practitioners’s role in preparing clients for mediation includes: 1.1

Explaining the process, including the mediator’s neutral role (see Law Society Mediation Model);

1.2

Assisting clients to identify their needs, interests and issues. As well as the legal issues, the legal practitioner should explore with the client why an issue has arisen and what kind of things he or she would like to see happen. This is often wider than just the legal issues and this wider approach assists in generating options; Encouraging the clients to prepare their opening statements. If necessary, assisting clients to prepare their opening statement.

1.3 1.4

1.5

Assisting the client in thinking through options for resolution that may be wider than those remedies available in a court. Ensuring the client has information about the feasibility of such options prior to the mediation commencing; Discussing ways to achieve the client’s desired outcomes or priorities.

4

This is the definition of the threshold training and education requirements for mediators as set out in the Australian National Mediator Standards – Approval Standards.

5

Contributions to part of this document by Sir Laurence Street, Ruth Charlton and Bernadette Rogers, then Director of Dispute Resolution Queensland Law Society, are gratefully acknowledged. 681

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1.6 1.7 1.8 1.9

Explaining that the mediator will not be deciding the matter and that the settlement decision must be their own; Explaining the nature of a “without prejudice” and confidential discussion. Advising of the legal costs incurred to date and likely to be incurred if the matter does not settle; and Discussing the issues that would be considered by the court and the range of possible outcomes.

It is recommended that the above check list be explored with clients prior to the mediation, whether or not a preliminary conference is held. 2. Role of Legal Practitioners during Mediation Essentially the role of the legal practitioner is: 2.1. 2.2.

2.3.

2.4.

To assist clients during the course of the mediation; To discuss with the mediator, with the other party’s legal practitioner and with clients such legal and evidentiary, or practical and personal matters as the mediator may raise or the clients might wish. It is likely that once the client has heard the other party’s version, the legal practitioner may need to take further instructions from his/her client and perhaps review the legal advice; To participate in a non-adversarial manner. Legal practitioners are not present at mediation as trial advocates, or for the purpose of participating in an adversarial court room style contest with each other, still less with the opposing party. A legal practitioner who does not understand the non-adversarial settlement focus of their role and participate appropriately is a direct impediment to the mediation process; and To prepare the terms of settlement or heads of agreement in accordance with the settlement reached at the end of the mediation for signature by the parties before they leave.

3. Confidentiality Any words, act or omission by a mediator in private shall not be revealed to the other parties or legal practitioners without prior permission of the mediator. 4. Good Faith Participation If the legal practitioners forms the view, either before or during the mediation, that the other party and/or their representative is not willing to negotiate in good faith, the legal practitioner should raise this issue with his/her client and/or the mediator. 5. Mediation Conduct Standards A legal practitioner should: 5.1 5.2

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cooperate with the mediator; extend professional courtesies to both the mediator and other legal practitioners;

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act in good faith and advise their client of the obligations to act in good faith; withdraw from acting when the client gives instructions or acts in a manner that indicates bad faith; and, act by word or deed in such a manner as not to incite or condone a party to break the law.

A comprehensive description of the mediator’s role is set out in the Charter on Mediation Practice and in the Guidelines for Legal practitioners who act as Mediators. It is not the mediator’s role to give advice or opinions, make suggestions which may disadvantage a party, propose or endorse outcomes or support either party’s view. If the legal practitioner is of the view that these standards, particularly those relating to impartiality, are not being met, he/she should request a private meeting with the mediator immediately. 6. Mandatory Mediation Where a mandatory referral to mediation has been made, the legal practitioners should continue to adhere to the abovementioned mediation standards.

3. The Law Society of NSW Charter on Mediation Practice – A Guide to the Rights and Responsibilities of Participants 1. Underlying assumptions for the Charter The majority of mediations conducted under The Law Society Mediation Program involve two-party disputes with a single mediator. It is acknowledged, however, that there are some disputes where more than one mediator, usually two, work together in cooperation. Multi-party disputes may require a variation in the mediation process which is normally applied in The Law Society Mediation Program. 2. Objectives of the Charter 2.1 To set the highest standards of practice in accordance with the principles of mediation and to formulate guidelines consistent with the Law Council of Australia Ethical Standards for Mediators. 2.2 2.3 2.4

To inform parties of the principles and practice of mediation and of the role of mediators. To provide guidelines to the parties for their role in mediation. To provide opportunities for mediators and parties to give feedback on their experience as participants in mediation in order to foster and maintain the highest standards of mediation practice.

3. What parties can expect of the mediator 3.1 The mediator is experienced in assisting communication and negotiation The role of the mediator is to guide the communication process so that a useful discussion can take place. The mediator will do this by asking you questions to assist in identifying and clarifying the issues in dispute, to 683

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help you sort out misunderstandings and to talk about what is important to you. The mediator aims to help you talk and negotiate with each other directly. 3.2

The mediator aims to be impartial The mediator is not there to establish facts or to decide which of you is right or wrong, nor to take sides. The mediator will therefore not agree or disagree with statements you make nor put pressure on you to follow a particular idea or suggestion. The mediator aims to treat all parties equally.

3.3

The mediator is not a representative The mediator will not give legal advice, nor give professional or other advice.

3.4

The mediator respects confidentiality What is discussed in mediation is confidential unless disclosure is required by law. This means that in nearly all cases, confidentiality will be maintained. Mediators cannot be called as witnesses in any court proceedings which may take place in the future. The mediator will not mention anything discussed by you during a private session to other parties during the mediation (unless you request the mediator to let the other parties know), or to anyone else following the mediation.

3.5

Options for settlement The mediator will encourage you to consider a range of options for settlement and to evaluate them for the purpose of reaching a mutually satisfying outcome for all of you. The mediator will not express any opinion about the merits of the options but will encourage you to assess their implications.

3.6

The mediator is not a decision-maker 3.6.1 You need to decide what is best for you, as the mediator will not impose or suggest final outcomes for you. The mediator has nothing to gain in any way from the outcome of the mediation, whether agreement is reached or not. 3.6.2 The mediator controls the mediation process but not the content of the discussions or the outcome of the dispute. 3.6.3 The mediator will encourage you: • to take an active part in the mediation and to speak freely and with no interruptions from others present; • to discuss issues which are important to you not issues which the mediator considers to be relevant or significant; and, • to treat each other with courtesy.

3.7

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3.7 The role of your legal practitioner at mediation If your legal practitioner attends the mediation, the mediator will still encourage you to participate actively in the discussions and negotiations. You will, however, be given the opportunity, if you wish, to allow your legal practitioner to speak and negotiate on your behalf if you feel more comfortable with that arrangement. The mediator will also provide you

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with opportunities for breaks to allow you to consult with your legal practitioner in the course of the mediation or on the telephone if your legal practitioner is not present. 4. What parties can expect of the mediation process 4.1 The Law Society encourages mediators on its Mediators Panel to follow a standard mediation process. However the parties can suggest variations provided the important principles of mediation are adhered to. The Law Society mediation process normally consists of two sessions – a preliminary conference and a mediation session. Occasionally, the two sessions are merged into one. 4.2

4.3

What parties can expect at the Preliminary Conference 4.2.1

What mediation is and the mediator’s role The mediator will explain the features of mediation – its confidential nature and the role of the mediator as a neutral third party facilitator, not a representative or decision-maker. Whether attendance at a mediation is voluntary or mandatory, it can be terminated at any stage by either party or the mediator without the need to give reasons.

4.2.2

The process of mediation The mediator will outline the stages of the mediation process and you will be able to ask questions about it.

4.2.3

Preparing for the mediation session The mediator will confirm that everyone is ready for the mediation session. An Agreement to Mediate will be signed by all participating in the mediation session. A timetable will be set for all outstanding matters relevant to the mediation to be finalised prior to the mediation session including documents to be prepared and exchanged, and arrangements for the payment of fees. The mediator will try to ensure that all parties to the mediation have authority to negotiate and settle.

What parties can expect at the Mediation Session 4.3.1

Opening Statements The mediator will ask you to make a brief opening statement outlining your individual concerns and the issues which have brought you to mediation whether you are accompanied by your legal practitioner or not. If your legal practitioner is with you, you may, if you wish, ask him or her to make the opening statement on your behalf. The mediator will ensure that you get equal time to make your statement and that you do so uninterrupted.

4.3.2

Mediator’s Summaries The mediator will then summarise parties’ opening statements and extract issues for discussion which emerge from the opening statements. You will be able to correct any errors or omissions you

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believe the mediator may have made when summarising back your opening statement. You will also be asked to check and agree on the list of issues for discussion.

4.4

4.3.3

Direct Communication The mediator will then facilitate direct communication between you and the other party and discussion of the issues. You will be encouraged to communicate directly with the other party, asking each other questions to explore and clarify the issues extracted from your opening statements. The mediator will also facilitate your discussions so that you have the opportunity of becoming aware of each other’s point of view.

4.3.4

Private Sessions The mediator may hold private and confidential sessions with each of you. During any private and confidential session you may have with the mediator you can raise any matter you consider relevant to the mediation.

The mediator will facilitate negotiations, settlement and agreement formulation. You will be able to discuss options and negotiate freely with the other party in order to reach a mutually satisfying resolution of your dispute.

5. What the mediator can expect of the parties 5.1 What parties can expect at the Preliminary Conference The mediator expects that all parties are attending mediation in good faith with the intention of seeking settlement. 5.2

Attendance at both the preliminary and mediation sessions The mediator will expect you to attend the Preliminary Conference as well as the Mediation Session to ensure that the same information is imparted to all parties at the same time.

5.3

Preparing for the mediation session It is very helpful to the mediator if you maintain realistic goals when entering negotiations. You can prepare yourself for the negotiations by doing calculations and background work beforehand and bringing relevant documents to the mediation session. The mediator will expect you to have authority to negotiate and to settle.

4.4

Setting the scene for a constructive mediation session

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5.4.1

Opening Statements It is easier for everyone if both parties observe the normal courtesies of listening to each other in a fair and open-minded way. Even if you do not agree with what is being said, it will be helpful to you to listen to and appreciate each other’s point of view.

5.4.2

Mediator’s Summaries It is very helpful if a positive, practical and forward looking approach is adopted when negotiating as this can assist in achieving agreement. An agreement which is satisfying to all

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parties is only possible if you agree to give and take rather than insist on one particular set of demands. 6. Observers 6.1 The attendance of observers should occur only with the consent of all parties and the mediator. 6.2 Observers should sign a Confidentiality Agreement. 7. Support Persons 7.1 Support persons generally do not take part in the negotiations but are present to give moral support to the party. 7.2 Support persons should sign a Confidentiality Agreement. The Opportunity for Feedback As participants in a mediation conducted as part of The Law Society Mediation Program you may have the opportunity, if you wish, to comment on your mediation experience by forwarding your comments in writing to The Law Society of NSW. Your positive, constructive and informed feedback will help us to maintain the highest possible standard of service provided by the Mediation Program. For more information on any aspect of the Charter please contact the The Law Society’s Dispute Resolution Legal Officer on (02) 9926 0214.

IV. THE LAW SOCIETY MEDIATION PRECEDENTS 1. The Agreement to Mediate (Including a Confidentiality Agreement This Agreement is provided by The Law Society as a guide only and should be modified to suit the dispute. It is the responsibility of the participants to the mediation to ensure that the agreement meets the needs of the dispute.

During the preliminary conference the participants are asked to sign the Agreement to Mediate (The Agreement). The Agreement (reproduced in full below) sets out the procedure followed during the preliminary conference and mediation. The Agreement details the role of the mediator; the parties’ commitment to co-operate with the mediator, the agreement to maintain confidentiality with respect to information disclosed during the mediation and agreement that certain matters will be privileged, including any settlement proposal. The Agreement may be modified with the consent of all parties.

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The Agreement to mediate THIS AGREEMENT IS MADE ON .......... (day) .......... (month) .......... (year) BETWEEN THE FOLLOWING PARTIES (In this Agreement called “the parties”) Name of party (please print): .................................................. Address: .................................................. Name of party (please print): .................................................. Address: .................................................. Name of party (please print): .................................................. Address: .................................................. Name of party (please print): .................................................. Address: .................................................. Name of party (please print): .................................................. Address: .................................................. AND THE MEDIATOR/S (called “the mediator/s”) Name of mediator (please print): .................................................. Address: .................................................. Name of mediator (please print): .................................................. Address: .................................................. Appointment of the Mediator 1.

The parties appoint the mediator to mediate, in accordance with the terms of this Agreement, the dispute between them. The dispute is briefly described in Schedule 1 to this Agreement (the “Dispute”). The mediator accepts the appointment as set out in Schedule 2 to this Agreement. Role of the Mediator

2.

The mediator will be impartial. The mediator will assist the parties to attempt to resolve the Dispute by helping them to: 2.1

systematically isolate the issues in dispute;

2.2

develop options for the resolution of these issues;

2.3

explore the usefulness of these options; and

2.4

consider their interests and needs.

3.

The mediator may meet with the parties together or separately.

4.

The mediator will not: 4.1

give legal or other professional advice to any party; or

4.2

impose a result on any party; or

4.3

make decisions for any party.

5.

The mediator will not accept an appointment or act for any party in relation to any proceedings concerning the Dispute.

6.

Neither party will take action to cause the mediator to breach Clause 5. Conflicts of Interest

7.

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The mediator must, before the commencement of the mediation, disclose to the parties to the best of the mediator’s knowledge any prior dealings with any of the parties as well as any interest in the Dispute.

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If in the course of the mediation, the mediator becomes aware of any circumstances that might reasonably be considered to affect the mediator’s capacity to act impartially, the mediator must immediately inform the parties of these circumstances. The parties will then decide whether the mediation will continue with that mediator or with a new mediator appointed by the parties. Cooperation by the Parties

9.

The parties will use their best endeavours to carry out the tasks set out in Clause 2 of this Agreement.

10.

The parties will comply with reasonable requests and directions made by the mediator about the conduct of the mediation. Conduct of the Preliminary Conference

11.

As part of the mediation the mediator may schedule a preliminary conference at a time and place convenient to the parties to establish an agreed timetable for the mediation. Many preliminary conferences are done via telephone, video conferencing or electronically. Authority to Settle and Representation at the Mediation Session

12.

Parties must attend the mediation session. If a party is not a natural person it must be represented at the preliminary conference and the mediation conference by a person with full authority to make agreements binding on it in settling the Dispute (such authority to be evidenced by a written authority to participate).

13.

At the mediation each party may have one or more other persons, including legally qualified persons, to assist and advise them. Communication Netween the Mediator and the Parties

14.

Any information disclosed to a mediator in private is to be treated as confidential by the mediator unless the party making the disclosure states otherwise. Confidentiality of the Mediation

15.

The participants will not disclose to anyone not involved in the mediation any information or document given to them during the mediation unless that person, has signed the prescribed Confidentiality Agreement in the form attached to this Agreement.

16.

The participants agree that, subject to Clauses 22 and 23, the following will be privileged and will not be disclosed, or be the subject of a subpoena to give evidence or to produce documents, in any proceedings in respect of the Dispute: 16.1

any settlement proposal whether made by a party or the mediator;

16.2

the willingness of a party to consider any such proposal;

16.3

any statement made by a party or the mediator during the mediation; and,

16.4

any information prepared for the mediation that is communicated to another party during the mediation. 689

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Documentation 17.

The mediator will return/destroy (delete as applicable) all documentation other than the Agreement to Mediate and the signed Settlement Agreement. Suspension or Termination of the Mediation

18.

A party may terminate the mediation at any time after consultation with the mediator.

19.

The mediator has a discretion to terminate or suspend the process at anytime.

20.

The mediator may terminate the mediator’s involvement in the mediation if, after consultation with the parties, the mediator feels unable to assist the parties to achieve resolution of the Dispute. If agreement is reached at the mediation, either the heads of agreement or terms should be written down and signed by the parties before they leave the mediation.

21.

Enforcement of the Settlement Agreement 22.

23.

24.

25.

26.

27.

28.

29.

690

If the Settlement Agreement is expressed to be binding on all parties, any party may enforce the terms of the Settlement Agreement by judicial proceedings. For the purposes of enforcing an agreement of the mediation, any party may call evidence of the Settlement Agreement including evidence from the mediator and any other person engaged in the mediation. Subject to Clauses 22 and 23 the Settlement Agreement is confidential unless otherwise agreed by the parties. Exclusion of Liability and Indemnity The mediator will not be liable to a party for any act or omission in the performance of the mediator’s obligations under this Agreement unless the act or omission is fraudulent. The parties, together and separately, indemnify the mediator against any claim for any act or omission in the performance of the mediator’s obligations under this Agreement unless the act or omission is fraudulent. The Cost of the Mediation The parties together and separately will be liable to the mediator for the mediator’s fees described in Schedule 3. The parties will share equally all the other costs of the mediation described in Schedule 3. The parties agree that if the mediation does not result in an agreement to resolve the Dispute, the costs of the mediation will be costs in the cause, i.e. costs of the mediation (including those of the legal practitioners to attend the mediation) will be treated as part of the overall costs in subsequent court proceedings which are generally payable by the losing party. If the mediation does result in an agreement to resolve the Dispute, the costs of additional time (Schedule 3) in the mediation must be paid within 30 days from the receipt of the invoice.

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SCHEDULE 1: Description of the Dispute The Dispute is the subject of proceedings (if applicable): No: .......... of .......... in the .......... Court; and/or (Insert brief description of the Dispute) .................................................. .................................................. .................................................. .................................................. SCHEDULE 2: Date and Venue of Mediation Conference The mediation of the Dispute will be held on: .......... (day) .......... (month) .......... (year) at .................................................. (Venue of mediation) SCHEDULE 3: Costs of the Mediation 6 1. Mediator’s Fees and Expenses: For the preliminary conference, all preparation time and the first 3 hours of the mediation session. 2. Additional Time Fee Estimate: Time beyond the first 3 hours of the mediation session. 3. The Law Society’s Administration Fee: 4. Room Hire:

$660 per party (including GST), to be paid in advance (unless otherwise agreed) 7 Assuming the mediation session exceeds 3 hours, the mediator’s fee will be $ .......... 8 per hour. $165 per party (including GST), to be paid in advance (unless otherwise agreed) 9 At cost.

6 7

Schedule 3, as written, is applicable to The Law Society Mediation Program. The Mediator’s Fees and Expenses (inc GST) are to be paid in advance to The Law Society unless otherwise agreed prior to the mediation.

8 9

The Mediator to complete this section with hourly rate. The Law Society’s Administration Fee (inc GST) is to be paid in advance to The Law Society unless otherwise agreed prior to the mediation. 691

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Signing of the Agreement to Mediate The parties, 10 legal practitioners and the mediator have signed this Agreement to Mediate as follows: Date: .......... (day) .......... (month) .......... (year)

.................................................. Name of Party

.................................................. Signature

.................................................. Name of Legal Practitioner

.................................................. Signature

.................................................. Name of Party

.................................................. Signature

.................................................. Name of Legal Practitioner

.................................................. Signature

.................................................. Name of Party

.................................................. Signature

.................................................. Name of Legal Practitioner

.................................................. Signature

.................................................. Name of Mediator

.................................................. Signaure

10

692

Where a party is an authorized representative of a company and that party signs an Agreement to Mediate, a Confidentiality Agreement and/or a Settlement Agreement that party binds all servants and agents of the company.

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Confidentiality Agreement for observers or support persons Name of participant present at the mediation. .................................................. (Please print) I UNDERTAKE to the parties to the mediation that, in exchange for being permitted by them to participate at the mediation, as follows: 1. 2.

3.

I will not disclose to anyone any information received by me during the mediation, unless required by law to make such a disclosure. I will not disclose to anyone involved in the mediation any information received by me during the mediation from a party to the mediation unless expressly authorised by the disclosing party to do so. To the extent that I am required to disclose any information either by law or otherwise I will immediately notify the other participants of this requirement.

.................................................. (Signature of participant) (Date) .................................................. (Address) .................................................. .................................................. .................................................. ..................................................

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2. The Model Clause 1.

If a dispute arises from this contract, a party to the contract must not commence court or arbitration proceedings relating to the dispute unless that party has participated in a mediation in accordance with paragraphs 2 and 3 of this clause. This paragraph does not apply to an application for urgent interlocutory relief.

2.

A party to this contract claiming that a dispute has arisen from the contract (“the Dispute”) must give a written notice specifying the nature of the Dispute (“the Notice”) to the other party or parties to the contract. The parties must then participate in mediation in accordance with this clause.

3.

If the parties do not agree, within seven days of receipt of the Notice (or within a longer period agreed in writing by them) on: 3.1

the procedures to be adopted in a mediation of the Dispute; and

3.2

the timetable for all the steps in those procedures; and

3.3

the identity and fees of the mediator; then:

3.4

the President of The Law Society of New South Wales will appoint the mediator and determine the mediator’s fees and determine the proportion of those fees to be paid by each party (to be in equal shares unless otherwise agreed by the parties);

3.5

the parties must mediate the Dispute: 3.5.1

with the mediator appointed under paragraph 3.4;

3.5.2

with a genuine commitment to participate; and

3.5.3

in accordance with the Mediation Guidelines of The Law Society of New South Wales.

4.

If a party commences proceedings relating to the Dispute other than for urgent interlocutory relief, that party must consent to orders under section 26 of the Civil Procedure Act 2005 that the proceedings relating to the Dispute be referred to mediation by a mediator.

5.

If the parties do not agree on a mediator within seven days of the order referred to in paragraph 4, the mediator appointed by the President of the Law Society of New South Wales will be deemed to have been appointed by the Court.

6.

If a party:

694

6.1

refuses to participate in a mediation of the Dispute to which it earlier agreed; or

6.2

refuses to comply with paragraph 3.5 of this clause, a notice having been served in accordance with paragraph 2; then,

6.3

that party is not entitled to recover its costs in any court proceedings or arbitration relating to the Dispute, even if that party is successful; and,

6.4

that party is deemed to have consented to a decree of the Supreme Court of New South Wales that it will specifically perform and carry into execution paragraph 3.5 of this clause.

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Notes to the Model Clause The traditional remedy for failure to comply with an agreement to mediate was a stay of proceedings that were commenced in breach of the agreement to mediate. As a result of the enactment of section 26 of the Civil Procedure Act 2005, all Courts in New South Wales now have the power to order that proceedings be referred for mediation whether the parties consent or not. Accordingly, parties do not need to rely on the traditional remedy. Paragraph 4 provides that a party that commences proceedings in breach of the clause must consent to the making of an order under section 26. Where a party to a contract refuses to mediate a dispute but does not itself commence proceedings, the traditional remedy of a stay of proceedings is of no use. Further, in this situation there are no proceedings in which an order under section 26 can be sought. What is needed by the party who wishes to mediate is an order that the other party participate in a mediation. Cases decided since Hooper Bailie Associated Ltd v Natcon Group Pty Ltd 11 and Elizabeth Bay Developments Pty Limited v Boral Building Services Pty Limited 12 strongly suggest that the Court would grant specific performance of an agreement to mediate that does not require supervision by the Court. Paragraph 5 provides for deemed consent to an order for specific performance. Close analysis of Hooper Bailie Associated Ltd v Natcon Group Pty Ltd, Elizabeth Bay Developments Pty Limited v Boral Building Services Pty Limited and later cases, and the existence of an obligation under section 27 of the Civil Procedure Act 2005 to participate in Court-referred mediation in good faith, both suggest that an agreement to mediate in good faith is enforceable. Paragraph 3.5.2 requires the parties to participate in the mediation in good faith. If not enforceable, the paragraph should be severable. This clause is applicable for use in Law Society documents. The language in paragraphs 3.4 and 4.2 should identify the President of The Law Society as appointor of the mediator. The language in paragraph 4 provides that a party in breach “must consent to” rather than “must not oppose” orders that the proceedings be referred to mediation.

3. Mediation Guidelines 1.

2.

11 12

Functions of the Mediator The mediator will assist the parties to explore options for and, if possible, to achieve the expeditious resolution of their dispute (“the Dispute”) by agreement between them. The mediator will not make decisions for a party or impose a solution on the parties. Conflicts of Interest (1992) 28 NSWLR 194. (1995) 36 NSWLR 709. 695

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3.

The mediator must disclose to the parties to the best of the mediator’s knowledge any prior dealings the mediator has had with either of them and any interest the mediator has in the Dispute.

4.

If in the course of the mediation the mediator becomes aware of any circumstances that might reasonably be considered to affect the mediator’s capacity to act impartially the mediator will immediately inform the parties of those circumstances. The parties will then confer and if agreed continue with the mediation before the mediator. Co-operation in the Mediation

5. 6.

7.

The parties must co-operate with the mediator and each other during the mediation to achieve a mutually satisfying outcome to their dispute. Each party must use its best endeavours to comply with reasonable requests made by the mediator to promote the efficient and expeditious resolution of the Dispute. Authority and Representation If a party is a natural person, the party must attend the mediation conference. If a party is not a natural person it must be represented at the mediation conference by a person with full authority to make binding agreements

8.

Each party may also appoint one or more other persons, including legally qualified persons, to assist and advise the party in the mediation and to perform such roles in the mediation as the party requires. Conduct of the Mediation

9.

The mediation, including all preliminary steps, will be conducted in such manner as the mediator considers appropriate having due regard to the nature and circumstances of the Dispute, the agreed goal of an efficient and expeditious resolution of the Dispute and the view of each party as to the conduct of the mediation.

10.

The mediation conference shall be held within such period as the parties may agree.

11.

Without limiting the mediator’s powers under Rule 10 the mediator may give directions as to: 11.1 Preliminary conferences prior to the mediation conference. 11.2 The exchange of experts’ reports, the meeting of experts and the subsequent preparation of a joint experts’ report with a view to identifying areas of agreement, narrowing the area of disagreement and clarifying briefly the reasons for disagreement. 11.3 The exchange of brief written outlines of the issues involved. 11.4

12.

696

Service on the mediator prior to the mediation conference of any such reports and outlines. Communication between the Mediator and a Party The mediator may meet as frequently as the mediator deems appropriate with the parties together or with a party alone and in the latter case the mediator need not disclose the meeting to the other party.

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13.

The mediator may communicate with any party orally and/or in writing.

14.

Any document relied upon by a party should be served by the party on the other party.

15.

Information, whether oral or written, disclosed to the mediator by a party in the absence of the other party may not be disclosed by the mediator to the other party unless the disclosing party permits the mediator to do so. Confidential Information

16.

All confidential information disclosed during the mediation, or prior: 16.1

May not be disclosed except to a party or a representative of that party participating in the mediation or if compelled by law to do so; and

16.2

May not be used for a purpose other than the mediation.

Privilege 17.

The following will be privileged and thus not admissible in proceedings before any court or other body: 17.1

Evidence of anything said or of any admission made in a mediation conference; and

17.2

A document prepared for the purposes of, or as a result of, a mediation conference.

Paragraphs 17.1 and 17.2 do not apply to any evidence or document if: 17.3

The persons in attendance at, or identified during, the mediation conference and, in the case of a document, all persons specified in the document, consent to the admission of the evidence or document;

17.4

There are reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to any person or damage to any property.

17.5

Disclosure is being sought merely to assert the fact that an agreement has been reached in mediation and/or to clarify the substance of the agreement.

Subsequent Proceedings 18.

The mediator will not accept appointment as an arbitrator in, or act as an advocate in, or provide advice to a party to any arbitral or judicial proceeding relating to the Dispute. Termination

19.

A party may terminate the mediation immediately by giving written notice to each other party and to the mediator at any time.

20.

The mediator may immediately terminate the engagement as mediator by giving written notice to the parties of that termination, if, after consultation with the parties, the mediator forms the view that the mediator will be unable to assist the parties to achieve resolution of the Dispute. 697

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21.

22.

23.

24.

25.

26.

Settlement If settlement is reached at the mediation, heads of agreement or the terms of the settlement must be written down and signed by the parties and the mediator before any of the participants leave. Enforcement In the event that part or all of the Dispute is settled either party will be at liberty to enforce the terms of the settlement by judicial proceedings. Exclusion of Liability and Indemnity The mediator will not be liable to a party except in the case of fraud by the mediator for any act or omission by the mediator in the performance or purported performance of the mediator’s obligations in the mediation. The parties shall jointly and severally indemnify the mediator against all claims, except in the case of fraud by the mediator, arising out of, or in any way referable to, any act or omission by the mediator in the performance, or purported performance, of the mediator’s obligations in the mediation. Costs The parties will share equally and be liable together and separately to the mediator for the mediator’s fees for the mediation. The mediator may, at any time and from time to time, require each party to deposit with the mediator such sum as the mediator considers appropriate to meet the mediator’s anticipated fees and disbursements. If the mediation does not result in an agreement to resolve the Dispute, the costs of the mediation will be costs in the cause.

V. THE LAW SOCIETY NEUTRAL EVALUATION MODEL 1. Description of The Law Society Early Neutral Evaluation Model Neutral evaluation is a process whereby parties obtain a non-binding, reasoned evaluation of their case on its merits from an experienced neutral third party acting as an evaluator. The Law Society model requires that the parties exchange essential information and position statements early in the pre-trial period, after which the neutral evaluation session takes place which typically lasts three hours. The evaluator may ask questions and help the parties identify the main issues in dispute as well as areas of agreement. He or she offers an opinion as to the likely incidence of liability and where appropriate, a range of damages. The evaluator has no power to impose a settlement or to determine the pre-trial management of the case. The process, whether or not it results in settlement, is confidential. With the benefit of that assessment, the parties are encouraged to discuss settlement with or without the evaluator’s assistance. They may also explore ways of narrowing the issues, exchanging information about the case, or otherwise preparing efficiently for trial. Law Society evaluators are senior 698

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practitioners with expertise in the area of dispute resolution who have been appointed to a Law Society alternative dispute resolution panel.

2. The Neutral Evaluation Model 1. Pre-evaluation preparation Prior to a neutral evaluation session being conducted, the following steps are to occur: 1.1 1.2 1.3 1.4 1.5

1.6

1.7 1.8

The parties sign the Neutral Evaluation Agreement; The evaluator sets a time, date and place for the evaluation process, in neutral territory e.g. evaluator’s office, a court (meeting) room; The evaluator establishes that the parties have the authority to settle; The evaluator establishes that parties must be accompanied by legal practitioners; Seven (7) calendar days before the evaluation session, each party is required to forward to the evaluator and all other parties a written evaluation statement not exceeding 10 pages (double spaced) outlining: 1.5.1 anything which may assist in reducing the issues in dispute or resolving of the dispute including liability and damages claimed; and, 1.5.2 any discovery or other procedural process which will assist in expediting case preparation and in equipping the parties to assess the strengths and weaknesses of their positions; The evaluator draws attention to the limitations of the evaluation process and to the existence of other alternative dispute resolution processes which the parties may wish to consider; The evaluator obtains the signed Neutral Evaluation Agreement; and, The evaluator advises the Parties that the evaluator will have no further involvement in the dispute once the Evaluation Report has been delivered.

NOTE: If both parties agree, the evaluator may conduct the evaluation ‘on the papers’ (ie, without a face-to-face evaluation session). 2. The Evaluation Process 2.1

Evaluator’s Opening Statement 2.1.1 2.1.2

Sets out goals and procedure of the session; Suggests constructive and co-operative problem solving approach by the parties;

2.1.3 2.1.4

Outlines the role of evaluator; Sets ground rules (including no interruption during parties’ statements); Reminds parties that all oral communications are privileged and that the process and the evaluation are confidential;

2.1.5

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2.2

2.3

2.4

700

2.1.6

Reminds the parties that there are no rules of evidence, no testimony or cross examination;

2.1.7

Reminds the parties that opportunities for a negotiation session will be provided before the evaluator gives the evaluation.

Parties’ Statements 2.2.1

Parties in turn outline their views on areas in dispute on the facts and give a summary of evidence for 15-30 minutes.

2.2.2

Each party may use documents during the statement if appropriate, to explain or support contentions.

2.2.3

The evaluator may interrupt to ask clarifying questions.

Evaluator’s Summary of Party Statements and Outline of the Working Session Procedure 2.3.1

The evaluator identifies actual or potential areas of substantial agreement.

2.3.2

The evaluator identifies key facts that have not been established in the following categories: (i)

unknown to the parties; and

(ii)

disputed.

2.3.2

The evaluator enters into the working session with the parties exploring the areas of dispute (including joint fact finding).

2.3.3

The evaluator asks questions of the parties as to the strengths and weaknesses of the evidence of each party.

2.3.4

At the conclusion of that working session the evaluator reminds the parties of the function of early neutral evaluation and reminds the parties of the availability of a plan which is entered into if the evaluation process does not reach settlement, in order to ascertain and exchange further relevant information (refer 2.4.4).

Presentation of Evaluation 2.4.1

If sufficient information is available the evaluator leaves the session room and drafts an evaluation summarising the strengths and weaknesses of each party’s case, the legal opinion and the potential litigation outcome.

2.4.2

When the evaluator returns to the session room, the parties are invited to enter settlement negotiations before the evaluation is given. The evaluator asks the parties if they wish to explore possibilities for settlement. Providing all the parties request it, the evaluator may then chair a discussion of settlement prospects with all parties and legal representatives present. The evaluator when acting as chair, will not disclose any part of the evaluation and will not act as a mediator or a conciliator or undertake a mediation process (e.g. option generation). If settlement is reached the evaluator encourages the parties to commit it to writing.

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2.4.3

If the parties do not wish to enter settlement negotiations, the evaluator provides the evaluation on the information available at that time, predicts the probability of success by each party (including the legal position, liability and quantum range), reduction through contributory negligence, if any, (eg. 6080% chance of liability and damages between $75,000-$100,000), the prospect of other remedy and the likely cost of completing discovery and hearing. These views may be expressed conditionally (eg. if X is accepted then A but if Y is accepted then B).

2.4.4

The evaluation is given in the presence of all parties and legal representatives.

2.4.5

The evaluation is usually given orally on the day of evaluation or if that is not possible, on another day by telephone to each party. The evaluation is given in writing at a later date if necessary.

2.4.6

The evaluation is given in writing at a later date if necessary.

2.4.7

If settlement is not reached, the evaluator may, in appropriate cases by mutual consent, record for each party a plan to ascertain and exchange further relevant information which may include:

2.4.8

(i)

formal or informal discovery;

(ii)

the sharing of additional evidence on the most significant aspects of the case;

(iii)

additional evidence from key witnesses;

(iv)

expeditious discovery of crucial documents; and

(v)

information about other dispute resolution processes and facilities.

The evaluator should advise the parties that the evaluator will have no further involvement in the dispute once the Evaluation Report has been delivered.

3. Evaluation Report 3.1

3.2

The parties are provided with written confirmation that the evaluation has taken place. Details of the evaluation discussions/findings are not disclosed. If requested by the parties or the court, the evaluator reports to the court the fact that the evaluation has taken place but not the details of the evaluation.

4. Re-evaluation or Other Available Processes 4.1

4.2

At the conclusion of the initial evaluation, if agreed by the parties, a re-evaluation session or any other process including mediation is possible. Any other process including mediation would not be undertaken by the evaluator who conducted the neutral evaluation process. Alternatively, the further session might be limited to a party responding, by a date stipulated: 701

Alternative Dispute Resolution

(i) (ii)

to a request for certain information about the merits of the case or discovery of documents; or to an offer or demand that was made at the initial Neutral Evaluation session.

VI. THE LAW SOCIETY NEUTRAL EVALUATION PRECEDENTS 1. The Law Society Neutral Evaluation Agreement (Including a Confidentiality Agreement) This Agreement is provided by The Law Society as a guide only and should be modified to suit the dispute. It is the responsibility of the participants to the mediation to ensure that the agreement meets the needs of the dispute.

Developed by The Law Society’s Dispute Resolution Committee, the Neutral Evaluation Agreement (reproduced in full on the next page) sets out the procedure to be followed during the preliminary conference and the evaluation session. This Agreement details the role of the evaluator, the parties’ commitment to co-operate with the evaluator, the agreement to maintain confidentiality with respect to information disclosed during the evaluation session and agreement that certain matters will be privileged. The Agreement may be modified with the consent of all parties.

702

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The Evaluation Agreement THIS AGREEMENT IS MADE ON THE: (day) (month) (year) BETWEEN THE FOLLOWING PARTIES (together called “the parties”) Name of Party: (please print): Address: Name of Party: (please print): Address: Name of Party: (please print): Address: Name of Party: (please print): Address: Name of Party: (please print): Address: Name of Party: (please print): Address: AND THE EVALUATOR Name of Evaluator (please print): Address: (Signature)

.......... .......... ..........

......................... .................................................. ......................... .................................................. ......................... ......................... ......................... ......................... ......................... ......................... ......................... ......................... ......................... ......................... ......................... ......................... ......................... ......................... ......................... ......................... .........................

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Appointment of Evaluator 1.

The parties appoint the evaluator and the evaluator accepts the appointment to evaluate the dispute briefly described in Schedule 1 to this agreement (the “Dispute”) in accordance with the terms of this agreement. The evaluator accepts that appointment as an expert and not as an arbitrator. Role of the Evaluator

2.

The evaluator will express his/her views of the likely outcome of the Dispute if resolved by a court based on the material (oral or written) put forward in the course of the evaluation session.

3.

The evaluator may only meet with or conduct a conversation with a party in the presence of the other parties.

4.

The evaluator may chair, if requested by the parties to do so, settlement negotiations between the parties after the party statements and before the working sessions are concluded.

5.

The evaluator will not:

6.

5.1

Impose a result on any party; or,

5.2

Make decisions for any party; or,

5.3

Obtain from any independent person any advice or opinion as to any aspect of the Dispute; or,

5.4

Accept any subsequent appointment in any proceedings. relating to the Dispute.

Neither party will take action to cause the evaluator to breach Clause 5. Conflicts of Interest

7.

The evaluator must immediately on appointment inform the parties of any circumstance which might reasonably be considered to affect the evaluator’s capacity to act impartially. The parties will then decide whether the evaluation will continue with the evaluator or with a new evaluator appointed by the parties. Co-operation by the Parties

8.

The parties must co-operate with the evaluator and each other during the evaluation and will endeavour to comply with reasonable requests by the evaluator or other parties to promote the efficient and expeditious completion of the evaluation.

9.

A party must provide to the other party/parties a copy of any document provided by it to the evaluator. Conduct of the Preliminary Conference

10.

The evaluator will schedule a preliminary conference, usually by telephone, at a time and venue convenient to the parties and the evaluator will establish a timetable for the evaluation and the procedures to apply for the evaluation. The evaluator, the parties and their representatives who are to attend the evaluation session must attend the preliminary conference.

11.

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Representation at the Evaluation Session and Authority to Provide Information for the Purpose of the Evaluation 12.

The parties must attend the evaluation unless otherwise agreed with the evaluator. Parties who attend must have authority to provide the information required by the evaluator for the purposes of the evaluation.

13.

At the evaluation each party may have one or more other persons, including legally qualified persons, to assist and advise them and to perform such a role or roles as the parties and the evaluator require for the purposes of the evaluation. Conduct of the Evaluation

14.

The parties or their representatives will in turn outline their respective cases on liability and damages and any other remedies sought and produce any related evidence by which they intend to prove their case.

15.

The evaluator will then leave the parties to prepare the evaluation providing his/her view on: 15.1

the likelihood of any claim made by a party to the evaluation succeeding if the claim is determined in court; and,

15.2

the likely range of damages recoverable.

16.

The evaluator will then join the parties. If the parties indicate to the evaluator that they wish to proceed to settlement negotiations, the evaluator may offer his/her services as a chairperson.

17.

If parties do not proceed with settlement negotiations, the evaluator will provide them with the evaluation. The evaluation will include reasons for the evaluator’s conclusions. The evaluation may be confirmed or expanded upon later in writing.

18.

The evaluator may also:

19.

18.1

formulate a discovery plan and record it for each party; and/or,

18.2

provide information about other dispute resolution options.

The parties may then decide on subsequent action which may include adopting one of these other dispute resolution options. Termination of the Evaluation

20.

A party may terminate the evaluation at any time after consultation with the evaluator.

21.

The evaluator may terminate any involvement in the evaluation if, after consultation with the parties, the evaluator feels unable to assist the parties in providing an evaluation of the Dispute.

22.

23.

Confidentiality of the Evaluation The participants will not disclose to anyone not involved in the evaluation any information or document given to them during the evaluation unless that person has signed the prescribed Confidentiality Agreement in the form attached to this agreement. The parties and the evaluator agree not to use any information produced for the evaluation for a purpose other than the evaluation. 705

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24.

Privilege The parties and the evaluator agree that subject to Clause 25 the following will be privileged and will not be disclosed or be the subject of a subpoena to give evidence or to produce documents in any proceedings in respect of the Dispute: 24.1 Any statement made by a party or the evaluator during the evaluation; 24.2 Any information prepared for the evaluation that is communicated to the other party during the evaluation; 24.3

25.

26.

27.

28.

706

Any settlement proposal whether made by a party or the evaluator; and/or,

24.4 The willingness of a party to consider any such proposal. Settlement of the Dispute in the Course of the Evaluation If the parties settle their dispute in the course of the evaluation, the terms of settlement must be written down and signed by the parties before they leave the evaluation. Exclusion of Liability and Indemnity The evaluator will not be liable to a party for any act or omission in the performance of the evaluator’s obligations under this agreement unless the act or omission is fraudulent. The parties together and separately indemnify the evaluator against any claim for any act or omission in the performance of the evaluator’s obligations under this agreement unless the act or omission is fraudulent. The Cost of the Evaluation The parties together and separately will be liable to the evaluator for the evaluator’s fees described in Schedule 2. The parties will share equally all the other costs of the evaluation described in Schedule 2.

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Schedule 1: Description of the Dispute The Dispute is the subject of proceedings: No: .......... of .......... in the ......................... Court (Insert brief description of the Dispute) ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. Schedule 2: Costs of the Evaluation 13 1. Evaluator’s Fees and Expenses: For the preliminary conference, all preparation time and the first 3 hours of the mediation session. 2. Additional Time Fee Estimate: Time beyond the first 3 hours of the mediation session. 3. The Law Society’s Administration Fee: 4. Room Hire:

$660 per party (including GST), to be paid in advance (unless otherwise agreed) 14 Assuming the evaluation session exceeds 3 hours, the mediator’s fee will be $ 15 per hour. $165 per party (including GST), to be paid in advance (unless otherwise agreed) 16 At cost.

Signing of the Evaluation Agreement The parties, 17 legal practitioners and the evaluator have signed thie Evaluation Agreement as follows:Date: .......... (day) .......... (month) .......... (year)

.................................................. Name of Party

.................................................. Signature

.................................................. Name of Legal Practitioner

.................................................. Signature

.................................................. Name of Party

.................................................. Signature

.................................................. Name of Legal Practitioner

.................................................. Signature

..................................................

..................................................

13 14 15 16 17

Schedule 2, as written is applicable to The Law Society Evaluation Program. The Evaluator’s Fees and Expenses (inc GST) are to be paid in advance to The Law Society unless otherwise agreed prior to the mediation. The Evaluator to complete this section with the applicable hourly rate. The Law Society’s Administration Fee (inc GST) is to be paid in advance to The Law Society unless otherwise agreed prior to the mediation. Where a party is an authorised representative of a company and that party signs an Evaluation Agreement, Confidentiality Agreement and/or a Settlement Agreement that party binds all servants and agents of the company. 707

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Confidentiality Agreement Name of participant present at the mediation. .................................................. (Please print) I UNDERTAKE to the parties to the evaluation that, in exchange for being permitted by them to participate at the evaluation as follows: 1.

I will not disclose to anyone any information received by me during the evaluation, unless required by law to make such a disclosure. I will not disclose to anyone involved in the evaluation any information received by me during the mediation from a party to the evaluation unless expressly authorised by the disclosing party to do so. To the extent that I am required to disclose any information either by law or otherwise I will immediately notify the other participants of this requirement.

2.

3.

.................................................. (Signature of participant) (Date) .................................................. (Address) .................................................. .................................................. .................................................. ..................................................

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VII. HYBRID PROCESSES 1. Introduction Arbitration is designed to determine the issues in dispute but may leave unidentified and unaddressed the underlying interests of the parties. Mediation as practised under the Law Society Mediation Model is designed to elicit those interests and to enable the parties to craft their own agreed solutions, which may render determination of those issues unnecessary. Combining the two processes with the same practitioner acting as both arbitrator and mediator can save time and money and may preserve or restore relationships. There are several ways by which these processes may be combined.

2. Description of Hybrid Process Arb-Med-Arb Concerns regarding using the same person as arbitrator if the mediation was unsuccessful have been addressed in section 27D of the Commercial Arbitration Act 2010 (NSW). The section allows an arbitrator to mediate if the parties give their written consent, either in the arbitration agreement or otherwise, in which case the arbitrator may, as mediator, hold private sessions with each party. The value of private sessions is that, apprised separately by both sides of their underlying interests, the mediator often sees room for progress that the parties do not. The parties will need to decide what information they disclose privately to the mediator and, in light of the possibility of the mediator subsequently arbitrating, they are likely to be unwilling to disclose their “bottom line” lest that disclosure affect the eventual arbitral award. Accordingly, the kind of dispute best suited to this hybrid process is one with discrete legal issues to be arbitrated, but which also indicates creative possibilities, not dependent on a determination of quantum or of who is right and who is wrong, so that the creative possibilities can be the primary focus of attention in the mediation. Likewise, a mediator with arbitration experience or an arbitrator with mediation experience would be best suited as the neutral. If the mediation is terminated without resolving the entire dispute, section 27D requires the parties again to give their written consent before the arbitrator may proceed to arbitrate and requires the arbitrator, before taking any further steps in the arbitration, to disclose to the parties any confidential information learned during the mediation which the arbitrator considers material to the arbitration. The purpose of this requirement is to ensure procedural fairness in the arbitration and the enforceability of the arbitral award by enabling the parties to know the case they have to meet. The provision echoes comparable legislation in Hong Kong 18 and Singapore. 19 18

See sections 2A-2C of the Arbitration Ordinance (Cap 341) (Hong Kong). 709

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Since the parties cannot be expected to consent to the mediator proceeding to arbitrate without knowing beforehand what confidential information of theirs, if any, the mediator proposes to disclose, they should seek that information privately from the mediator before they decide whether or not to give their consent and, if unhappy with the answer, should refuse their consent, in which case the information will remain confidential and another arbitrator must be appointed. In this way the section preserves the potential value of the private session in the mediation while ensuring the integrity of the arbitration and affording the parties the opportunity to opt out of using the mediator as arbitrator once the mediation is terminated. Although there can be savings in both time and money in having the same person fulfil both roles, if the mediation is not successful and one party declines to agree to the mediator proceeding to arbitrate, at least some and, possibly all, of the costs of the arbitration to that point will be lost. Accordingly, the appropriate time to move from arbitration to mediation is shortly after the arbitration has commenced, once the issues to be arbitrated are clear. It is important that those issues be clear before the mediation begins, to enable the mediator and the parties to appreciate whether or not any confidential information, which the parties choose to disclose during the mediation, is material to the arbitration. Although hybrid processes have been used in Australia to an extent, section 27D should prompt more parties and their advisors to adopt this process, knowing they can withdraw after the mediation phase if they feel uncomfortable with the mediator resuming the arbitration. The section should also stimulate mediators to learn to arbitrate, arbitrators to learn to mediate and advisors to learn to choose the process to suit the dispute and the parties. The outcome should be the swifter and cheaper resolution of disputes, as distinct from the mere settlement of cases. Med-Arb If there is no arbitration agreement and the parties contemplate a mediation followed by arbitration by the same person of any unresolved issues, section 27D of the Commercial Arbitration Act 2010 (NSW) does not apply, so the parties may choose to incorporate into their mediation agreement a provision reflecting the procedure contemplated by the section, along the following lines: If at the conclusion of the mediation the parties wish to consider appointing the Mediator to determine any unresolved issues as arbitrator, the Mediator shall identify privately to each disputant from whom confidential information was received by the Mediator such of that disputant’s confidential information as the Mediator considers material to the arbitration. If the parties wish to proceed with the appointment, then all parties shall so appoint the Mediator in writing, expressly acknowledging that they have had the opportunity of obtaining legal advice before 19

710

See section 17 of the International Arbitration Act (Cap134A) (Singapore), which followed the Hong Kong Arbitration Ordinance in this regard.

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making the appointment; that they have no objection to the Mediator acting as arbitrator; and specifying any institutional rules under which the arbitration is to be conducted. The Mediator may decline the appointment if the Mediator considers that he or she is unable impartially to determine any of the unresolved issues. If the Mediator accepts the appointment, before taking any steps in the proceeding the Mediator must disclose to all parties any confidential information obtained in the mediation that the Mediator considers relevant to the arbitration.

Arb-Med This is the reverse of Med-Arb. The arbitrator’s award is sealed and is not revealed while the arbitrator proceeds to mediate. If the mediation is successful, the settlement agreement between the parties governs the resolution of the dispute and the award is never unsealed. However, if mediation fails to settle all issues, the arbitrator-mediator will unseal the arbitral award and deliver it to the parties to resolve the dispute. This process avoids any disclosure of confidential information and also ensures that the arbitral award is uninfluenced by anything that transpired in the mediation. The parties embark upon the mediation with a strong incentive to settle since they know that if they fail to reach agreement, whatever is in the sealed award will bind them. Provided that the arbitration is strictly contained within a tight time frame, the “wasted” costs of the arbitration, if the parties reach agreement in the mediation, are minimised.

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This Private Arbitration Kit contains Guidelines, Rules and a Model Agreement in respect of private arbitrations. It is designed ot assis practitioners when referring disputes to arbitration. The Guidelines were developed by the Arbitration Liaison Committee setting out the responsibility of practitioners when acting as arbitrators under the legislation which has now been replaced by the Commercial Arbitration Act 2010 and the Civil Procedure Act 2005. The Guidelines were adopted by the Council of the Law Society of NSW on 23 November 2000. The Rules and Model Agreement were developed jointly by the Law Society’s Arbitration Liaison Committee and the Property Law Committee to cover disputes arising out of the Contract for the Sale of Land and for the conduct of commercial arbitration generally. The kit is available athttp://lawsociety.com.au/ cs/groups/public/documents/internetcontent/1008828.pdf © Law Society of New South Wales 2015.]

GUIDELINES FOR ARBITRATORS The responsibilities of practitioners when acting as arbitrators under the Commercial Arbitration Act 2010 and the Civil Procedure Act 2005 are set out in the following Guidelines developed by the Arbitration Liaison Committee and approved by the Council of the Law Society of NSW. 1.

2. 3.

4.

5.

6. 7.

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An arbitrator must do right to all manner of people after the laws and usages of the State of New South Wales without fear or favour, affection or ill will. Each participant must be afforded a reasonable opportunity to take an appropriate part in the process. An arbitrator must not only be impartial, but must also appear to be impartial. S/he must disclose any circumstances which may cause or have any tendency to give rise to an apprehension of bias. An arbitrator shall use his or her best endeavours to complete any task involved in the arbitration process in a diligent manner and as soon as reasonable in all the circumstances. As a general rule, no award should be reserved for longer than eight (8) weeks. An arbitrator‟s award should, unless the parties otherwise agree:a.

contain a reasoned analysis of the evidence and the basis for the decision so as to make the parties aware of the arbitrator‟s view of the case made by each of them, and to enable any Court reviewing the award to consider any question of law arising from the award.

b.

specify the evidence which was accepted and/or rejected and the reasoning process which led to the decision.

During any arbitration hearing an arbitrator shall act with due courtesy towards all other participants. A good arbitrator is one who:a. keeps a relaxed atmosphere during the arbitration

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b.

keeps in the forefront of his / her mind that all witnesses and Counsel take part in the arbitral process to assist the arbitrator to achieve a fair and just result

c. d.

keeps formality to a minimum controls the hearing so it is confined to the issues

THE LAW SOCIETY CONVEYANCING ARBITRATION RULES (For disputes arising under the Contract for Sale of Land 2005 Edition, Contract for the Sale and Purchase of Land 2014 Edition or subsequent editions) Preamble The Council of the Law Society of New South Wales has resolved that, where parties have entered into a Contract for Sale of Land – 2005 Edition, Contract for the Sale and Purchase of Land 2014 Edition or subsequent editions and a dispute has arisen between them and pursuant to the terms of that Contract the parties have agreed to submit the dispute to arbitration then the parties shall be taken to have agreed that the arbitration shall be conducted in accordance with these Rules, namely: RULES 20 PART I PRELIMINARY RULE 1 Appointment of an Arbitrator In the event that the parties to the dispute are unable to agree on an Arbitrator within one (1) month of completion of the Contract, the Law Society President for the time being will at the request of either party in his or her absolute discretion appoint an Arbitrator.

3.1. 3.2 3.3

4.1.

20

RULE 2 Notice of Dispute In the event that the parties to the dispute are unable to agree on an Arbitrator within one (1) month of completion of the Contract, the Law Society President for the time being will at the request of either party in his or her absolute discretion appoint an Arbitrator. RULE 3 Appointment Fee The parties shall deposit with the Law Society the prescribed Appointment Fee (to be shared equally between the parties). The Appointment Fee shall be such sum as is prescribed by the Law Society at the relevant time and from time to time. Lodgement of the prescribed Appointment Fee shall be a pre-requisite to the appointment of an Arbitrator under Rule 4. RULE 4 Call for Appointment Where a Statement of amount claimed has been served pursuant to the terms of the Contract and the dispute has not settled within one (1) month These rules are intended to bind the parties to the Arbitration and are not Legal Professional Rules made pursuant to the Legal Profession Act 2004. 713

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of completion either party may thereafter request the Law Society President in writing to appoint an arbitrator and, in so doing, shall submit the following to the Law Society:

4.2

a.

a copy of the Statement of the amount claimed;

b.

a copy of the relevant Contract of Land;

c.

the names and addresses of the parties to the dispute and their respective solicitors;

d.

a brief description of the nature of the dispute containing such particulars of the dispute as will permit the Law Society President to appoint an appropriate arbitrator.

e.

a cheque for half of the prescribed Appointment Fee made payable to The Law Society of New South Wales.

Within ten (10) days after receipt of the material submitted pursuant to paragraph 1 of this Rule and receipt of payment of the prescribed Appointment Fee, or such further information as to the nature of the dispute as the Law Society may reasonably require for the purposes of appointment, the Law Society President shall appoint an arbitrator and advise the parties and the Arbitrator accordingly. RULE 5 Entry on Reference to Arbitration

5.1.

The Arbitrator shall, within seven (7) days of receiving advice of his or her appointment or agreed appointment, give written notice to the parties of the time and place of a Preliminary Conference which the parties or their duly authorized representatives shall attend. At or prior to that Preliminary Conference, the Appointed Arbitrator may advise any conditions he or she wishes to impose (including provision of security for the fees and expenses of the Appointed Arbitrator) and request the agreement of the parties to such conditions. Failure to respond to the Arbitrator’s request not later than the holding of the Preliminary Conference shall be deemed to be a failure to agree to the conditions.

5.2

On the parties agreeing to any such conditions, the Arbitrator shall accept appointment and shall then be deemed to have entered on the reference as Arbitrator.

5.3

If any party fails to attend the Preliminary Conference or does not agree with the conditions of the Appointed Arbitrator, then the Appointed Arbitrator shall notify the parties and the Law Society in writing within three (3) working days as to whether he or she accepts appointment as Arbitrator notwithstanding that non-appearance or disagreement. On acceptance of appointment, the Appointed Arbitrator shall be deemed to have entered on the reference as Arbitrator. If appointment is declined by the Appointed Arbitrator, then the Law Society President shall within ten (10) days appoint a replacement Appointed Arbitrator.

5.4

Where the Arbitrator has entered on the reference as Arbitrator, the arbitration shall be fixed for a time, date, place and timetable agreeable to the parties and the Arbitrator. If the parties are unable to agree on a time,

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date and place or upon a timetable, the Arbitrator may give directions stipulating these. These directions are binding upon the parties. RULE 6 Appointed Arbitrator Failing to Act/Loss of Arbitrator The Law Society President shall appoint a replacement arbitrator, within ten (10) days of being called on to do so by a party, if: 6.1.

an Appointed Arbitrator does not enter upon the reference to arbitration within one (1) month of the date of his or her appointment; or,

6.2

after entering on the reference to arbitration, an Appointed Arbitrator shall die or shall otherwise become incapable by reason of ill health, or no longer be the holder of a current practising certificate, or otherwise, from continuing on the reference to arbitration. RULE 7 Liability of Law Society for acts or omissions The parties agree that the Law Society, its officers and employees are not liable to any party for, or in respect of, any act or omission in the discharge or purported discharge of the Law Society’s functions under these Rules. RULE 8 Provision of Security The Arbitrator may direct that the parties provide security for the costs of the reference in such form, such amount or amounts and at such time or times as directed by the Arbitrator. Any such security shall be deposited and applied as directed by the Arbitrator. If there is any default in provision of security as directed by the Arbitrator, then the Arbitrator may make such directions for the further conduct of the arbitration as the Arbitrator then considers appropriate. PART II THE ARBITRAL PROCEDURE RULE 9 Preliminaries not to Prejudice Scope of Arbitration Unless otherwise agreed in writing by the parties:

9.1.

9.2

9.3

10.1.

10.2

Any description identifying a claim given in the Statement of amount claimed shall not be taken as defining or limiting the scope of the arbitration. Any party may raise in its claim, defence, cross claim or defence to cross claim, any other dispute or difference which has arisen under the Agreement. Thereafter any amendment or addition to claims will be in the discretion of the Arbitrator, and shall be subject to any conditions as to costs or otherwise that the Arbitrator may consider appropriate. RULE 10 General Duty of Arbitrator The Arbitrator shall adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay and expense, so as to provide an expeditious cost-effective and fair means of determining the matters in dispute. The Arbitrator may make such directions or rulings as he or she considers to be reasonably appropriate, including in respect of the following: 715

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a.

The form and extent of any pleadings or other documents defining the issues in dispute, including the extent to which particularisation should be provided by a party in respect of its contentions on all or some of the issues in dispute.

b.

The preparation of any joint statement of issues, in such manner and at such time as the Arbitrator considers appropriate, to define and narrow the issues in dispute.

c.

The holding of further Preliminary Conferences, meetings between experts and/or representatives of the parties, so as to narrow issues in dispute, including the time at which and manner in which they are conducted and who may attend, and preparation of any written document recording the results thereof. The preparation of joint reports by experts engaged by the parties following any meetings between such experts, recording the matters on which they agree, the matters on which they disagree, and identifying the reasons for any such disagreement and their respective contentions in relation to same. The preparation of joint bundles of documents for use in the arbitration, including at any meetings between experts and/or representatives of the parties or preparation of any joint report of experts. The provision of factual information to experts for the parties for use in their joint deliberations or preparation of any joint report. The manner in which and the extent to which the parties shall produce documents for inspection by any opposing party. The form of any evidence in chief, by witness statement or otherwise, and the time or times at which it is to be provided to the Arbitrator and any other party. The extent to which an oral hearing is required and any limitations in relation to same, including reasonable time limits on oral evidence and the provision of written opening addresses and final submissions. The service of offers of settlement without prejudice except as to costs..

d.

e.

f. g. h.

i.

j. 10.3

The Arbitrator shall be independent of, and act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting its case and dealing with that of any opposing party, and a reasonable opportunity to be heard on the procedure adopted by the Arbitrator. RULE 11 General Duty of Parties

11.1.

The parties shall do all things reasonably necessary for the proper, expeditious and cost-effective conduct of the arbitral proceedings. Without limiting the generality of the foregoing, the parties shall comply without delay with any direction or ruling by the Arbitrator as to procedural or evidentiary matters.

11.2

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The parties agree that as a condition of being present or participating in the arbitration, they will, unless compelled by law, preserve total confidentiality in relation to the course of proceedings within the arbitration and in relation to any exchanges that may come into their knowledge, whether oral or documentary, concerning the dispute, passing between any of the parties and the arbitrator or between any two or more of the parties within the arbitration. This agreement does not restrict the parties’ freedom to disclose and discuss the course of proceedings and exchanges within the arbitration with advisers and insurers of a party to the dispute PROVIDED ALWAYS that any such disclosure and discussions will only be on the same basis of confidentiality. RULE 12 Waiver of Right to Object

12.1.

Subject to any Statute Law or principle of common law or equity, or prior written agreement of the parties, if a party to arbitral proceedings takes part, or continues to take part, in those proceedings without making forthwith or within a reasonable time thereafter any objection: a.

that the Arbitrator lacks substantive jurisdiction;

b.

that the proceedings have been improperly conducted;

c.

that there has been a failure to comply with the Rules; or

d.

that there has been any other irregularity affecting the Arbitrator or the proceedings,

then that party shall be deemed to have waived its right to make such objection later, before the Arbitrator or a Court, unless it shows that, at the time it took part or continued to take part in the proceedings, it did not know and could not with reasonable diligence have discovered the grounds for the objection. 12.2

Subject to any Statute Law or prior written agreement of the parties, where the Arbitrator rules that he or she has substantive jurisdiction and a party to arbitral proceedings who could have questioned that ruling in a Court does not do so within any time fixed by the Arbitrator (or if no time is fixed, within a reasonable time and not later than the conclusion of any hearing), then that party shall be deemed to have waived any right it may otherwise have had to later object to the Arbitrator’s substantive jurisdiction on any ground which was the subject of that ruling, and shall be deemed to have submitted to the Arbitrator’s jurisdiction. RULE 13 Procedural Directions Subject to any Statute Law or prior written agreement of the parties, and the requirements of Rule 10, the Arbitrator may make such directions or rulings in respect of procedural and evidentiary matters as he or she sees fit. RULE 14 Views and Other Material 14.1. The Arbitrator may, in his or her discretion, view the subject matter or site of any dispute, the view of which might assist the Arbitrator in determining the issues in dispute. The Arbitrator may use his or her own 717

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observation not merely to assist in understanding the evidence but also as material which he or she may use in determining the issues in dispute provided that, in so doing, the Arbitrator puts the parties on notice of any preliminary adverse conclusion which is based solely on the Arbitrator’s observations on the view and then affords such parties a reasonable opportunity to meet it. 14.2

15.1.

15.2

Subject to any Statute Law or contrary agreement of the parties, the Arbitrator shall be at liberty to obtain such technical and/or legal assistance or advice as the Arbitrator may, in his or her discretion, reasonably require provided that, in so doing, the Arbitrator complies with the rules of natural justice. The costs or expenses of so doing shall form part of the Arbitrator’s fees and expenses of the arbitration. RULE 15 Awards Subject to any Statute Law or the Agreement, the Arbitrator shall within a reasonable time deliver one or more interim awards so as to deal with all issues in the arbitration except for the costs of the arbitration. The Award of the arbitrator is binding upon the parties. Unless otherwise agreed, the parties have no right of appeal other than that provided in the Commercial Arbitration Act 2010 or any other legislation which governs the conduct of the arbitration.

15.3

Thereafter, at the time and in the manner directed by the Arbitrator, the parties shall place before the Arbitrator such evidence and submissions on which they respectively rely on the question of costs, and the Arbitrator shall as soon as reasonably practicable thereafter deliver a final award which includes the Arbitrator’s determination on costs, including by whom and in what manner the whole or any part of the costs of the arbitration are to be paid.

15.4

Awards of the Arbitrator shall be made in writing, and either forwarded by mail to the successful party (and a signed copy thereof shall be forwarded to the other party or parties) or the Arbitrator may advise the parties that the award may be collected at some place nominated by the Arbitrator. In the event that security moneys lodged are less than that which the Arbitrator determines as the Arbitrator’s fees and expenses and any other amounts to be paid from that security, then the Arbitrator may withhold the award until a party pays the outstanding balance so determined by the Arbitrator, whereupon such party may collect the award.

15.5

PART III GENERAL RULE 16 Definitions In these Rules: The ‘Law Society’ means The Law Society of New South Wales. ‘Appointed Arbitrator’ means an arbitrator who has been appointed by the Law Society or agreed by the parties but who has not entered on the reference to arbitration. ‘Arbitrator’ means an arbitrator who has entered on the reference to 718

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arbitration. ‘the costs of the arbitration’ includes the costs of the reference and the costs and disbursements of the parties. ‘the costs of the reference’ includes the fees and expenses of an Arbitrator or Appointed Arbitrator, any Appointment Fee or other fee payable to the Law Society, the costs of room hire or transcript, and any fees or expenses incurred pursuant to Rule 14.2. ‘Court’ means any Court which has jurisdiction under the Statute Law which governs arbitration in the place where the arbitration is held. ‘days’ means normal working days and shall exclude Saturdays, Sundays and public holidays. ‘dispute’ includes, but is not limited to, a claim made by the purchaser under Clause 7 of the Contract in NSW. RULE 17 Application of Rules These Rules are subject to the Statute Law which governs arbitration in the place where the arbitration is held and to any agreement between the parties in relation to the arbitration process. Otherwise where the parties to a dispute have agreed to arbitration in accordance with these Rules, they are thereby bound to comply with these Rules. RULE 18 Counting of Days For the purpose of counting days under these Rules, such period shall begin to run on the day following the day when notice, notification, communication or proposal is actually received or deemed to be received under paragraph 2 of this Rule, whichever is earlier. If the last day of such period is a public or official holiday or a non-business day at the residence or place of business of the addressee, then the period is extended until the first business day which follows. Any such notice, notification, communication or proposal which is posted is deemed to have been received on the second day following the day of posting. Any such notice, notification, communication or proposal which is sent by facsimile or other means of telecommunication or electronic transmission is deemed to have been received on the day of transmission. RULE 19 Termination of the Arbitration The arbitration is terminated after the handing down of a final award and an award to costs if any, by the Arbitrator or by the execution of a settlement agreement prior to the handing down of an award by the Arbitrator

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THE LAW SOCIETY OF NEW SOUTH WALES RULES FOR THE CONDUCT OF COMMERCIAL ARBITRATIONS 21

(Incorporating the Expedited Commercial Arbitration Rules) Authority for Rules The Rules for the Conduct of Commercial Arbitrations (the Rules) apply to commercial arbitrations conducted in accordance with the provisions of the Commercial Arbitration Act 2010. The Council of the Law Society of New South Wales resolved at a meeting on 20 April 2006 that, where parties have agreed between them that a dispute arising or having arisen between them shall be submitted to arbitration, the arbitration shall be conducted in accordance with either of the following: a. b.

The Law Society of New South Wales Rules for the Conduct of Commercial Arbitrations; or The Law Society of New South Wales Expedited Commercial Arbitration Rules (Rules numbered 1 to 22 and Schedule 2 apply).

Where any agreement, submission or reference provides for arbitration under the Rules of the Law Society of New South Wales, the parties are taken to have agreed that the arbitration is to be conducted in accordance with these rules or any modified, amended or substituted Rules which the Law Society may have adopted and which have come into effect before the start of that arbitration. PART I PRELIMINARY 1.1. 1.2

2.1. 2.2

2.3

21

720

RULE 1 Appointment of an Arbitrator Nothing in these Rules prevents the parties to a dispute from agreeing on an arbitrator or arbitrators of their choice. If the parties in dispute do not agree on an arbitrator, the Law Society President for the time being will in his or her absolute discretion appoint an Arbitrator. RULE 2 Notice of Dispute This Rule applies to the extent that it is not inconsistent with the Agreement (as defined in Rule 16). If a dispute is covered by the submission to arbitration in an Agreement, any party to the dispute and the Agreement may give written notice of the dispute to the other party or parties. The notice (“the Notice of Dispute”) is to be served at the address for the party or parties specified in the Agreement. Service may be effected personally, by mail, or by any means of electronic transmission. Rules drawn from the Institute of Arbitrators & Mediators Australia Rules for the Conduct of Commercial Arbitrations and the Arbitration Rules of the Chartered Institute of Arbitrators.

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2.4

The passage of ten (10) days after service of the Notice of Dispute automatically refers the dispute to Arbitration in accordance with these Rules, unless it is settled within those ten days.

2.5

The parties can in writing waive the service of the Notice of Dispute and, instead call for the appointment of an arbitrator by the Law Society President in accordance with paragraph 1 of Rule 3. RULE 3 Call for Appointment

3.1.

If a Notice of Dispute has been given under an Agreement or under Rule 2, and the dispute has not been settled, any party can in writing request the Law Society President, to appoint an arbitrator. The request is to be made with: a. a copy of the Notice of Dispute; or in the event that the parties have waived service of the Notice of Dispute, a copy of the waiver; b. a copy of the Agreement containing the submission to arbitration; c. d.

3.2

3.3

3.1. 3.2 3.3

5.1.

5.2

5.3

the names and addresses of the parties to the dispute; and a brief description of the nature of the dispute with enough particulars of the dispute to allow the Law Society President to appoint an appropriate arbitrator. The Law Society President is to appoint an Arbitrator within ten (10) days of receipt of the request, together with its associated material. This time limit may be extended if the supplied material does not, in the opinion of the Law Society President give enough information about the dispute. If the request does not indicate that more than one (1) arbitrator is required, the Law Society President is to appoint one (1) arbitrator only. RULE 4 Appointment Fee The parties shall deposit with the Law Society the prescribed Appointment Fee (to be shared equally between the parties). The Appointment Fee shall be such sum as is prescribed by the Law Society at the relevant time and from time to time. There can be no appointment of an arbitrator until the Appointment Fee has been paid to the Law Society. RULE 5 Entry on Reference to Arbitration In Rules 5 to 15 “Arbitrator” means either an arbitrator appointed by the Law Society President or an arbitrator appointed by agreement of the parties. The Arbitrator must, within seven (7) days of receiving written advice of his or her appointment give written notice to the parties of the time and place of a Preliminary Conference which the parties or their duly authorized representatives must attend. At or prior to that Preliminary Conference, the Arbitrator must advise any conditions which he or she wishes to include in the Arbitration Agreement, (as defined in Rule 16), (including provision of security for the costs of the arbitration) and that Arbitration Agreement is to be signed by the Parties at the Preliminary Conference. 721

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5.4

When the parties sign the Arbitration Agreement, the Arbitrator must sign it, and the Arbitration commences at that time.

5.5

If any party fails to attend any Preliminary Conference or does not agree with the conditions proposed by the Arbitrator or the jurisdiction of the Arbitrator, and does not sign the Arbitration Agreement, the Arbitrator must notify the parties and the Law Society in writing within two (2) days whether he or she accepts appointment notwithstanding that disagreement. On such acceptance the Arbitration commences.

5.6

When the Arbitration has commenced, the Arbitrator must fix a time, date, place and timetable agreeable to the parties, but if the parties do not agree, the Arbitrator may give directions setting these, which then bind the parties.

5.7

If the parties do not agree on the terms of reference of the Arbitration, the Arbitrator may make a binding determination on that. RULE 6 Appointed Arbitrator Failing to Act/Loss of Arbitrator The Law Society President shall appoint a replacement arbitrator, within a reasonable time of:

6.1.

receiving written notice from the Arbitrator that he or she does not accept the appointment;

6.2

being called on by a party if the Arbitrator does not commence the Arbitration within one (1) month of his or her appointment; or

6.3

being advised of the death of an Arbitrator, or an Arbitrator otherwise having become incapable of continuing the Arbitration because of legal incapacity, ill health or other actual incapacity. RULE 7 Liability of Law Society for acts or omissions The parties acknowledge by signing the Arbitration Agreement that the Law Society, its officers and employees are not liable to any party for or in respect of any act or omission in the discharge or purported discharge of the Law Society‟s functions under these Rules unless such act or omission is fraudulent. RULE 8 Provision of Security The Arbitrator may direct that the parties provide security for the costs of the Arbitration. Any such security is to be deposited from time to time and applied as directed by the Arbitrator. If there is any default in giving the security, the Arbitrator may make such directions for the further conduct of the Arbitration as the Arbitrator then considers appropriate. PART II THE ARBITRAL PROCEDURE RULE 9 Preliminaries not to Prejudice Scope of Arbitration Unless otherwise agreed in writing by the parties:

9.1.

722

The description of the dispute given in the Notice of Dispute under Rule 2 or in accordance with Rule 3 does not define or limit the scope of the Arbitration.

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9.2

Any party may raise in its claim, defence, cross claim or defence to cross claim, any other dispute or difference which has arisen under the Agreement.

9.3

Unless limited by the Agreement, any amendment or addition to claims is at the discretion of the Arbitrator, and can be subject to any conditions as to costs or otherwise as the Arbitrator considers appropriate. RULE 10 General Duty of Arbitrator

10.1.

The Arbitrator must adopt procedures suitable to the circumstances of the dispute, avoiding unnecessary delay and expense, to provide an expeditious cost-effective and fair means of determining all of the matters in dispute.

10.2

The Arbitrator must be independent of, and act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting its case and dealing with the case of any opposing party, as well as reasonable opportunity to be heard on the procedure adopted by the Arbitrator. RULE 11 General Duty of Parties

11.1.

The parties must do all things reasonably necessary for the proper, speedy and cost-effective conduct of the Arbitration, and must promptly comply with all directions or rulings by the Arbitrator whether about procedural or evidentiary matters or otherwise.

11.2

The parties are to keep all aspects of the Arbitration and all information and knowledge disclosed in it absolutely confidential, but this obligation does not prevent: a.

the parties from giving evidence in any Court whether in proceedings about the Arbitration, the Dispute or otherwise; or

b.

the parties disclosing to their legal and other advisors or their insurers, so long as the disclosing party binds the advisor or insurer to the same obligation of absolute confidentiality.

RULE 12 Waiver of Right to Object 12.1.

If a party takes part, or continues to take part, in the Arbitration without immediately or within a reasonable time thereafter, taking any objection: a.

that the Arbitrator lacks jurisdiction;

b.

that the Arbitration has been improperly conducted;

c.

that there has been a failure to comply with the Agreement; or

d.

that there has been any other irregularity affecting the Arbitrator or the Arbitration,

then that party is deemed to have waived its right to make the objection later, whether before the Arbitrator or a Court, unless it shows that, at the time it took part or continued to take part in the proceedings, it did not know and could not with reasonable diligence have discovered, the grounds for the objection. 723

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12.2

If the Arbitrator rules that he or she has jurisdiction and a party does not question that ruling in a Court within the time fixed by the Arbitrator (or if no time is fixed, within a reasonable time and not later than the conclusion of the Preliminary Conference), then that party is deemed to have waived any right it may otherwise have had to later object to the Arbitrator‟s jurisdiction on any ground which was the subject of that ruling, and is deemed to have submitted to the Arbitrator‟s jurisdiction. RULE 13 Procedural Directions

13.1.

The Arbitrator can make such directions or rulings about procedural and evidentiary matters as he or she sees fit, but within the limits set by Rule 10.

13.2

The Rules in Schedule 1 govern the Arbitration, unless the parties agree that it is to be expedited, and in that case the Rules in Schedule 2 apply. RULE 14 Views and Other Material

14.1.

If the Arbitrator reasonably believes that a view of the subject matter or site of any dispute might assist the Arbitrator in determining the dispute, then he or she may do so. The Arbitrator can use his or her own observation not merely to assist in understanding the evidence but also as evidence for deciding the dispute however the Arbitrator must first notify the parties of any preliminary adverse conclusion which is based solely on the Arbitrator‟s observations at the view and then must give the parties a reasonable opportunity to meet it.

14.2

The Arbitrator can obtain such technical and/or legal assistance or advice as the Arbitrator, in his or her discretion reasonably requires provided that, in so doing, the Arbitrator complies with the rules of natural justice. The cost of that assistance is part of the costs of the Arbitration. RULE 15 Awards

15.1.

The Arbitrator can within a reasonable time deliver one or more Interim Awards and then a Preliminary Final Award to deal with all issues in dispute, except for the costs of the Arbitration.

15.2

The Preliminary Final Award is binding on the parties. The parties have no right of appeal other than that provided in the Commercial Arbitration Act 2010.

15.3

If the security for costs is less than the amount which the Arbitrator determines as the costs of the Arbitration then the Arbitrator may withhold the Preliminary Final Award until the outstanding balance is paid.

15.4

After the Preliminary Final Award the Arbitrator can direct the parties to give evidence and make submissions about the costs of the Arbitration and the Arbitrator must then within a reasonable time deliver the Final Award, dealing with all issues in dispute and dealing with the costs of the Arbitration.

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| APP B

The Awards must be made in writing and signed by the Arbitrator in at least as many hard copies as there are parties, and those hard copies forwarded by mail to the parties or collected from the Arbitrator as he or she directs. PART III GENERAL RULE 16 Definitions In these Rules: ‘Law Society’ means The Law Society of New South Wales. ‘Agreement’ means any agreement between the parties embodying a submission of present or future disputes to arbitration. ‘Arbitration Agreement means the written agreement proposed by the Arbitrator to bind the parties to these Rules, and acknowledge the Arbitrators jurisdiction to determine the dispute. ‘the costs of the arbitration’ includes the costs of the Arbitrator, any Appointment Fee or other fee payable to the Law Society, the room hire, transcript, and the costs and disbursements of the parties. ‘Commercial Arbitration Act 2010’ includes any other legislation which precedes, amends or replaces that Act. ‘court’ means any Court which has jurisdiction under the Commercial Arbitration Act 2010. ‘days’ means normal working days and excludes Saturdays, Sundays and public holidays. ‘dispute’ includes, but is not limited to, a claim made by the purchaser under Clause 7 of the Contract for Sale of Law in NSW. ‘written’ or ‘writing’ includes any thing sent by facsimile transmission or by electronic mail irrespective of whether or not such thing is in fact received or, if received, printed at or by the address to which that thing is sent provided that the sender has both printed out a copy of the thing sent and can verify that the address used was an address specified for the electronic reception of information. RULE 17 Application of Rules These Rules are subject to the Commercial Arbitration Act 2010 and to any agreement between the parties about the Arbitration. Otherwise where the parties to a dispute have agreed to arbitration in accordance with these Rules, they must comply with these Rules. RULE 18 Counting of Days

18.1. For the purpose of counting days under these Rules, the first day is the day following the day when notice is first actually received or deemed to be received under paragraph 2 of this Rule, whichever is earlier. If the last day is a non-business day at the residence or place of business of the addressee, then the period is extended until the first business day which follows.

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18.2

Any notice, which is posted, is deemed to have been received on the second day following the day of posting. Any notice, which is sent by electronic transmission is deemed to have been received on the day of transmission. RULE 19 Multiple Arbitrators – Appointment of Umpire

19.1.

Where there is more than one Arbitrator then, where the context requires it, “Arbitrator” means Arbitrators and, also subject to Rule 20, means any umpire who is appointed.

19.2

Where there is an even number of Arbitrators, those Arbitrators must appoint an umpire if the Arbitrators fail to agree on any matter for determination.

19.3

If the Arbitrators are unable to agree on the umpire within seven (7) days of their disagreement, then they must notify the parties in writing, and any party may then make a written request to the Law Society President to appoint an umpire. The Law Society President must within ten (10) days thereafter appoint an umpire and advise the parties, the Arbitrators and the nominated umpire accordingly. RULE 20 Determination by an Umpire

20.1.

When the umpire is appointed, he or she must, within two (2) days, notify the parties and the Law Society of his or her acceptance of the appointment and the Arbitrators must within seven (7) days of notification of the umpire‟s appointment provide the umpire with a written statement of the points of agreement and points of disagreement, but without reasons, together with all other written material relevant to the Arbitration including exhibits and items marked for identification but excluding private notes of the Arbitrators.

20.2

The umpire must then proceed to deliver an award as soon as is reasonable and, in so doing, must take into account the evidence before the Arbitrators but is not bound by any of the points of agreement expressed by the Arbitrators, and no further evidence is to be led before the umpire unless the umpire considers it appropriate. RULE 21 Termination of the Arbitration The arbitration is terminated after the handing down of the Final Award by the Arbitrator, or the Umpire, or by the execution of a settlement agreement between the parties before the handing down of the Final Award. RULE 22 Mediation and Arbitration

22.1.

If the parties select a dispute resolution process in which arbitration is preceded by mediation, the mediator cannot act as the arbitrator, except as provided for under section 27D of the Commercial Arbitration Act 2010.

22.2

If during the Arbitration, the Arbitrator and the parties believe that some direct negotiation, or some assisted negotiation or mediation would assist resolution of the dispute, then the Arbitration is to be adjourned for that

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22.3

| APP B

process to occur. Unless otherwise agreed by the parties, this process must take place within twenty-one (21) days of the adjournment and conclude within twenty-eight (28) days. If during the Arbitration, the Arbitrator and the parties believe that some direct negotiation, or some assisted negotiation or mediation would assist resolution of the dispute, then the Arbitration is to be adjourned for that process to occur. Unless otherwise agreed by the parties, this process must take place within twenty-one (21) days of the adjournment and conclude within twenty-eight (28) days.

SCHEDULE 1 The Arbitrator can make any directions or rulings as he or she considers to be reasonable and may include the following: 1.

the form and extent of any submissions or documents defining the issues in dispute;

2.

the preparation of any joint statement of issues, to define and narrow the issues in dispute; the holding of further Preliminary Conferences, meetings between experts and/or representatives of the parties, or Experts‟ Conclaves chaired by the Arbitrator, to narrow issues in dispute, including the manner in which they are conducted and who is to attend, and preparation of a document recording the results; the preparation of joint reports by experts engaged by the parties recording the matters on which they agree, the matters on which they disagree, and identifying the reasons for disagreement and their respective contentions about that; the preparation of joint bundles of documents including at any meetings between experts and/or representatives of the parties and any Experts‟ Conclaves; the provision of factual information to experts engaged by the parties for use in their joint deliberations or preparation of any joint report;

3.

4.

5.

6. 7. 8.

the production of documents for inspection by any opposing party; the form of any evidence in chief, by witness statement or otherwise, and when it is to be provided to the Arbitrator and any other party;

9.

the extent of or limitations on oral hearings, including reasonable time limits on oral evidence and the provision of written opening addresses and final submissions; and/or, the service of offers of settlement without prejudice except as to costs.

10.

SCHEDULE 2 THE LAW SOCIETY EXPEDITED COMMERCIAL ARBITRATION RULES The arbitration is to be conducted in accordance with the following Rules. 1.

The claimant must, within twenty one (21) days of the date on which the Arbitration commences provide the following to each other party and to the Arbitrator: 727

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2.

a.

a written outline describing the dispute, the legal and factual issues involved, its contentions in relation to those issues, and the amount of its claim;

b.

all statements of evidence and copies of all documents on which it relies;

c.

any expert reports on which it relies; and,

d.

its written submissions on the legal and factual issues involved in its claim.

After that each other party must within a further period of twenty one (21) days, provide the following to each other party and to the Arbitrator: a. a written initial submission indicating whether or not it agrees with the claimant‟s outline of the dispute, and if not, its statement of the nature of the dispute (including any cross claim), the legal and factual issues involved in the claimant‟s claim and any such cross claim, its contentions in relation to those issues, and the amount of any such cross claim; b. all statements of evidence and copies of all documents on which it relies; c. any expert reports on which it relies; and, d.

3.

any objections which it has to the statements of evidence, experts reports, and documents served by the claimant, detailing the basis of any such objection; and, e. its written submissions on the legal and factual issues involved in the claimant‟s claim and any cross claim brought by it. After that any party can reply to written material served within a further period of twenty one (21) days, by providing the following to each other party and to the Arbitrator: a. a written reply indicating whether or not it agrees with the initial submission and, if not, its reply as to the nature of the dispute, the issues likely to arise and its contentions in relation to same; b. c. d.

4.

5.

728

all statements of evidence and copies of documents in reply to material served under paragraph 2b; any expert reports in reply;

any objections which it has to the statements of evidence, experts reports, and documents detailing the basis of any such objection; and, e. its written submissions in reply on the legal and factual issues involved. If a cross claim is made then each other party can reply, in the same manner as set out in paragraph 3, to written material served in respect of such cross claim. The Arbitrator can direct that expert reports not be served and that, instead, the experts retained by the parties are to be each provided with all of the relevant material and then jointly confer and produce a joint

Appendix B Dispute Resolution Kit and Private Arbitration Kit

| APP B

report or reports (all by a time fixed by the Arbitrator) recording the matters on which they agree, the matters on which they disagree, and identifying the reasons for disagreement and their respective contentions about that. 6.

7.

8.

9.

10.

The Arbitrator can direct that the experts retained by the parties attend one or more Experts‟ Conclaves chaired by the Arbitrator, to narrow issues in dispute, the Conclaves are to be held at a time and are to be conducted and recorded as directed by the Arbitrator. The Arbitrator can make any other directions or rulings as he or she considers to be reasonable, which may include directions like paragraphs 1, 2, 3, 5, 6, 7 and 10 of Schedule 1. After that the Arbitrator must determine the matter based on the written material unless the Arbitrator decides that an oral hearing is necessary to explain or resolve conflicts in the written material. If the Arbitrator decides that an oral hearing be held about any of the issues in dispute, then that hearing is to be conducted as soon as possible at a time and as directed by the Arbitrator, including any reasonable time limits on oral evidence and the provision of written opening addresses and final submissions. Any times fixed by this schedule can be varied by agreement of the parties. If there is no agreement, on proper cause being shown by a party, the Arbitrator can vary the times fixed but on such terms as to costs or otherwise as the Arbitrator considers reasonable.

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THE LAW SOCIETY ARBITRATION AGREEMENT 1.

2.

3.

4.

This Arbitration Agreement is made between [set out the names and addresses of the parties] : A. .................................................. B. .................................................. C. .................................................. Differences have arisen between the parties as to [set out a brief description] : parties] : a) .................................................. b) .................................................. (“the Dispute”) 3. The parties are unable to resolve the Dispute by agreement and have agreed to refer the dispute to arbitration in accordance with the Commercial Arbitration Act 2010 as presently amended (“the Act”). 4. The parties accept the appointment of .................................................. as Arbitrator to determin the dispute.

5. (a)

6.

The parties now pay the sum of $ .................................................. each to the Arbitrator on account of and by way of security for the estimated costs of the Arbitration. If, as the Arbitration progresses, it appears to the Arbitrator that this amount is not enough to cover all of the costs of the Arbitration, the parties will each within fourteen (14) days pay such further amount as the Arbitrator in writing requests. (b) The Arbitrator‟s fees at the hourly rate of $ .................................................. per hour, whether engaged in preliminary aspects with the parties, in actual hearing time, in perusing documents, in considering written submission (if the parties elect to make them) or writing the Award and delivering it. It is agreed by the parties amongst themselves and with the Arbitrator that: a)

the Arbitrator is to determine the Dispute;

b)

any Award made by the Arbitrator is, subject to the Act, final and binding on the parties;

c)

the parties are to do all things which the Arbitrator asks to allow a just Award to be made;

d)

no party may do anything to delay or prevent an Award being made;

e)

730

(i)

the parties are to appear before the Arbitrator personally or by appropriately authorised representative, [or]

(ii)

the parties are to be represented by a legal practitioner. [delete as appropriate]

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| APP B

f)

the Arbitrator is not bound by the rules of evidence but may inform himself/herself in relation to any matter in such manner as the Arbitrator thinks fit;

g)

the Arbitrator is to make the Award in writing and deliver a signed copy to each of the parties; the Arbitrator is able to make an Interim Award or determine part of the dispute as the Arbitrator thinks fit; the costs of the parties of preparing for and appearing in the Arbitration and the costs of the Arbitrator are to be at the discretion of the Arbitrator; the Arbitrator may draw the costs of the Arbitration from the amount held as security, equally from the parties, and must appropriately account to the parties; when the Arbitrator makes an order for costs in the Award, the parties indemnify each other against any payment made in excess of their obligations as determined by the Arbitrator; the authority given the Arbitrator by this Agreement is irrevocable; this Agreement is governed by the laws of New South Wales and the .................................................. Court has jurisdiction under the Commercial Arbitration Act 2010 and a reference in the Act to “the Court” is a reference to that Court.

h) i) j)

k)

l) m)

DATED this .................................................. day of .................................................. 20 Signed by: .................................................. Signed by: .................................................. Signed by: .................................................. Signed by the Arbitrator: ..................................................

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Appendix C Framework for screening, assessment and referrals Glossary .................................................................................................................................... 733 The Family Law DOORS: Introduction .............................................................................. 736 Using the DOORS ................................................................................................................... 751 4. Risk domains ....................................................................................................................... 753

(Readers should also refer to Chapter 3 of this book for further discussion of this Framework.) The The Family Law DOORS Handbook (Australian Government, AttorneyGeneral’s Deparment, Canberra, 2012) was developed for the Attorney-General’s Department by Jennifer E McIntosh and Claire Ralfs. Acknowledgments [© Commonwealth of Australia, July 2012 and Family Transitions Pty Ltd. The Creative Commons licence applies to this copyright, seehttp:// creativecommons.org/licenses/by-nd/3.0/au/legalcode.] The first 17 pages of this Handbook are reproduced with the kind permission of the Commonwealth Attorney-General’s Department.

GLOSSARY CHILD ABUSE (working definition): Any non-accidental behaviour that constitutes a risk to the child of emotional or physical harm. There are five main areas of abusive behaviours recognised within Australia. These include sexual, emotional and physical abuse, neglect, and the witnessing of family violence. The aetiology and recognition of child abuse are complex matters, which are well covered by the National Child Protection Clearinghouse. See http://www.aifs.gov.au/nch/pubs/sheets/ rs6/rs6.html for a comprehensive explanation. CHILD ABUSE (legal definition): Abuse, in relation to a child, means: (a)

an assault, including a sexual assault, of the child; or

(b)

a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

(c)

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(d)

serious neglect of the child.

A COMMON SCREENING OF RISK FRAMEWORK: As used within DOORS, this term refers to a practical, empirically-grounded set of resources to support a universal early risk appraisal process. The framework functions to 1) provide a rationale for screening to both practitioners and clients; 2) offer a standardised method for screening; 3) guide further enquiry and response when significant markers of risk are evident from the initial screen, or otherwise identified by the practitioner. Supporting materials include literature summaries, tools for follow-up, and suggested referral options and strategies. The framework supports decision making about appropriate responses to the risks detected, and provides links to comprehensive assessment and referral options. As such, the framework can be applied by all practitioners in the family law system to assist them with early detection and evaluation of safety and wellbeing concerns and other matters of urgency. Through its generic language, the DOORS framework seeks to open communication channels and support coordinated action across the family law system. FAMILY VIOLENCE (working definition): violence in divorced/separated families is a complex phenomenon with no single agreed definition (Australian Bureau of Statistics, 2009, p. 1). Different definitions reflect various understandings of types of relationships, living arrangements and the nature of offences. Consequently, interpretations of family violence events can vary according to the jurisdictional (legal, policy, service, research) context. The Family Law Act 1975 (Section 4) defines family violence as: …threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

The DOORS adopts this working definition of violent acts or threatening experiences that occur between immediate family (former partners and children) and extended family members (families of origin, new partners). These include physically, sexually, emotionally abusive and neglectful behaviours, as well as threatening behaviours. Other definitions relevant to this framework include those for domestic violence and intimate partner violence. FAMILY VIOLENCE (legal definition): The Family Law Act 1975 s 4AB 1.

2.

734

For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. an assault, including a sexual assault, of the child; or (a) an assault, or (b) a sexual assault or other sexually abusive behaviour; or (c) stalking; or (d) repeated derogatory taunts; or

Framework for screening, assessment and referrals

(e)

intentionally damaging or destroying property; or

(f)

intentionally causing death or injury to an animal; or

(g)

unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h)

unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i)

preventing the family member from making or keeping connections with his or her family, friends or culture; or unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

(j) 3.

4.

| APP C

For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child: (a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or (b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or (c)

(d)

(e)

comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

LEARNING GUIDE: This provides materials that support practitioners to develop a thorough understanding of the evidence that grounds the Family Law DOORS and to enable proficiency in the use of the associated tools and procedures. These resources take the form of a structured learning guide which provides guidance in the effective implementation of The Family Law DOORS. PRACTITIONER: This refers to all practitioners working within the family law system. Practitioners include: court staff, family law lawyers, legal services staff, family dispute resolution practitioners, family relationships centre staff, child contact service staff, parenting orders program staff and private practitioners. RISK: This includes risks to the immediate physical safety, psychological wellbeing, or developmental wellbeing of the children or adults involved in a family law dispute. It includes imminent risks to the safety of others associated 735

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with the family (e.g. new partners, friends, extended family). Risk is built through overlapping and mutually reinforcing factors, including individual characteristics, situational variables, and historic factors that combine to increase the likelihood of adverse safety and wellbeing outcomes. As used in the DOORS, risk is an outcome of a constellation of long- term and short-term factors that act together, can change over time, and vary from family to family. In the context of point-of-entry screening, the DOORS will assist practitioners to identify and evaluate risk factors. RISK ASSESSMENT: This involves professional judgement about the form, potency and likelihood that the risks identified may translate into further harm. Risk assessment is the basis for planning treatment pathways and responses. DOOR 3 provides specialist resources and references that will support practitioners to assess and respond to identified risks. RISK IDENTIFICATION: Within this framework risk identification refers to a coordinated, semi- structured and evidence-based approach to early assessment of client safety and wellbeing, including standardised tools and supporting materials for primary and secondary enquiry and response planning. SAFETY SCREENING: This is the first level of risk assessment. Safety, in the context of universal early detection screening, refers to the physical safety of adults and children, as well as significant risks to their psychological wellbeing. Screening is usually brief and conducted through standardised questions, usually beginning with client self-report, either self- completed or administered by the practitioner. SAFETY SCREENING TOOL: This refers to a systematic set of questions for clients, surveying major risk factors leading to safety and wellbeing problems across multiple domains of family life, post-separation. In the DOORS framework, this is represented by DOOR 1 and functions to alert practitioners to potential risk areas. DOOR 2 then follows, supporting professional follow-up and decision making processes. SOFTWARE PROGRAM: In the DOORS framework, software program refers to the tailored DOORS software package that analyses input from the standardised screening process (DOOR 1) and provides a PDF report (DOOR 2) which flags the evident risks, provides prompts to guide follow-up and decision making about appropriate risk response. This report can be saved by the practitioner or organisation on their secure database system.

THE FAMILY LAW DOORS: INTRODUCTION What is the DOORS? The Family Law ‘Detection Of Overall Risk Screen’ (known as the DOORS 1) is a three-part framework that assists separating parents and family law 1

736

The Commonwealth Attorney General’s Department contracted The Australian Institute of Social Relations (AISR; the training division of Relationships Australia (SA)) with Family Transitions

Framework for screening, assessment and referrals

| APP C

professionals to detect and respond to wellbeing and safety risks that family members may be experiencing after separation (see Using the DOORS: Practitioner forms, pp 23-46). DOORS was designed for families in which former intimate partners have or seek an ongoing parenting role with their children. A separate version also exists for clients of the family law system who are not parents (see Using the DOORS: Practitioner forms, pp. 23-46). The DOORS philosophy is based on the following axioms: • Risk is not a static factor; it is multi-determined and changes over time. • Risk assessment therefore needs to occur across many areas and over time. • Best practice in risk identification involves three steps, with emphasis on each step varying according to the needs of the case: 1. Universal self-report screening 2. Tailored professional follow-up, evaluation and response planning 3. Implementation and monitoring • These are universal elements of risk screening, regardless of the setting. There are three DOORS within this framework, each outlined below. Each DOOR within the framework enables a different level of exploration of individual and family functioning after separation, with a focus on identifying risks to safety, parents’ wellbeing and children’s wellbeing and development. DOOR 1 Parent Self-Report Form Entry into the framework is through DOOR 1, a standardised parent self-report questionnaire, covering ten domains of risk. Depending on the needs of the case, the practitioner can choose to screen for all domains of risk, or only some. The domains are: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Client’s culture and religious background About the separation Managing conflict with the other parent How the client is coping How the other parent seems to be coping About the client’s baby/young child(ren) and school-aged child(ren) Managing as a parent Child(ren)’s safety Parent’s safety and safety behaviour Other stresses

There are two formats for completing DOOR 1: computer-assisted, or via pen and paper. Either can be done by the client alone, given effective prior explanation and sufficient personal engagement. Alternatively, DOOR 1 screening (Melbourne) to develop a standardised front line screening tool, to better enable identification of safety and wellbeing risks for clients across the family law system. It is empirically based and has been reviewed and refined by researchers and senior practitioners across Australia and internationally. 737

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and DOOR 2 follow-up can be done simultaneously via a personal interview. This takes longer but may be indicated in complex matters involving acute and immediate risk or trauma. Using DOOR 1 and DOOR 2 simultaneously is also an effective way of conducting a comprehensive screening process with clients with limited literacy and/or English proficiency. DOOR 2 Practitioner Aide Memoire DOOR 2 takes the responses to DOOR 1, identifies areas of risk endorsed by the client that require further enquiry, and provides prompts to help the practitioner to establish an effective follow-up conversation with the client. Tools are provided to support effective listening, decision making, action planning, risk management and referral. DOORS 1 and 2 are designed to be used together in all cases. DOOR 3 Resources for Responding to Risks This section provides a wealth of support for understanding case aetiology and for detailed evaluation of all domains covered in DOOR 1. Resources here include current demographic profiles of risk, comprehensive literature summaries, specialist follow-up tools and links to other risk assessment frameworks. DOOR 3 can be used flexibly to educate practitioners and keep their knowledge up to date; it can act as a basis for risk assessment training, and can help practitioners to tailor their risk management resources and keep referral networks current.

What is the purpose of the DOORS? The DOORS framework supports a cross-disciplinary understanding in the family law system of factors that combine to create a climate of elevated risk for families. As a common screening framework that can be used across multiple services in the family law arena, the DOORS will help professionals to detect and respond to safety and wellbeing risks at the client’s point of entry into their services. In contrast to specific domestic violence screens, the DOORS takes a broad definition of risk, covering adult, infant and child wellbeing, conflict and communication, parenting stress, and collateral stressors, encouraging the practitioner to evaluate the contribution of all these factors to imminent personal and interpersonal safety risks. The framework facilitates the identification of risk factors and provides pathways towards an effective, coordinated response.

How is the DOORS different from other risk screening frameworks? We note that other family violence risk identification and management frameworks have been developed. 2 With the exception of Winkworth and McArthur’s screening and assessment tool (2008), no other family law-specific screens have been developed to date in Australia. In contrast to family violence-focused screens, the DOORS offers the practitioner a means to conduct 2

738

The main frameworks are summarised in DOOR 3, ‘Elaboration on other Risk Screening Frameworks’, and a distinction made between family law frameworks and those specific to risks associated with family and domestic violence. We encourage practitioners to review these.

Framework for screening, assessment and referrals

| APP C

a comprehensive, whole-of-family screening process that covers adult and child, relationships, parenting and systemic factors that pose a risk to safety and wellbeing. The DOORS provides: • a means for effectively engaging parents in a standardised screening process. • a structured, empirically-based self-completing screen for parents that can be used across the family law sector. • screening for a matrix of historical and recent risk factors that combine to create significant safety risks for children and for former intimate partners, including: – the contribution of parenting stress, mental health and drug and alcohol problems to risk profiles – specific needs arising from the cultural and religious background of family members – developmental risk factors for infants and children – ancillary stressors that may require attention • prompts to guide professionals’ conversations with parents about their unique risk profile, and to evaluate the information provided by the parent. • guidelines for follow-up, safety planning, appropriate referrals and ethical information sharing. The DOORS can be used in isolation or in conjunction with other frameworks, such as the Common Risk Assessment Framework (CRAF; Family Violence Coordination Unit, 2007) or The Western Australian Family and Domestic Violence Common Risk Assessment and Risk Management Framework (Department for Child Protection, 2011).

Risk — What do we mean by it? Within the DOORS framework, risk is broadly defined as physical or psychological harm to self and/ or other family members, and in the case of children, developmental harm. The DOORS framework is built on the idea that risk is multiply determined, and includes personal characteristics, historical and situational variables, and systemic hazards that increase the likelihood of adverse safety outcomes. Risk needs to be viewed from many perspectives , including the nature, timing and magnitude of the risk, the roles played by victims and perpetrators and the confidence or accuracy with which risk outcomes can be predicted. When considering the screening for risk in family law, attention understandably focuses on the ‘big five’ safety risks: familicide, suicide, family violence, child abuse or neglect, and child abduction. The jeopardy of personal safety is the central issue, namely the likelihood that a client — or someone connected to the client or their case — may currently be or may become endangered. As many have documented, safety risks are rarely isolated and do not arise out of nothing. The DOORS framework works on the principle that 739

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major harm can be averted by noticing small but connected risks in the overall patterns of family and individual stress. Risks to life, safety and wellbeing emerge out of a wide spectra of factors, some recent, and others historical (see Table 1, p. 5). Each factor can be understood as part of a continuum, and each, in turn, may exert a protective or amplifying influence in the presence of other related factors. The following group of significant factors has informed the development of the DOORS framework.

Domino effects of risk in family law cases 1.

The psychology of the individual parent: How the current separation might affect the individual, given, for example, their mental health history and current state; any history of violence/impulse control problems; drug and alcohol use; history of safety in childhood; parenting qualities (specifically availability); attunement and warmth; regard for/attributions to the other parent; ancillary stressors such as employment, finances, housing; the personal meanings of culture and religion.

2.

The ex-couple relationship: A couple’s history of communication, cooperation, decision making and power balance; circumstances of the separation, including who initiated the separation and involvement of new partners; conflict tactics and the use of violence; family and friends’ roles in resolution or perpetuation of conflict.

3.

The history and nature of the current dispute(s): The perceived and actual complexity of the issues in dispute; history of decision making to date; sensitivities to notions of winning, losing or entitlement; the parents’ perceptions of fairness and equity in time and property divisions; systemic interventions in resolution or perpetuation of dispute.

4.

The development of the infant/child: The physical health and developmental wellbeing of the child to date; their emotional security with each parent; temperament, cognitive development and learning attainment; sibling relationships; friendships and social functioning; availability of family and social resources.

5.

The role of social, cultural and professional support: The nature of engagement with supports and services, their appropriateness, effectiveness, timeliness; connection versus isolation; support of family and friends; containing or inflaming social and professional responses. Lack of sensitivity to culturally-specific perspectives is a significant threat to safety

All the above individual and interpersonal factors sit within a framework of social and cultural influence. The following diagram places these factors within a pathway of risk, illustrating how the same historical and recent factors can align in various ways to create normative, risky or lethal outcomes, depending on the direction and combined effect of their influence. 740

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Table 1: Pathways of Risk

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Screening and risk assessment: Definitions and rationale In the DOORS framework, screening of safety refers to the early identification of potential risks to the physical safety of adults, children and infants, as well as significant risks to their psychological wellbeing. Screening and assessment are terms used for the connected and overlapping phases of a risk evaluation process. Screening in the DOORS framework refers to the first, universal level of this process, including a structured client self-report (DOOR 1) and practitioner evaluation (DOOR 2). Assessment is a phase of further, in-depth enquiry into safety and wellbeing risks (DOOR 3). All clients need to be screened for safety and wellbeing risks, but not all clients require further assessment. For the effective early identification of risk the literature strongly supports a tiered approach to screening, which begins with structured, routine questions that are asked of all clients. Holtzworth- Munroe et al. (2010) have shown the importance of those questions being reasonably detailed, then followed up by a tailored conversation with a practitioner. In that follow-up, the practitioner briefly explores and evaluates risks identified by the client on the universal screen, and any other risks apparent to the practitioner, from carefully attending to the client’s account. The need for any further action is assessed. Again, in the DOORS framework, DOOR 1 is the structured client self- report component; DOOR 2 is the first evaluation of risk by the practitioner, determining whether a more comprehensive assessment needs to be conducted; DOOR 3 provides literature and tools to support comprehensive assessment where needed. Why screen? Without doubt, separation and divorce are critical events that increase the risk of mental health problems, drug and alcohol abuse, parenting distress, harassment and threats from former intimate partners and their families/new partners, possibly leading to physical violence, abduction of children, intimate partner homicide, suicide or familicide. The DOORS framework was built upon a comprehensive literature search which documented the pathways of risk development in each of these areas (see later in this section and literature summaries in DOOR 3: The Risk Domains in Detail pp.105-145). The research team was sobered by the weight of evidence from the reliable literature that highlighted the noxious, concomitant risks to the wellbeing of every family member post-separation. This evidence takes the need for early screening and intervention beyond platitudes or political correctness, to acknowledgement that this is an essential process for protecting the safety and wellbeing of all who enter the family law system. Separation and divorce are processes designed in their healthiest form to liberate and reduce the daily stress of dysfunctional relationships. While this remains an arrival point for many, the process for most nonetheless brings with it many layers of stress. For some adults, separation-related stress is compounded 742

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by diminished coping resources and a history of other risk factors to create unmanageable distress, and with that comes the real possibility that a family member may be unsafe, or may act unsafely. The DOORS screening and risk identification processes are based on the belief that there are points in a family’s separation journey where the translation of stress into an assault on safety or wellbeing may be preventable. Early identification, triage to counselling support, together with sensitive legal processes, can combine in the right time and place to protect safety and can ultimately lead to healthier management of difficult times. Early screening will never predict 100% of serious risks to safety or wellbeing. It will, however, assist the practitioner to recognise patterns of behaviour associated with serious risk, to plan accommodations to the dispute resolution process, and to provide other follow-up or referral services as needed. The DOORS system endorses the responsibility shared by the whole family law system to minimise the negative impact of family separation and, where possible, identify disrupting risk pathways. A snapshot of current practices and attitudes to screening The attitudes practitioners currently hold about a field of practice are a reasonable indication of how they are likely to react to developments or changes in that field. For this reason our first step in developing a risk screening framework was to consult with the family law sector, to better understand perceptions of, ideas about and practices of risk screening and to survey for concerns or tensions about the introduction of a standardised framework. The Attitudes Survey, a 42-item voluntary and anonymous survey, was created and hosted by Relationships Australia (SA) (RASA) on their Australian Institute of Social Relations website. The survey addressed participant demographics (years of experience, gender, age group, profession, workplace and highest qualification), and attitudes and practices in relation to risk screening. Participants were invited to respond via an e-mail letter circulated through their affiliated professional bodies. A total of 366 professionals responded to the survey. Respondents were grouped as follows: • Legal profession (n = 95; including lawyer, paralegal and judge) • Therapist (n = 40; including psychologist, family therapist) • Social worker (n = 102) • Mediator (n = 32; including family dispute resolution practitioner) • Other direct service professional (n = 49; including welfare worker, aboriginal liaison worker, case manager, counsellor and those who simply listed an undergraduate social science degree) • ‘Other’ (n = 17; including administration workers, conference organisers, nurses, etc.) 743

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More professionals working in family dispute resolution and family relationship centres (36%) completed the survey than any other group. Legal (19%) and family services (17%) were the next most common workplaces. Summary of themes 1. Overall, 84% of practitioners did not believe that screening would interfere with or compromise their work (100% for family dispute resolution practitioners), and to a slightly lesser extent, did not believe their clients would resent the process (65% lawyers to 80% therapists). 2.

Very few thought that asking about safety would make the practitioner uncomfortable (0% therapists, to 6% family dispute resolution practitioners).

3.

Therapists were most likely to report risk screening as an area of expertise for them.

4.

Most respondents (76% to 91%) agreed they were satisfied with their ability to assess past history of risk. They were less confident regarding their ability to assess likely risks to safety in the future.

5.

Over half of all surveyed were not confident about weighing up factors that might elevate risk for clients of Aboriginal or Torres Strait Islander (ATSI) backgrounds, or those from culturally and linguistically diverse (CALD) backgrounds.

6.

Most respondents regarded safety screening as necessary for every family (70% lawyers to 93% therapists).

7.

The majority of therapists and counsellors were confident about making safety plans for clients and indicated that their workplace had effective procedures for responding to imminent risks to the safety of their clients.

8.

Differences for the legal profession: – More than a third of lawyers were not confident about making safety plans and did not agree they had effective procedures for risk response. – Lawyers were the least likely to have attended formal training in risk screening (55%) and therapists, family dispute resolution practitioners and social workers the most likely (68% to 84%). – Safety or risk screening was not compulsory for almost half of all participating lawyers (47%) but was for the majority of other professionals (82% to 94%). – All participants were asked whether legal practitioners could effectively screen for safety. More than half of lawyers (63%) and 83% to100% of other professionals disagreed with the statement or were not sure. – Most practitioners (70%) spent half-an-hour on risk assessment in face-to-face or telephone discussion with clients, with lawyers taking the least time (38% reported ten minutes or less) and family dispute resolution practitioners taking the most (28% taking up to an hour).

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– Lawyers were less confident about information sharing (70% said they were confident about their policies and procedures) and therapists the most confident (90%). 9.

There was strong support for standardised tools and protocols across all disciplines (80% agreed).

10.

Computer-assisted screening was viewed positively by 72% overall.

11.

There was general strong agreement across the professions (82% lawyers to 92% other professionals) that a common framework for screening safety risks was important.

When all the responses are considered together, a picture emerges of a family law sector that is actively thinking about risk for their client group and about factors that relate to screening. There is a need for differentiated training in order to unify practitioners’ confidence in first-level risk screening across the system. Clearly, there is a consensus that this is important territory and that a universal tool may assist in developing a shared understanding of risk, leading to the provision of stronger support for clients and their children. What should be screened? The DOORS framework supports a culturally-sensitive screening of risks to the physical and psychological wellbeing and safety of parents and children. Central to the endeavour is a focus on protecting clients from significant risks: these range from severe threats to psychological security, through to fatality. Family violence, familicide and suicide The DOORS framework embraces the view that family violence and the families affected by it are not all alike (Ver Steegh & Dalton, 2008). 3 The DOORS regards family violence as a complex phenomenon which incorporates physically violent and emotionally abusive experiences that occur between immediate family (former intimate partners and children) and extended family members (families of origin, new partners). These include serious physical, sexual, emotionally abusive, controlling, neglectful or threatening behaviours between one or more family members. At the extreme end of the spectrum, this includes suicide, homicide and familicide. Despite methodological difficulties that limit our ability to aggregate data across studies and populations, current research leaves no doubt that relationship separation increases the risks of family violence manyfold. • Amongst separated couples who make applications to a family law court, serious allegations of violent and abusive behaviours are made in 50% to 60% of cases (Kaspiew et al., 2009; Moloney et al., 2007). 3

Problems with definitions of violence in separated and divorced families are well treated elsewhere (eg, Moloney et al., 2007). 745

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• Of 134 domestic homicides in Australia in 2007–2008, 60% involve intimate partner homicides. Women are disproportionately represented: 78% of female victims were killed by an offender with whom they shared a domestic relationship (Virueda & Payne, 2010). • Recent separation is an important factor in predicting suicide (Ide et al. 2010; Kõlves et al., 2010, 2011), and current ‘Causes of Death’ data from the Australian Bureau of Statistics (ABS) indicate increasing rates of suicide amongst divorced and separated adults, particularly women, in the past five years. • See DOOR 3: The Risk Domains in Detail (pp.105-145) for a detailed literature review. Family violence, familicide and suicide Intrinsic to family violence is a range of mental health and drug and alcohol issues that link to an escalating risk of violence. In their own right, each of these risks deserves careful appraisal. Statistics commissioned from the ABS for this project (see Table 2) provide a clear and compelling pattern of the mutually reinforcing nature of mental health and drug and alcohol risk for divorced and separated adults. Some of the major findings include: • In 2007–08, divorced/separated individuals were nearly five times more likely to have a substance use disorder than married individuals, and nearly twice as likely as never married individuals. • Divorced/separated adults were more likely to have an anxiety disorder than married and never married individuals, and were twice as likely to have an affective (emotional or mood) disorder compared to married or never married individuals. • Divorced/separated men were twice as likely as women to have a substance use disorder and women somewhat more likely to have an affective disorder than men. Table 2. Long-term mental disorders (a) by marital status and sex, 2007–08 Divorced/ separated Substance use disorder Anxiety disorder Affective disorder Total

3.3 4.5 11.3 100.0

Substance use disorder Anxiety disorder Affective disorder Total

*1.6 5.3 16.0 100.0

Substance use disorder Anxiety disorder Affective disorder

2.3 4.9 14.0

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Married %Males 0.6 3.1 6.4 100.0 %Females *0.3 3.4 8.1 100.0 %Persons 0.5 3.2 7.3

Widowed

Never married

Total (b)

**1.8 **1.2 *7.7 100.0

2.3 3.1 8.6 100.0

1.5 3.2 7.6 100.0

– 4.8 10.6 100.0

*0.9 4.9 13.8 100.0

0.6 4.1 10.8 100.0

**0.4 4.0 9.9

1.7 3.9 11.0

1.0 3.7 9.2

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Divorced/ separated 100.0

Married

Widowed

100.0

100.0

Never married 100.0

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Total (b) 100.0

– Denotes nil or rounded to nil * Estimate has a relative standard error between 25% and 50% and should be used with caution. ** Estimate ahs a relative standard error greater than 50% and is considered too unreliable for general use. (a) Disorders that had lasted or were expected to last for six months or more. (b) Persons aged 18 and over Source: Australian Bureau of Statistics (2011) Research in the area of mental health and separation (Gibb et al., 2011) suggests a bidirectional relationship between the emergence of mental health problems and separation — in other words, mental health problems are predictive of separation, and separation is predictive of mental health problems. While relationship separation can for some have a positive influence on mental health with the ending of taxing or poor quality relationships, general population data suggest a pattern of increased risk for mental health and, related to this, drug and alcohol misuse, especially for men. See DOOR 3: The Risk Domains in Detail (pp.105-145) for a detailed literature review of this domain. Parental stress within the post-separation context has been strongly linked with a number of risk factors for children. Qualities of parental warmth, sensitivity and responsiveness are widely accepted as essential for children’s wellbeing (Osofsky & Thompson, 2000). The literature on stress points to the need to screen for ancillary stressors that exacerbate risks to both parenting and general coping capacity. The DOORS framework offers an efficient means of screening a range of stressors, such as social isolation, housing difficulties, financial hardship, and so on. Infant and child safety and wellbeing The DOORS framework promotes robust enquiry about the wellbeing and safety of children in the knowledge that effective early intervention, by minimising risk and alleviating stress, serves to improve children’s longer-term mental health outcomes. Separation poses genuine risks to children’s physical safety and wellbeing, particularly with co-occurring risks of violence. Specific risks include: • heightened normative risks for children in divorced families across multiple psychological, social, developmental and educational domains • heightened abduction risks, with children under five years at highest risk of being unlawfully removed from one parent’s care by another • heightened risk of lethal events for children: 16% of domestic homicides involve the killing of a child or infant by a parent (Dearden & Jones, 2008) • high rates (40%–55%) of child abuse co-occurring with intimate partner violence. Children are present and witness at least 50% of critical incidents that happen between their parents (Moloney et al., 2007). 747

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See DOOR 3: The Risk Domains in Detail (pp.105-145) for a detailed literature review of this domain. Post-separation risks in the context of culture and religion The DOORS begins by emphasising the role of culture and religion in either buffering or escalating risk, post-separation. Australia’s increasing cultural diversity flows into and shapes community attitudes to safety, rights, family responsibility, gender relations and parenting practices. Cultural understanding and respect are therefore an important foundation for the effective promotion of family wellbeing during separation and divorce events. Without this foundation, the family law system can itself create barriers to effective access and involvement and become an added risk factor for many families. The high incidence of family violence among Aboriginal families highlights the importance of effective screening and risk identification in that group. • Rates of family violence-related victimisation for Aboriginal women may be as high as 40 times the rate for non-Aboriginal women (Schmider & Nancarrow, 2007). • Despite representing just over 2% of the total Australian population, Aboriginal women accounted for 15% of homicide victims in Australia in 2002–03. • Alcohol abuse is strongly associated with Aboriginal family violence, and alcohol and drug- related mental health issues are prevalent within Aboriginal communities. See DOOR 3: The Risk Domains in Detail (pp.105-145) for a detailed literature review of this domain. There is consensus among Aboriginal commentators, researchers and practitioners that careful screening and culturally sensitive risk assessment is required to counteract Aboriginal family violence. However, these processes need to avoid assumptions and stereotypes about Aboriginal families and ensure that the unique protective factors and vulnerabilities of individuals are recognised. In this context, the historic, multigenerational and ongoing impact of Aboriginal cultural dispossession, which has substantially harmed Aboriginal families, needs to be taken into consideration; however, this knowledge should not be used as a basis to excuse family violence nor to regard it as inevitable. Culturally and Linguistically Diverse (CALD) families are also in need of effective screening and risk identification. • The emotional impact of migration, particularly forced migration and refugee experiences, combined with the impact of adjustment to Australian society, leads to family breakdown and family violence for many CALD families. • Awareness of the compounding nature of migration history, social marginalisation and beliefs about family, as well as other shaping historical factors, is crucial to risk assessment with CALD groups (Burman et al., 2004; Okenwa et al., 2009; World Health Organization, 2010). 748

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See DOOR 3: The Risk Domains in Detail (pp.105-145) for a detailed literature review of this domain. Who should conduct screening? The Robinson and Moloney (2010) review provides a good background to the issues surrounding who in the family law system should be involved in safety and wellbeing screening. The authors raise many important questions. Should screening be a segregated task that is assigned to someone at the front end of the system or service, and then followed up by others? Or should screening be one continuous process that flows into assessment? Should lawyers and mental health practitioners undertake the same front-line screening? The empirical literature does not provide easy answers to these questions. Robinson and Moloney (2010) explain: It cannot be assumed that a second worker will be able to simply build on where the other left off. Revelations, even at the screening phase, are made by a client within the context of some level of trust in the competence and integrity of the individual conducting the screening. This dynamic will not always repeat itself with another individual. Difficulty in re-establishing trust and rapport is also likely to be greater if there is a delay between the screening and the assessment phase and/or if there is no active handover or facilitated referral between workers. It can indeed be argued that the very fact of beginning a screening process brings clear ethical and professional obligations on the part of the practitioner and the organisation to ensure that risks that are thought to be there even at this phase are acted upon and not “left” to the assessment phase (p.4).

The DOORS framework is designed for application in a variety of contexts, including suburban law firms, FRCs, contact centres, and the courts. Clients are encouraged to self-complete DOOR 1 (with effective engagement and support of an administrative person), then move on to their practitioner for the crucial DOOR 2 follow-up conversation. While pragmatism dictates a flexible approach to who and how many people should be involved in supporting a screening process, best practice indicates that wherever possible a single, well- trained practitioner with expert understanding of the DOOR 1 and 2 process is the optimal approach. The prime consideration is how to enable the client to identify, discuss and elaborate on difficult aspects of their life, usually on first meeting in a new service situation. Following Robinson and Moloney (2010), the DOORS framework is based on the premise that when a client is well engaged, understands the screening rationale, is practically supported to complete the structured component (DOOR 1) and then empathically supported to elaborate on that with their practitioner, best outcomes are achieved. Some services may elect to conduct the entire screen face-to-face for some or all clients. In many cases, clients will need to be referred on to specialists for follow-up, and the transition between practitioners needs to be carefully managed for maximum benefit. These are some of the tensions in any risk screening process that need to be resolved within service systems and by individual practitioners. Ultimately, the responsibility for how the DOORS is implemented rests with each service and with individual practitioners. 749

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The accompanying guide to using the DOORS (Learning Guide, pp.147-172) emphasises and illustrates the skills required for effective screening, transitioning to assessment processes. Careful listening, empathic engagement, evaluation of content and process, knowledge of family violence dynamics, basic crisis response and clear action planning are all essential skills for practitioners using DOORS 1 and 2, while specialist skills and expertise are necessary for those following up with assessment at DOOR 3 level. Each stage of screening needs to conclude with a decision about ‘what next’. This includes deciding whether someone with a different skill set should review the profile. It is likely and desirable that, in many high-risk cases, multiple practitioners will be involved in risk assessment in relation to one client or family. However, the notion that ‘someone else will get involved’ should not be used to defer or deflect responsibility for recognising the evident risks and determining the most appropriate, risk-minimising actions within each practitioner’s context of involvement with the client. Coordination is the key to avoiding ineffective, disjointed, or repetitive screening processes. The dynamic nature of collaborative screening and risk management by multiple practitioners can create a purposeful focus on family safety and wellbeing at a time of escalating family stress.

Engagement: philosophy and skills The DOORS is designed to help practitioners screen for both perpetration and victimisation. This is based on our belief that engagement must occur not only with victims or risk, but also with potential or actual perpetrators, in order to prevent the escalation of violence. Enlisting the cooperation of clients in risk screening is the first and crucial step. This phase involves: • offering clear information about rationale, process and follow-up. • providing easy to use tools. • engaging in effective dialogue with clients when ‘risks to self’ or ‘risks from self’ are evident. • rather than lecturing or imposing solutions, engagement offers an avenue for – testing and validating concerns – considering why risk patterns have emerged in the way that they have – detailing options for safety and safe behaviour – engaging the client in effective self-management of risk where possible – promoting effective use of support services. : For both victims of violence and potential or actual perpetrators of violence, engagement with the practitioner provides a counteracting opportunity to develop strategies for moving outside violence and for establishing a process of healing from its causes and effects. The importance of engagement cannot be overstated; it allows the practitioner to establish their credibility as a source of support, understanding, information, 750

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reality checking and guidance - with both vulnerable and hostile clients. Rather than making uniform statements or recommending pre-determined action plans, family law professionals can use effective, sensitive screening to affirm a stronger position against family violence. When a practitioner uses a proactive prevention rationale as the basis for engagement with clients affected by family violence, greater role clarity and collaboration is achievable. The practitioner can be confident that their responses are more clearly directed when they carefully establish a meaningful dialogue with the client, paying attention to the particulars of the individuals concerned, whilst maintaining a focus on negotiating pathways of safety. A practitioner’s credibility with a client may in some instances be assigned by the client simply through his or her professional role. Legal and judicial professional roles have traditionally been afforded considerable authority and status by the community. Such authority, in the context of family violence, can be useful to deploy, especially with people for whom power relations form the basis of respect. However, sustainable change usually requires credibility and respect that is established through forms of relating that demonstrate a skilled, nuanced understanding of the context and of the individual(s) involved. Through commitment to effective engagement, the family law system affirms its responsibility for promoting and safeguarding the mental health and wellbeing of adults and children who require its services. This type of engagement requires a perspective that sees family mental health and family violence issues as shared community responsibilities, rather than individual or family group pathologies. A common framework for understanding risk, and one that is shared across disciplines, is a key component of effective engagement, allowing multiple support services to be systematically involved in solving complex situations. The DOORS creates a context for shared support and also for public scrutiny. Just as legal systems convey social obligation through their mechanisms for law enforcement, we could say that, through genuine engagement, the DOORS conveys a commitment to family safety and wellbeing, addressing the isolation of clients caught in the family law system who often feel powerless in the face of mental health and family violence issues.

USING THE DOORS Overview The Family Law ‘Detection Of Overall Risk Screen’ (DOORS) is a framework that helps separating parents and family law professionals to detect and respond to wellbeing and safety risks that family members may be experiencing following a separation. The framework has three levels: DOORS 1 and 2 are screening processes that we advocate be used in all cases; DOOR 3 offers further resources for use in complex cases that require specialist follow-up assessment. The DOORS was designed primarily for families in which former intimate 751

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partners have or seek an ongoing parenting role with their children. It can be adapted for use with clients whose dispute is with a non-biological carer, e.g. grandparents, although an empirical basis for this application is not yet established. Resources are also available for former couples who are not parents. Table 3: The DOORS framework

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The Framework for Screening, Assessment and Referrals in Family Relationship Centres and the Family Relationship Advice Line (July 2008) was developed for the Attorney-General’s Department by Dr Gail Winkworth and Dr Morag McArthur from the Institute of Child Protection Studies, Australian Catholic University (see http://www.acu.edu.au/icps). Acknowledgments The Attorney-General’s Department is grateful for the input from a range of service providers and other contributors to this Framework. [© Commonwealth of Australia, July 2008.] Part 4 of this Framework is reproduced with the kind permission of the Commonwealth Attorney-General’s Department.

4. RISK DOMAINS 4.1 Screening for risk This section of the Framework provides staff of the Centres and the Advice Line with more in-depth information from research and practice experience about the risks to safety and wellbeing of children, their parents and others. This Framework focuses on three Risk Domains: A. B. C.

Domestic or intimate partner and family violence and violence towards others Child abuse or abduction Self-harm

4.1.1 Asking the screening questions While the approach adopted in this Framework favours flexibility, there are screening questions to be asked at key stages in client/callers’ contact with the Centres and the Advice Line, including at the first point of contact: • Do you have any reason to be concerned about your safety? • Do you have any reason to be concerned about the safety or wellbeing of your children? • Do you have any reason to be concerned about anyone else’s safety? If the client/caller contact is in relation to setting up a joint session, then an additional question should be asked: • How do you think your partner/ex-partner would answer these questions? This does not mean that these should be the only screening questions to be asked. It means these questions should be asked when the client or caller has contact with the service. These questions naturally should be asked gently and respectfully, and with an understanding that it may be difficult for the client/caller to disclose safety concerns. If the first point of contact staff or practitioner is concerned that safety issues exist, they will then follow protocols to ensure that a deeper understanding 753

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of risk factors is gained and steps are taken to build rapport with the client or caller to address these issues. Protocols should reflect that this deeper understanding should be gained by an appropriately skilled and trained practitioner. It will be necessary to question more deeply if initial screening questions identify concerns in any of the above risk domains, including if the client indicates that their partner/ex-partner may have answered questions in a way that indicates concerns. 4.1.2 The next step – deeper questioning for safety The presence of a risk factor does not necessarily mean that harm has occurred; it means that there is a need for the person making the assessment to explore more deeply to find out if something is happening or is likely to happen in the future. In other words if the answer to a screening for safety question indicates that a person may be exposed to violence, or a child may be at risk of abuse, or there may be a risk of self-harm, then more in-depth questions about the specific risk/s need to be asked. The series of more in-depth questions which relate to a safety domain are clustered together in “safety tools” or “instruments”. The approach taken to “tools” in this Framework

This Framework favours a structured professional approach to screening and assessment. This approach draws on clinical and research judgements about risk factors or indicators that are not rigidly adhered to, but should be considered in every assessment. Practitioners in the Centres and the Advice Line are encouraged to collect qualitative information about the individual case including taking into account the client’s own assessment of risk. Practitioners can then make their own judgements which are systematically scrutinised by their professional supervisors and other experienced practitioners. This Framework does not recommend any one tool or instrument to assist in the identification and management of safety factors and risk for each of the three risk domains. Rather it provides information on evidence-based risk factors that have been incorporated in a range of tools. It points practitioners in the direction of existing tools that have been developed nationally and internationally using such risk factors. To ensure that instruments designed to screen for or predict risk do not distract from broader safety issues and are not used as the sole basis for planning, there is a need to combine discretion, sensitivity, professional judgement and common sense in the asking of these questions. Most importantly the deeper level questions need to be asked by skilled, highly trained, professional staff. Why no actuarial approaches?

The above approach to risk assessment is in contrast to actuarial models which tend to give numerical weightings to empirically tested risk factors. Actuarial approaches generally require an assessor to score a person’s level of risk to predict the likelihood of experiencing future adverse events (Kropp, 2004; 754

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Johnson, 1996 cited in Saunders & Goddard, 1998; Waugh, 2006). Actuarial approaches require location specific research as well as training in the use of specific instruments. No such empirically tested instruments have been developed in Australia at the time of writing. While actuarial approaches have shown to be useful for staff who are not professionally qualified, they have been criticised for the way they rely on predetermined risk factors and do not allow for any “unique, unusual or context specific variables” (Hart, 1988 cited in Braaf & Sneddon, 2007, p 16) which may indicate that there is a risk (Braaf & Sneddon, 2007; Kropp, 2004). Protocols

In developing good practice the Centres and the Advice Line should give consideration to the tools referred to in this Framework or other evidence-based tools. They should then decide on an approach and develop local protocols around the use of this approach. A flexible approach to questioning

There are certain key indicators of risk associated with each of the three domains that are the focus of this section of the guide. The presence of one or more of these indicators should alert staff to the potential for danger and the need for skilled staff to use deeper questioning drawn from “tools” or “instruments”. Actions to address risk might range from immediate steps to alert police or child protection authorities, to alerting the person against whom the threat of violence has been made within any limitations imposed by laws relating to confidentiality and privacy. The indicators referred to in this Framework have not been ranked in an order in which questions to establish their presence or otherwise should be asked. Risk factors can sometimes be taken out of context to either over or under identify risky situations. It is the ability to sensitively navigate through questions about risk factors within the broader context of people’s lives that makes it possible for staff to identify the level of risk, the services that they need to assist them, the suitability of joint interview or dispute resolution strategies and the importance or otherwise of putting safety plans in place. 4.1.3 Actions to deal with risk Those responsible for deciding the actions that should be taken when there is an indication of a risk in any of these domains, must take two factors into account: • the likelihood of harm occurring, and • the potential impact if the risk is not dealt with. Staff have professional, ethical and legal responsibilities towards those whose safety is at risk to inform them or other relevant authorities of the risk. It is important to note that this duty to inform does not only apply to immediate and substantiated risk of harm, but may also extend to anticipated risks to safety (such as anticipated abuse or neglect). 755

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Consulting with supervisors and other experienced staff

Wherever possible staff should not make major decisions in isolation or take action in relation to safety without consulting first with their supervisor or other experienced staff. However, whenever there is an emergency, staff must take whatever immediate action is necessary to ensure safety. The Centres and the Advice Line should clearly state in protocols what consultation should occur when safety and emergency issues are identified. Safety plans

The screening process should always be linked to the provision of a safety plan for the client in the event that risk is identified. Although plans need to be tailored to the individual circumstances of those at risk, the Centres and the Advice Line should have available for reference by staff a framework for such plans that will save time in putting together individual plans and ensure that essential elements of a good plan are not overlooked. These plans will need to be developed to take account of the local resources available. There is information on websites about safety planning that may assist staff in this matter. Examples include: • safety planning with Abused Partners: A Review and Annotated Bibliography, Sharon Agar, April 2003 at: http://www.bcifv.org/pubs/SafetyPlanning_Agar.pdf • A Guide to Domestic Violence: Risk Assessment, Risk Reduction, and Safety Plan, Metropolitan Nashville Police Department at: http://www.police.nashville.org/bureaus/investigative/domestic/stalking.htm • A resource for developing safety plans for victims of violence at: http://www.dvcs.org.au/Resources/Safety%20Planning%20Booklet.pdf

4.2 Risk domain: domestic and family violence and violence towards others 4.2.1 Definitions Family violence is defined in the Family Law Act 1975 as: [c]onduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or to be apprehensive about, his or her personal well being or safety. Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety. 4

Domestic violence has also been defined as an abuse of power perpetrated mainly (but not only) by men against women both in a relationship and after separation. It occurs when one partner attempts physically or psychologically to dominate and control the other. Domestic violence takes a number of forms. The 4 756

Family Law Act 1975, s 4(1).

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most commonly acknowledged forms are physical and sexual violence, threats and intimidation, emotional and social abuse and economic deprivation (Council of Australian Governments, 1997). While family violence and domestic violence are terms which are often used interchangeably in practice, the term “family violence” can be used as an inclusive term to encompass the various forms of violence which can occur between family members, including extended family members (Laing, 2000). Violence towards others has been included in this section for practical purposes since the questions staff will need to ask to identify any indicators of future domestic and family violence are similar to those that will identify the risk of violence being directed to people outside the family (including towards staff themselves). 4.2.2 Screening tools for domestic and family violence This Framework does not prescribe the use of a specific screening instrument for identifying risks of domestic and family violence. Researchers have concluded the best approach to screening in this domain involves gathering as much information as possible, given the time available and the circumstances of the assessment, while applying professional judgement to establish the links between the risk factors and the overall level of risk. This structured professional approach requires practitioners to have a high level of skill and knowledge about domestic and family violence. At the time of writing, no tool or instrument, underpinned by empirical research, has been developed in Australia. If agencies wish to use questions from internationally validated tools (underpinned by empirical research) the following are recommended as those with the highest proven predictive ability: 1.

Jacquelyn Campbell’s Danger Assessment can be used, as long as it is not changed without permission from Jacquelyn Campbell. See Attachment F. Information about permission to use can be found on the website http://www.dangerassessment.com. The Danger Assessment has been downloaded from this site: http://www.dangerassessment.com/Web Application1/pages/da/DAEnglish.pdf

2.

The Spousal Risk Assessment Guide (SARA) British Columbia Institute on Family Violence (see Kropp, Hart, Webster, & Eaves, 1994) DV MOSAIC. This system was developed by Gavin de Becker and Associates. For information about licensing fees and training, see http://www.mosaicsystem.com.

3.

Assessing for risk when both parties claim violence

Neilson (2004, p 425) suggests a number of ways for professionals and the courts to make sense of mutual claims of violence and abuse to distinguish between high conflict involving both parties (where pushing and shoving are the norm on both sides) and domestic violence. They include: • making careful scrutiny of the history of violence in the relationship • examining the power, domination and control dynamics of the relationship 757

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• assessing the context (including the social and cultural context, victim vulnerability and psychological and physical impact), and • taking into account victims’ fears and perceptions. Screening questions for family violence

Braaf and Sneddon (2007) identify the following typical screening questions for family violence: • whether a past or current partner is making the client feel unsafe • whether a past or current partner is making the client feel afraid or frightened • whether a past or current partner has ever damaged objects in the home, clothing or other items the client cares about • whether a past or current partner has threatened or harmed the client, their children or their pets • whether a past or current partner has hit, slapped or hurt the client in other ways • whether the client has been forced to have sexual activities against their will by a past or current partner • whether the client has had to call the police for protection • whether the client has ever stayed in a refuge • whether the client is afraid to be in the same room with the other party • whether the client feels safe to go home, and • whether the client would like any assistance with these issues. Another screening question for use by practitioners and other staff in the Centres and the Advice Line is: • Are there currently any domestic violence orders in place? (DVOs, AVOs, IVOs etc). When asking screening questions, clients/callers should be informed about why the questions are being asked and why talking about the violence is important. Direct questions are most effective in identifying violence, and questions should be asked about the various forms of abuse (DVIRC Behind Closed Doors). Questions for practitioners who work with violent partners

Staff and practitioners who are endeavouring to find out if there is violence in the relationship find it very useful to ask how the partner/ex-partner might answer the same questions. For example, if the client is asked whether they have ever physically intimidated their ex-partner, and the reply is “No”, then ask “What do you think she/he would say if I asked her/him that question?” Questions for practitioners working with fathers who use violence include: • Does he minimise the level of violence he uses? • Does he believe that the violence he uses adversely impacts on the children in his care? • How strongly does he believe in his right to act in the way he does within his family? • Does he know that his actions may constitute a crime? 758

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• Does he take any responsibility for his violent actions or demonstrate remorse? • Does he believe that the use of violence is a legitimate response in a range of settings? • Does he use his culture as a reason (or an excuse) for his use of violence? • Does he believe that he shouldn’t have to pay child support? Other suggested questions for partners/ex-partners who may use violence can be found in the Joondalup intake form (see Attachment A) and are reproduced below: • What would you say if I asked you if your partner was afraid of you – how would you know this? • If I asked your partner the same question what do you think they might say? • What would you say if I asked you if your child/children was/were afraid of you? • If I asked your child/children the same question, what do you think they might say? • Has there been times when you have felt angry, but have managed to calm down? • Are there times, other than with family members, where you have been abusive/violent? • Has/have your child/children witnessed any violence/abuse? • What could you do differently to avoid behaving in abusive/violent ways? • Have you ever sought assistance for your anger/abuse? It will be useful to keep in mind that the presence of factors such as substance (mis)use and mental illness may overshadow family violence and make it less likely to be identified (DVIRC Behind Closed Doors). 4.2.3 Risk Factors associated with violence The following list of indicators is not exhaustive. It represents those that are most commonly cited in the literature on this subject as being valid indicators of the likelihood of violence and homicide in the future. It is important to note that the absence of any indicators is not a guarantee that violence or homicide is impossible or unlikely. In other words, those who might commit violence or homicide may not have any of the indicators commonly found in those who do, and indicators should not be used in isolation from a skilled assessment by highly trained, professional staff. While there are good reasons to exercise caution about how indicators are used, the research nevertheless consistently identifies a set of indicators or “markers” which are associated with domestic and family violence. Dutton and Kropp (2000), for example, reviewed the research and identified some key factors that appear in many risk factor lists to indicate the likelihood of future assaults. These include: • a history of assault 759

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• • • • •

generally antisocial behaviours and attitudes instability of relationships instability of employment mental health and personality disorder childhood abuse

• poor motivation for treatment, and • negative attitudes toward women. One of the best-known checklists of risk indicators associated with lifethreatening attack on a spouse is developed by the Pennsylvania Coalition Against Domestic Violence (Hart 1990, cited in Laing, 2004). The list of indicators includes: • threats of homicide or suicide • • • • • •

having homicidal or suicidal fantasies access to weapons displaying a sense of “ownership” displaying dependence on the partner being separated being depressed

• • • •

having access to potential victims escalation of reckless behaviour hostage taking, and victim having contacted law enforcement officials.

Risk factors associated with homicide

Similar indicators are often cited as being useful in identifying the risk of homicide. Additional indicators often cited are: • abuse of pets or threats to kill pets • obsessive jealousy about and/or preoccupation with partner, and • stalking or monitoring of partner. 5 Risk factors associated with child murder–suicide

Australian research has shown that there are indicators that could be used specifically in respect of child murder–suicide. The list of indicators identified by Carolyn Harris Johnson’s (2005) research are: • a history of violence • perpetrator’s inability to regard themselves as individual, separate from their spouse and children after relationship breakdown • a proprietary attitude to their children and partner 5

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• a history of intense and long-term stalking (such as watching the ex-partner’s residence from a hiding place nearby) • perpetrator has previously threatened to harm himself and others such as children and other family members if his partner leaves • obsessive and controlling personality traits which made the partner hard to live with prior to the separation and which deteriorate markedly after separation • previous attempts by the female partner to leave were unsuccessful because of the reactions of the male partner or the fear of how he would react • escalation of violence after separation when the female ex-partner shows signs of asserting herself, and • signs of personality disorder or depressive illness which may or may not have been clinically diagnosed. The Centres and the Advice Line may use additional indicators for violence. Some of these may be particularly relevant to dealing with clients with different cultural backgrounds. Although lists of risk factors like these relating to violence and “lethality” can appear to imply a hierarchy of risk, there is no such thing as no risk in the context of domestic and family violence, and risk assessment should not be used to marginalise or minimise the concerns of clients believed to be at lower risk (Kropp, 2004). Risk assessment helps inform staff about the nature of the risk, the form it may take, and the degree of danger that people may be in at particular points in time. 4.2.4 Assisting disclosure

Listening to what clients say Screening and assessment instruments should not be used as a substitute for listening to what clients have to say. Clients’ own assessments have been shown in repeated studies on domestic violence to have high predictive value (Roehl, O’Sullivan, Webster, & Campbell, 2005). However, there are also clients who have been subject to such violence over an extended period that they may underestimate the gravity of the risk. In these cases, practitioners need to assist the client to become aware of the real nature of the risk. Two important questions

On many risk instruments used overseas, two questions asked of the victim were found to be consistently predictive of future violence (Campbell, personal communication, February, 2006). These two questions are: • How likely is it that your partner will be physically abusive with you in the next year? Please rate the likelihood from zero to ten, where zero means there is no chance, and ten means you are sure it will happen. • How likely is it that your partner will seriously hurt you in the next year? Please rate the likelihood from zero to ten, where zero means there is no chance, and ten means you are sure it will happen. 761

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Why people don't disclose

The staff member’s style or manner is of critical importance in helping clients feel able to disclose difficult information. Knowledge of the reasons why people subjected to violence may or may not decide to disclose may assist staff in this area. The reasons victims of violence may choose not to disclose can include: • not wanting to see their partner (and father of their children) harmed, publicly shamed, or damaged financially • wanting to protect their privacy and sense of competence • being concerned about the effects on their children • fearing that their partner will try to get custody of the children • being concerned that multiple court appearances will lead to the loss of their job, and • fear of being “cast out” by their family or religious community. Assisting disclosure

It is recommended that in asking questions, staff should, after building rapport with the client, use a sequence of questions designed to approach the issue in a way that leads from less confronting to more direct questions. This has been shown to have the advantage of facilitating better disclosure. An Australian model for screening for dispute resolution where there are concerns about domestic violence is particularly useful and is found at Attachment D. Further examples of questions concerning domestic and family violence used by some Australian agencies dealing with similar clients are shown at Attachment A. Examples of risk assessment used in Australian agencies are found at Attachment G. The following practices assist clients to disclose domestic or family violence: • being asked specific questions about abuse or violence • being asked about non-physical types of abuse or harassment or attempts at intimidation • being asked about abuse or other concerns face-to-face – not just through filling out a form • being interviewed separately from the ex-partner at intake/pre-mediation • being given an explanation as to why talking about abuse or its impact was important in the context of mediation • knowing that one reason to disclose is to ensure that there will be someone in the room during a session if the client is in trouble or not coping, and • where there was a congruent message from the mediator/intake person that gave permission to disclose, to indicate that they were interested and that disclosure was relevant (Keys Young, 1996). 762

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Clients who have been subjected to violence over an extended period may underestimate the gravity of the risk. In these cases, practitioners need to assist the client to become aware of the real nature of the risk. Clients should be helped to understand why they should talk about the impact of violence. For many, this may help them make a decision to disclose in the first place. The turning point for victims of violence to disclose can include: • violence has escalated to such a point the victim feels they would be seriously hurt or killed • physical risks of staying with partner outweigh the risks of leaving • growing fears for their children’s safety • their children are being abused by the partner • concern about the longer term impact of violence on their children • belief that nothing is going to change • realisation that they cannot affect their partner’s behaviour and that they are not responsible for their partner’s behaviour, and • study and work leading to: – increased self-esteem and confidence – critical reassessment of their situation at home – realisation that their situation was neither “normal” nor acceptable. Impact of domestic violence on children

In most States and Territories children exposed to domestic violence are regarded as having been abused. This form of child abuse is discussed in more detail in the next section.

4.3 Risk domain: child abuse or abduction 4.3.1 Child abuse: definition and types Child abuse is an act by parents, caregivers, other adults or older adolescents that endangers a child or young person’s physical or emotional health or development. Child abuse can be a single incident, but usually takes place over time (National Child Protection Clearinghouse, 2004). Although there are problems in arriving at clear, practical definitions of the various forms of child maltreatment, it is now common practice to classify child maltreatment or child abuse according to four main types – physical abuse, sexual abuse, emotional abuse and neglect (National Child Protection Clearinghouse, 2004). Recent research indicates that being exposed to domestic violence also constitutes emotional abuse (Shea Hart, 2004). This is reflected in most Australian State and Territory legislation about child abuse. Child abuse and types of harm

The following section is adapted from Victorian State Government Guidelines which provide definitions of child abuse and neglect and types of harm (Victorian Department of Human Services, 2002, pp 6-7). 763

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Physical harm

Physical harm refers to a situation in which a child suffers or is likely to suffer significant harm from an injury inflicted by a child’s parent or caregiver. The injury may be inflicted intentionally or may be the inadvertent consequence of physical punishment, or physically aggressive treatment of a child. Physical injury and significant harm to a child may also result from neglect by a parent or caregiver. The failure of a parent or caregiver to adequately ensure the safety of a child may expose the child to extremely dangerous or life-threatening situations that result in physical injury and significant harm to the child. Sexual harm

Sexual harm refers to a situation in which a person uses power or authority over a child to involve the child in sexual activity. Physical force is sometimes involved. The child’s parent or caregiver may not have protected the child. Child sexual abuse involves a wide range of sexual activity. It includes fondling of the child’s genitals, masturbation, oral sex, vaginal or anal penetration by a penis, finger or other object, or exposure of the child to pornography. Emotional harm

Emotional harm refers to a situation in which a child’s parent or caregiver repeatedly rejects the child or uses threats to frighten the child. This may involve name calling, put-downs or continual coldness from the parent or caregiver, to the extent that it significantly damages the child’s physical, social, intellectual or emotional development. This includes significant harm to a child or young person’s wellbeing or development because of his or her continual exposure to domestic violence. Neglect

Neglect refers to a child’s parent or caregiver failing to provide the basic necessities of life, such as food, clothing, shelter, medical attention or supervision, to the extent that the child’s health and development is, or is likely to be, significantly harmed. There are a range of indicators of child neglect. One indicator in isolation may not imply neglect. Each indicator needs to be considered in the context of others and the child’s overall circumstances. More information about indicators of child abuse and/neglect can be found at Attachment H. 4.3.2 Responding to concerns about child abuse

Legal and ethical responsibility to report child abuse Legislation requiring the reporting of concerns about child abuse differs across jurisdictions. In addition to State and Territory legislation, the Family Law Act 1975 specifically requires certain practitioners to report suspected child abuse. While some professional practitioners are mandated by law to report their concerns that children are suffering harm as a result of abuse and/or neglect, there is a moral and ethical imperative on all people who work with children and families to be vigilant about what is happening to children. 764

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The responsibility to investigate child abuse lies with State and Territory child protection authorities, however, practitioners are able to help keep children safe by staying attuned to their needs, supporting their families and linking them with services. This duty to report suspected child abuse may also give rise to an ethical duty for practitioners to inform the parents of child clients, prior to any sessions with the child(ren), of the legal obligations to disclose that govern all communications with the child. However, the discretion of the practitioner is paramount in these matters. Child abuse and family separation

There are reasons to be concerned that children whose parents are in the act of separating or who have separated may face particular pressures which increase the likelihood of abuse, especially if there is or has been a history of violence between parents. Typically, children may be accidentally injured because they become caught in violence, they may be the subject of separate incidents of abuse by the same adult who is also abusive of their mothers, or they may also suffer greater levels of physical punishment or abuse from their over-stressed mothers (Humphreys & Stanley, 2005). There is also the well-established concern about sexual abuse, neglect and/or emotional harm to children on contact visits or in other environments in which the protective role of the mother or father is diminished. Importance of training

People who work with children and families should be trained in how to identify and respond to child abuse or neglect, to determine whether the issues are at a threshold of risk, and to consider how such issues are impacting upon the parenting role. Without such training there is a concern that indicators will be used inappropriately and in isolation from the broader context of what is happening in children’s lives. This can lead to either under-reporting or over-reporting of abuse or neglect (Goddard, Saunders, Stanley, & Tucci, 1999). Role of practitioners in the centres and the advice line

Practitioners in the Centres and the Advice Line are not required to substantiate child abuse. However, they are responsible for taking reasonable steps to establish whether or not there should be concern about such abuse and to act to report cases about which they have concern to the relevant authorities. The presence of one or more of the following indicators would suggest there should be concern about possible child abuse: • verbal disclosure of abuse by the child or any other person • observation of physical injuries or information about other forensic evidence • observations of the behaviour of the child or the parent(s) which indicate possible child abuse • reports by either parent or third parties, eg grandparents. Studies on child abuse consistently reinforce the need to listen to children and to take what they say seriously (Goddard, Saunders, Stanley, & Tucci, 1999). 765

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Procedures for responding to concerns about child abuse and neglect

It is important that any human services agency (including the Centres and the Advice Line) have protocols in place to respond to concerns about child abuse and neglect. Useful information to include in such protocols can be found in the State and Territory guidelines. The following links may be helpful in the development of protocols about responding to child abuse and neglect: • ACT Department of Disability, Housing & Community Services, Reporting child abuse: a shared community responsibility. http://www.dhcs.act.gov.au/__ data/assets/pdf_file/0017/ 5660/keeping_childweb.pdf • Victorian Guidelines – Office for Children http://www.office-for-children.vic.gov.au/child_protection/abuse/responding When a child discloses

It is not the role of practitioners to open up discussion with children about abuse and neglect, or to investigate concerns that children are being harmed. It is, however, very important that practitioners respond appropriately to children who, in the course of their contact with practitioners, disclose things that are happening to them that fall into the definitions of child abuse and/or neglect. There is considerable evidence that the way practitioners respond to children when they disclose difficult information has a lasting impact on their willingness to seek assistance in the future. Some suggestions for responding include: • listen carefully and try to control any outward display of shock or panic • tell the child you believe them and they have done the right thing in telling you • acknowledge that it is hard to talk about some things • use the child’s language wherever possible • emphasise what has happened is not their fault • tell the child that sometimes adults, even parents do the wrong thing • tell the child you will do your best to help them, and • indicate what you will do next, including that it is important that you tell someone else who may be able to help. Do not: • make promises that cannot be kept (like saying that you won’t tell anyone), and • seek further details beyond what the child freely wants to disclose (your role is to listen and support the child, not conduct an investigation). Do: • talk to a supervisor or experienced work colleague, and • take whatever other actions your agency protocol requires. When a parent discloses

Many of the responses referred to above apply also to situations where parents disclose suspected abuse of their children by the other parent, or another person, or by themselves. 766

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Practitioners need to be very clear about their responsibilities under the Family Law Act 1975 and their ethical responsibilities to report suspected abuse regardless of whether previous reports made have allegedly been made. Apart from the mandatory requirement to do so, there are important reasons for practitioners to notify statutory child protection agencies of their concerns: • Firstly, it is often not known if the statutory child protection agency has acted or not on information. Sometimes child protection agencies, like the police, are compiling evidence that will enable them to take the matter before a children’s court. Each new piece of information is important. • Secondly, research indicates there is more weight given by child protection authorities to concerns expressed by professionals that children are in danger or have been harmed as a result of child abuse and neglect than to concerns by parents who are engaged in adversarial proceedings through the Family Court (Brown & Alexander, 2007). Practitioners have a legal and ethical responsibility to share their professional knowledge of what is happening to children with the child protection agency. • Thirdly, that a report is not considered sufficiently serious to warrant investigation by child protection authorities does not mean it is irrelevant for the purposes of family law proceedings. The state child protection agencies are concerned with whether the matter is sufficiently serious to warrant statutory intervention to protect children. Family Law proceedings, however, must consider the competing claims of each parent in relation to living with and spending time with children. It is important that a matter before the Family Court has any such reports before it so that it can take them into account in determining these arrangements (Family Law Council, 2002, p 30). Where it is safe and appropriate to do so, it is important that practitioners make reports together with parents. If the parent is not prepared to do so, but the practitioner believes the concerns raised are within the scope of their mandated legislative responsibilities, the practitioner must make a report separately. The Centre and Advice Line protocols should clarify how parents should be told a report has been, or will be made, and also those situations in which it is not safe to tell parents about the report. The following is an example of a case with multiple risk factors which was very ably dealt with by a Centre practitioner and demonstrates excellent collaborative work between agencies: The mother was a very intelligent and articulate person. She has a 6 year old boy by a former partner and a 1 year old by another current partner, from whom she is separated but they are living under the one roof. The father has a serious gambling problem and has lost more than $200,000 of their joint capital. He is also very depressed and suicidal. She has a history of post-natal depression and a childhood history of abuse. The practitioner asked her directly whether she had ever thought of harming herself. She admitted to suicidal thoughts and, with further questioning, indicated that she had a plan to drive herself off a cliff. There appeared to be no attachment or bonding with the baby and the practitioner became concerned that she might harm the baby as well as herself. The practitioner arranged emergency housing for her, and got her a crisis appointment with mental health. She then told the woman that she would notify the child protection agency. The mother accepted this, 767

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in fact “she didn’t even blink”. In all she made three warm transfers (three way conversations) to mental health, to emergency housing and to Department of Community Services. All responded immediately. DOCs took the matter very seriously. The practitioner established an excellent rapport with the mother and followed her up the next day. She will work together with DOCs to assist the mother and to help keep the baby safe (FRC).

4.3.3 Child abduction Child abduction refers to a child being taken without proper consent. Abduction refers to a broad range of situations that involve one parent taking, detaining, concealing, or enticing away a child from the other parent where the child has the lawful right to have contact with that other parent (M Johnston & Girdner, 1998). While greater concern is often associated with children being abducted from Australia or not being returned after a contact visit overseas, there is also concern that children may be abducted within the country when there is a breakdown in a relationship. There are serious emotional consequences for children in being taken from all that is familiar, especially as children are already coping with the loss and anguish of family breakdown. Staff should also be aware that abduction may be associated with an intention to commit homicide. Why do parents abduct?

The increased number of inter-country relationships and the speed and convenience of international travel contribute to international parental child abduction. Child abduction usually eventuates because of a range of factors. These most commonly include: • fear of and inability to communicate with the other parent • extensive hostility between the former or estranged parents • family violence and/or child abuse – a parent fears for their own and/or their child’s safety • a deep sense of unfairness felt by one parent in relation to residence and contact arrangements • differences in relation to the parent’s approach to child rearing or discipline • cultural or religious differences which become intolerable for one parent • a parent’s belief that the child is their property, without a will or rights of their own • a wish to control the cultural upbringing of the child, and • fear of loss of the relationship with the child. Risk factors associated with child abduction include: • abduction has occurred before • a threat of abduction has been made • one partner has fixed ideas that the child is being abused and that authorities will not take this seriously 768

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• one partner expresses concerns about the wellbeing of the child and has taken numerous legal steps to get residence of the child which have been unsuccessful • one partner has strong beliefs about rearing children contrary to the other partner’s beliefs, and • one of the ex-partners is a citizen of another country (in cases where abduction from Australia is possible) and feels their homeland offers more cultural, financial or emotional support. An example of questions that might be asked in relation to the risk of child abduction is given at Attachment I. Working with other agencies

The responsibilities of staff of Centres and the Advice Line in the area of child abduction are complex and will need to be substantially supported by training and assistance from other sectors, especially the child protection and legal sector, to ensure that children at risk can receive co-ordinated and effective responses. In summary the Centres and the Advice Line will need to be involved in: • the identification of children at risk of harm through physical, sexual or emotional abuse and/or neglect • reporting concerns about possible abuse to the relevant State and Territory child protection authorities • working collaboratively with both families and other services, including the State and Territory child protection authorities, to increase protective measures for children and support for their parents • referrals to legal practitioners for advice about legal options, and • referring international child abduction concerns to the Australian Central Authority for the Hague Convention on the Civil Aspects of International Child Abduction.

4.4 Risk domain: self-harm The Centres and the Advice Line deal with people who are at risk of self-harm. It is particularly important that first point of contact staff as well as practitioners are able to recognise and deal with high risk situations, especially people who threaten suicide or harm to others. The particular focus for screening for self-harm and suicide lies in the intense emotions and high levels of conflict which can be found in some families undergoing transitions and separations (J. Johnston & Roseby, 1997). A most helpful resource for this section is the Mental Health First Aid Manual (University of Melbourne) which can be found at http://www.mhfa.com.au/ documents/MHFA_Manual_Jan_07.pdf 4.4.1 Definition of self-harm The term “self-harm” is used in the literature to cover suicide, suicidal behaviour including attempted suicide, and suicide ideation and deliberate self-harm including self mutilation (Camilleri, McArthur, & Webb, 1999). 769

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Some self-harm may be without suicidal intent, but self-harm is a risk factor for suicide. Apart from any legal, professional and ethical responsibilities towards the individual concerned to prevent self-harm including suicide, the murder of family members is sometimes accompanied by the suicide of the perpetrator. When conducting a suicide assessment, practitioners should be aware that clients with problems of separating themselves from their family may see killing their partner and/or their children as a part or extension of their suicide. If the practitioner simply asks questions about suicide or self-harm, the other part of the ideation may not be elicited. Specific questions need to be asked about this (see Johnson, 2005). The issue of child murder-suicide is dealt with in the first Risk Domain in this Framework on Domestic and Family Violence. 4.4.2 Risk factors associated with self-harm Specific training in the recognition of indicators of suicide and depressive behaviour, and how to respond is essential. It is not enough to use checklists, as professional judgement is of vital importance. It is not the function of the Centres and the Advice Line to diagnose or treat clients for depression or suicidal intent, but staff will need to be equipped to recognise those at risk, and to make appropriate, respectful, timely and effective referrals to mental health and other appropriate counselling services, so that a full assessment can be carried out. People who are severely depressed and at risk of suicide are unlikely to be able to effectively participate in joint sessions until they have accessed helpful and specific services. Staff in the Centres and the Advice Line will also need to recognise and respond to suicidal emergencies. Any screening method utilised will need to address both the identification of suicide risk and urgency of response. The following are risk factors associated with suicide: • psychiatric illness including depression, schizophrenia, personality disorder and antisocial behaviour • drug and alcohol abuse • previous suicide attempt being male • youth • homelessness • being Aboriginal or Torres Strait Islander • social, educational and employment disadvantage • those who have suffered loss recently • people who are isolated • people with a family history of suicide, and • young men of low socioeconomic status (Royal Australian College of General Practitioners, 2002). In Australia, men are four times more likely to die by suicide than females. There is a strong correlation between suicide risk and relationship conflict/breakdown. 770

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Men between the ages of 25 and 44 are the most at risk. Men in rural and remote areas are at higher risk than men living elsewhere. While men suicide more often than women, women attempt suicide more often than men (Bonner, 2001). Even though men are several times more at risk of committing suicide than women, they may be reluctant to indicate their risk of self-harm (Crisis Support Services, 2005). Children are also at a higher risk of suicide over their parents’ relationship conflict/breakdown. 4.4.3 Responding to possible self-harm

First point of contact staff in the centres and the advice line First point of contact staff will usually be in a position to refer people who they suspect are distressed or suicidal to a practitioner immediately. On occasions this may not be possible. Therefore first point of contact staff will need to help calm the person until a practitioner is available and/or other steps can be taken to keep the person safe. The Centres and the Advice Line need to have clear procedures in place for first point of contact staff to alert experienced practitioners and/or managers for emergencies such as this. First point of contact staff need to be skilled in how to respond to emergencies involving people who threaten self and others. It is particularly important they know how to remain calm, show genuine concern and encouragement, and gently convey to the client or caller that help is on the way. Practitioners in the centres and the advice line

Practitioners need to use their generic professional training to deal with distressed persons and their specialised training to respond to risks of self-harm. People will rarely volunteer suicidal thoughts but may do so if asked directly. Most of the literature on suicide and self-harm emphasises the importance of asking direct questions, such as: • Have you ever thought about killing yourself? • Have you ever made an attempt to kill or harm yourself in the past? • Are you thinking about that at the moment? • Do you have a plan for how you would go about it? Other sample questions to assess risk of self-harm are given at Attachment G, J and K. The telephone environment

Both the Centres and the Advice Line can expect to receive calls from highly distressed people who are potentially suicidal and may also harm others. It is important for any service dealing with threats and actual suicides to provide a general code of practice including procedures and protocols with other agencies designed to inform suicide intervention. A useful guideline for Telephone 771

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Counselling Suicide Intervention has been developed by the Victorian Government and can be found at http://www.health.vic.gov.au/telephone/ suhelpline.htm This web link outlines general principles for organisational readiness, practitioner competency, confidentiality, legal obligations and public statements. It also includes a list of standards to apply to helplines that deal with suicide such as: • entry standards and selection requirements for paid staff • quality assurance training and supervision • quality assurance call monitoring • training needs analysis, and • debriefing, defusing and support. Mensline Australia uses a guided professional judgement risk assessment, using the mnemonic ABCDE: A (Action or Intention), B (Background), C (Current stressors) D (Distress level) E (External and internal resources). This can be found at Attachment K.

772

Appendix D Dispute resolution clauses NADRAC Resolve to Resolve model ADR clause ........................................................... 733

Parties to an agreement may agree to include contract provisions that set out the processes (other than litigation) by which they will resolve any disputes that arise in the performance of the contract.

NADRAC “RESOLVE TO RESOLVE” MODEL ADR CLAUSE In 2009, the National Alternative Dispute Resolution Advisory Council (NADRAC) released an issues paper 1 as part of its ADR and civil justice review, which noted that dispute resolution clauses that lack clarity can create barriers to the use of ADR. Disputes relating to the interpretation of such clauses may result in litigation, and such clauses may be found to be void for uncertainty. NADRAC attached a proposed draft model mediation clause to the issues paper and invited and received comments about this clause. In the final NADRAC report The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (“Resolve to Resolve” Report), a draft dispute resolution clause was included (see below); however, it was noted that formulating one clause for dispute resolution could be problematic as there are many factors that need to be considered. In particular, when drafting dispute resolution clauses, parties need to: • structure the ADR process so that it suits their particular circumstances, including whether: – to subject a dispute to existing rules governing the selected ADR process(es) (for example, as prepared by a reputable ADR service provider); – certain time limits and milestones should apply at each stage of the dispute resolution (and what they are); – certain kinds of disputes may be excluded from the operation of the dispute resolution clause; – to use one- or multi-tiered dispute resolution clauses; – there should be a mechanism, or several alternative mechanisms, by which a suitable ADR practitioner is chosen (expressly at the conclusion of the contract, ad hoc by the parties when a dispute arises, by an ADR service provider when a dispute arises, or as a combination of those mechanisms);

1

NADRAC, ADR in the Civil Justice System – Issues Paper, (March 2009, Commonwealth of Australia, Canberra) available at http://www.nadrac.gov.au/www/nadrac/nadrac.nsf/Page/Publications_ PublicationsbyDate_ADRintheCivilJusticeSystem-IssuesPaper (accessed 1 December 2011). 773

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• be careful not to draft the clause so that it removes a right to litigate – this could be void because a party cannot contract itself out of its right to access the courts; • avoid the clause becoming an agreement to agree, because dispute resolution clauses must provide parties with the necessary amount of certainty concerning the process – and as an agreement to agree on the process, should a dispute arise, they could be void for uncertainty; 2 • consider carefully whether to include obligations concerning their conduct during the selected dispute resolution process, such as “good faith”, “best endeavour” or “genuine effort” requirements. 3

“Resolve to Resolve” Model ADR Clause Dispute Resolution 1. If a dispute arises from or in connection with this contract, a party to the contract must not commence court or arbitration proceedings relating to the dispute unless that party has participated in a mediation in accordance with paragraphs 2, 3 and 4 of this clause. This paragraph does not apply to an application for urgent interlocutory relief. 4 2.

3.

A party to this contract claiming that a dispute has arisen from the contract (“the Dispute”) must give a written notice specifying the nature of the Dispute (“the Notice”) to the other party or parties to the contract. The parties must then participate in mediation in accordance with this clause. If the parties do not agree, within seven days of receipt of the Notice (or within a longer period agreed in writing by them) on: a. the procedures to be adopted in a mediation of the Dispute; and b. c. d.

4.

2 3 4

5

774

the timetable for all the steps in those procedures; and the identity and fees of the mediator; then, the [independent appointment body or person] 5 will appoint a mediator accredited under the National Mediator Accreditation System, determine the mediator’s fees and the parties will pay those fees equally.

If the mediator is appointed by [independent appointment body or person] in accordance with paragraph 3, the parties must assist the mediator to mediate the Dispute in accordance with the Practice Standards articulated in the National Mediator Accreditation System See Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995) 36 NSWLR 709; Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646. See Chapter 11. The inclusion of “good faith” or similar obligation as a rule of conduct may have unforeseen consequences for the contracting parties. Note that NADRAC acknowledged the assistance of the Law Society of NSW in the drafting of this clause. The clause is based on the precedent clause prepared for the Law Society of NSW and published on their web site on http://www.lawsociety.com.au. Note: The independent appointment body could be a Recognised Mediator Accreditation Body, for a list of such bodies see http://www.nadrac.gov.au.

Appendix D Dispute resolution clauses

5.

If a party commences proceedings relating to the Dispute other than for urgent interlocutory relief, that party must consent to orders by the Court in which the proceedings are commenced that: a. b.

6.

| APP D

the proceedings relating to the Dispute be referred to mediation by a mediator; and if the parties do not agree on a mediator within seven days of the order referred to in paragraph 5(a), the mediator appointed by the [independent appointment body or person] will be deemed to have been appointed by the Court.

If a party: a. refuses to participate in a mediation of the Dispute to which it earlier agreed; or b. refuses to comply with paragraph 5 of this clause, a notice having been served in accordance with paragraph 2; then, i.

ii.

that party shall not take any steps to recover its costs whether by way of obtaining or enforcing any order for costs, and, that party shall consent to an order of a Court of competent jurisdiction that it will specifically perform and carry into execution paragraph 3 and 4 of this clause.

[Other clauses might be more appropriate where the parties may wish to trigger a negotiation or information session.]

775

Appendix E NMAS standards and collaborative practice standards Part I – Introduction ............................................................................................................... 777 Part II – Approval Standards ............................................................................................... 778 Part III – Practice standards ................................................................................................. 783 Part IV – Recognised Mediator Accredication Bodies ..................................................... 790 Part V – Register of Nationally Acredited Mediators ...................................................... 791 Part VI – Mediator Standards Board ................................................................................... 791 Collaborative practice guidelines ......................................................................................... 793

Part 1 of this Appendix sets out the standards used in the National Mediation Accreditation Scheme (NMAS, effective July 2015) and Part 2 sets out the guidelines adopted in 2011 for lawyers who use collaborative processes.

PART I – INTRODUCTION Purpose The NMAS promotes quality, consistency and accountability of NMAS accredited mediators within the diversity of mediation practice in Australia. It informs participants in mediation (participants) about what they can expect of a NMAS accredited mediator.

Application These Standards apply when a person is seeking accreditation in relation to and conducting mediation processes as defined in Section 2 of the Practice Standards. 1 When a person practises as a mediator in other contexts, such as hybrid, blended or statutory environments, additional requirements relevant to that context may apply.

Role of mediators in a mediation process A mediator uses the knowledge, skills and ethical principles referred to in Part III Section 10.1 of the NMAS to assist participants to make their own decisions in relation to disputes, conflicts or differences among them. 1

Mediation is a process that promotes the self-determination of participants and in which participants, with the support of a mediator: (a) communicate with each other, exchange information and seek understanding (b) identify, clarify and explore interests, issues and underlying needs (c) consider their alternatives (d) generate and evaluate options (e) negotiate with each other; and (f) reach and make their own decisions. 777

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Structure The NMAS comprises the following: • Approval Standards which specify the training, assessment, personal qualities and experience required of a NMAS accredited mediator and for their renewal of accreditation • Practice Standards which specify the minimum practice and competency requirements of a NMAS accredited mediator • Recognised Mediator Accreditation Bodies (RMABs) which accredit mediators according to the Approval and Practice Standards • The Register of Nationally Accredited Mediators (National Register) which is the authoritative list of NMAS accredited mediators • The Mediator Standards Board (MSB), which oversees the NMAS. Members of the MSB comprise RMABs; professional, government, community and consumer organisations; and education and training providers.

PART II – APPROVAL STANDARDS 1 Application 1.1

The Approval Standards apply to any person seeking accreditation (an applicant) and to a mediator who is already accredited under the NMAS.

1.2

The Approval Standards: (a)

specify the training, assessment, personal qualities and experience required of a NMAS accredited mediator and for their renewal of accreditation

(b)

should be read in conjunction with the Practice Standards (Part III of the NMAS), with which NMAS accredited mediators must also comply.

2 Approval requirements for accreditation 2.1

778

An applicant must be of good character and possess appropriate personal qualities and experience to conduct a mediation process independently, competently and professionally. An applicant must: (a)

provide written references from two members of their community who have known them for more than three years to the effect that they are of good character, or demonstrate that they already satisfy this requirement under another system;

(b)

disclose if they have been disqualified from any type of professional practice;

(c)

disclose any criminal conviction;

(d)

disclose any impairment that could influence their capacity to discharge their obligations in a competent, honest and professional manner;

Appendix E NMAS standards and collaborative practice standards

| APP E

(e)

disclose if they have ever been refused NMAS accreditation or accreditation renewal or had their accreditation suspended or cancelled.

(f)

comply with the Approval Standards and Practice Standards, with any relevant legislation, professional standards and any other requirements that may be relevant to them;

(g)

pay the MSB registration fee in accordance with their RMAB’s practices;

(h)

become and remain a member of an RMAB or a member or employee of an organisation with a relevant ethical code or standard and a complaints and disciplinary procedure that can address complaints against mediators;

(i)

acknowledge that an RMAB can disclose information about them to the MSB and the MSB can release it to other RMABs upon request; and

(j)

be covered by relevant professional indemnity insurance or have statutory immunity.

2.2

An applicant must have completed a training programme which at least meets the requirements set out in Section 2.3 and must have met the assessment requirement set out in Section 2.4 within 6 months preceding the formal notification to the applicant of assessment as competent, or, must have fulfilled the alternative training and assessment requirements set out in Section 2.5.

2.3

The training requires:

2.4

(a)

a training course of a minimum of 38 hours in duration which may be conducted as a single course or in modules over a period of up to 24 months;

(b)

a training team of at least two trainers in which the principal trainer has more than three years’ experience both as a NMAS accredited mediator and as a trainer;

(c)

sufficient coaches for each trainee to be observed performing the role of mediator by different coaches in two simulated mediations each of at least 1.5 hours in duration;

(d)

coaches who are accredited as mediators under the NMAS and have at least two years or 50 hours mediation experience and who provide written feedback to the trainees they have observed;

(e)

each trainee participating in at least nine simulated mediations, in at least three of which they perform the role of mediator;

(f)

content that includes the knowledge, skills and ethical principles articulated in the Practice Standards.

The assessment requires: (a)

an applicant, at a minimum, performing the role of a mediator in a simulated mediation of at least 1.5 hours; 779

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2.5

(b)

an assessor observing a simulation (in real time or digitally or video recorded for later observation) without providing any coaching to the applicant during the simulated mediation;

(c)

an assessor who is a NMAS accredited mediator with at least 3 years mediation experience and with no conflict of interest with respect to the applicant and who is independent of the training team;

(d)

assessment criteria reflecting the knowledge, skills and ethical principles articulated in the Practice Standards;

(e)

an applicant being found competent by an assessor using an assessment form documenting the extent to which the applicant has met or has not met the assessment requirements; providing written feedback on the applicant’s performance and indicating the assessment outcome;

(f)

in so far as circumstances allow, a copy of the assessment form being supplied to the applicant a reasonable time prior to the conduct of the assessment.

An applicant may alternatively meet the requirements for training and assessment by providing evidence to an RMAB of: (a)

Comparable training and assessment (i)

having completed a mediator training course which is at least comparable to the training course described in Section 2.3; and

(ii)

having been found competent in the assessment as described in Section 2.4.

OR (b)

Experience, education and assessment (i)

providing evidence to an RMAB of having conducted at least 100 hours of mediation, and otherwise met the continuing accreditation requirements described in Section 3 below within the two years prior to application; and

(ii)

providing two references attesting to the mediator’s competence; and

(iii)

having completed mediator training, supervision or education to the satisfaction of the RMAB; and

(iv)

having been found competent in the assessment as described in Section 2.4.

OR (c)

780

CALD knowledge, experience and assessment

Appendix E NMAS standards and collaborative practice standards

2.6

| APP E

(i)

providing evidence to an RMAB that the applicant possesses appropriate mediation experience and knowledge of the unique values and traditions within the culturally and linguistically diverse (CALD) community with which the mediator identifies; and

(ii)

providing two references attesting to the mediator’s competence; and

(iii)

having been found competent in the assessment as described in Section 2.4.

An applicant who meets the requirements of this Standard will be accredited for two years.

3 Accreditation renewal requirements 3.1

An accredited mediator (a mediator) seeking renewal of accreditation must satisfy the approval requirements set out in Section 2.1 (except for 2.1(a)) above, and provide evidence to the RMAB that within the two years preceding application for renewal they have been conducting mediations and have engaged in continuing professional development (CPD) as described below.

3.2

A mediator must have conducted at least 25 hours of mediation, co-mediation or conciliation within the two-year cycle.

3.3

A mediator who has not met the requirement in Section 3.2 due to lack of work opportunities, health or career circumstances or residence in non-urban or CALD communities, must have conducted at least 10 hours of mediation, co-mediation or conciliation and must attend such supplementary training, coaching and/or assessment as the RMAB considers necessary, in addition to the CPD required in Section 3.5 below, to address the shortfall.

3.4

Renewal of accreditation in terms of Section 3.3 cannot be sought or granted for more than three consecutive renewals.

3.5

A mediator must undertake CPD of at least 25 hours that contributes to the knowledge, skills and ethical principles contained in the Practice Standards. This may be made up as follows: (a) (a) Participating in Education (up to 20 hours) This means participating in formal structured activities such as training seminars and workshops (up to 20 hours) or attending conferences (up to 15 hours) (b)

(c)

(b) Reflecting on Practice (up to 15 hours) This means receiving professional supervision or coaching or participating in structured peer-based reflection on mediation cases (c) Providing Professional Development (up to 15 hours) This means delivering presentations on mediation or related topics, including two hours of preparation time for each hour delivered, or providing professional supervision, assessment, coaching or mentoring of mediator trainees and mediators 781

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(d)

(e)

(f)

(g)

(d) Credit for related professional CPD (up to 10 hours) This means hours of CPD completed to maintain professional licensing or accreditation related to their mediation practice, such as in law or in the behavioural or social sciences or in the professional field in which they mediate, such as building or engineering. (e) Learning from Practice (up to 8 hours) This means participating in up to four mediations as a client representative or in a formal learning capacity (up to 2 hours per mediation) or role-playing for trainee mediators and candidates for mediator assessment (up to 2 hours per simulation). (f) Self-directed Learning (up to 5 hours) This means private study such as reading, listening to or viewing pre-recorded content such as podcasts, or writing articles or books relevant to mediation that are published in recognised journals or by recognised publishers. (g) Other (up to 5 hours) This means such other activities as may be approved by the MSB on application by an RMAB.

4 Leave of absence 4.1

4.2

4.3

4.4

A mediator seeking leave of absence on the basis of health, career or other special circumstances must provide evidence to their accrediting RMAB of the circumstances upon which, and the period for which, leave is being sought. The RMAB may grant or refuse the request, or grant it subject to conditions, having regard to the circumstances. Where leave of absence is granted for a period of 12 months or less, the RMAB must remove the mediator’s name from the National Register for the period of leave and extend the due date for renewal of that mediator’s accreditation by an amount equivalent to the period of leave. Where leave of absence is granted for a period greater than 12 months, the RMAB must remove the mediator’s name from the National Register and that mediator must comply with the requirements of Section 6 below in order to have their accreditation re-instated. An RMAB must not grant a period of leave of absence that commences more than two months prior to the day upon which an application for leave of absence is made.

5 Suspension 5.1

5.2

782

Where a mediator is significantly non-compliant with the Approval and Practice Standards an RMAB may, subject to the requirements of procedural fairness, suspend the mediator’s accreditation and, having regard to the circumstances, specify any conditions that must be met by that mediator prior to seeking re- instatement of accreditation. An RMAB must, without delay, notify the MSB of the details of a mediator whose accreditation it has suspended and remove that mediator’s name from the National Register.

Appendix E NMAS standards and collaborative practice standards

5.3

| APP E

The MSB may on request disclose information received under Section 5.2 to another RMAB.

6 Re-instatement of accreditation 6.1

6.2

6.3

An applicant seeking re-instatement after a period of leave of absence or lapsed or suspended accreditation, must: (a) disclose the date from which they were first granted accreditation under the NMAS and specify the period of leave of absence or the date upon which their accreditation lapsed or was suspended; (b) meet the approval requirements set out in Sections 2.1 above; (c) provide evidence to an RMAB that they have met the accreditation renewal requirements described in Section 3 above in the two years immediately prior to seeking re-instatement; (d) where the practice requirement in Section 3.2 or Section 3.3 has not been met, undertake supplementary practical training, coaching and/or assessment, as approved by the RMAB, to address the shortfall; (e) provide evidence to the RMAB that any conditions imposed at the time of suspension or grant of a period of leave of absence have been met prior to seeking re-instatement. Accreditation will be re-instated from the date upon which the relevant RMAB assesses the applicant as having satisfied the requirements of Section 6.1. Re-instatement of accreditation in terms of Section 6.2 cannot be granted more than once in every four years.

7 Waiver by MSB In exceptional circumstances the MSB may, conditionally or otherwise, waive compliance with any provision of the Approval Standards on application by an RMAB

PART III – PRACTICE STANDARDS 1 Application 1.1 1.2

The Practice Standards apply to NMAS accredited mediators. The Practice Standards: (a) specify the minimum practice and competency requirements of a NMAS accredited mediator; (b)

1.3

inform participants and others about what they can expect of the mediation process and of a NMAS accredited mediator; and (c) should be read in conjunction with the Approval Standards (Part II of the NMAS), with which a NMAS accredited mediator must also comply. Where a mediator practises under a legislative framework and there is a conflict between a provision of the Practice Standards and a provision of 783

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that framework, the legislative framework will override the Practice Standards to the extent of any inconsistency.

2 The Mediation Process 2.1

A mediator uses the knowledge, skills and ethical principles referred to in Part III Section 10.1 of the NMAS to assist participants to make their own decisions in relation to disputes, conflicts or differences among them.

2.2

Mediation is a process that promotes the self-determination of participants and in which participants, with the support of a mediator: (a) (b) (c) (d) (e) (f)

communicate with each other, exchange information and seek understanding identify, clarify and explore interests, issues and underlying needs consider their alternatives generate and evaluate options negotiate with each other; and reach and make their own decisions.

A mediator does not evaluate or advise on the merits of, or determine the outcome of, disputes. 2

3 Conducting mediation: Preliminary conference or intake 3.1

In the preliminary conference or intake the mediator must ensure that participants are provided with the following: (a) (b)

a description of mediation and the steps involved including the use of joint sessions, separate sessions and shuttle negotiations; information on how to provide feedback or lodge a formal complaint in relation to the mediator.

The preliminary conference or intake may be conducted by a person other than the mediator. 3.2

The preliminary conference or intake includes: (a) assessing whether mediation is suitable and whether variations are required (for example, using an interpreter or a co-mediation model in culturally and linguistically diverse communities or introducing safeguards where violence is an issue). (b)

explaining to participants the nature and content of any agreement or requirement to enter into mediation including confidentiality, costs and how they are to be paid.

(c)

identifying who is participating in the mediation and to what extent participants have authority to make decisions. advising participants about the NMAS and how it can be accessed.

(d) 2

784

For a mediator using a blended process, which may involve the provision of advice see Section 10.2 of the Practice Standards.

Appendix E NMAS standards and collaborative practice standards

| APP E

(e)

assisting participants to prepare for the mediation meeting including consideration of any advice or information that may need to be sought and/or exchanged.

(f)

referring participants, where appropriate, to other sources of information, advice or support that may assist them. informing participants about their roles and those of advisors, support persons, interpreters and any other attendees. advising participants about how they or the mediator can suspend or terminate the mediation. confirming each participant’s agreement to continue in the mediation. deciding venue, timing and other practical issues.

(g) (h) (i) (j)

4 Conducting mediation: The mediation meeting 4.1

4.2 4.3

The mediation meeting will ordinarily include a joint session of the participants in which the participants communicate directly with each other to identify, clarify and explore interests, issues and underlying needs. The mediation meeting may also include separate sessions and shuttle negotiations. A mediator may adjourn the mediation meeting and conduct the mediation over multiple meetings and in different locations. The mediation meeting may conclude whether or not the participants have reached an agreement.

5 Conducting mediation: Suspending or terminating 5.1

A mediator may suspend or terminate the mediation if they form the view that mediation is no longer suitable or productive, for example where: (a)

5.2 5.3

a participant is unable or unwilling to participate or continue in the mediation (b) a participant is misusing the mediation (c) a participant is not engaging in the mediation in good faith (d) the safety of one or more participants may be at risk A mediator should, where possible, advise of their intention to suspend or terminate the mediation If terminating the mediation, the mediator where appropriate, should encourage the participants to consider alternative procedures for achieving resolution.

6 Power and safety 6.1 6.2

A mediator must be alert to changing balances of power in mediation and manage the mediation accordingly. A mediator must consider the safety and comfort of participants and where necessary take steps, which may include: (a) agreeing guidelines to encourage appropriate conduct; 785

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(b)

activating appropriate security protocols;

(c)

using separate sessions, communication technology or other protective arrangements;

(d)

having a participant’s friend, representative or professional advisor attend mediation meetings;

(e)

providing participants with information about other services or resources; and

(f)

suspending or terminating the mediation with appropriate steps to protect the safety of participants.

7 Procedural fairness and impartiality 7.1

A mediator must conduct the mediation in a fair, equitable and impartial way, without favouritism or bias in act or omission.

7.2

A mediator must identify and disclose any potential grounds of bias or conflict of interest before the mediation, or that emerge at any time during the process.

7.3

A mediator must not mediate in cases involving a conflict of interest without the informed consent of the participants, and then only if, in the mediator’s view, the conflict would not impair his or her impartial conduct of the process.

7.4

A mediator must support participants to reach agreements freely, voluntarily, without undue influence and on the basis of informed consent.

7.5

A mediator must provide participants appropriate opportunities to speak to and be heard by one another in the mediation, and to articulate their respective interests, issues and underlying needs.

7.6

A mediator must ensure, so far as practicable, that participants have had sufficient time and opportunity to access sources of advice or information necessary for their decision-making.

7.7

A mediator must encourage and support negotiations that focus on the participants’ respective interests, issues and underlying needs and must encourage participants to assess any proposed agreements accordingly and with reference to their long-term viability.

8 Ethical conduct and professional relations 8.1

A mediator must mediate only where they have the competence to do so.

8.2

A mediator must not use information obtained in mediation for personal gain or advantage.

8.3

A mediator must adhere to the ethical code or standards prescribed by the professional organisation or association of which they are a member or by whom they are employed.

8.4

A mediator should encourage participants to consider the interests of any vulnerable stakeholders.

786

Appendix E NMAS standards and collaborative practice standards

| APP E

8.5

A mediator should encourage participants to obtain other professional support when appropriate but should refrain from recommending the services of particular individuals or firms.

8.6

A mediator may liaise with other relevant professionals with permission from the relevant participant. A mediator should extend professional courtesy to other professionals engaged by the participants. A mediator should, where possible, engage in professional debriefing, peer consultation and mentoring of less experienced mediators.

8.7 8.8

9 Confidentiality 9.1

9.2

9.3

9.4

9.5

A mediator must respect the agreed confidentiality arrangements relating to participants and to information provided during the mediation, except: (a) with the consent of the participant to whom the confidentiality is owed; or (b) where non-identifying information is required for legitimate research, supervisory or educational purposes; or (c) when required to do otherwise by law; (d) where permitted to do otherwise by ethical guidelines or obligations; (e) where reasonably considered necessary to do otherwise to prevent an actual or potential threat to human life or safety. Before holding separate sessions with different participants, a mediator must inform participants of the confidentiality which applies to these sessions. With a participant’s consent, a mediator may discuss the mediation, or any proposed agreement, with that participant’s advisors or with third parties. A mediator is not required to retain documents relating to a mediation, although they may do so should they wish, particularly where duty-ofcare or duty-to-warn issues are identified. A mediator must take care to preserve confidentiality in the storage and disposal of written and electronic notes and records of the mediation and must take reasonable steps to ensure that administrative staff preserve such confidentiality.

10 Knowledge, skills and ethical principles 10.1

A mediator, consistent with the Approval Standards, must have the knowledge and skills, and an understanding of the ethical principles, outlined below: (a) Knowledge (i) the nature of conflict, including the dynamics of power and violence. (ii) the circumstances in which mediation may or may not be appropriate. 787

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(iii)

preparing for mediation; assessing suitability; preliminary conferencing or intake.

(iv)

communication patterns in conflict and negotiation.

(v)

negotiation dynamics in mediation, including manipulative and intimidating tactics.

(vi)

cross-cultural issues.

(vii)

the principles, stages and functions of the mediation process.

(viii) the roles and functions of mediators.

(b)

(ix)

the roles and functions of support persons, lawyers and other professionals in mediation.

(x)

the law relevant to mediators and to the mediation process.

Skills (i)

preparation for and dispute diagnosis in mediation.

(ii)

intake and screening of participants and disputes to assess mediation suitability.

(iii)

the conduct and management of the mediation process.

(iv)

communication skills, including listening, questioning, reflecting, reframing and summarising, as required for the conduct of mediation.

(v)

negotiation techniques and the mediator’s role in facilitating negotiation and problem-solving.

(vi)

ability to manage high emotion, power imbalances, impasses and violence.

(vii)

use of separate meetings.

(viii) reality-testing proposed outcomes in light of participants’ interests, issues, underlying needs and long-term viability. (ix) (c)

facilitating the recording of the outcome of the mediation.

Ethical Principles (i)

competence, integrity and accountability

(ii)

professional conduct

(iii)

self-determination

(iv)

informed consent

(v)

safety, procedural fairness and equity in mediation including withdrawing from or terminating the mediation process

(vi)

impartiality including the avoidance of conflicts of interest

(vii)

confidentiality privacy and reporting obligations

(viii) honesty in the marketing and advertising of mediation and promotion of the mediator’s practice

788

Appendix E NMAS standards and collaborative practice standards

10.2

(c)

| APP E

Where a mediator uses a blended process such as advisory or evaluative mediation or conciliation, which involves the provision of advice, the mediator must: (a)

obtain consent from participants to use the blended process;

(b)

ensure that within the professional area in which advice is to be given, they (i)

have current knowledge and experience;

(ii)

hold professional registration, membership, employment or their equivalent, and

(iii)

are covered by current professional indemnity insurance or have statutory immunity

statutory

and ensure that the advice is provided in a manner that maintains and respects the principle of self-determination.

11 Charging for services 11.1

11.2

11.3

A mediator must obtain agreement from participants about the fees and charges payable for the mediation and about how those fees and charges are to be apportioned between them. A mediator must not charge fees based on the outcome of a mediation or calculated in a way that could influence the manner in which the mediator conducts the mediation. If any fees or charges paid in advance exceed fees or charges payable for the mediation, the excess must be returned promptly upon conclusion or termination of the mediation.

12 Provision of information and promotion of services 12.1 12.2

12.3

12.4

A mediator must accurately represent their qualifications and experience and how they conduct their mediations. A mediator must not guarantee results or outcomes from the mediation process or make statements likely to create false expectations about favourable results. A mediator may use de-identified information about any evaluation of their mediation practice that could assist participants to better understand the mediation services they offer. A mediator accredited under the National Mediator Accreditation System is entitled to use the following descriptor and post-nominal: Accredited Mediator NMAS.

13 Waiver by MSB In exceptional circumstances the MSB may, conditionally or otherwise, waive compliance with any provision of the Practice Standards on application by an RMAB. 789

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PART IV – RECOGNISED MEDIATOR ACCREDICATION BODIES 1 RMAB Qualifications In order to accredit a mediator in accordance with the NMAS, RMABs must have: 1.1 1.2

1.3 1.4

1.5 1.6 1.7

financial membership of the MSB; the capacity and expertise to assess whether training, education, assessment and CPD undertaken by applicants for accreditation or renewal of accreditation meet the respective requirements specified in the Approval Standards; the ability to provide or refer members to CPD activities as outlined in Section 3.5 of the Approval Standards; a complaints system that meets the Benchmarks for Industry-based Customer Dispute Resolution Schemes, or the ability to refer a complaint to a scheme that has been established by statute; sound governance structures, financial viability and appropriate administrative resources; sound record-keeping in respect of mediators accredited under the NMAS; and at least 10 mediators accredited under the NMAS who are bona fide members, panellists or employees

2 RMAB responsibilities RMABs must: 2.1 2.2

recognise the NMAS accreditation of a mediator currently accredited under the NMAS by another RMAB; upload to the National Register a list of mediators accredited by them under the NMAS and maintain the currency of that list;

2.3

pay to the MSB the registration fee as specified by the MSB in relation to each mediator accredited by the RMAB;

2.4

notify the MSB without delay of the details of each mediator who has been granted leave of absence or whose accreditation has been suspended by the RMAB; and

2.5

keep confidential the login identity and password issued by the MSB to their authorised representatives to enable the names of mediators accredited by them under the NMAS to be uploaded to the National Register.

RMABs must not: 2.6 2.7 2.8

790

accredit a mediator under the NMAS who is already accredited under the NMAS by another RMAB. upload to the National Register the names of mediators accredited under the NMAS by another RMAB. collect the MSB registration fee from a mediator who has been accredited under the NMAS by another RMAB.

Appendix E NMAS standards and collaborative practice standards

2.6

| APP E

nothing in this clause prevents an RMAB from including a mediator accredited by another RMAB on their internal list or panel of nationally accredited mediators.

3 Mutual recognition Where an RMAB is required to recognise the national accreditation of a mediator accredited by another RMAB it may require that mediator to provide evidence of accreditation by the other RMAB together with a copy of their application materials to that other RMAB and to give permission for that other RMAB and the MSB to disclose information.

PART V – REGISTER OF NATIONALLY ACREDITED MEDIATORS 1 The National Register The National Register is the authoritative list of all mediators accredited under the NMAS. It enables consumers, advisers and referring agents to: 1.1 1.2

check whether mediators are nationally accredited, and obtain details of the RMAB that has accredited them.

2 Reminders from the National Register Accredited mediators will receive automated reminders from the National Register when their accreditation is due for renewal.

3 Inclusion on the National Register 3.1

3.2 3.3

RMABs are responsible for uploading to the National Register, the particulars of all mediators accredited by them and maintaining the currency of that list. The particulars must comply with the specifications issued from time to time by the MSB. The names of mediators who have not had their accreditation renewed within two months of their accreditation expiry date will no longer be included on the National Register.

PART VI – MEDIATOR STANDARDS BOARD 1 The Mediator Standards Board The MSB is responsible for the ongoing development, maintenance and review of the NMAS and the National Register. The MSB: 1.1 1.2

1.3

amends the NMAS as required; oversees the application of the Approval and Practice Standards with a view to achieving consistency, quality and public protection regarding mediation services and mediation accreditation; supports, complements and encourages MSB members in their efforts to meet their responsibilities in relation to the Standards; 791

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1.4 1.5 1.6

1.7

promotes progressive development in the training and accreditation of mediators and the quality of mediation services; requires records to be maintained of mediators who are accredited under the Standards; provides login identification and passwords to RMABs and specifications regarding the uploading of particulars of accredited mediators to the National Register; carries out other functions and activities that are necessary or incidental to the above.

2 Members of the MSB Members comprise organisations from the following classes whose membership has been approved by the MSB in accordance with its Constitution: 2.1 2.2 2.3 2.4

2.5

2.6 2.7 2.8

792

RMABs; professional organisations that are not RMABs and have at least 30 mediator members accredited under the NMAS; national or state representative organisations that have three or more RMAB members organisation that provide training that meets the training requirement contained in Section 2.4 of the Approval Standards to at least 25 participants per year; Commonwealth, State or Territory government agencies with ADR expertise nominated by the relevant Commonwealth or State AttorneyGeneral’s Department, or equivalent, that are not otherwise RMABs; community or state-based mediation organisations that are not RMABs; consumer organisations that use, but do not provide, mediation services; and such other bodies recognised by the MSB from time to time.

Appendix E NMAS standards and collaborative practice standards

| APP E

COLLABORATIVE PRACTICE GUIDELINES Introduction These guidelines were produced by the Law Council of Australia’s Collaborative Law Committee in 2011 and are reproduced with kind permission. The author of this book has been a member of this committee since its establishment in 2007 by the Law Council of Australia. The guidelines are intended to be reviewed in 2013. They can be accessed at http://www.lawcouncil.asn.au/programs/committees/collaborativepractice.cfm.

Australian collaborative practice guidelines for lawyers: Practice guidelines (March 2011) Description of a collaborative process 1. A collaborative process is a process in which the clients, with the support of collaborative practitioners, identify interests and issues, develop options, consider alternatives and make decisions about future actions and outcomes. The collaborative practitioner acts to assist clients to reach their decision and provides advice where required in a manner that supports the collaborative process. 2. In a collaborative process, the clients and their lawyers contract in writing to attempt to resolve a dispute without recourse to litigation and agree in writing that the lawyers will not act for the clients if they cannot resolve their matter by collaboration and decide to litigate the dispute. 3. The collaborative process supports interest based negotiation. Competitive negotiation strategies and tactics are antithetical to the collaborative process. 4.

5.

The goal of a collaborative process is agreed upon by the clients with the assistance of the collaborative practitioners. Examples of goals may include assisting the participants to make a wise decision, to clarify the terms of a workable agreement and/or future patterns of communication that meet the participants’ needs and interests, as well as the needs and interests of others who are affected by the dispute. The collaborative process: (a) assists the participants to define and clarify the issues under consideration; (b) (c) (d) (e)

is conducted through a series of face to face discussions with the participants and, where appropriate, other professionals; assists participants to communicate and exchange relevant information; invites the clarification of issues in dispute to increase the range of options to assist resolution; provides opportunities for understanding of the perspectives brought to the table; 793

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(f)

facilitates an awareness of mutual and individual interests;

(g)

helps the participants generate and evaluate various options; and

(h)

promotes a focus on the interests and needs of those who may be subject to, or affected by, the situation and proposed options.

6.

Collaborative practitioners can provide legal advice to the participants. They also assist in managing the process of dispute and conflict resolution whereby the participants through an interest based negotiation process agree upon the outcomes, when appropriate. Collaborative practitioners continue to provide legal advice to their clients whilst working cooperatively with the other legal practitioner and professional in a cooperative and non-tactical way to manage the collaborative process and assist the parties to reach a mutually beneficial outcome.

7.

Collaborative practitioners will be alert to and assess the need for the involvement of other professionals in the collaborative process (such as child specialists, financial planners and coaches). Where appropriate, collaborative practitioners will work together with other collaborative professionals in the collaborative process in such ways as best suit the needs of the participants.

Application 8. The Practice Guidelines apply to any collaborative legal practitioner acting with another collaborative practitioner, to support two or more individuals or entities to manage, settle or resolve disputes, or to form a future plan of action through a process of collaboration. Practitioners who act in these roles are referred to in these Practice Guidelines as collaborative practitioners. 9.

10.

11.

794

A collaborative practitioner assists participants to identify, clarify and explore issues, to generate and consider options and to make decisions about future actions and outcomes. The Practice Guidelines are intended to govern the relationship of collaborative practitioners with all participants in the collaborative process, their professional colleagues, courts and the general public so that all will benefit from high standards of practice in the collaborative process. The Practice Guidelines: (a) specify practice and competency requirements for collaborative practitioners; and (b) inform participants and others about what they can expect of the collaborative process. There are a range of different collaborative process models in use across Australia. Collaborative processes support interest based negotiation and can take place in all areas where decisions are made. For example, collaborative processes can be used in relation to family, commercial, community, workplace, environmental, construction, building, health and educational decision making. Collaborative practitioners are drawn from diverse backgrounds and disciplines. These Practice Guidelines set out minimum practice requirements for lawyers who are working as

Appendix E NMAS standards and collaborative practice standards

| APP E

collaborative practitioners and recognise that some collaborative practitioners who practice in particular areas of law with particular models, may choose to develop or comply with additional Guidelines or requirements. 12.

Where collaborative practitioners practice under existing legislative frameworks and there is a conflict between the requirements of these Practice Guidelines and any legislation, the respective legislative requirements will override those of the Practice Guidelines to the extent of any inconsistency.

Starting a collaborative process 13. Before commencing, a collaborative practitioner should ensure that an outline of the collaborative process has been given to the participants. 14.

Prior to the collaborative process taking place, the collaborative practitioners will ensure that the participants have been provided with an explanation of the process and have had an opportunity to reach agreement about the way in which the process is to be conducted. This will take place in an intake assessment that is held separately from a collaborative process session.

15.

The objectives of an intake process include:

16.

(a)

determining whether collaborative process is appropriate and whether variations are required (for example, using an interpreter or a different collaborative process model in culturally and linguistically diverse communities, or varying arrangements where violence is an issue);

(b)

discussing the range of potential dispute resolution options that may be available so that a client can make an informed decision;

(c)

assisting the participants to prepare for the process. Participants who are prepared are in the best position to make an informed decision when attending a collaborative process;

(d)

ensuring that every participant receives information about the roles of each party in the collaborative process; this discussion may involve questions relating to the role of collaborative practitioners, support people and others;

(e)

clarifying the terms of any agreement to enter into the process; and

(f)

settling venue and timing issues.

The collaborative practitioner should: (a)

describe and explain the collaborative process that is to be used;

(b)

discuss the appropriateness of the process for the participants in light of their particular circumstances, the benefits and risks of the process, and the other alternatives and process options open to the participants;

(c)

discuss the confidentiality of the collaborative process and any limitations on such confidentiality; 795

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17.

(d)

advise the participants about how they or the collaborative practitioner can suspend or terminate the collaborative process and any costs implications that may be associated with the suspension of the termination;

(e)

reach agreement with the participants about fees and costs and how such costs are to be paid;

(f)

advise the participants of the collaborative practitioner’s role in relation to the provision of advice or other services, for example, he or she shall inform the participants about how legal advice can be given – in joint or separate meetings or both.

(g)

discuss with or inform the participants about the procedures and practices in the collaborative process, such as: (i)

how participants may seek information and advice from a variety of sources during the process;

(ii)

how participants may withdraw from the process;

(iii)

that participants are not required to reach an agreement;

(iv)

the opportunities for separate communication with the participants and/or with their legal representatives; and

(v)

the circumstances in which other persons can be involved in the process, for example, the participation of experts, support persons or interpreters who may be involved in the collaborative process.

The agreement to enter into collaborative process should be in writing. Any agreement with respect to the confidentiality of a session, or any waiver of such confidentiality, may also be acknowledged in writing by all participants.

Power issues 18. Collaborative practitioners shall have completed training that assists them to recognise power imbalance and issues relating to control and intimidation and take appropriate steps to manage the collaborative process accordingly. 19.

Some disputes may not be appropriate for a collaborative process because of power imbalance, safety, control and/or intimidation issues, mental health issues and substance abuse issues.

20.

If at any time there is a risk of imminent harm to self or other the collaborative practitioner shall take appropriate measures to ensure the safety of participants. Options include:

796

(a) (b)

activating appropriate pre-determined security protocols; using video conferencing or other personal protective and screening arrangements;

(c) (d)

referring the participants to appropriate resources; and suspending or terminating the collaborative process, appropriate steps to protect the safety of the participants.

with

Appendix E NMAS standards and collaborative practice standards

| APP E

Impartial and ethical practice 21. A collaborative practitioner must conduct the process in an impartial and supportive manner and adhere to ethical guidelines of practice. 22.

A collaborative practitioner will disclose actual and potential grounds of bias and conflicts of interest. The participants shall be free to retain the collaborative practitioner by an informed waiver of the conflict of interest.

23.

A collaborative practitioner should avoid conflicts of interest, or potential grounds for bias or the perception of a conflict of interest, in recommending the services of other professionals.

24.

A collaborative practitioner will not use information about participants obtained in collaborative process for personal gain or advantage.

25.

A collaborative practitioner should not become involved in relationships with parties that might impair the practitioner’s professional judgment. Collaborative practitioners should adhere to, and be familiar with, the code of conduct or ethical standards and obligations prescribed by the Law Society, Institute or association with which they have membership.

Confidentiality 26. A collaborative practitioner should respect the confidentiality of the participants. 27.

A collaborative practitioner shall not voluntarily disclose to anyone who is not a party to the collaborative process any information obtained except: (a)

non-identifying information for necessary administrative, research, supervisory or educational purposes; or

(b)

with the consent of the participants to the collaborative process; or

(c)

when required to do so by law; or

(d)

where permitted by existing ethical guidelines or requirements and the information discloses an actual or potential threat to human life or safety.

28.

The collaborative practitioner will clarify the participants’ expectations of confidentiality before undertaking the collaborative process. Any written agreement to enter into the process should include provisions concerning confidentiality.

29.

Before undertaking the collaborative process, the collaborative practitioner will inform the participants of the limitations of confidentiality, such as statutory, judicially or ethically mandated reporting, and any reporting required pursuant to professional ethical requirements.

30.

If subpoenaed, or otherwise notified to testify or to produce documents, the collaborative practitioner should attempt to inform the participants as soon as reasonably practicable. The collaborative practitioner should not give evidence without an order of the Court or Tribunal if the collaborative practitioner reasonably believes doing so would violate an 797

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obligation of confidentiality to the participants. The collaborative practitioner may include indemnification provisions in relation to costs incurred in their fee agreement. 31.

With the participants’ consent, the collaborative practitioners may discuss the collaborative process with any expert advisors where such advisors have not attended all or part of the actual collaborative process session.

32.

Where the participants reach an agreement in a collaborative process, the substance of the proposed agreement may, with the permission of participants, be disclosed to their expert advisors or others and may be used in a de-identified form for debriefing, research processes and discussion purposes.

33.

The collaborative practitioner should maintain confidentiality in the storage and disposal of client records and must ensure that office and administrative staff maintain such confidentiality.. Some collaborative practitioners may also choose to retain notes relating to the content of the dispute particularly where duty-of-care or duty-to-warn issues are identified.

Competence 34. Collaborative practitioners must be competent and have relevant skills and knowledge. 35.

Collaborative practitioners must be competent in any area where they seek to give advice. They must hold relevant qualifications and comply with Practice Group requirements. They must be registered in the State or Territory that they practise in and must hold a professional membership of a recognized professional organisation in the area that they seek to give advice.

36.

Practitioners should seek regular professional debriefing. The purpose of debriefing is to address matters relating to skills development, conceptual and professional issues, ethical dilemmas, and to ensure the ongoing emotional health of collaborative practitioners. Debriefing can take place following a collaborative process, in groups or through independent sessions with another experienced collaborative practitioner. Collaborative practitioners should also participate in continuing professional development training. Where possible, collaborative practitioners should also participate in programs of peer consultation and should help train and mentor the work of less experienced collaborative practitioners.

37.

38.

798

Collaborative practitioners should be competent and have the capacity to apply knowledge, skills and an ethical understanding and commitment in the areas listed below. Collaborative practitioners demonstrate competence by showing that they have the requisite knowledge and skills and can apply them. Collaborative practitioners are required to ensure that ongoing professional development is focused on achieving and maintaining competencies including: (a) KNOWLEDGE, in areas including, but not limited to:

Appendix E NMAS standards and collaborative practice standards

(b)

(c)

| APP E

(i)

the nature of conflict, including the dynamics of power and violence;

(ii)

the appropriateness or inappropriateness of collaborative process;

(iii)

pre-collaborative process preparation, screening and intake;

(iv)

communication situations;

(v)

negotiation dynamics in collaborative process;

(vi)

the principles, stages and functions of a collaborative process; and

(vii)

the roles and functions of collaborative practitioners.

patterns

in

conflict

and

negotiation

SKILLS, including, but not limited to: (i)

dispute diagnosis in collaborative processes;

(ii)

intake and screening of both the parties and the dispute to assess suitability for collaborative process;

(iii)

conduct and management of the collaborative process;

(iv)

appropriate communication skills, including listening, questioning, reflecting and summarising, required for the conduct of collaborative process;

(v)

negotiation techniques and the collaborative practitioner’s role in facilitating negotiation and problem-solving; and

(vi)

collaborative practitioner interventions appropriate for standard difficulties in collaborative process.

ETHICAL UNDERSTANDINGS in relation to: (i)

the avoidance of conflicts of interest;

(ii)

marketing and advertising of collaborative process;

(iii)

confidentiality, privacy and reporting obligations;

(iv)

neutrality and impartiality;

(v)

fiduciary obligations;

(vi)

supporting fairness and equity in collaborative process; and

(vii)

withdrawal from and termination of the collaborative process.

Inter-professional relations 39. Collaborative practitioners should respect the relationships with professional advisors, other collaborative practitioners and experts which complement their practice of collaborative process. 40.

Collaborative practitioners should promote cooperation with other professionals and encourage clients to use other professional resources when appropriate.

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41.

When disputes involve more than one facilitative or other decisionmaking process, collaborative practitioners will keep themselves informed and keep other professional colleagues informed about the processes taking place. Collaborative practitioners will consider and respond to any consultative responsibilities that extend beyond more narrowly defined obligations to facilitate a process directly between the disputants.

Procedural fairness 42. A collaborative practitioner will conduct the collaborative process in a procedurally fair manner and support interest based negotiation following a discussion of interests. 43.

A collaborative practitioner will support the participants to reach any agreement freely, voluntarily, without undue influence, and on the basis of informed consent. Collaborative practitioners will provide each participant with an opportunity to speak and to be heard in the collaborative process, and to articulate his or her own needs, interests and concerns.

44.

If a collaborative practitioner, after consultation with another practitioner or a participant, believes that a participant is unable or unwilling to participate in the process, the collaborative practitioner may suspend or terminate the collaborative process.

45.

The collaborative practitioner should encourage and support balanced negotiations and should understand how manipulative or intimidating negotiating tactics can be employed by participants.

46.

To enable negotiations to proceed in a fair and orderly manner or for an agreement to be reached, if a participant needs either additional information or assistance, the collaborative practitioner must ensure that participants have sufficient time and opportunity to access sources of advice or information.

47.

It is a fundamental principle of the collaborative process that competent and informed participants can reach an agreement which may differ from litigated outcomes. The collaborative practitioners, however, have a duty to support the participants in assessing the feasibility and practicality of any proposed agreement in both the long and short term, in accordance with the participant’s own subjective criteria of fairness, taking cultural differences and where appropriate, the interests of any vulnerable stakeholders into account.

48.

The primary responsibility for the resolution of a dispute rests with the participants. The collaborative practitioner will not pressure participants into an agreement or make a substantive decision on behalf of any participant.

49.

No participant in a collaborative case, whether a collaborative practitioner or a client, may knowingly withhold or misrepresent information material to the collaborative process or otherwise act or fail to act in a way that knowingly undermines or takes unfair advantage of the collaborative

800

Appendix E NMAS standards and collaborative practice standards

| APP E

process. In addition, participants should not undermine the process by threatening litigation or taking positional stances. 51.

If a client knowingly withholds or misrepresents information material to the collaborative process, or otherwise acts or fails to act in a way that undermines or takes unfair advantage of the collaborative process, and the client continues in such conduct after being duly advised of his or her obligations in the Collaborative process, such continuing conduct will mandate withdrawal of the Collaborative Practitioner and the termination of the collaborative Process. Such consequences will be clearly stated in the Participation and/or Fee Agreement.

51.

In the event of a withdrawal from or termination of the Collaborative process, the collaborative practitioner shall notify the other professionals in the case.

Information provided by the collaborative practitioner 52. The collaborative practitioner can provide advice about content matters that are within their area of expertise. The collaborative practitioners can also advise upon the collaborative process that is used. 53.

Consistent with the Guidelines relating to impartiality and preserving participant self-determination, collaborative practitioners may provide the participants with information and advice that the collaborative practitioner is qualified by training or experience to provide. Such information will often be couched in general terms.

54.

A collaborative practitioner should only provide information within the limits of his or her qualifications and competence while conducting a collaborative process.

55.

Where appropriate, for example, in some family, environmental and workplace disputes, the collaborative practitioners have a responsibility to facilitate a discussion about the participants’ awareness of the interests of others affected by the dispute, and by the proposed agreement, and to assist the participants to consider the separate and individual needs of other such persons.

56.

Collaborative practitioners will provide information about their specialist and relevant training, education and expertise to participants upon request.

Termination of the collaborative process, withdrawal and disqualification 57. The collaborative practitioner may suspend or terminate a collaborative process if continuation of the process might harm or prejudice one or more of the participants or if they consider that the collaborative process is no longer effective. 58.

Collaborative practitioners have discretion about whether they terminate a process. Some circumstances may be set out in a collaborative agreement. Collaborative practitioners should be alert to situations where a party seeks to misuse the collaborative process to achieve other ends such as: 801

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(a)

delaying proceedings in the hope of reinforcing the continuation of an existing arrangement or obtain other advantage; or

(b)

“buying” time in order to dissipate or conceal assets; or

(c)

in some other way acting in bad faith.

59.

A collaborative practitioner may suspend or terminate the collaborative process if, in the opinion of the collaborative practitioner, it is being used for a purpose other than a mutual attempt to arrive at resolution, or its usefulness has in some other way been exhausted. Collaborative practitioners should, where possible, provide reasonable notice to the participants.

60.

The collaborative practitioner may withdraw from the collaborative process when an agreement is being reached by the participants that the collaborative practitioner believes is unconscionable. If terminating or withdrawing from a collaborative process, the collaborative practitioner should assist the parties in assessing further process options for dealing with their dispute.

61.

A collaborative practitioner cannot act for a participant in any litigation that follows the termination of a collaborative process. A collaborative practitioner may enable an orderly transition to any practitioner who may take on the role of a new representative or adviser subject to any agreement as to confidentiality.

62.

Undertaking any contested court procedure automatically terminates the collaborative process. A collaborative practitioner shall not threaten to undertake any contested court procedure related to the collaborative case nor shall a collaborative practitioner continue to represent a client who makes such a threat in a manner that undermines the collaborative process.

63.

Upon termination of the collaborative process, the representing collaborative practitioners and all other professionals working within the collaborative process are prohibited from participating in any aspect of the contested proceedings between the parties.

Charges for services 64. The collaborative practitioners should make explicit to parties all charges related to the practitioner’s services and how they are calculated. 65.

The collaborative practitioner will explain any fees to be charged for the collaborative process and any related costs. The collaborative practitioner must also obtain agreement from the participants as to how any fees will be shared and the method of payment.

66.

Participants shall discuss fee arrangements before commencing the process and/or at the first collaborative session to ensure that participants are supported and there is an open, transparent and frank discussion about fee arrangements.

802

Appendix E NMAS standards and collaborative practice standards

| APP E

67.

A collaborative practitioner will not base fees on the outcome of the collaborative process, but it is not unethical for a collaborative practitioner to act pro bono or to leave to the discretion of the parties the payment of any fees. 68. If any retainer has been collected before collaborative process services have been rendered, any unearned fees should be returned promptly upon termination of the collaborative process. Making public statements and promotion of services 69. The collaborative practitioner should ensure that public statements made by the collaborative practitioner promoting business are accurate. 70. The purpose of public statements concerning collaborative processes should be to: (a) educate the public about the process in order to help the public make informed judgments and choices; and (b) present the collaborative process objectively, as one which seeks to empower participants directly and constitutes only one of several methods for arriving at an outcome. (c) public communications should not mislead the public, misrepresent facts or contain any statements likely to mislead or deceive by making only a partial disclosure of relevant facts; or (d) statements intended or likely to create false or unjustified expectations of favourable results. 71. Legal Practitioners must not hold themselves out to the general public and their profession as collaborative practitioners, if they do not engage with and follow the collaborative process described in these guidelines. 72. When advertising professional services, collaborative practitioners should restrict themselves to matters which educate and inform the public. These could include the following information to describe the collaborative practitioner and the services offered, such as; name, address, telephone and facsimile numbers, email address, office hours, relevant academic degree(s), specialist subject expertise, relevant training and experience in the collaborative process, collaborative process qualifications such as certifications and accreditations, appropriate professional affiliations and membership status, advantages of a collaborative process, and any additional relevant or important consumer information. In particular: (a) collaborative practitioners should refrain from promises and guarantees of results, however a collaborative practitioner may report on de-identified information about any evaluation of their services that might assist parties to better understand the collaborative process; and (b) 73.

collaborative practitioners must accurately represent their qualifications and their relevance and significance. Collaborative practitioners should, where possible, encourage and/or participate in research.

(March 2011)

803

Appendix F NADRAC framework for ADR standards (NADRAC Standards are considered in detail in Chapter 13.) National Alternative Dispute Resolution Advisory Council (NADRAC) proposed the following framework for the training and accreditation of ADR practitioners. The following Section 5.3 appears on pp 100–114 of NADRAC, A Framework for ADR Standards (Attorney-General’s Department, Canberra, April 2001) and is reproduced with kind permission. See http://www.nadrac.gov.au for further information. © Commonwealth of Australia

5.3 KNOWLEDGE, SKILLS AND ETHICS OF ADR PRACTITIONERS The areas of knowledge, skills and ethics described in this section were provided in NADRAC’s discussion paper, and amended following responses to the paper. The areas need to be adapted to suit the context of service provision and the roles and responsibilities of practitioners (see Section 5.1). They may be contextualised and customised by: • adding additional standards about knowledge, skills or ethics • deleting some standards that do not apply • defining the standards in order to reflect the particular context • deciding what are the priorities of some standards in relation to others • establishing measures for the standards • setting the appropriate level of proficiency for the standards. The knowledge, skills and ethics described below may be used for various purposes, including: • developing accreditation, assessment or selection criteria • guiding ongoing supervision and professional development • forming part of evidence guides in any competencies developed for ADR within the vocational education and training system • being incorporated into the content of curriculum in the higher education system.

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Knowledge Knowledge refers to the understanding of relevant theories, principles, practices, their application and other aspects of knowledge, which may be desirable or necessary in order to practise effectively an ADR process. NADRAC has identified nine areas of relevant knowledge. Their order does not indicate any relative importance. 1. Conflict This refers to knowledge about the following aspects of conflict: • how conflict arises between and within individuals and groups • the different kinds of conflict that give rise to disputes • potential sources of conflict around objectives, values, interests, relationships, information, communication and structures • how conflict can be diagnosed in terms of its various attributes • the different procedural, psychological and substantive interests that form the subject of conflict • patterns of conflict escalation and the factors that contribute to that escalation • factors which can cause conflict to de-escalate and resolve, including the interventions of ADR practitioners • appropriate dispute resolution interventions for different kinds of conflict • the significance of timing in relation to the management and resolution of conflict. 2. Culture This refers to knowledge about the relevance of culture to varying aspects of conflict and dispute resolution, including: • the relevance of culture in relation to problem-solving and dispute resolution • the relevance of culture in relation to negotiation, concessions and compromise • cultural variations communication

in

relation

to

written,

spoken

and

non-verbal

• cultural attitudes towards physical space, venue and time • cultural attitudes towards the role of outsiders in dispute resolution • cultural attitudes in relation to the role of law, lawyers and professional advisers • the cultural significance of the individual and the group in dispute resolution. 3. Negotiation This refers to knowledge about aspects of negotiation: • the role of preparation for the parties in negotiation • parties’ capacity and ability to negotiate and make decisions • the processes of negotiating 806

Appendix F NADRAC framework for ADR standards

| APP F

• the processes whereby parties, both individually and collectively, reach conclusions and make decisions • the rituals, process and stages of different models and styles of negotiation, including interest based negotiation • the potential impact of power on negotiating behaviour, particularly a party’s perceptions of their own and the other side’s power • the significance of a safe negotiating environment in which parties can accept or give up power in order to reach agreement • problem-solving processes and strategies, for example, how to generate ideas and options through brain-storming • appropriate ways for dispute resolution practitioners to use their negotiation knowledge to intervene in and assist the negotiation process • predictable tactics, problems and deadlocks which can arise in negotiation, and strategies for dealing with them • the information that parties need to make their own decisions, and how it can be collected and analysed. 4. Communication This refers to knowledge about aspects of communication that might be of relevance in the dispute resolution context: • ways in which inadequate communication can cause conflict, or contribute to its escalation • appropriate forms of communication for promoting the resolution of conflict and avoiding language which reinforces or encourages conflict • appropriate questioning and answering, paraphrasing and non-verbal communication

summarising,

reframing,

• appropriate ways of assisting disputing parties to communicate effectively with each other • awareness of the effects of the practitioner’s communication style on the parties and the progress of the dispute resolution process • techniques of drafting, writing up decisions and other written communication skills. 5. Context This refers to knowledge about contextual factors relevant in the practice of ADR processes: • the legal, social, cultural, economic and institutional context of the dispute • other dispute resolution procedures that precede or follow an ADR intervention within a particular context • relevant relationships, such as couple, family and group relationships • availability of professional, academic, technical, community and educational resources for party use or referral 807

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• the legal and social standards that would be applicable if the case was taken to a court or other forum following a particular ADR process • the significance of the diversity of the parties involved in ADR, including gender, religion, age, culture, language, race, education, socioeconomic status, and disability • the structures, resources, processes and requirements of the service provider. 6. Procedure This refers to knowledge about the different procedural elements and requirements of a particular ADR context: • the theory, systems and methods of the relevant dispute resolution processes, and their suitability for particular situations • the management and conduct of a dispute resolution process, and how the practitioner structures and adapts the process in the most appropriate way • stages of a dispute resolution process, and how they can be used most effectively • intake assessment and case management processes • limitations of the processes • when and how to abandon a particular process, and refer to or commence another • how to deal with non-compliance with procedural requirements • how to ensure fairness in procedure • criteria for exercising discretion on procedural matters, for example, adjournments, consultations with individual parties, and duration • how to identify who may be interested parties and how to ensure their appropriate participation. 7. Self This refers to knowledge about how an ADR practitioner can be aware of and reflect on what they contribute to the process of dispute resolution: • the ADR practitioner’s effect on the parties and their effect on him or her • awareness of one’s own strengths and limitations in handling the ADR process, and the boundaries of one’s role • the dynamics of the relationship between the practitioner and the parties • the interaction of different values, beliefs, assumptions and prejudices, and their effect on the process • clarity over professional and personal boundaries, the knowledge of how to retain professional warmth, empathy and objectivity while keeping personal feelings and experiences in abeyance • awareness of one’s own interpersonal communication style and the effect it has on others • awareness of personal responses to conflict and high emotion. 808

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8. Decision-making In advisory and determinative ADR, this refers to knowledge about how to make a decision: • the steps needed to obtain and to consider properly all relevant information before making a decision • how to evaluate facts, information, evidence, precedent and opinions in arriving at a decision • how to provide verbal or written reasons for a decision • the duty to exercise reasonable care in the provision of information or advice • the extent to which fairness and natural justice should apply in decision-making • appropriate legal, industrial or social standards or norms. 9. ADR This refers to knowledge about theories and practices in ADR, and about the appropriateness of different forms of ADR for different disputes. This knowledge enables screening and streaming of appropriate cases to ADR processes: • principles and philosophy of ADR • knowledge of one or more practice models or frameworks • what dispute resolution forum is most appropriate for what kind of dispute • what is the best time in the development of a dispute for an ADR intervention • the information parties require to make their own choice of dispute resolution process • the substantive, psychological and procedural needs of parties that affect the choice of a particular ADR process • the advantages and disadvantages of various dispute resolution processes, and their alternatives • issues of confidentiality, duty of care and fairness in procedure during the assessment or intake process • indications that a dispute would be inappropriate for an ADR process.

Skills In this section NADRAC has focused on the skills which may be involved in conducting some or all ADR processes. The order in which the skills are listed in each category is not intended to signify a particular level of importance for each skill, nor is it intended to signify a particular point in time at which a skill should be used. The skills can be used at whatever time they are appropriate in an ADR process. 10. Assessing a dispute for ADR This refers to a variety of analytical and interpersonal skills used to conduct a sound assessment of a dispute for any particular ADR process or processes. They can be demonstrated by: 809

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• accurately and concisely analysing the issues presented to assess the most suitable process • accurately and effectively referring parties to other services which may be more appropriate • assessing parties’ capacity to negotiate • understanding the emotions and expectations of parties • determining the parties’ readiness to consider and commit to ADR processes, rather than continue the fight • preparing and counselling parties in preparation for an ADR process • assessing power differentials between parties, including the timely and effective exclusion of ADR where appropriate • providing accurate, timely and relevant information about the ADR processes available, and other resources • evaluation of factors such as apprehension of violence, security issues, age of the parties, issues affecting a party from a non-English speaking background, the need to seek advice, the legal or factual complexity of the matter, the precedential value of a formal resolution of an issue and the need for public sanctioning of particular conduct • reassessing when necessary during the process in the light of new information. 11. Gathering and using information This refers to the skills of collecting and systematising information, drawing inferences and deductions, and where appropriate deciding on questions of fact. They can be demonstrated by: • collecting and organising data • assisting parties to provide appropriate information • investigating and dealing with gaps in information • research and analytical skills • identifying and assessing the needs and wishes of affected third parties (eg, children) • managing the way information is presented, tested and evaluated • drawing inferences or deductions from information • applying relevant rules and principles of evidence. 12. Defining the dispute This refers to the skills required to analyse and define the issues in dispute. They can be demonstrated by: • • • • •

involving the parties in identifying and defining the dispute using appropriate terms to describe the dispute defining the dispute in terms of interests where appropriate establishing common ground between the parties ordering, differentiating and prioritising the issues.

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13. Communication This refers to the skills required to clarify, understand and impart understanding, and to manage communication exchanges between the parties. They can be demonstrated by: • effective, accurate and clear communication with the parties • effective, accurate and clear communication when acting as an intermediary eg, in shuttle mediation • checking with parties that they are clear about what is going on, and responding to their queries • identifying and acknowledging each party’s feelings, concerns and views on all issues • showing understanding by use of listening and questioning skills • summarising, paraphrasing and reframing • appropriate use of language and terminology, including plain English • writing and drafting skills • computer skills • effective use of verbal and non-verbal communication techniques • appropriate writing and recording. 14. Managing the process This refers to the skills necessary to chair, order, control and maintain continuity and progress of the dispute resolution process, including setting procedural rules and behaviour guidelines, and organising the appropriate physical environment. They can be demonstrated by: • establishing the appropriate venue, rooms, seating and other aspects of the physical environment • organising appropriate facilities and amenities for the parties • maintaining a favourable and safe environment for all participants • ascertaining and supporting the capacity and willingness of all parties to participate in the process • maintaining party commitment to the process • maintaining fairness in procedure for all parties involved in the process • complying with statutory, contractual and procedural requirements • effectively using technology and expert assistance, such as interpreters, to remove impediments to open communication • assessing and providing sufficient time for the process and making effective use of the time available to allow parties’ respective interests and views to be identified and explored • adapting the process to suit the needs of the parties and the dispute • adapting the process to deal with the use of more than one ADR practitioner in the same dispute. 811

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15. Managing interaction between the parties This refers to the skills necessary to manage effectively the behaviours of, and interaction between, the parties. They can be demonstrated by: • choosing appropriate mechanisms to prevent escalation of the dispute • identifying, acknowledging and normalising conflicting behaviours • dealing with hostility, emotion and deviations from expected behaviour during the process • using rules and behavioural guidelines as required by the circumstances • identifying and managing both the personal and the substantive issues • identifying and managing expectations • assessing appropriate use and timing of separate sessions with each party and breaks and adjournments in the process. 16. Negotiation This refers to the skills required to assist the parties to negotiate with one another in order to reach agreement. They can be demonstrated by: • assisting parties to prepare for negotiations • assisting parties to identify options and make choices and decisions • using creative and inventive problem-solving strategies • assisting parties to identify agreements and decisions made, and future action required • identifying agreements and decisions made, and future action required • ensuring legislative and other constraints are identified and taken into account • • • •

focusing on interests (exploration of interests) where appropriate assisting parties to make and respond to offers, linking and packaging managing blockages, loss of face and final closures exploring creative and practical options.

17. Being impartial This refers to the skills necessary to balance the relationships with and between the parties, to create trust in the process and the practitioner, and to ensure fairness for all parties involved. They can be demonstrated by: • an even-handed conduct of the process • identifying the existence of any actual or potential bias or conflict of interest • responding appropriately and immediately to any party’s concerns about bias or partiality • avoiding any appearance of partiality or bias through word or conduct • ensuring an appropriate degree of party responsibility for the outcome and the process • hearing all parties to a dispute and considering all relevant arguments before a decision is made 812

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• giving all parties an opportunity to present their point of view before a decision is made • giving all parties an opportunity to respond to any adverse material which could influence a decision affecting them • ensuring legislative and other constraints are identified and taken into account • displaying sincerity and integrity, and building and maintaining trust. 18. Making a decision This refers to the key elements of good decision-making, namely that it be legal, ethical, explicit, equitable and sensible, and that it complies with the principles of natural justice. These qualities can be demonstrated by: • ensuring the decision is consistent with the powers vested in the ADR provider • clearly expressing the decision, its implications, and how the ADR provider came to that decision • clearly drafting the decision and ensuring it contains enough information to explain the reasons of the decision-maker • explaining the decision to the affected parties • in facilitative ADR processes, providing parties with the opportunity to reflect on the agreement or seek legal advice. 19. Concluding the ADR process In determinative processes this refers to the skills of communicating one’s decision, its basis and its implications, clearly and respectfully to the parties. In facilitative and advisory ADR processes, this refers to the skills required to consolidate an agreement by the parties or conclude the process appropriately if no agreement has been reached. These skills can be demonstrated by: • assessing accurately when agreement has been reached or when it is not possible • ensuring parties clearly understand the agreement, and their roles and responsibilities • enabling parties to reach agreement across the final blockages and gaps • managing the rituals of closure • managing any lack of agreement, the termination of the process and the exit of the ADR practitioner • testing the agreement and its implementation for workability and durability • drafting the agreement in clear and unambiguous terms • making appropriate referrals.

Ethics Ethics refers to the attitudes and conduct of individual ADR practitioners. Many ethical standards parallel the elements of a code of practice for service providers, contained in Section 5.2. 813

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NADRAC focuses on eight areas in ADR practice with ethical implications, and proposes some issues that the development of standards should take into account. 20. Promoting services accurately Ethical issues arise for ADR practitioners when advertising their services. These issues involve: • ensuring that information marketing the services is accurate • being clear about the outcomes that may be expected from the ADR process • the undesirability of referrers making exaggerated claims about the service provider or the relevant ADR process • • • •

avoiding the appearance of soliciting work in particular disputes the prohibition of referral commissions or kickbacks taking cases only if work arrangements allow for timely attention clarifying any personal involvement if another service provider is already involved in the same dispute in a similar or overlapping role • providing information about service costs and fees. 21. Ensuring effective participation by parties Depending on the ADR process used, the practitioner may need to ensure that the parties are given the opportunity to have their say, make decisions about time frames, venues and costs, and understand the issues and the implications of choosing one outcome over another. In facilitative ADR it is important that the practitioner be aware of those cases in which it would not be appropriate for the parties to participate in an ADR process, or to do so only with special adaptations to the process. A practitioner may need to consider whether any action is required of them in the following situations: • the parties lack an adequate level of understanding of the issues and implications of the possible outcomes • the parties lack sufficient time to assess any proposed outcome • there is the possibility of undue practitioner influence • the process is inappropriate to resolve the parties’ dispute • the physical safety of the parties, practitioner or third parties has been or may be at risk • strategies which are quite inconsistent with the ADR process are being pursued by one or other of the parties • a party has undertaken the ADR process in order to gather information to be used in furtherance of the dispute • where one or more parties is unable to participate and negotiate effectively in the process • a significant power imbalance between the parties is likely to prejudice the outcome for one of the parties 814

Appendix F NADRAC framework for ADR standards

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• the parties are not willing to participate in good faith. The practitioner may then consider implementing one or more of the following: • when it is appropriate, include one or more of the following: an interpreter, a support person, an adviser, a representative or an advocate • enable the provision of technical assistance, information or expert advice • adjourn the process • terminate the process/refer to another process. 22. Eliciting information Most ADR processes rely on developing a clear understanding of the reasons for the dispute. To achieve this the parties need to be encouraged to describe their own perceptions and needs clearly and as completely as possible. ADR practitioners need to be aware of the scope of their duties to elicit relevant information, and encourage the parties to obtain, check and share information. Where determinative ADR is used, ADR practitioners may have a wide discretion to decide what information is relevant. However, where facilitative ADR processes are being used, the ADR practitioner may need to consider issues such as: • whether an ADR practitioner can contradict a party (eg, by physical evidence or prior inconsistent statement) • whether there is any scope for discrediting a party before their colleagues (on the same side of the dispute) in order to verify the relevant facts • the kinds of information that may only be raised for discussion in private sessions • whether recommendations or decisions may be restricted to agreed issues in dispute, or may be open to other related issues as well. 23. Managing continuation or termination of the process Some ADR processes end with an expert recommendation and not a final decision. In others, the parties or the ADR practitioner make decisions with a view to ending the dispute. In all cases ADR practitioners are expected to perform their duties diligently and promptly so they are completed within a reasonable time frame. Terminating an ADR process is a responsibility the ADR practitioner has to both parties. Depending on the ADR process involved, the ADR practitioner may need to consider whether to: • discourage the parties from abandoning the process when the practitioner believes settlement is possible • abandon (or threaten to abandon) the process in order to induce agreement • try to restrict the number or scope of settlement options by reference to similar case experience, expert intellectual knowledge or legal principles. 24. Exhibiting lack of bias ADR practitioners need to demonstrate independence and lack of personal interest in the outcome, so that they approach the subject matter of the dispute 815

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with an open mind, free of preconceptions or predisposition towards either of the parties. The importance of exhibiting lack of bias is that the parties can be satisfied that they can trust the ADR practitioner to conduct the process fairly. This has usually been referred to as a requirement of neutrality. In NADRAC’s view “neutrality” requires that the ADR practitioner disclose to all parties: • any existing or prior relationship or contact between the ADR practitioner and any party • any interest in the outcome of the particular dispute • the basis for the calculation of all fees and benefits accruable to the practitioner • any likelihood of present or future conflicts of interest • personal values, experience or knowledge of the ADR practitioner which might substantially affect their capacity to act impartially, given the nature of the subject matter and the characteristics of the parties. Having made the disclosure, the practitioner must also decide whether they should withdraw, or, with the express permission of all parties, continue. 25. Maintaining impartiality While neutrality is a question of interest, impartiality is more a matter of behaviour. It relates to the retention of the confidence of the parties based on their perception that they are treated fairly by the ADR practitioner throughout the process. Any limits on the requirement of impartiality should be clearly explained to and understood by the parties. Impartiality requires the ADR practitioner to: • conduct the process in a fair and even-handed way • generally treat the parties equally (eg, spending approximately the same time hearing each party’s statement or approximately the same time in separate sessions) • not accept advances, offers or gifts from parties • give advice and allow representation, support or assistance equally to parties • ensure they do not communicate noticeably different degrees of warmth, friendliness or acceptance when dealing with individual parties • organise the venue, times and seating in a way which suits all parties. 26. Maintaining confidentiality Some ADR processes are considered to be essentially private (eg, mediation) and some are not (eg, facilitation of public consultations). It is important that the practitioner and parties in any ADR process have, as far as possible, a clear and common understanding of the extent of confidentiality and the limits of confidentiality. Confidentiality may require an ADR practitioner to:

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Appendix F NADRAC framework for ADR standards

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• not disclose information provided by one of the parties in an ADR session to the other party. (In mediation or conciliation, information may be conveyed to the practitioner during a separate private session. In other ADR processes it may be necessary for all information to be made available to both parties) • not disclose information about the dispute to third parties, subject to any common law, contractual or statutory requirements. However, in all cases the ADR practitioner should make clear to the parties the limits on disclosing information that apply to the parties and to the practitioner. 27. Ensuring appropriate outcomes Depending on the context, the outcome of an ADR process may need to comply with certain requirements, including public accountability, legislation and natural justice. In particular, an ADR practitioner may need to consider or get advice on whether: • the interests of third parties are appropriately protected, or at least not unnecessarily or unjustifiably threatened • the outcome, particularly in determinative ADR, is fair as between the parties • a decision, particularly in determinative ADR, is one which a reasonable person could have made in the circumstances • an agreement condones an illegal activity • an agreement is legally void or voidable • a decision, particularly in a determinative ADR process, is legally valid • any advice, agreement or decision does not involve unlawful or unjustifiable discrimination.

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Appendix G ADR research work Australian material ................................................................................................................. 819 Conference and research forum papers .............................................................................. 853 Journal articles ......................................................................................................................... 853 Australian cases ...................................................................................................................... 854 New Zealand material ........................................................................................................... 857

This appendix details qualitative and quantitative research work undertaken in relation to ADR processes.

AUSTRALIAN MATERIAL AC Nielsen, Family and Child Mediation Survey March 1998 – Final Report (Final Report, Commonwealth Department of Family and Community Services, Legal Aid and Family Services, 1998). Legal Aid and Family Services (LAFS) commissioned AC Nielsen to undertake a national poll to explore the level of community awareness of, and attitudes to, family and child mediation. The findings from the Family and Child Mediation National Poll are presented on a question by question basis. Alexander N, “Mediation on Trial: Ten Verdicts on Court-Related ADR” (2004) 22(1) Law in Context 8. This article features a critical evaluation of court-related mediation by reference to the evolution of ADR theory and practice. It discusses the similarities in phases of the development of ADR while emphasising the divergence in practice of ADR in different jurisdictions. The article further analyses the integration of ADR into mainstream dispute resolution practices, via the diversity versus consistency of process debate and developments in civil and common law jurisdictions. Ardagh A, “Evaluating Collaborative Law in Australia: A Case Study of Family Lawyers in the ACT” (2010) 21 Australasian Dispute Resolution Journal 204. This paper reports on a case study that investigates the use of collaborative law in the Australian Capital Territory to evaluate its suitability in Australian practices, particularly within family law. Armstrong S, Enhancing Access to Family Dispute Resolution for Families From Culturally and Linguistically Diverse Backgrounds, AFRC Briefing No 18 (Australian Institute of Family Studies, November 2010, 23 pp), available on http:// www.aifs.gov.au/afrc/pubs/briefing/b018/index.html. This is part of a threeyear project to explore why culturally and linguistically diverse (CALD) families are not using family dispute resolution (FDR) services at the same rate as the rest 819

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of the community. It appears there is a lack of understanding about what FDR offers and a concern as to the level of sensitivity in ADR services offered to CALD clients. Australian Centre for Justice Innovation (ACJI), Self-Represented Litigants – Gathering Useful Information (Report, Commonwealth Attorney-General’s Department, 2012), available on http://www.civiljustice.info/. This report considers how the mapping, exploration and articulation of the population of self-represented litigants in Australia’s civil justice system takes place. Research included quantitative and qualitative methods. The report identifies the need for finding a multi-faceted definition of self-represented litigants. The report also highlights the lack of data recorded in respect to self-represented litigants, including the ADR sphere. Australian Law Reform Commission, Review of the Adversarial System of Litigation: ADR – Its Role in Federal Dispute Resolution (Issues Paper No 25, ALRC, 1998). In 1995, the ALRC was asked by Commonwealth Attorney-General Lavarch to inquire into the advantages and disadvantages of the present adversarial system including court and tribunal processes. In the terms of reference, the commission was asked to consider community-based ADR schemes with a focus on the issues associated with the utility and integration of ADR into litigation processes and the likely future role of ADR in resolving federal disputes. Bagshaw D, Developing Mediation Models, Practices and Approaches Incorporating Cultural Traditions, Values and Perspectives of Asia Pacific Communities (Paper presented at the NADRAC Research Forum, . This presentation, which was based on mediation research with different cultural groups in Asia–Pacific countries, examines the cultural relevance of the research, examines changes to accommodate traditions, and develops and circulates culturally sensitive mediation frameworks for practitioners and consumers in Asia–Pacific countries, including Australia. Bagshaw D, Innocents Abroad? An Examination of the Relevance and Effects of Western Mediation Education and Training on Dispute Resolution Practices in the Asia Pacific (Keynote paper presented at the 3rd Asia–Pacific Mediation Forum Conference, Fiji, June 2006). This paper addresses the tendency and effects of Western culture to dominate systems and practices of other cultural groups, in the context of mediation. Bagshaw D, Brown T, Wendt S, Campbell A, McInnes E, Tinning B, Batagol B, Sifris A, Tyson D, Baker J and Arias P F, “The Effect of Family Violence on Post-separation Parenting Arrangements: The Experiences and Views of Children and Adults from Families who Separated Post-1995 and Post-2006” (2010) 86 820

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Family Matters 49, available on http://search.informit.com.au.ezproxy.lib.monash. edu.au/fullText;dn=201102552;res=APAFT. After the 2006 reforms in the family law area, the most common complaint was that accusations of abuse were dismissed and consequently a lack of assistance was offered. This led to unsatisfactory parenting proposals being suggested. These unsuitable plans reportedly compromised children’s safety with exposure to serious psychological, emotional, sexual and physical abuse. Banks C, “Lawyers and Family Dispute Resolution Practitioners: Achieving the Child-focused Ideal in Practice” (2009) 12 Family Relationships Quarterly 6 (Australian Family Relationships Clearinghouse, Australian Institute of Family Studies), available on http://www.aifs.gov.au/afrc/pubs/newsletter/new sletter12.html#lawyer. The conclusion from this research is that lawyers and their clients would gain an advantage if both were more informed about the effects of separation and different stages of child development, while FDR practitioners and their clients would gain from a deeper understanding of legal proceedings and legal processes. Bauman T and Williams R, “The Business of Process Research Issues in Managing Indigenous Decision-Making and Disputes in Land” (Research Discussion Paper No. 13, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2004). This paper examines the Indigenous Facilitation and Mediation Project at the Australian Institute of Aboriginal and Torres Strait Islanders. Research was undertaken emphasising best practice dispute management systems and a need to get the process “right” for effective and sustainable collaborative processes. *Beed T, The Role of Conciliation (Civil Justice Research Centre and Law Foundation of New South Wales, Sydney, November 1990). An exploratory analysis of the process of conciliation used by the NSW WorkCover Authority. The study found that in approximately two-thirds of the sampled cases, conciliation resulted in the successful resolution of the dispute. Bellucci E, Abrahams B, and Zeleznikow J, Incorporating Fairness into Development of an Integrated Multi-agent Online Dispute Resolution Environment Family Dispute Resolution (Paper presented at NADRAC Research Forum, Brisbane, July 2010). This paper describes the development of IMODRE – an integrated multi-agent online dispute resolution environment – that assists parties to achieve legally fairer negotiated outcomes in Australian family law disputes. Bickerdike A, Long Term Satisfaction and Durability Rates for Mediated Agreements (Paper presented at the NADRAC Research Forum, Melbourne, July 2007). This paper used a client survey to evaluate long-term satisfaction of clients and the long-term durability of agreements reached at mediations. 821

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*Bordow S and Gibson J, Evaluation of the Family Court Mediation Service (Research Report No 12, Family Court Research and Evaluation Unit, 1994). The evaluation (involving interviews, client satisfaction surveys and analysis of court data) was aimed at providing an accurate, comprehensive and balanced picture of the mediation program and its important features; and at monitoring and assessing the relative benefits of mediation and its overall impact on clients and the workload of the court. The evaluation suggests that “voluntary, comprehensive mediation, when provided by trained mediators familiar with family law and the personal dynamics of the separation process can be effective in resolving a wide variety of disputes in a lasting manner and to the satisfaction of its clients”. Bourne C, Mediation and Community Justice Centres: An Empirical Study (Research Report No 12, NSW Law Reform Commission, 2004). This review of the Community Justice Centres Act 1983 (NSW) by the NSWLRC explores mediation and program variables. A telephone survey was conducted of participants in the Community Justice Centres (CJC) mediations in an eightweek period (July to August 2004). Participants were asked about how they were referred to the CJC, their relationship (including information on the number of apprehended personal violence orders), their views on pre-mediation process, and the conduct of mediation and its outcome. Braithwaite V, Ahmed E, Morrison B and Reinhart M, Researching Prospects for Restorative Justice Practice in Schools: The Life at School Survey 1996–1999 (Paper presented at the Restorative Justice Conference, Leuven, September 2001). The Life at School Survey presented a class questionnaire to 1401 children at 32 schools and a take-home survey for parents. Volunteers formed a sample for the 1999 survey where questions were asked of parents and children to determine the nature of intervention programs for schools based on restorative justice principles. Bryant D CJ, State of the Nation, Family Court of Australia (Speech presented at The 12th National Family Law Conference, Perth, October 2006). This presentation focused on recent family law reforms, including the establishment of Family Relationship Centres and a child-responsive program which features mediation and counselling. Chief Justice Bryant mentioned the collection of statistical data on outcomes of cases which benefited from these programs. Buth R, “Limits to the Quantitative Data on Court-connected Mediation in Federal Courts of Australia” (2009) 20 Australasian Dispute Resolution Journal 229. This article reviews data provided on court-connected mediation in the annual reports of the Federal Court and argues that the limitations of this data hamper the ability of researchers to analyse the effectiveness and utility of mediation in Australia. 822

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Byas A, Post-separation Parenting – What’s Law Got to Do With It?, Interim Report (presented at the 7th Australian Institute of Family Studies Conference, Sydney, 24–26 July 2000). This interim report outlines a qualitative study of post-separation parenting of parents in a low-conflict ongoing relationship. Calver R, “Teaching Alternative Dispute Resolution in Australian Law Schools: A Study” (1996) 2(2) Commercial Dispute Resolution Journal 209. This is a research study of law schools to determine how much ADR was being taught; and the need for ADR to be taught more in law schools. *Cameron J, Evaluating the “Quality of Justice” Provided by the Christchurch Community Mediation Service (Paper presented at the Seminar on Alternative Dispute Resolution, Australian Institute of Criminology, Canberra, 22-24 July 1986). This paper outlines the manner in which the “quality of justice” provided by a community mediation service might be evaluated. It discusses possible measures of “success” and “community”, and suggests that observation, analysis of documentation, surveying and informal interviews with users, staff and mediators may be a useful approach to evaluating such services. *Candlin C and Maley Y, “Framing the Dispute” (1994) 7(19) International Journal for the Semiotics of Law 75. This article is concerned with non-curial but court-annexed dispute resolution and the discourses that define, and are defined by, it. Primary data was collected in the form of videotapes and audiotapes of mediation sessions conducted by a range of agencies in Sydney, Melbourne and Brisbane, which were supplemented with articles and training manuals as well as interviews with professional mediators. *Cannon A, “An Evaluation of the Mediation Trial in the Adelaide Civil Registry” (1997) 7 Journal of Judicial Administration 50. The evaluation involved interviews with lawyers and litigants about how their perceptions had been affected, if at all, by the introduction of procedures to inform and offer litigants court-annexed mediation in a specialist civil Magistrates’ Court. Statistical data showing the point of disposal of cases before and after the introduction of the trial was also analysed. Caruana C and Parker R, Embedding Research in Practice: Research within Family Relationship Centres in Australia (AFRC Briefing No 14, Australian Family Relationships Clearinghouse, Australian Institute of Family Studies, 2009), available on http://www.aifs.gov.au/afrc/pubs/briefing/briefing14.html. This research suggests that when centres are supported in undertaking an investigation of their practices, there can be a positive impact. Investigative research can improve the delivery of service and assist FDR organisations to make contact with and support their local ethnic communities. There is also a distinct advantage in what these centres are able to offer in that they can coordinate and support significant research in the family law area. 823

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Cashmore J and Parkinson P “Children’s Participation in Family Law Disputes: The Views of Children, Parents, Lawyers and Counsellors” (2009) 82 Family Matters 15, available on https://aifs.gov.au/sites/default/files/jc.pdf. Generally, children, parents, counsellors and lawyers believe that it is significant for children’s views to be heard. However, children do not want to be the decision-makers when their parents separate. When children feel that they are being listened to, they feel valued and respected. Unfortunately, the more that children’s views are taken into consideration, the greater the chance that they will be manipulated and pressured by their parents. This means that hearing “the child’s voice” can promote parental manipulation and, ultimately, a reduction in respect for the legal system. *Caspi S, “Mediation in the Supreme Court: Problems with the Spring Offensive” (1994) 5(4) Australian Dispute Resolution Journal 250. This article critiques the evaluative criteria of the Law Institute of Victoria’s report on the 1992 Spring Offensive program. Specifically: the absence of a comparative framework for the evaluation; the assessment of user satisfaction based on “durability” measured immediately or shortly after a settlement is achieved; the lack of clarity regarding the assessment of “fairness of outcome” and the focus on administrative efficiency. Clarke E, “Recent Research on Small Claims Courts and Tribunals: Implications for Evaluators” (1992) 2(2) Journal of Judicial Administration 80. This article discusses program evaluation theory and practice; evolutionary development of Small Claims Courts; judicial administration; responsive model for the role of courts; court or tribunal; jurisdiction, costs and delays; access to the courts; role of lawyers; formality versus informality; conciliation versus adjudication; ADR. Coburn C, Batagol B and Douglas K, “How a Dose of Humour May Help Mediators and Disputants in Conflict” (2013) 24Australian Dispute Resolution Journal 18. This article explores the potential benefits that can be gained through the use of humour in mediation. The article investigates literature about the psychology of humour in addition to empirical data from interviews with VCAT mediators. Commonwealth Attorney-General’s Department, Family Services Branch, Evaluation of the Marriage and Relationship Counselling Sub-Program (Report, Commonwealth Attorney-General’s Department, 1997). A review of the 41 community-based organisations conducting marriage and relationship counselling under the Family Law Act 1975 (Cth). Includes analysis of costs, outputs and outcomes, domestic violence and sexual abuse. Commonwealth Attorney-General’s Department, “Natural Justice and Alternative Dispute Resolution Procedures, Part 2” (1986) 21(10) Australian Law News 32. This is the second part of an article outlining the findings of a survey 824

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undertaken by the Attorney-General’s Department to investigate alternatives to litigation for the resolution of commercial disputes. The findings were then presented to a Colloquium on Dispute Resolution held in Canberra. Commonwealth Attorney-General’s Department, Legal Aid Funding Model (Funding Model, Rush Social Research Agency and John Walker Consulting Services for Family Law on behalf of Family Law and Legal Assistance Division, Legal Aid Branch, Canberra, December 1999). The model proceeds in a number of distinct steps to determine the apportionment of total funding provided by the Commonwealth, taking account of the different age/sex groups, socioeconomic risk factors, determining levels of use of legal aid services, the full range of services to be provided, the geographic and administrative cost factors affecting the cost of providing legal aid services, and the share to be given to each State and Territory of the Commonwealth. Commonwealth Attorney-General’s Department, Legal Assistance Needs Study Phase I: Estimation of a Basic Needs-Based Planning Model (Report, Rush Social Research Agency and John Walker Consulting Services for Family Law on behalf of Family Law and Legal Assistance Division Legal Aid Branch, 1999). Phase I of this study aimed to develop a methodology for establishing an equitable basis for the distribution of funds for legal aid. Phase II was aimed at identifying needs in addition to expressed demand for services in order to assist in determining Commonwealth priorities for service delivery and provide a basis for future allocation of any new Commonwealth funding for legal assistance. Commonwealth Attorney-General’s Department, Legal Assistance Needs Project Phase II: Summary Report (Report Rush Social Research Agency and John Walker Consulting Services for Family Law on behalf of Family Law and Legal Assistance Division Legal Aid Branch, 1999). Research activities focused on identifying factors that contribute to a need for legal services and range of methods by which those needs could be met. Interviews with key stakeholders and low-income households were conducted and focus group discussions conducted with those applying for legal assistance. Research drew heavily on work undertaken in Phase I (see above) and resolved issues identified in that report. Commonwealth Department of Family and Community Services, Through a Child’s Eyes: Child Inclusive Practice in Family Relationship Services (Report, Commonwealth Department of Family and Community Services, 2001). Developed from a series of Child Inclusive Practice Forums convened for family relationship services during August/September 2000. The report summarises the outcomes of these forums and reflects the state of progress in family relationship services involving child-inclusive practices. 825

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Commonwealth Department of Innovation, Industry, Science and Research, Industry and Small Business Policy Division, Small Business Dispute Resolution (Summary Report, DIISR, June 2010), available on . This research investigates: the incidence of disputes experienced by the small business community in Australia; any concentration of disputes by sector; and, any common issues and themes in these disputes. The report details: the range of mechanisms currently being used to resolve the disputes; gaps in available dispute resolution systems; awareness and understanding of ADR solutions; costs to businesses of managing disputes; and, the proportion of businesses unable to access dispute resolution support. This research resulted in the extensive Federal Government recommendations to create a gateway for dispute resolution for business. Community Services & Health Industry Skills Council (CS&HISC), Scoping Report for the Development of Property and Spousal Maintenance Competencies in Family Dispute Resolution (Report, Commonwealth of Australia, 2012), available on http://www.ag.gov.au. This report found that the Vocational Graduate Diploma of Family Dispute Resolution contains gaps in respect to mediator property and spousal maintenance dispute training. The report recommends ways in which to address such gaps. Conley-Tyler M and Bornstein J, “Court Referral to ADR: Lessons From an Intervention Order Mediation Pilot” (2006) (1) Journal of Judicial Administration 48 (University of Melbourne Legal Studies Research Paper No 213). This paper reports on an independent evaluation of the Dispute Settlement Centre of Victoria Magistrates’ Court Mediation pilot. The study focused on referral to mediation of non-family intervention order cases. It found that the pilot featured a successful model in relation to availability and awareness, client satisfaction with process and the number of agreements reached. Insights about judicial administration, referral processes and relationship between court and mediation suppliers are also included. Cranston R, “Access to Justice: Courts, Tribunals and Alternative Institutions” (1986) 11(1) Legal Service Bulletin 21. The author completed a study of delays and efficiency in civil litigation. In this article, he draws on the results and findings of some of that research, as well as findings from other research related to legal aid, to discuss the concept of access to justice. Specific areas covered include the courts, legal aid and the alternatives to court. Cull W, Mediation in the Tribunal Context (Paper presented at the 5th Annual Australian Institute of Judicial Administration (AIJA) Conference, Melbourne, June 2002). This paper outlines the role of ADR (including mediation) in tribunals; Building Tribunal Act 2000 (Qld). Research highlights that processes, including ADR, in tribunals are significantly different from those in other dispute-resolving institutions for good reasons, including increased access to justice by reducing deals and increasing resources for disputing parties. 826

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Cunneen C, Luff J, Menzies K and Ralph N, “Indigenous Family Mediation: The New South Wales ATSIFAM Program” (2005) Australian Indigenous Law Reporter 1: see http://www.austlii.edu.au/au/journals/AILR/2005/1.html. This project focused on the Aboriginal and Torres Strait Islander Family Mediation Program, a pilot dispute resolution service designed to meet the needs of Indigenous people in New South Wales. This article draws from an evaluation undertaken by the Legal Aid Commission and provides detail of the significant aspects of the evaluation. For instance, issues regarding Indigenous people and the results of interviews with parties who participated in the ATSIFAM mediations. Daly K, M Venables, M McKenna, L Mumford and J Christie-Johnson, Research on Conferencing, Technical Report No 1: Project Overview and Research Instruments (Report, South Australian Juvenile Justice, 1998). The focus of the SAJJ project (which covers this and the next three entries) was on ways of measuring (1) restorative justice practices, and (2) variability in the conference process and participants’ understandings of it. The SAJJ project treated as an open question the assumption that a “successful” conference will have positive future effects. For this 1998 (Year 1) report, 89 SAJJ-eligible conferences concerning crimes of violence and property offences were observed and reported, and offenders, victims, and police officers completed questionnaires. This report also sets forth the research design, sampling strategy, and implementation of the project in Year 1, as well as the six research instruments used in Year 1 and how they were constructed. Daly K, Research on Conferencing, Technical Report No 2: Research Instruments in Year 2 and Background Notes (Report, South Australian Juvenile Justice, 2001). Almost all victims and offenders from Year 1 (see above entry) were re-interviewed. Describes features of the SAJJ sample of conferences and people interviewed, updating and amending preliminary material presented in Report No 1. It presents the six research instruments used in Year 2, discussing the source and rationale of question items. Those intending to conduct research on conferencing may find these reports helpful in the planning and execution of their projects. Daly K, Bohours B and Curtis–Fawley S, Sexual Offence Cases Finalised in Court, by Conference, and by Formal Caution in South Australia for Young Offenders, 1995-2001 (Final Report, School of Criminology and Criminal Justice, Griffith University, Brisbane, 2003). An analysis of 387 cases of sexual assault, comparing results obtained by conferencing or the Youth Court in South Australia over six and a half years. This archival study found that “the court not conference is the site of cheap justice for victims”. It highlights selected findings from the archival datasets. Follow-up studies are planned or under way on police prosecutors’ and defence attorneys’ decision-making and advice to clients, judges’ sentencing remarks, and pre- and post-SAJJ-CJ case re-offending. 827

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Daly K, B Bouhours, S Curtis-Fawley, L Weber, R Scholl, South Australia Juvenile Justice and Criminal Justice (SAJJ-CJ), Technical Report No 3 – Sexual Assault Archival Study: An Archival Study of Sexual Offence Cases Disposed of in Youth Court and by Conference and Formal Caution (Report, Griffith University, 2003). This group, which began research in 2001, examined the question of whether family conferencing is an appropriate response to sexual offences or whether court proceedings deliver greater justice for victims. A preliminary report was issued in May 2003, after which further data cleaning and finalisation were carried out. This report (Technical Report No 3) describes the documents gathered and how they were prepared for analysis in the archival study, and offers many valuable insights into the research process itself. David J, “ADR and Small Business” (1997) 3(3) Commercial Dispute Resolution Journal 231. Research project into the ADR needs of Small to Medium Sized Enterprises (SMEs), the objective being to produce practical recommendations on how to encourage small and medium-sized enterprises to use ADR SMEs. See also David, noted in P Fritz, A Parker and S Stumm, Beyond Yes (Harper Collins, Sydney, 1998), referring to her major empirical study of small and medium-sized enterprises. Davidson S, “Court-Annexed Arbitration in the Sydney District Court: An Evaluation of the Effectiveness of Court-Annexed Arbitration in the Disposal of Cases in the Sydney Registry (Civil) of the District Court of New South Wales” (1995) 6 Australian Dispute Resolution Journal 195. This research evaluates the effectiveness of court-annexed arbitration in the disposal of cases in the Civil Registry of the Sydney District Court of New South Wales. The paper concludes that court-annexed arbitration substantially meets its objectives; speedy resolution of smaller civil claims, reduction in the delay and backlog of hearings, reduction in litigant and court costs and increased litigant satisfaction. Davis R, “Negotiating Personal Injury Cases: A Survey of the Attitudes and Beliefs of Personal Injury Lawyers” (1994) 68 Australian Law Journal 734. This article reports on a survey of 148 solicitors specialising in personal injury litigation. This study involved surveying 105 south-east Queensland solicitors to obtain their attitudes and beliefs relevant to negotiating personal injury cases. This group included both plaintiff and defendant lawyers. The study found a dissonance between the motivation of plaintiffs and defendants towards out of court settlement, which inhibits early settlement of personal injury actions. Denis Muller & Associates and Relationships Australia (Victoria), Use of, and Attitude to, Mediation Services Among Divorcing and Separating Couples, Report (Commonwealth Department of Family and Community Services, 1998). This report examines a number of questions, including: who people get help from when divorcing; how settlement was reached and whether it was fair, amicable and uncomplicated; awareness of mediation services among divorcing couples; 828

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and reasons for not using mediation. It then discusses two questions: how to raise awareness in the general community about the existence of mediation services, and how to persuade people that mediation services offer the necessary expertise in a supportive environment. *Delaney M and Wright T, Plaintiffs’ Satisfaction with Dispute Resolution Processes: Trial, Arbitration, Pre-trial Conference and Mediation (Report, Justice Research Centre and Law Foundation of New South Wales, 1997). This study evaluates plaintiffs’ perceptions of the four dispute resolution processes in the New South Wales District Court’s Sydney Registry and in private mediation through the New South Wales Law Society mediation program. Information for the research was collected from two sources: the New South Wales District Court case inquiry records and telephone interviews with plaintiffs. Deveraux A, “Human Rights By Agreement? A Case Study of the Human Rights and Equal Opportunity Commission’s Use of Conciliation” (1996) 7(4) Australian Dispute Resolution Journal 280. Examines the operation of conciliation in the complaints handling procedures of the former HREOC (now Australian Human Rights Commission). Includes 40 case studies of human rights complainants against federal respondents. Dewar J and Parker S, “The impact of the New Part VII Family Law Act 1975” (1999) 13 Australian Journal of Family Law 109. Report on research that aimed to ascertain if the best interests of children are being served by the new Pt VII of the Family Law Act 1975 (Cth). It found that it was more difficult to obtain orders for “no contact” at interim hearings, even when there are allegations of violence against the contact parent, and that the court was more likely than previously to try to preserve contact between the child and the non-resident parent, especially at interim hearings. Dewdney M, Sordo B and Chinkin C, Contemporary Developments in Mediation within the Legal System and Evaluation of the 1992–3 Settlement Week Program (Report, Law Society of New South Wales, 1994). This report summarises some developments in ADR, indicating the differences between the 1991 Settlement Week and its 1992 follow-up. The 1992 results are analysed from questionnaire data as well as additional volunteer data provided by mediators who availed themselves of the telephone debriefing services, and by other lawyers and mediators who wrote to the Law Society. District Court Civil Jurisdiction Steering Committee, Civil Claims in the District Court of South Australia: A Review of Court Management Processes and Practices (Report, Courts Administration Authority, 1997). The committee examined the work of the District Court Registry, its case-flow management, in-court processes 829

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and enforcement processes by the Sheriff’s Office. Data was collected using both qualitative and quantitative methods, through interviews, observations, court reports and statistics. Douglas K and Batagol B, “TThe Role of Lawyers in Mediation: Insights from Mediators at Victoria’s Civil and Administrative Tribunal” (2014) 40(3)Monash University Law Review 758. This article discusses the role of lawyers in mediation. It uses interviews with VCAT mediators and explores collaborative approaches that lawyers can adopt when representing clients in mediation. Douglas K and Coburn C, “Attitude and Response to Emotion in Dispute Resolution: The Experience of Mediators” (2014) 16 Flinders Law Journal 111. This article describes a qualitative empirical research project that involved interviewing 16 VCAT mediators. The article details the findings, which demonstrate that the VCAT mediator group mostly encourage or allow emotional expression in mediation, as opposed to controlling or stopping it. Douglas K, “The Teaching of ADR in Australian Law Schools: Promoting Non-adversarial Practice in Law” (2011) 22 Australasian Dispute Resolution Journal 49. Interview and survey data relating to the teaching of ADR in law schools in Victoria and Queensland supports the need for future lawyers to be prepared for non-adversarial practice through ADR. The article also argues that a national forum on ADR teaching is needed to promote a community of practice in teaching ADR. Douglas K, Sager N and Field R, “Hearing the voices of Victorian Conferencing Practitioners – Views on Neutrality” (2010) 21 Australasian Dispute Resolution Journal 163. This article reports on a qualitative study of practitioners in Victoria to establish their understandings of the issue of the neutrality of the third party in facilitating the conferencing process. While the research indicated practitioners believed neutrality was possible – in terms of maintaining impartiality or being free of bias – the limited sample size for the study suggests that further research is required to validate these findings. Effron J, “Training Issues in Dispute Resolution: Three Perspectives. Part 3 – Breaking Adjudication’s Monopoly: Alternatives to Litigation Come to Law School” (1991) 2(1) Australian Dispute Resolution Journal 21. A survey of 10 Australian law schools in 1988 revealed the strong emphasis on litigationoriented subjects in their LLB degrees as opposed to subjects concerned with alternatives to litigation. The author argues that there is a need for more training for lawyers in ADR, and addresses some practical issues on how this may be achieved. Elix J and Sourdin T, Review of the Financial Industry Complaints Service 2002 – Final Report (Final Report, Community Solutions, La Trobe University and 830

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University of Western Sydney, 2002): Elix J and Sourdin T, Review of the Financial Industry Complaints Service 2002 – What Are the Issues? (Issues Paper, Community Solutions, La Trobe University and University of Western Sydney, 2002), available on http://www.fos.org.au. Issues raised by the paper include satisfaction and ADR processes, fairness, accessibility, efficiency and timeliness, accountability and liaison and independence and future planning. The issues paper also reports on the findings of qualitative and quantitative research. Evans R, “Mediation Survives its Baptism of Fire” (1992) 66(12) Law Institute Journal 1073. This article discusses the success of the Supreme Court Spring Offensive mediation program; not a pre-trial conference; experienced mediators; cost-effectiveness; place in Supreme Court process. *Family Court of Western Australia, Family Court of Western Australia Mediation Service Evaluation (Report, Family Court of Western Australia, 1996). This report is an evaluation of the Family Court’s 12-month pilot mediation service established in July 1995. The report looks at the demand for the mediation service, the results achieved and its impact on court listings based on data collected by the court, and comparisons with other mediation services in the Perth area and the Family Court of Australia. Field C, Alternative Dispute Resolution in Victoria: Supply-Side Research Project (Report, Chris Field Consulting Pty Ltd, 2007), available on http:// www.consumer.vic.gov.au/library/publications/resources-and-education/ research/alternative-dispute-resolution-in-victoria-supply-side-research-project2007. This research report was informed by 23 interviews that were undertaken with key ADR stakeholders. The interviews aimed to reveal a range of qualitative data relevant to the project goals. They were guided by a standard set of 12 questions and took between 45–60 minutes to complete. The guided questions sought information about: the definition of ADR; supply-side framework; funding mechanisms; best practice models; quality assurance; and the role of government. Field R, “The Use of Litigation and Mediation for the Resolution of Custody and Access Disputes: Survey of Queensland Family Law Solicitors” (1996) 7(1) Australian Dispute Resolution Journal 5. This is a survey of family lawyers about: major dispute resolution methods and their suitability for custody and access disputes; testing of commonly assorted statements; advantages and disadvantages of litigation and mediation with regard to custody and access disputes. Fisher J and Blondel M, Couples Mediation: A Forum and A Framework (New South Wales Marriage Guidance, Lane Cove, 1993). The Couples Mediation Service was established in 1991 as a division of Marriage Guidance NSW. The service aimed to help couples who are separating to negotiate details of their separation or divorce in as fair and amicable a way as possible, without the 831

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trauma or expense of court or legal action, and in the best interests of all family members. Research into the first 16 months of the service by the Couples Mediation Service found that mediation was valued by and useful to couples separating or divorcing. Frazer L, Weaven S and Grace A, Franchising Australia 2014 (Report, Griffith University and Franchise Council of Australia, 2014), available on https:// www.franchise.edu.au/. This report provides a profile of the Australian franchise sector and includes longitudinal data gathered over 16 years. The report found that 21 percent of franchisors had a dispute with a franchisee in the past 12 months and that the main cause of disputes was the lack of franchisee compliance. The report contains statistics regarding the different dispute resolution mechanisms used by franchisors and franchisees. Fuller N, “Outcomes of Family Mediation” (1995) 4 Australian Dispute Resolution Journal 6 at 262. This study explores family mediation services operated by Relationships Australia from 1989–1995 and supports a clientcentred approach. The impact of issue type was examined. Garwood M, “Alternative Dispute Processes for Commercial Disputes Quality and Style: A Survey” (1999) 10 Australasian Dispute Resolution Journal 84. Sixteen specialist commercial mediators were interviewed in this survey to compare styles, techniques and practice standards used in commercial ADR. The survey concluded that commercial mediation covers a wide range of ADR processes. Examples of ADR processes, other than facilitative mediation, highlighted a mini trial, industry-specific knowledge, advisory opinion on merits and expert determination. Garwood argues for an adoption of uniform ADR definitions and practice standards. In a subsequent article in the same journal entitled, “Managing Quality of ADR for Commercial Disputes” (1999) 10 Australasian Dispute Resolution Journal 173, the author considers the definitions of ADR processes needed to establish uniform practice standards. Gibson F and Rochford F, “Dispute Resolution in Rural and Regional Victoria” (2010) 21 Australasian Dispute Resolution Journal 111. A literature review and interviews with dispute resolution practitioners working in rural and regional Victoria suggest that systemic issues exist with the provision of ADR services in rural areas. These initial findings indicate the need for a significant investment in advertising dispute resolution services through local rural and regional media; better funding; improved access to dispute resolution training; and addressing issues of confidentiality. Giddings J, Frazer L, Weaven S, Grace D and Grace A, Taking Care of Business: Are Franchise Systems Structured to Promote Conflict? (Paper presented at NADRAC Research Forum, Brisbane, July 2010). In a survey of 3000 franchisees from different business format franchise systems across Australia, 350 832

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respondents recorded details of conflict situations they had experienced. This paper reports on the methods used to explore how these conflicts were managed or resolved and the issues this research raised. Govey I and Symes D, “Development in Commercial ADR: AttorneyGeneral’s Department’s Perspective” (2001) Bond Law Review 13(2). This paper provides an outline of the developments in ADR from the perspective of the Australian Commonwealth Attorney-General’s Department. It evaluates this by way of examining ADR’s permeation of policy and legislation. Gray M, de Vaus D, Qu L, and Stanton D, Divorce and the Wellbeing of Older Australians (Research Paper No 46, Australian Institute of Family Studies, 2010) p 28, available on http://www.aifs.gov.au/institute/pubs/rp46/rp46a.html. As this research shows, the long-term effects of divorce have implications for society. These implications include long-lasting effects on the wellbeing of people (mainly women) who have been through divorce’. This situation could possibly lead to a higher demand for publicly funded or subsidised health services. *Grose S and Alford W, “The Dispute Resolution Project: Peer Mediation in Schools” in Bagshaw D (ed), Mediation and Cultural Diversity (Conference Proceedings, Second International Mediation Conference, Adelaide, 18–20 January 1996). The evaluation involved four phases, mainly utilising questionnaires that were completed by teachers and students before and after training. Data was also collected from interviews and questionnaires of members of the school community (teachers, students and parents), diaries were distributed to all trained teachers, and post-intervention data was collected through interviews, discussion groups and questionnaires. Gutman J, Fisher T and Martens E, “Teaching ADR to Australian Law Students: Implications for Legal Practice in Australia” (2008) 19 Australasian Dispute Resolution Journal 42. This study of first-year law students at La Trobe University School of Law suggests that their exposure to ADR training effects an attitudinal change from an adversarial rights-based approach toward a collaborative interests-based approach. Gutman J, Fisher T and Martens E, “Why Teach Alternative Dispute Resolution to Law Students? Part One: Past and Current Practices and Some Unanswered Questions” (2006) 16(1) and 16(2) Legal Education Review 125. This article reports on survey work that involved law students and their understandings and views about negotiation and ADR. Hayes H and Daly K, Conferencing and Reoffending in Queensland (Report, Griffith University, 2004). Researchers gathered data from conference case files and offending history records for 200 young offenders who were conferenced in 833

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South East Queensland from April 1997 to May 1999, to assess the impact of offender characteristics and conference features on future offending behaviour. Higgins D and Kaspiew R, “Child Protection and Family Law … Joining the Dots”, NCPC Issues No 34 (Issues Paper, National Child Protection Clearing House, Australian Institute of Family Studies, 2011), available on http:// www.aifs.gov.au/nch/pubs/issues/issues34/issues34.pdf. This study has revealed that there is a necessity to find more effectual ways of dealing with separated families where there is exposure to violence, abuse and neglect. These issues have been a key issue in policy development. Howieson J, “ADR Education: Creating Engagement and Increasing Mental Well-being Through an Interactive and Constructive Approach” (2011) 22 Australasian Dispute Resolution Journal 58. Two studies of law students at the University of Western Australia attribute an increased sense of wellbeing and belonging while they are at university to the productive interactions that occur during the teaching of ADR. The paper goes on to suggest the benefits of teaching non-adversarial ways to resolve conflict among a wider range of disciplines. Howieson J, FDR Predictions from Procedural Justice Ratings and Conflict Resolution Orientation (Paper presented at NADRAC Research Forum, Melbourne, July 2007). This paper analyses clients’ perceptions of orientation and international style toward ADR. It found that the key benefit that could be predicted, based on the experience of the client, was satisfaction with the interactive nature of the Family Dispute Resolution (FDR) process used. Howieson J, “Perceptions of Procedural Justice and Legitimacy in Local Court Mediation” (2002) 9(2) Murdoch University Electronic Journal of Law Report. This study uses socio-legal theory and methodology to explore litigants’ and lawyers’ perceptions of the procedural justice and legitimacy of court-connected mediation (WA Family Court). Part I of the study looks at the impact of lawyers on legally represented litigants’ perceptions of procedural justice (in comparison to the results of a survey of self-represented litigants carried out by the Jill Howieson in 2000). Part II looks at lawyers’ and litigants’ perceptions of procedural justice and the legitimacy of court-connected mediation. Hughes G, “Medical Negligence Claims in Victoria: An Alternative to Litigation” (1998) 6(4) Australian Health Law Bulletin 37; Victorian Law Reform Committee, The Legal Liability of Health Service Providers (Final Report, Victorian Law Reform Committee, May 1997). The committee was asked to investigate alternatives to the current court-based compensation; ADR and its current use in the determination of compensation claims; mediation and conciliation and the role of the Health Services Commissioner; arbitration. The recommendations strengthen the view that institutionalising ADR will make access to justice easier. 834

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Hunter R, “Adversarial Mythologies: Policy Assumptions and Research Evidence in Family Law” (2003) 30(1) Journal of Law and Society 156–176. This article contrasts court proceedings with ADR in the context of family law, using research evidence. It concludes that, in some cases, lawyer representation in formal litigation proceedings may be more satisfactory than self-representation by the parties in ADR processes. In this way, it challenges the “demonisation” of lawyers in family litigation contexts. Further, the article appeals to legal aid organisations to take these realities into account when granting legal aid, in so far as legal aid is sometimes refused in order to encourage parties to pursue ADR rather than formal court proceedings. Indigenous Facilitation and Mediation Project (IFaMP), Community Mediation Centres and Native Title Representative Bodies Forum 26–27 October 2004: Summary of Proceedings and Outcomes (Australian Institute of Aboriginal and Torres Strait Islander Studies, Bauman T and Brockwell S, Native Title Research Unit, October 2004). This project aimed to facilitate a forum for discussion between Native Title Representative Bodies and community mediation centres in New South Wales, Queensland and Victoria. It focused largely on analysis of training of mediators and made recommendations for changes to training programs. Part of the summary of proceedings was dedicated to evaluation of Indigenous Australian family disputes. Recommendations were made and a taskforce set up to analyse the recommendations and the viability of future Indigenous mediation programs to be run by the Legal Aid Commission. *Ingleby R, In the Ball Park: Alternative Dispute Resolution and the Courts (Australian Institute of Judicial Administration, Melbourne, 1991). This is a comparative study of ADR processes in the Family Court, the Federal Court and the Small Claims Tribunal based on data collected from observations of the processes. The study found that the motivations of the parties for entering, and their commitment to, an ADR process, are important determinants of outcomes. This raises policy questions relating to whether attendance at an ADR process should be mandatory, whether sanctions should be imposed for non-attendance and other related issues, such as the role of lawyers, the selection of “appropriate” cases and the impact on case management. Kaspiew R, Gray M, Weston R, Moloney L, Hand K, Qu L and the Family Law Evaluation Team, Evaluation of the 2006 Family Law Reforms: Summary Report (Report, Australian Institute of Family Studies, December 2009) p 27, available on https://aifs.gov.au/publications/evaluation-2006-family-law-reforms. The evaluation identified a positive impact from the extensive 2006 family reforms in some areas. However, there are other areas in which the reforms have not provided such positive outcomes. There has been a higher rate of usage of relationship services and less use of the legal system with regard to post-separation parenting issues. It appears that FDR has been effective in helping couples with parenting issues, and there has been a reduction in filed 835

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children’s cases in the court system. However, there is concern that the FDR process is not sufficiently addressing cases that are not suitable for mediation. The indicators are that there is a need for further collaboration between all players in the family law sector. Kaspiew R, Gray M, Weston R, Moloney L, Hand K, Qu L, “Family Violence: Key Findings from the Evaluation of the 2006 Family Law Reforms” (2010) 85 Family Matters 38. This research suggests that family violence raises issues that need to be assessed on an individual basis and that the impact of family violence varies from family to family. There are questions as to whether the 2006 reforms have dealt with violence effectively. Although the new reforms have encouraged children to have a relationship with both parents, in certain circumstances this may lead to unsatisfactory arrangements for some children and have a negative impact on their wellbeing. Kaspiew R, Maio JD, Deblaquiere J and Horsfall B, Evaluation of a Pilot of Legally Assisted and Supported Family Dispute Resolution in Family Violence Cases (Final Report, Australian Institute of Family Studies, 2012), available on http://www.ag.gov.au. This report details the findings of an evaluation of the pilot Coordinated Family Dispute Resolution (CFDR) program. CFDR is designed to resolve post-separation parenting disputes where family violence has been present and incorporates a variety of professionals. The report found that where mediation sessions are handled carefully, the process can be safe and has the capacity to empower parents to make appropriate post-separation parenting arrangements. *Kelly J, “A Decade of Divorce Mediation Research” (1996) 34(3) Family and Conciliation Courts Review 373. This article briefly summarises research about divorce and custody mediation and suggests directions for empirical research in the next decade, namely: how do mediators identify, describe and deal with imbalances between disputants; what types of interventions are most effective in the presence of client attempts to intimidate or use anger to achieve advantageous settlements or where there is a history of violence in the relationship; what criteria do mediators use to terminate cases in such circumstances, if at all; and, what happens to these clients? *Keys Young [a company], Research/Evaluation of Family Mediation Practice and the Issue of Violence: Final Report (Final Report Legal Aid and Family Services (Cth), Attorney-General’s Department, 1996). This study involved consultations with staff of 12 funded agencies about current domestic violence policies and practice and mediators’ experience; separate exit surveys of male and female mediation agency clients; qualitative interviews with some agency clients and with the wider information and referral networks relevant to the work of family mediation agencies, such as women’s domestic violence and support services. 836

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Kingham F, Evaluating Quality in Court Annexed Mediation (Fleur Kingham, Deputy President, Land and Resources Tribunal, Queensland, September 2002). This paper examines the Land and Resources Tribunal’s evaluation of its mediators and describes the tribunal’s mediation service, its objectives for mediation and the issues which should be considered in preparing for a mediation evaluation program. Knight K and Hunter C, Using Technology in Service Delivery to Families, Children and Young People ((Paper No. 17, Child Family Community Australia, Australian Institute of Family Studies, 2013), available on https://aifs.gov.au/ cfca/publications/using-technology-service-delivery-families-children. This paper discusses how technology can be used innovatively in organisations that work with families, children and young people. In relation to ADR, the paper discusses the use of ODR tailored for family disputes, using Relationships Australia Queensland’s online family dispute resolution service as a case study. Lambeck F, “Rental Bond Disputes: A Comparison of Different Dispute Resolution Mechanisms for Rental Bond Disputes in the Australian Capital Territory” (1997) 8(1) Australian Dispute Resolution Journal 27. Reviews the rental bond dispute system in the Australian Capital Territory; the mediation process; conciliation by the conflict resolution system court process; comparison of the processes by which rental bond disputes are resolved; future prospects for rental bond dispute resolution in the ACT. Law Council of Australia, “Hobart Meeting Looks at Future Directions of Family Law” (1984) 19(11) Australian Law News 7. The Law Council of Australia’s Family Law Committee arranged a conference to discuss changes in family law and look to future developments. Five Family Court judges participated. The matters under consideration were: lawyers’ attitudes to family law; survey by the Institute of Family Studies; what divorced people think of their lawyers; comments on the South Australian maintenance system; National Maintenance Agency; alternative means of dispute resolution; advocacy considered appropriate in the Family Court whereas the contempt procedure is not. *Law Institute of Victoria, Mediation in the Spring Offensive 1992: An Initiative of the Supreme Court of Victoria (Report, Law Institute, Melbourne of Victoria, 1993). This report is an evaluation of what became known as the Spring Offensive 1992: the Supreme Court of Victoria’s campaign to reduce the backlog of cases awaiting trial. Appropriate cases were transferred for hearing to the County Court, fixed for hearing in the Supreme Court or referred to a special callover of cases to be held in the first two weeks of September 1992. At the special callover, cases considered suitable were referred to mediation. The mediation process incorporated into the Spring Offensive was evaluated with questionnaires to mediators, legal representatives and litigants. The questionnaires were similar to 837

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those distributed to participants in Settlement Weeks conducted in New South Wales and Queensland in order to have comparable data. Law SF, “The Construct of Neutrality and Impartiality in Chinese Mediation” (2011) 22 Australasian Dispute Resolution Journal 118. This research argues that the discourse on mediation is largely Western-oriented and that many non-Western mediation models are denied or rejected. The article explores some of the foundational concepts of a Chinese approach to mediation though interviews with three practising Chinese mediators. Leshinsky R, Douglas K, Condliffe P and Goodman R, “Dispute Resolution under the Owners Corporation Act 2006 (Vic): Engaging with Conflict in Communal Living” (2012) 2 Property Law Review 39. This article reports on a study that asked owners corporation managers and committees about their dispute resolution approaches. The findings suggest that managers and owners corporation committees (to a lesser extent) were dissatisfied with the Model Rules. The authors argue that the Model Rules should be amended to provide more specific dispute resolution guidance, including optional conciliation and mediation in the first tier of the scheme. In addition, the authors argue that parties should be compelled to engage in the first tier of dispute resolution before being able to apply to VCAT. Lodge J and Alexander M, Views of Adolescents in Separated Families: A Study of Adolescents’ Experiences After the 2006 Reforms to the Family Law System (Report, Australian Institute of Family Studies, Commonwealth of Australia, 2010), available on http://www.ag.gov.au/. This study explores adolescent’s experiences of parental separation. It includes findings such as how they spend time with each parent, who they turn to for support and how they understand the parent’s conflict. *Love A, Moloney L and Fisher T, Federally-funded Family Mediation in Melbourne: Outcomes, Costs and Client Satisfaction (Report, Legal Aid and Family Services, Attorney-General’s Department (Cth), 1995). This study involved an evaluation of three federally funded family mediation agencies through a combination of quantitative and qualitative analysis using observations, interviews, informal discussion, questionnaires and court records. This is a complementary study to the one conducted on similar Sydney agencies. See Moloney L, Love A and Fisher T below. Mack K, Court Referral to ADR: Criteria and Research (Report, Australian Institute of Judicial Administration Inc and the National Dispute Resolution Advisory Council (NADRAC), 2003), available on http://www.ag.gov.au/. This report attempts to discover whether empirical research establishes specific criteria or identifies key features about disputes and/or disputants and/or ADR programs that might provide a checklist to guide a court in making a referral to 838

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ADR. The report reviews and analyses the very extensive empirical research literature on ADR, with a particular focus on evaluations of court-connected ADR programs in civil disputes. Policy research is also considered. The bibliography contains a list of sources of information on court-connected ADR projects in the United States and Australia. *Magistrates Court (Civil) General Jurisdiction Steering Committee, General Civil Claims in South Australia: A Review of Court Management Processes and Practices (Courts Administration Authority, Adelaide, 1997). The committee examined the management processes associated with the administration of the general civil claims jurisdiction of the Magistrates Court. It looked at the court’s registries, case-flow management, in-court processes and enforcement processes by the Sheriff’s Office. *Maley Y, “From Adjudication to Mediation: Third Party Discourse in Conflict Resolution” (1995) 23 Journal of Pragmatics 93. This article examines the role of the traditional legal adjudicator and the mediator. The research draws upon courtroom and mediation data in the form of audiotapes and transcripts of criminal and civil court trials, tribunals and hearings and videotapes, and also of mediation sessions in divorce and marriage guidance in Australian courts. Manning C, “Transformative and Facilitative Mediation Case Studies: Workplace Conflict” (2007) 10(2) ADR Bulletin 35. This article reviewed a number of transformative and facilitative mediations that were applied to workplace disputes. The results of the study supported the combination of these two forms of mediation being effective for interpersonal workplace disputes. *Matruglio T, Researching Alternative Dispute Resolution (Civil Justice Research Centre and Law Foundation of New South Wales, Sydney, 1992). This is a compilation of extracts from reports on ADR conducted by the Institute for Civil Justice. The extracts outline the background of the institute’s reports, its research objectives and approach. McEwin I, Cost of Legal Services and Litigation Access to Legal Services: The Role of Market Forces, Background Paper (Senate Standing Committee on Legal and Constitutional Affairs, 1992). This paper covers the demand for legal services, an analysis of the legal services market, market forces and the courts, market forces and pre-trial processes, market forces and client-lawyer relations, and the legal profession. Although the main focus of the report is litigation, its terms of reference include analysis of practicable alternatives to the formal system. Meredith F, “Alternative Dispute Resolution in an Industrial Tribunal: Conciliation of Unfair Dismissal Disputes in South Australia” (2000) 14(1) Australian Journal of Labour Law 36. Using interviews, the author of this study evaluated the background and processes of unfair dismissal applications settled 839

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by conciliation. The study examines conference procedures and competencies of the parties and fairness of outcomes. It concludes that the service is accessible, timely and achieves a high proportion of settlements, and that the applicants find the process fair. However, they do report variable quality and consistency. *Moloney L, Love A and Fisher T, Managing Differences: Federally-funded Family Mediation in Sydney: Outcomes, Costs and Client Satisfaction (Legal Aid and Family Services, Attorney-General’s Department (Cth), Canberra, July 1996). This study involved an evaluation of four federally funded family mediation agencies through a combination of quantitative and qualitative analysis using observations, interviews, informal discussion, questionnaires and court records. This is a complementary study to the one conducted on similar Melbourne agencies. See Love A, Moloney L and Fisher T above. Moloney L, Kaspiew R, De Maio J, Deblaquiere J, Hand K, and Horsfall B, Evaluation of the Family Relationship Centre Legal Assistance Partnerships Program: Final report (Final Report, Australian Institute of Family Studies, 2011), available on http://www.ag.gov.au. This research is an evaluation of the Family Relationship Centre (FRC) Legal Assistance Partnerships Program which commenced in December 2009. Generally, positive conclusions were made as to the levels of collaboration between services. Moore S and Lee R, “Creating Value: A Hidden Benefit of Environmental Dispute Resolution in Australia and the United States” (1998) 9 Australian Dispute Resolution Journal 11. This article includes two case studies on the outcomes of ADR programs in environmental disputes (The Fitzgerald Advisory Committee, Western Australia, and the Bob Task Force, Montana, USA). *Morgan A, Boxall H, Terer K and Harris N, “Evaluation of Alternative Dispute Resolution Initiatives in the care and Protection Jurisdiction of the NSW Children’s Court” (Report, Australian Institute of Criminology, 2012), available on http://aic.gov.au/media_library/publications/rpp/118/rpp118.pd. The Australian Institute of Criminology conducted a quantitative and qualitative evaluation of the new model of dispute resolution conference and the Legal Aid Pilot in the NSW Children’s Court. The report found that these mechanisms were both relatively cost efficient as a means for delivering benefits to parents and families involved in care proceedings. The report consequently concluded that ADR processes should continue to be incorporated in NSW Children’s Court care and protection proceedings. *Mushin N, “Court-annexed Mediation in the Family Court of Australia: The Experience of Working with Cultural Diversity” in Bagshaw D (ed), Mediation and Cultural Diversity (Conference Proceedings, Second International Mediation 840

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Conference, Adelaide, 18–20 January 1996). Through a series of case studies, this paper evaluates the mediation programs introduced to the Family Court in 1991, focusing on cultural and ethnic issues. Myers P, Justice ADR Strategy Project: Research Findings and Strategic Implications (Speech presented at NADRAC Research Forum, Melbourne, July 2007). This presentation was about research around the prevalence of disputes in the community, supply and demand of ADR, and the application of these factors to policy and strategy. The research was conducted using views and data from suppliers and experts and a community-based questionnaire. National Alternative Dispute Resolution Advisory Council (NADRAC), ADR Research: A Resource Paper (Attorney-General’s Department, Canberra, 2004). This paper was designed to encourage discussion and assist researchers into ADR processes, systems and effectiveness. NADRAC, ADR Research: Background Paper for Research Round Table (Background Paper Attorney-General’s Department, 2002). This paper provides background for discussion of research at NADRAC’s round table. The paper is primarily focused on qualitative and quantitative research of ADR. NADRAC, ADR Statistics: Published Statistics on Alternative Dispute Resolution in Australia (Attorney-General’s Department, Canberra, 2003). This document provides a statistical summary of results of ADR processes in various forums including courts and tribunals. NADRAC, Indigenous Dispute Resolution and Conflict Management (AttorneyGeneral’s Department, Canberra, 2006). This paper evaluates ADR processes in the case of Indigenous disputes and makes recommendations on strategies to promote ADR that specifically addresses relevant needs in this area. NADRAC, Online ADR Background Paper (Background Paper, AttorneyGeneral’s Department, 2001). This paper is an examination of available ADR offerings and trends in technology. National Alternative Dispute Resolution Advisory Council, Solid Work You Mob are Doing: Case Studies in Indigenous Dispute Resolution and Conflict Management in Australia (Report, Attorney-General’s Department, 2009). This report discusses the findings of an in-depth study into effective practices for managing conflict involving Indigenous people. The report notes the significant social and economic benefits that would result from national investment in an effective Indigenous dispute management system. Neate G, Jones C and Clark G, Against All Odds: The Mediation of Native Title Agreements in Australia (Paper presented at the 2nd Asia–Pacific Mediation 841

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Forum, Singapore, November 2003). This paper aims to examine interest-based, multi-party, cross-cultural mediation over areas of land or waters in Australia. It reviews mediation methodology and how it has been applied to the mediation and negotiation of native title issues in Australia. Noone MA and Ojelabi LA, “Ethical Challenges for Mediators: An Australian Perspective” (2014) 45 Washington University Journal of Law and Policy 145, available on http://openscholarship.wustl.edu/cgi. This article discusses the ethical challenges faced by mediators. The article reports the findings of a research study which involved recording mediators’ responses to case scenarios containing a range of practical and ethical issues. The article reports that mediators’ responses were significantly divergent in a number of matters. Ojelabi LA, “Community Legal Centres’ Views on ADR as a Means of Improving Access to Justice – Part I” (2011) 22 Australasian Dispute Resolution Journal 111. This paper outlines concerns following interviews raised by staff at community legal centres (CLCs) in Victoria, Australia about the capacity of ADR to deliver justice to disadvantaged clients. Possible methods for addressing these concerns are discussed in Part II. Ojelabi LA, “Community Legal Centres’ Views on ADR as a Means of Improving Access to Justice – Part II” (2011) 22 Australasian Dispute Resolution Journal 173. In response to the concerns raised by community legal centre workers about the capacity of ADR to deliver justice to disadvantaged clients, Part II of this paper presents the findings relating to collaboration, integration of services and the expansion of ADR. Ojelabi LA and Noone MA, Justice Quality and Accountability in Mediation Practice: A Report (Report, La Trobe University, 2013), available on http:// arrow.latrobe.edu.au/. This report explores the justice quality of mediation, including accountability within the mediation field. The project involved developing a pilot mechanism to measure the justice quality of mediation. The report found that further discussion is needed regarding what justice means in the context of mediation and how it should be measured. The report also found that the five principles of access to justice, as articulated by the Federal Attorney-General, could be further developed for use as benchmarks for measuring justice. Ojelabi LA and Noone MA, “Ensuring Access to Justice in Mediation within the Civil Justice System” (2014) 40(2) Monash University Law Review 528, available on http://www.civiljustice.info/. This article explores mediation in the context of access to justice through examining empirical, qualitative research on the matter. This included exploring safeguards that are used to ensure the justice quality of mediators. 842

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Ojelabi LA, Fisher T, Cleak H, Vernon A and Balvin N, “A Cultural Assessment of Family Dispute Resolution: Findings about Cultural Appropriateness from the Evaluation of a Family Relationship Centre” (2012) 18(1) Journal of Family Studies 76. This article reports the findings of an evaluation of cultural matters in the practice of family dispute resolution at the Family Relationship Centre at Broadmeadows. The research found that the Centre’s work illustrated many aspects of best practice but also raised a number of interesting questions. *Peirce J, “Mediators, Children’s Access Services, Violence and Abuse” in Bagshaw D (ed), Mediation and Cultural Diversity (Conference Proceedings, Second International Mediation Conference, Adelaide, 18–20 January 1996). This report uses case studies to examine the development of children’s access to mediation services. Particular attention is given to the circumstances in which the use of such services may be appropriate, including post-separation conflict, lack of parenting skills, substance abuse, risk of violence and/or harassment at access handover. People J and Trimboli L, An Evaluation of the NSW Community Conferencing for Young Adults Pilot Program (Report, NSW Bureau of Crime Statistic and Research, Attorney General’s Department, 2007). This report provides a summary evaluation of a pilot community conference program aimed at young adults in New South Wales, which commenced in 2005. The study gauged the satisfaction of conference participants and stakeholders within the program, using a questionnaire completed by participants from 171 conferences. The results of the research showed that most victims participating in the conferences were satisfied with the various stages of the process and with draft intervention plans developed by the participants. Prior A, “What Do Parties Think? A Follow-Up Study of the Marriage Guidance South Australia Family Mediation Project” (1994) 4(2) Australian Dispute Resolution Journal 99. This is a study by Marriage Guidance South Australia on the operation of the previous Family Mediation Service; methodology of the service; aims of project; analysis of study data; and effectiveness of the mediation process. Prior A and Thompson R, “Are Pre-mediation Sessions Helpful? A Client Evaluation of 100 Pre-mediation Sessions at Relationships Australia (SA) Inc” (1999) 10 Australasian Dispute Resolution Journal 285. Questionnaire-based evaluation conducted on 100 clients who attended pre-mediation sessions with the Family Mediation Services in late 1998 as required under the Regulations to the Family Law Reform Act 1995. Pre-mediation sessions were established under the Regulations to determine if there were domestic violence concerns, to clarify the process and parties’ attitude to mediation. The aim of the survey was to 843

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determine the clients’ satisfaction with the sessions. Results reported overwhelmingly that sessions were an important step in resolving the dispute. Pritchard B, “A Reflective Evaluation of Indigenous Mediation Services Provided by NSW Community Justice Centres” (2006) Indigenous Law Bulletin 48, available at Austlii on http://www.austlii.edu.au/au/journals/ILB/2006/ 48.html. This paper features a reflective evaluation of conflict management services provided to Aboriginal people and Torres Strait Islanders by Community Justice Centres in New South Wales. The implementation of the mediation service followed an initial pilot to recruit and train Indigenous mediators in the Northern Community Justice Centres region. Productivity Commission, Access to Justice Arrangements Inquiry Report (Inquiry Report No 72, Productivity Commission, 2014), available on http:// www.pc.gov.au/inquiries/completed/access-justice. This study examines the Australian civil justice system from an economic perspective, responding to concerns that the system is slow, costly and too adversarial. The study found that the use of ADR could be increased in a number of areas, such as low value contested civil disputes and wills and estates disputes. In addition, the report considers that government bodies should increase their use of ADR. In particular, government agencies that are involved in relatively common disputes, such as the provision of government benefits, could greatly benefit from increased use of ADR. Ralph S, “Family Dispute Resolution Services for Aboriginal and Torres Strait Islander families: Closing the Gap?” (2010) 17 Family Relationships Quarterly, available on http://www.aifs.gov.au/afrc/pubs/newsletter/frq017/frq0174.html There is huge lack of qualified indigenous ADR practitioners. This report explores the issues, refers to available evidence and recommends coordinating national, regional and local Indigenous dispute management services. Regan F, “Dilemmas of Dispute Resolution Policy” (1997) 8(1) Australian Dispute Resolution Journal 5. This article discusses dilemmas facing dispute resolution policy in Australia; research about disputes and disputing is used to argue that citizens need a variety of dispute processing systems; disputing as a way of life; “getting to no”; “captured by” and “capturing” ADR; and private irreconcilable values. Renouf E, “Family Conciliation/Mediation in Australia: Which Way Forward?” (1991) 2(2) Australian Dispute Resolution Journal 108. The author describes existing FDR services in Australia. She looks at how the results of research in England and Canada, costs and effectiveness of conciliation in family conflicts, could be applied to the Australian system. 844

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Rundle O, “The Purpose of Court Connected Mediation from the Legal Perspective” (2007) 10(2) ADR Bulletin 28. This article analyses the legal perspectives attributed to general civil litigation and proposes that this context causes the process to differ from the more common notion of theoretical mediation. The paper suggests this is due to the participation of legal practitioners, whose notion of court connected mediation tends to align with the aims of the formal civil litigation system. Schwartzkoff J and Morgan J, Community Justice Centres: A Report on the New South Wales Pilot Project 1979–81 (Report, Law Foundation of New South Wales, 1982). In accordance with a State Government decision taken in 1979, three pilot Community Justice Centres (CJCs) were established in New South Wales. They were based at Bankstown, Surry Hills and Wollongong. Research on the pilot scheme was carried out by the Law Foundation and involved a program for collecting and interpreting both quantitative and qualitative information about the work of the pilot centres. Sefton C, “No Square Pegs in Round Holes: What Mediators want Lawyers to Do in Mediation and How They Get It” (2011) 22 Australasian Dispute Resolution Journal 22. This paper argues that lawyers frequently attend and participate in mediation but insufficient research has been conducted on mediator behavior towards lawyers. The paper examines mediator techniques used on lawyers and how they differ from those used on parties. Sherman L and Strang H, Restorative Justice: What We Know and How We Know It, Jerry Lee Program on Randomized Controlled Trials in Restorative Justice (Working Paper, University of Pennsylvania, Lee Center of Criminology and Australian National University, Centre for Restorative Justice, 2004), available on http://www.restorativejustice.org/. This working paper reports on accumulated findings of randomised controlled trials on the effects of face-to-face restorative justice, reporting mixed effects on recidivism rates and substantial benefits for victims. Other empirical articles by H Strang can be found on: https:// www.researchers.anu.edu.au/researchers/strang-hj. Sherman L, Strang H and Woods D, Recidivism Patterns in the Canberra Reintegrative Shaming Experiments (RISE) (Report, Centre for Restorative Justice, Australian National University, 2000). Describes findings on the recidivism behaviour of offenders involved in the Canberra Reintegrative Shaming Experiments, which compared the effects of standard court processing with the effects of a diversionary conference for four kinds of cases: drink driving at any age; juvenile property offending with personal victims; juvenile shoplifting offences detected by store security officers; and youth violent crimes. Society of Consumer Affairs Professionals, Consumer Emotions Study (Report, Society of Consumer Affairs Professionals in Business Australia Inc, 2003). This 845

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report provides a summary of a study, conducted by Evalue and Psychologica, which was aimed at gaining an understanding of the psychology of consumer behaviour. By inviting nine blue-chip Australian organisations to participate in the survey, they made conclusions about customer satisfaction, loyalty and trust. *Sordo B, “A Law Society Perspective of Law and Lawyers in Mediation” (1995) 2(2) Commercial Dispute Resolution Journal 77. This paper examines the role of the Law Society’s Dispute Resolution Committee in promoting mediation through the implementation of a number of mediation initiatives known as the Settlement Week mediation programs. The paper summarises the evaluation results of the Settlement Week programs, with particular reference to estimated time and cost savings, the non-financial benefits and the results of the mediators’ debriefing survey. Sourdin T, “An Alternative for Who? Access to ADR Processes” (2007) 10(2) ADR Bulletin 26. This paper summarises research undertaken by the author over the period 2002 – 2007 focusing on those most likely to use ADR processes. The research indicates that factors such as living in a certain geographical area, socioeconomic status, age and demographic are significant in determining whether a disputant will pursue a complaints and dispute resolution process. Sourdin T, Dispute Resolution Processes for Credit Consumers (Report, La Trobe University, 2007), available on http://www.endispute.com.au/. This project analyses and assesses the effectiveness, accessibility and procedural fairness of the dispute resolution processes in relation to credit consumers, offered in Victoria at the Victoria Civil and Administrative Tribunal and Consumer Affairs Victoria. It provides information on how dispute resolution processes function and the level of satisfaction of consumers. See report at Consumer Affairs Victoria. Sourdin T and Shanks A, Evaluating Alternative Dispute Resolution in Taxation Disputes: Exploration of Selected ADR processes that took place from 1 July 2013 – 30 June 2014 (Report, ACJI, 2015), available on http://www.civiljustice.info/. The Report focuses on a sample of taxation and superannuation disputes involving 118 finalised Alternative Dispute Resolution (ADR) processes that were conducted between July 2013 and June 2014.This Report considers the effectiveness, cost, perceptions and approaches used in the ADR process. Sourdin T, Research on Family Support Program, Family Law Services (Report, Attorney – General’s Department, The Allen Consulting Group and Australian Centre for Justice Innovation, Monash University, 2013), available on http:// www.ag.gov.au/. This research was designed to identify opportunities for improving the government’s ‘value for money’ in the Family Support Program 846

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family law services. The report has regard to a variety of factors, including appropriateness, effectiveness, the role of technology, value for money and performance measurement. Sourdin T and Gremaux S, Reviewing Best Practice in the Family Mediation Centre Australian Centre for Justice Innovation, The Timeliness Project (Background Report, ACJI, 2013), available on http://www.civiljustice.info/. This Background Report was released in the lead-up to a forum on timeliness, held in May 2014, which explored the factors that produce delay and whether more timely dispute resolution is achievable. The Report examines how litigants resolve disputes within and outside the court system and considers how timeliness is measured and defined as well as the various processes and schemes that support timely dispute resolution both within formal courts and tribunals and in the many alternative and external dispute resolution systems that function before formal proceedings commence. Sourdin T and Shanks A, Gauging the User Experience Report (Report, to Allen Consulting Group by ACJI, 2013) (commercial in-confidence report). See final report to Australian Government Attorney-General’s Department, Allen Consulting Group, Research on Family Support Program Family Law Services (Final Report, Allen Consulting Group, 2013), available on http://www.ag.gov.au/ Publications/Documents/ ResearchOnFamilySupportProgramFamilyLawServices/research-on-familysupport-program-family-law-services-may2013.pdf Sourdin T, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts Report, Australian Institute of Judicial Administration, 2013), available on http://www.civiljustice.info/. The aim of the Australian Centre for Justice Innovation (ACJI) Pre-action Obligations Research Project was to explore the use and effectiveness of pre-action requirements, including schemes, protocols and obligations, which encourage people to resolve their disputes (with or without requirements with respect to ADR) before filing or commencing proceedings with a court or tribunal. Sourdin T, “Resolving Disputes Without Courts” (2013) 32(1) The Arbitrator & Mediator 25. This paper explores the different approaches and empirical research regarding pre-action requirements. The paper concludes that there needs to be some relationship and better understanding of the interplay between pre-action and post-filing processes for pre-action requirements to work effectively. Sourdin T and Burstyner N, “Cost and Time Hurdles in Civil Litigation: Exploring the Impact of Pre-action Requirements” (2013) 2(2) Journal of Civil Litigation and Practice 66. This article explores the question of whether pre-action requirements place cost and time hurdles on parties to a dispute and how these might be minimised. Recent research in this area is discussed. 847

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Sourdin T, “Making an Attempt to Resolve Disputes Before Using Courts: We All Have Obligations” (2011) 21 Australasian Dispute Resolution Journal 225. This paper discusses the impacts on litigants, ADR professionals and lawyers of existing and proposed legislative reforms around civil procedures at federal and state levels in Australia. The paper notes that, increasingly, litigants are required to participate in dispute resolution processes before they access the courts, and that new obligations and behavioural standards are being set. As a result of these reforms, ADR is likely to be provided at a range of levels and at different times both within and outside the courts. Sourdin T, Mediation in the Supreme and County Courts of Victoria (Report, Australian Centre for Peace and Conflict Studies, University of Queensland, 2009). This report was prepared for the Department of Justice, Victoria, Australia, and delivers research findings and recommendations arising from a project that assessed the use and effectiveness of mediation disputes filed in the Supreme and County Courts of Victoria. Sourdin T, National Mediator Accreditation System Standards (a project funded by the Commonwealth Attorney-General’s Department, 2007). This project included preparation of a Project Report, Approval Standards, Commentary on Approval Standards, Practice Standards and Commentary on Practice Standards. The report details the research process and the commentary documents setting out the views of practitioners and organisations regarding standards and ethical issues. See https://www.ag.gov.au/ Sourdin T, Poor Quality Mediation – A System Failure? (Working Paper, 2010), available at Social Science Research Network (SSRN) on http://www.ssrn.com/ abstract=1553590. Quality in mediation is considered from a range of perspectives in this paper. It is argued that enhanced mediation quality requires improved systemic supports. The paper refers to a series of qualitative and quantitative studies of ADR in various jurisdictions. Sourdin T, Qualitative and Quantitative Research – Access to ADR Parts I, II and III (Paper presented at the NADRAC Research Forum, Melbourne, July 2007). This study analysed the dispute handling process that follows a complaint. In doing this, ADR systems and objectives were explored with a view to understanding their meaning in the context of content, process and human psychological factors. Sourdin T, Research and Evaluation of ADR Processes – Learning From the Past and Present to Inform the Future (Paper presented at the NADRAC Research Forum, Brisbane, July 2010). This paper discusses the challenges faced in ADR research and evaluation in Australia over the past decade. 848

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Sourdin T, Review of Conciliation Services at the Health Quality and Complaints Commission Queensland (HQCC) (Report, Endispute Pty Ltd, 2011). This report details the outcomes of a review of Conciliation Services at the Health Quality and Complaints Commission Queensland (HQCC). It involved telephone and file surveying as well as interviews with key users. The final report is available on http://www.maa.nsw.gov.au/__data/assets/pdf_file/0012/13323/CARS_ REVIEW_UPDATE_2014.pdf. Sourdin T, User Perspectives of CARS – Interim Report for use in CARS Review, Interim Report (Endispute Pty Ltd, March 2011). This interim report details the results of research around user perceptions of the New South Wales Motor Accidents Authority Claims Assessment and Resolution Service (CARS). It involved telephone and file surveying. Sourdin T and Balvin N, Interim Evaluation of Dispute Settlement Centre of Victoria Neighbourhood Justice Centre and Corio Norlane Projects (Interim Evaluation Report, Australian Centre for Peace and Conflict Studies, 2008). This study analyses two ADR programs sited within community schemes and oriented toward improving access to mediation services and having positive impacts on communities. The study includes an in-depth analysis of demographic information. Sourdin T and Balvin N, “Mediation Styles and Their Impact: Lessons from the Supreme and County Courts of Victoria Research Project” (2009) 20 Australasian Dispute Resolution Journal 142. The various mediation processes used in court-related mediations in the Supreme and County Courts of Victoria, Australia, are examined in this study. Mediator and litigant perceptions of the processes are discussed and comparisons are made with dispute resolution systems that have been the focus of previous research. Sourdin T and Harding N, A Review of Manly Council’s Development Application (DA) Process (Report, La Trobe University and Nina Harding Mediation Services, 2006). This review reports on quality assurance in the DA area and makes recommendations for the future. The report provides detail about the way in which DAs are assessed and processed by councils in addition to analysing aspects of Manly Council’s DA process and considering levels of user satisfaction. Sourdin T and Matruglio T, Evaluating Mediation – New South Wales Settlement Scheme 2002 (Report, La Trobe University and University of Western Sydney, 2004). This report empirically evaluates mediation, arbitration, “between parties” agreements and trial processes. The research involved extracting court data, surveying parties involved in different processes and surveying mediators. 849

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Sourdin T and Thorpe L, “Consumer Perceptions of Dispute Resolution Processes” (2008) 153) Competition and Consumer Law Journal 377. This study brings together a collection of information and past research about how consumers react and respond to complaints and dispute resolution processes and includes discussion regarding empowerment and learned helplessness. Sourdin T and Thorpe L, “How Do Financial Services Consumers Access Complaints and Dispute Resolution Processes?” (2008) 19 Australasian Dispute Resolution Journal 25. Research into consumer credit disputes identifies a number of factors that impact on the use of, and access to, complaints and ADR processes by consumers. Many who have complaints do not access these processes, and those that do tend to be located in certain geographical areas, have a higher socio-economic status, higher education levels and are over-represented in particular age brackets. Sourdin T, Fisher T and Moloney L, Draft Practice Standards for Dispute Resolution Practitioners – Approval and Practice Standards (La Trobe University, 2004). These reports (including those detailed below) detail the development of standards in the family area and include a comprehensive review of international standards and ethical issues. In addition, the reports detail strategies to improve the quality of dispute resolution processes. Sourdin T, Fisher T and Moloney L, Quality Standards for Family Dispute Practitioners Research Project (Literature Review, La Trobe University, 2003). Sourdin, T, Fisher T and Moloney L, Towards Quality Standards for Family Dispute Practitioners: Research Report 2004 (Report, La Trobe University, Melbourne, 2004). This report forms part of a broader project, which involved producing professional standards for family dispute management practitioners. The report explores a variety of issues, including threshold accreditation, practitioner competency, complaints management, innovation and quality enhancement. Spegel N, Report on Survey to Ascertain Practitioner Attitudes and Practices Regarding Mediation (unpublished paper, University of Queensland, June 1997). This paper seeks to summarise results of an ADR practitioner survey with a focus on what practitioners do in mediation and the perceived impact of their attitude and actions. Steinepreis G, “Mediation: a Success Story” (1993) 20(9) Brief 29. This article discusses the role of mediation in special August sittings held by Western Australian Supreme Court; increased sittings held in attempt to clear backlog of cases awaiting trial; some cases referred to mediation that resulted in a large proportion of settlements; mediation conducted by accredited mediators of LEADR. 850

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Strang H, Restorative Justice Programs in Australia: A Report to the Criminology Research Council (Report, Australian National University, 2001), available on http://www.criminologyresearchcouncil.gov.au/reports/strang/report.pdf. This report provides an overview of restorative justice programs in Australia, focusing mainly on programs involving meetings of victims, offenders and communities to discuss and resolve an offence. Strang H, Barnes G, Braithwaite J and Sherman L, Experiments in Restorative Policing: A Progress Report on the Canberra Reintegrative Shaming Experiments (RISE) (Report, Law Program, Research School of Social Sciences, Australian National University, 1999). In this report, the effects of standard court processing are compared with those of a diversionary conference for four kinds of offence categories: drink driving at any age; juvenile property offending with personal victims; juvenile shoplifting offences detected by shop security staff; and youth violent offences. The data analysed confirms that both offenders and victims find diversionary conferences to be fairer than court. Street L, “Mediation and the Judicial Institution” (1997) 71 Australian Law Journal 794. This article is concerned with the factors to be wary of when judges act as mediators. Terrill L, “Reforms to the Family Law Act: Government Response to Joint Select Committee” (1994) 9(3) Australian Family Lawyer 26. This report of the Joint Select Committee on certain aspects of the operation and interpretation of the Family Law Act 1975 (Cth) covers: ADR; guardianship, custody and access; parenting trends; division of matrimonial property; pre-nuptial agreements; superannuation entitlements; and de facto property disputes. Tow D and Stubbs M, “The Effectiveness of Alternative Dispute Resolution Methods in Planning Disputes” (1997) 8(4) Australian Dispute Resolution Journal 267. This article discusses the potential for more extensive and effective use of ADR in local government decision-making; mediations in the Land and Environment Court of New South Wales; for openness and fairness to be maintained the mediator must remain independent of those involved and public access must be maintained; and mediation has the potential to play a substantial role in the planning system. Trett R, Perceived Merits of the Various Forms of ADR (Paper presented at the IAMA Conference Western Australia, 2008). This paper discusses the perceived benefits of the different forms of ADR, highlighting examples of what works well or could work better in relation to each form. Wade J, “Don’t Waste My Time on Negotiation and Mediation: This Dispute Needs a Judge” (2001) 18 Mediation Quarterly 259. This paper encourages lawyers to be overtly analytical when considering which dispute resolution process might be most appropriate for a particular dispute. In doing so, the author 851

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highlights indicators which might direct the lawyer toward more formal court or tribunal process as opposed to ADR processes. Weston R, Qu L, Gray M, De Maio J, Kaspiew R, Moloney L and Hand K, “Shared Care Time: An Increasingly Common Arrangement” (2011) 88 Family Matters (Australian Institute of Family Studies), available on http:// www.aifs.gov.au/institute/pubs/fm2011/fm88/fm88f.html. This research shows that although shared care is increasing, it still features in the minority of arrangements. Wilson-Evered E, Casey T and Aldridge S, Readiness for Online Mediation: Application of a Modified Unified Theory of User Acceptance of Technology, Forum Presentation Relationships Australia, Queensland, at NADRAC Research Forum, Brisbane, July 2010). This research examines the responses of FDR practitioners to the notion of providing FDR services through an integrated online platform that includes voice, internet relay chat (online text messaging), and videoconferencing through an interactive virtual mediation “room”. Worrall J, Unmet Needs for Dispute Resolution in South Australia, Australian Institute of Criminology, Alternative Dispute Resolution, Seminar Proceedings No 15 (AIC, Canberra, 1986). The study involved the use of phone-in surveys to evaluate whether neighbourhood disputes were satisfactorily resolved with ADR. Zariski A, “Lawyers and Dispute Resolution: What Do They Think and Know (and Think They Know)? Finding Out Through Survey Research” (1997) 4(2) E Law Murdoch University Electronic Journal of Law, available on http:// www.murdoch.edu.au/elaw/issues/v4n2/zaris422.html. The research focused on the attitude of lawyers to the various processes of dispute resolution as well as one client group – business disputants. Questionnaires were enclosed in an issue of the Law Society of Western Australia’s magazine, Brief. Zariski A, “Survey Finds Strong Support for ADR” (1997) 24(5) Brief 29. The results of a Western Australian dispute resolution survey demonstrated strong support for ADR and the variety of ADR processes being used by practitioners. Zeleznikow J, Beyond Interest Based Bargaining – Incorporating Interests and Justice in the Development of Negotiation Support Systems (Paper presented at the NADRAC Research Forum, Brisbane, July 2010). This paper examines three principles for developing fair negotiation processes in the context of the development of negotiation support systems: developing transparency; bargaining in the shadow of the law and the use of BATNAs; and limited discovery.

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CONFERENCE AND RESEARCH FORUM PAPERS Conference and research papers that focus on ADR evaluation also cover a range of topics and areas of empirical, qualitative and quantitative research in relation to studies and projects. These may be based on published papers or form the discrete research evidence for a particular project or study. These include papers addressing evaluation of training and culture affecting ADR, satisfaction, durability rates, predictions, procedural justice ratings and quality of justice. Papers on restorative justice programs have been presented as have those focusing on family law, community and neighbourhood mediation centres and services. Evaluation of ADR, such as those forms conducted in the tribunal context, have featured at conferences and research forums, with most reporting successful programs. NADRAC has now hosted three research forums, which provide a focus for ADR research and researchers. Papers addressing ADR used in land disputes, such as native title, have been presented throughout Australian forums during the last few years. Many conferences and forums, either specifically focusing on ADR or necessarily featuring ADR as part of another central topic, have featured papers which report generally in relation to ADR, as well as dispute resolution programs relating to complaints handling processes.

JOURNAL ARTICLES Published journal literature on the evaluation of ADR focuses on general as well as specific aspects of ADR. Most of the articles canvas theory, policy and contextual factors that influence effectiveness and perceptions of ADR in Australia and New Zealand. The material addresses these elements, in so far as these elements influence resulting perceptions and value for stakeholders, participants and society as a whole. Publications include evaluation of natural justice and the relationship with ADR procedures as an alternative to litigation, the integration of ADR into mainstream dispute resolution procedures, and the differences that exist in the context of civil and common law jurisdictions. Further literature on the distinctions between ADR and court processes in court-annexed mediations, including those that feature legal aid, provides qualitative evidence based on observation of mediation sessions and on interviews with lawyers and participants. Studies have included consideration of client satisfaction with process and quantitative aspects such as the number of agreements reached. Studies relating to ADR and law schools have researched the extent of ADR teaching in law schools. Specific areas that often utilise mediation, such as family law, have been the subject of qualitative research, based on party perceptions and satisfaction. 853

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ADR is also addressed in the context of its use in small business disputes, with suggestions on ways to encourage increased use. There has been specific analysis of the use of ADR in commercial disputes, including discussion of trends and party satisfaction. Qualitative research exists, collected from surveys completed by lawyers who specialise in the areas of personal injury and medical negligence. Human rights is another area that has benefited from ADR. Published evaluation includes case studies addressing the former Human Rights and Equal Opportunities Commission complaints. Historical and current studies of ADR and its influence on potential effectiveness of future ADR processes also feature in the literature, with reference to theory and practice of ADR, social development, culture, trends in legal practice, perceptions of justice, efficiency and policy. Other specific areas of study include rental bond disputes, workplace conflict and analysis the most appropriate ADR model for these, as well as environmental disputes that feature case studies of outcomes of planning and environment disputes. Literature provides a wealth of information about Indigenous and Torres Strait Islander disputes, with one study focusing on an Indigenous Community Justice Centre pilot. Consumer studies, such as those that address who is most likely to use ADR processes and the factors influencing this, have shed light on evaluation of ADR in this context. Furthermore, material addressing aspects that lawyers should consider in deciding whether their client should litigate or engage in ADR have been informed by results of evaluation of ADR. The role that ADR plays in mini trials and the legislation enacted by the High Court in New Zealand has been documented, as have the potential and actual consequences when judges have acted as mediators.

AUSTRALIAN CASES 789Ten Pty Ltd v Westpac Banking Corporation [2004] NSWSC 594 (confidentiality, privilege) ACCC v Collagen Aesthetics [2002] FCA 1134 ACCC v Lux Pty Ltd [2001] FCA 600 ACCC v Pratt (No 3) [2009] FCA 407 (mediator confidentiality and consent) Adnyamathanha People v South Australia [1999] FCA 402 Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 ANZ Bank v Ciavarella [2002] NSWSC 1186 (terms of settlement admissible) Aon Risk Services Australia Ltd v ANU [2009] HCA 27 (case management) Barrett v Queensland Newspapers Pty Ltd [1999] QDC 150 Baulderstone Hornibrook Engineering v Dare Sutton Clark Pty Ltd [2000] SASC 159 854

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Blake v John Fairfax Publications Pty Ltd [2001] NSWSC 885 Browning v Crowley [2004] NSWSC 128 (compulsory mediation) Burke v Humphrey [2000] TASSC 178 Chinadotcom Corporation v Hugh Morrow [2001] NSWCA 82 (stay to enable mediation refused) Computershare Ltd v Perpetual Registrars Ltd [2000] VSC 233 Davies v Lyndhurst Developments Pty Ltd [2001] NSWADT 9 (New South Wales Administrative Decisions Tribunal Retail Leases Division, Fox R, Judicial Member, 12 January 2001) DP World Sydney Ltd v Kelly [2011] NSWWCCPD 43 (no objection may be taken to the making of an award or the determination of a dispute by an Arbitrator on the ground that the Arbitrator has previously used his or her best endeavours to bring the parties to a settlement) Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995) 36 NSWLR 709 19 Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764 Firebrace v Indigenous Land Corporation [2000] FCA 1257 Frazer v Western Australia (2003) 128 FCR 458; [2003] FCA 351 Harrison v Schipp [2001] NSWCA 13; [2002] NSWCA 27 (factors relevant to discretion not to order mediation) Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646 (contractual basis of expert determination, court refusal to order specific performance of expert determination appointment agreement, public policy behind ADR) Higgins v Higgins [2002] NSWSC 455 Hooper Baillie Associated Ltd v Natson Group Pty Ltd (1992) 28 NSWLR 194 Hopcroft v Olsen [1998] SASC 7009 Hopeshore Pty Ltd v Melroad Equipment Pty Ltd [2004] FCA 1445 (failure of solicitors to participate in early mediation, factor in exercise of court’s discretion over costs) Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 427 Jones v South Australia [2003] FCA 538 Kilthistle No 6 Pty Ltd et al v Austwide Homes Pty Ltd [1997] FCA 1383 Lipman Pty Ltd v Emergency Services Superannuation Board [2011] NSWCA 163 (determination by experts appointed under a dispute resolution clause of a building contract) Macgregor v Macgregor [2003] WASC 169 (role of good faith in determining costs of unsuccessful mediation, privilege) Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181 (confidentiality deed unenforceable because too broad) 855

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Miller v Owners Corporation [2003] NSWCTTT 27 (mediation agreement to rectify defects failed for uncertainty) Morrow v Chinadotcom Corporation [2001] NSWSC 209 (stay of proceedings; stay pending resort to contractual dispute resolution; whether contractual provision sufficiently certain; court-ordered mediation; whether court should order mediation over opposition of party; relevant considerations discussed) National Australia Bank Ltd v Freeman [2000] QSC 295 NSW v Austeel Pty Ltd [2004] NSWSC 81 (extension of time for arbitration) NSW v Banabelle Electrical Pty Ltd [2002] NSWSC 178 Perry and Anor v Powercor Australia Ltd [2011] VSC 308 (evaluative and investigative processes) Pinot Nominees Pty Ltd v Commissioner of Taxation [2009] FCA 1508 (the issue of the admissibility of settlement offers in later proceedings was discussed in relation to costs) Pinto v Kinkela [2003] WASC 126 (evidence of court-ordered mediation, whether privileged) Pittorino v Meynert [2002] WASC 76 (whether mediation unconscionable) Rajski v Tectran Corporation Pty Ltd [2003] NSWSC 476 (admissibility of documents tendered by party/mediator; order for personal attendance; extension of mediation; restraint of lawyers attending mediation; mediation process designed to facilitate settlements, not provide them with another battleground) Rastall v Ball [2010]FMCAfam 1290 (a federal magistrate considered that an intake and assessment process was not covered by confidentiality provisions) Remuneration Planning Corporation Pty Ltd v Fitton [2001] NSWSC 1208 Rouhana v Parichatr [2001] NSWSC 103 (enforceability of professional fees agreement) Savcor Pty Ltd v New South Wales (2001) 52 NSWLR 587 (grounds for challenging expert determination) Singh v Singh [2002] NSWSC 852 Spencer v Spencer [2003] QBT 183I (rectification of building work following mediation agreement involving third parties) Tapoohi v Lewenberg (No 2) [2003] VSC 410 (mediator liability) Thomas v Yates [2008] NSWSC 282 (refused to order a court mediation while private mediation could still be successful)Thoroughvision Pty Ltd v Sky Channel Pty Ltd [2010] VSC 139 (how arbitration differs from litigation)

856

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Timic v Hammock [2001] FCA 74 (stay of court proceedings; application of arbitration agreement; disputes of claims arising out of or relating to franchise agreement; whether claims for misleading or deceptive conduct relate to franchise agreement; whether claims for breach of duty of care relate to franchise agreement) Wadi Wadi v Victoria [2001] FCA 1780 Walhallow Aboriginal Corp Inc v Walhallow Local Aboriginal Land Council [2003] NSWSC 545 Waterhouse v Perkins [2001] NSWSC 13 Wentworth v Rogers [2004] NSWCA 109 (whether mediation agreement admissible) Yoseph v Mammo [2002] NSWSC 585 Young v Judge Nixon [2008] VSCA 5 Young v King [2004] NSWLEC 93 (solicitors’ non-communication of mediation, effect on indemnity costs) Zhi Ping Wan v Yatrasone PL [2003] VCAT 513 (whether proceedings before Tribunal were “court proceedings” for dispute resolution clause)

NEW ZEALAND MATERIAL Barker J, “The Mini Trial: Commentary” (1989) New Zealand Law Journal 27. Acommentary on the experimental mini trial. The mini trial was held as an alternative to litigation through the courts. This form of ADR is explored within the context of High Court Rules. Cavanagh P, “The Mini Trial: A New Zealand Experiment in Pre-trial Dispute Resolution” (1989) New Zealand Law Journal 23. In December 1983 a landslip occurred, causing damage to a house in a recently constructed residential subdivision. The litigation that resulted was going to be complex and expensive. The conducting of a mini trial based on ADR concepts as an alternative for the litigants is discussed. The “trial” was overseen by a neutral adviser and conducted under strict procedures. The trial, its advantages and disadvantages, concluding that the procedure was successful and recommending it be considered for similar future conflicts. Cheney B, “Commercial Disputes: The Mini-trial Option” (1989) 19(2) Victoria University of Wellington Law Review 153. As a reaction to the costs and delays in litigation, the mini trial has been mooted as a cheaper, more efficient alternative. Other alternatives to litigation, such as arbitration, conciliation, mediation and negotiation are examined. He then discusses the mini trial, its procedures and its limitations. Case law and examples of mini trials in practice are also examined. Committee of Principal Family Court Judge PF Boshier, Review of the Family Court (Report, 1993). The Review of the Family Court was prepared by a committee 857

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appointed by the then Principal Family Court Judge Boshier. This report examines the roles of people and services within the Family Court; ways in which the conciliation process could be reinforced; and whether and in what ways the inquisitorial role of the court could be strengthened. The report recommends mediation, by contracted mediators, for all disputes prior to application, unless certain criteria apply. Laing R, Righarts S, Henaghan M, A Preliminary Study on Civil Case Progression in our Times in New Zealand (Report, University of Otago Legal Issues Centre, Faculty of Law, 2011) available on http://www.otago.ac.nz/law/research/ legalissues/otago037545.pdf. This report considers the time taken for civil proceedings to progress through the system and collects empirical data as a preliminary study. Law Commission, Report Dispute Resolution in the Family Court (Report No 82, Law Commission, 2003), available on http://www.nzlii.org/nz/other/nzlc/ report/R82. This Law Commission report looks at what changes, if any, are necessary and desirable in Family Court administration, management, and procedure to resolve disputes early. The report discusses how the Family Court’s dispute resolution model could be adapted, including entry into the system – where the commission considers that conciliation should be clearly delineated from processes leading to adjudication, but accessed through the Family Court. The commission considers that mediation, by contracted mediators, should be available to all parties but that the court could direct mediation once the application is filed. Law Commission, Report on the Judicial System (report, Law Commission, 1976). In 1976, the Royal Commission on the Courts was established to inquire into the structure and operation of the judicial system. In this its report, the commission recommends that the aim of the Family Court should be to help resolve problems with the cooperation of the parties, whenever that is possible, and with a minimum of disruption in all cases. The commission concludes that the Family Court should have a two-fold jurisdiction, both judicial and therapeutic, as each complement the other. The commission considers that all conciliation services, including counselling, should be available to all parties who apply or by court direction. It also recommends that counselling be made available for a wider range of people and situations, and made accessible to children. Ministry of Justice, Review of the Court Assisted Mediation Pilot, Auckland High Court Report to the Working Group (Report, Ministry of Justice, 2011). This is a review of a 12-month mediation pilot during which 32 cases were referred to mediation and 27 mediations were conducted. The objective of the review was to ascertain whether the aim of establishing whether or not a court-referred 858

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mediation process would be a cost-effective way of freeing up associate judge time and court space. The review made seven findings: • The pilot was generally regarded by those who responded as successful. • Most parties agreed to take part to achieve a quicker or cheaper resolution, rather than feeling obliged to participate. • The majority who had previous experience of a JSC found that it was either quicker or took no more time. • The rate of remuneration was generally regarded as satisfactory by the mediators. • Opinion on whether the selection on the panel of mediators, and selection of mediators in individual cases, were the most successful or least successful aspects of the pilot was more or less evenly split. • The decision to appoint three mediators without mediation qualifications and/or mediation experience did not have a significant impact on the results in the six cases concerned (based on settlement rates and time taken to conduct mediation), although there were comments made by parties who found the approach “as a lawyer” unhelpful. • The use of venues outside the court was acceptable for most mediators. Ministry of Justice, Reviewing the Family Court: A Public Consultation Paper (Consultation Paper, Ministry of Justice, 2011), available on http:// www.justice.govt.nz/policy/justice-system-improvements/family-court-review. This is a consultation paper seeking comments on issues arising out of an overall review of the Family Court. The paper discusses the appropriate role of the state in some family law matters. The paper reports that it was almost universally considered by stakeholders that, where appropriate, the best outcome for families is for them to resolve their disputes: • themselves, or with the assistance of their family, friends or community – decisions are more likely to be complied with because the parties have reached an agreement that suits their needs and is consistent with their values and culture; • as early as possible – if disputes are resolved quickly they will become less entrenched and harmful to the relationship; • by focusing on the best outcome for their children. The paper identifies that the lack of clear processes has compromised the court’s efficiency and cost-effectiveness, and contributed to delay. Strengthening lawyers’ obligations to work collaboratively is considered to be best for children and families. Questions are raised about whether there should be an obligation for lawyers or parties to use their best endeavours to resolve matters outside of a court process. The paper concludes that court processes based on the adversarial system can be harmful for children and families. An application to the Family Court should be the very last resort, or reserved for cases that are urgent or not suitable for 859

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ADR. In providing for this, the paper establishes that the growth in the demand for and cost of counselling services provided by the court is rising and cannot be sustained. The paper also reports that mediated agreements are said to be as good as, and in some cases more effective than, those reached through the legal process. It then raises issues to consider if mandatory mediation is proposed and if an expectation that parties should undertake their best efforts to resolve matters outside of court before an application can be made is introduced. Other considerations relate to the role the state should have in providing mediation or setting the standards associated with the service. Oliver M, Implementing Sustainability – New Zealand’s Environment CourtAnnexed Mediation (Paper presented at the Indian Society of International Law (ISIL) 5th International Conference on International Environmental Law, New Delhi, 8–9 December 2007), available on http://www.civilmediation.org. This paper reviews the processes of the Environment Court of New Zealand and the use of mediation to achieve sustainable environmental decisions. Powell C, “Alternative Dispute Resolution” (1998) New Zealand Law Journal 91. This article covers: developments in areas of ADR; Auckland District Law Society’s mediation month working group report; judicial process; cost disincentives; reasons lawyers are not taking to mediation; Bill Draper reports on building and construction contracts; High Court Amendment Rules 1997 and ADR; Auckland mediation month. Prichard E, “The Mini Trial: Addendum” (1989) New Zealand Law Journal 25. The author of this article acted as the neutral adviser in an experimental mini trial. The mini trial was held as an experiment in ADR. The author defines a mini trial, the structured procedure, and the advantages and disadvantages of the mini trial in contrast to litigation in the courts. Woodward J, “Court Connected Dispute Resolution – Whose Interests are Being Served?” (2014) 25 Australasian Dispute Resolution Journal 159. This article explores court-annexed ADR and the interests it serves. The article argues that some of the interests will inevitably be in conflict with each other. This arises from the flexible, voluntary nature of ADR as opposed to the rigid and prescriptive nature of litigation. The article concludes that the conflicts of interest are not an obstacle to the co-existence of ADR and litigation, provided they are recognised and accommodated sensibly.

860

INDEX A

ACCC — see Australian Competition and Consumer Commission Access to justice affordability of court proceedings, [1.65] federal civil justice system, [1.60], [1.65], [8.60] meaning, [1.65] non-litigious dispute resolution, and use of, [1.65] Access to Justice Advisory Committee, [14.75] Accessibility to processes, [1.90] Accreditation — see also National Mediator Accreditation System collaborative practice, [4.95], APP E conflict coaches, [2.65] family dispute resolution practitioners, [9.10], [14.05], [15.05] mediators, [14.05], APP E overarching requirements, [14.105] overview, [1.120] service provider schemes, [14.95] threshold and continuing accreditation arrangements, setting up, [14.105] Administrative Appeals Tribunal case appraisal, [6.45], [8.80] conciliation, [6.10], [6.15], [8.70] concurrent evidence approaches, [6.160] conduct of mediation, [8.70] forms of ADR, [8.80] judges as mediators, [8.110] mediation, [8.80] members as mediators, [8.80], [8.110] neutral evaluation, [6.35], [8.80] overview, [8.80] range of processes, [8.80] statutory provisions, [8.80] Administrative Review Council, [8.80] Admissibility of communications arbitration, [12.15] family dispute resolution, [12.20], [12.50] good faith, and, [12.10], [12.20] legal professional privilege, [12.30] mediation, [12.20], APP B overview, [12.05], [12.10], [12.55], [12.80] probative value, [12.20] reform recommendations, [12.20]

settlement offers, [12.20] statutory confidentiality, [12.20] without prejudice privilege, [2.85], [12.20], [12.25] common law privilege, [12.25] exceptions, [12.20], [12.25] scope of, [12.25] ADR — see also Technology advantages, [9.45] appropriate dispute resolution, [1.10] banking sector, [1.60] conflict coaching, [2.65] culture and preference, [10.15], [10.35] developments, [1.05], [15.05] description, [1.05] domestic growth, shaping, [15.10] funding arrangements, [1.90] future trends — see Future trends global changes in, [15.10] indigenous forms, [10.35] initial entry into, [11.50] overview, [1.05], [1.10] use of term, [1.10] ADR practitioners — see also Family dispute resolution practitioners; Legal practitioners; Mediators; Third parties; Accreditation bad faith, liability for acting in, [11.40] collaborative practice, [4.95] conduct obligations, [11.35] confidentiality — see Confidentiality culture analysis, and, [15.15] detachment, [3.50] impartiality, [3.50] lawyers, [8.100] liability, [12.05], [12.55], [12.60] advice, [12.70], [12.75] agreements, [12.65] extent of service, [12.75] fiduciary duties, [12.75] misleading representations, [12.75] nature of service, [12.75] statutory frameworks, [12.60] statutory immunity, [12.55], [12.60], [12.75] unconscionable conduct, [12.75] unfair terms, [12.75] neutrality, [3.50] obligations, [11.40] poor quality practice, weeding out, [14.105] power imbalances, [15.40] reporting obligations, [1.20], [7.130], [12.10], [12.35], [12.45] skills — see Skills standards and guidelines, [13.05], [14.05], [14.45] international approaches, [14.55], [14.60] 861

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ADR practitioners — cont service standards, [14.50] training — see Training and education values, need for clear overarching, [14.105] ADR processes — see also Multi-door systems accessibility, [1.90] advisory — see Advisory processes arbitration — see Arbitration assistance to disputants, [6.50] blended processes — see Blended processes business sector — see Business sector choice of process, [6.50] classification of processes, [1.15], [6.05] collaborative practice, [4.95] community sector — see Community sector conciliation — see Conciliation conferencing [3.110] conduct obligations — see Conduct obligations conduct of processes, [1.20] court-based — see Court-based ADR courts, and, [1.65], [1.70] criticisms and concerns, [1.70] privatisation, [1.70] cultural context and — see Cultural context decision-making, and, [9.05] definitional variations, [1.15], [6.105], [15.05], [15.65] descriptions, [1.15] determinative — see Determinative processes developments, [15.05], [15.95] differences within processes, [1.20], [1.55], [1.70] dispute resolution boards [6.80] efficiency, [1.95], [1.115] emerging processes, [1.55] evaluation — see Evaluating ADR processes evolution of processes, [1.35], [1.40], [1.50], [1.55], [1.120], [15.15] adoption of forms, [1.60] conceptual changes, [1.45] cooperative behaviour, [1.45], [1.55] decisional models, [1.55] impact of organisations, [1.40] modern society, [1.45] negotiation theories, [1.50], [1.55] facilitative — see Facilitative processes fairness of process, [1.85], [1.115] formality, [1.20] institutionalisation, [1.115], [1.120], [13.95] concerns, [6.105], [13.35] judicial involvement, [1.120], [8.100], [8.105]–[8.130], [13.25] bias, [8.125] constitutional impediments, [8.120] mediators, as, [8.110], [8.115], [8.120], [8.125] natural justice, [8.125] perceived difficulties, [8.105] 862

private meetings with parties, [8.115], [8.125] lawyers’ role, [8.100], [8.105] length of process, [1.20] litigation system, and, [1.65], [1.80], [1.115], [8.05], [8.100], [8.110], [8.140], [15.05], [15.55], [15.95] criticisms, [1.70] judiciary, [1.120] practical implications, [1.70] mediation — see Mediation NADRAC objectives, [1.75] objectives, [1.20], [1.65], [1.75], [1.105] acceptable outcomes, [1.85], [1.100] accessibility, [1.90] additional objectives, [1.105], [1.110] advisory processes, [1.110], [6.110] consistency with interests, [1.75] determinative processes, [1.110], [6.110] effectiveness of process, [1.100] efficiency, [1.95] facilitative processes, [1.110] fair or just process, [1.75], [1.85] lasting outcomes, [1.95] resolution or limitation of disputes, [1.75], [1.80] satisfaction of participants, [1.100] timeliness of process, [1.95] online — see Online dispute resolution overview, [1.10], [1.120], [9.05], [12.80], [15.05] participants, role of, [1.20] parties, role of, [1.20] philosophical underpinnings, [1.20] range of processes, [1.10], [1.60] recent developments, [1.60], [1.120] reporting and referral, [1.20], APP C research, [1.115] role of parties, [1.20] satisfaction of participants, [1.100], [1.115] subject of dispute, [1.20] third parties, [1.15], [1.20] decisional models, [1.55] types of processes, [1.15] United States, [1.60] ADR service providers accreditation schemes, [14.95] NADRAC approach, [14.65] standards and guidelines, [14.65] systemic support, [14.105] training and education schemes, [14.95] Adversarial decision-making, [6.125] Advice — see also Legal advice collaborative practice, [4.95] liability of practitioners, [12.70], [12.75] mediators, [3.20], [3.35], [7.105], APP B Advisory processes — see also Conciliation; Dispute counselling; Evaluative processes blended processes, [6.95]

| A

Index

Advisory processes — cont business sector, [9.45] collaborative practice, [4.95] conferencing, [3.105], [3.110] decision-making — see Decision-making focus of process, [7.70] mediation, [3.20] objectives, [1.110], [6.110], [6.175] online processes, [10.60] overview, [1.15], [6.05] skills, [6.110], [7.70] closed questions, [7.70] third parties, [6.05], [6.115] Age intergenerational conflict, [15.20] Agenda setting collaborative practice, [4.95] neutral terminology, [7.60] overview, [7.60] sample agenda, [7.65] visual aids, [7.60] Agents assisted negotiation, [2.85] Agreements — see also Settlement alternatives to agreement, [7.105] arbitrate, to, [11.50] breach of mediation agreement, [11.45] compliance with agreements, [11.45] confidentiality, [12.25] durability of agreements, [11.45] enforceability, [11.05], [11.45] options for agreement, [7.100], [7.105] brainstorming, [7.100] effective negotiation, [7.110] reality testing, [7.105] overview, [7.115] reality testing, [7.105], [7.120], [11.45] example, [7.125] reporting requirements, [7.130] sample agreement to mediate, APP B setting aside, [12.05], [12.20], [12.25] unfair terms, [12.75] ALRC — see Australian Law Reform Commission Alternative dispute resolution — see ADR

arbitrators, [6.85], [6.165] immunity of arbitrators, [12.60], [12.65] information gathering, [6.140] standards and guidelines, [14.90] bias, [6.165] blended processes, [6.85], [6.95] commercial, [6.85], [11.50] arbitrators, [14.90] disputes, [1.60], [6.85], [9.45], [13.85] bias rule, [6.165] content of decisions, [6.155] legislation, [6.85], [6.140] confidentiality, [12.15], [12.25] courts and tribunals, [6.85] New South Wales, [6.85], [8.20], [8.25] Victoria, [8.35] criticisms of process, [6.85] definition, [6.90] dispute resolution, major form of, [1.35] enforcement of awards, [11.50] evolution of process, [1.35], [1.60], [6.10] Family Court of Australia, [6.85], [8.60] Federal Court of Australia, [6.85], [8.60] federal legislation, [1.60], [6.85] flexibility, [6.85] historical background, [1.60], [6.10], [6.85] Institute of Arbitrators and Mediators Australia — see Resolution Institute international arbitration, [1.60], [6.85], [15.10] international developments, [1.60], [6.85] international relations, [1.60] liability of arbitrators, [12.60] litigation, distinction, [6.155] med-arb, [6.10], [6.85], [6.95] natural justice, [6.165] online arbitration, [10.60] overview, [1.60], [6.85] referral criteria, [13.75] standards and guidelines, [14.90] states and territories, [1.60], [6.85], [13.85] New South Wales, [6.85], [8.20] Victoria, [8.35] workers compensation, [6.85] Artificial intelligence decision-making, [6.175], [10.50], [10.70] future development and trends, [10.70], [15.50] online advice supported by, [10.05] overview, [6.175], [10.70], [15.50]

Alternatives to agreement overview, [7.105] reality testing, [7.105]

Artificial Legal Intelligence (ALI), [10.50], [10.70], [15.50]

Appropriate dispute resolution — see ADR

Assessment and intake — see Intake and assessment

Arbitration — see also Conciliation agreements to arbitrate, [11.50] ancient Greeks and establishment of, [1.35]

Australian Capital Territory court-based ADR, [8.55] 863

Alternative Dispute Resolution

Australian Centre for International Commercial Arbitration (ACICA), [15.80]

dispute prevention, [9.70], [13.85] dispute resolution, [9.70], [13.85] early neutral evaluation, [6.30], APP B ethical standards, [14.45] expert appraisal, [6.25] expert determination, [6.70] overview, [9.70] practice standards, [14.45] risk management, [5.60], [5.65], [9.70], [13.110]

Australian Competition and Consumer Commission (ACCC) business sector guidelines, [9.75], [13.85] partnering, [4.100] plan, [9.60] Australian Dispute Resolution Advisory Council (ADRAC) establishment of, [15.05]

B

Australian Dispute Resolution Association (ADRA), [1.120], [15.80]

Bad faith acting in liability for, [11.40] recognising when, [5.80] communication, [9.75], [13.85] contractual business dealings, and, [11.35] good faith, and, [11.30] negotiation behaviours, [11.30] settlement process, [11.35] Uniform Domain-Name Dispute-Resolution Policy (UDRP) rules, [10.60]

Australian Disputes Centre (ADC), [1.120], [15.80] Australian Law Reform Commission adversarial decision-making, [6.125] culture of cooperation, [15.35] federal civil litigation system, [1.65], [1.105], [15.70] acceptable outcomes, [1.85], [1.100] accessibility, [1.90] consistency with interests, [1.75] effectiveness of process, [1.100] efficiency, [1.95] fair or just process, [1.75], [1.85] lasting outcomes, [1.95] resolution or limitation of disputes, [1.75], [1.80] satisfaction of participants, [1.100] timeliness of process, [1.95] good faith obligations, [11.30] Australian Mediation Association (AMA), [15.80] Australian Securities and Investment Commission external dispute resolution schemes, [9.50], [15.80] Australian standards — see also National Mediator Accreditation System arbitration, [6.90] case appraisal, [6.40] complaints handling, [5.20], [5.60], [5.65], [9.70] conciliation, [6.15] dispute management systems, [13.100] diagnostic approaches, [13.110] effective communication, [13.105] essential principles, [13.105] framework for design, [13.120] negotiation strategies, [13.110] steps in design, [13.120] steps in introduction, [13.100] 864

Banking disputes, [1.20], [1.60] industry-based schemes [9.45] Benchmarks — see also Standards and guidelines business sector, [9.55], [9.65], [15.25] industry-based schemes, [5.20], [9.75], [13.85], [14.35], [15.25], [15.70] overview, [13.85] Bias decision-making, [6.140], [6.165] judicial decision-making, [6.165] judicial involvement in ADR, [8.125] overview, [6.165], [8.125] tentative views, [6.165] Blended processes case management functions, to support, [1.70] collaborative practice, [4.95] conciliation, [6.10] conciliation and arbitration, [6.85], [6.95] court-based ADR, [1.70] decision-making, [6.115], [6.120], [6.140] definitional variations, [6.105] dispute resolution boards [6.80] evaluative processes[6.20] hybrid processes, description, [6.100] implications of a blended system, practical, [1.70] judicial role, forming part of, [1.65], [1.70] med-arb, [6.10], [6.85], [6.95] mediation, [3.10], [3.35], [6.95] online processes, [10.65] overview, [1.20], [6.95]

Index

Blended processes — cont techniques, [2.90] workers’ compensation, [6.85], [6.95] Business sector — see also Commercial disputes approaches to ADR, [9.45] Australian standards, [9.70] benchmarks and codes, [9.55], [9.75], [15.25] industry-based schemes, [5.20], [9.75], [13.85], [14.35], [15.25], [15.70] industry codes of conduct, [9.65] dispute management, [9.45], [9.55], [9.65] communication management, [9.65] government agencies, [9.50] holistic approach, [9.65] future trends, [15.25] good faith, [9.45], [11.30] government agencies, [9.50] growth of ADR, [9.45], [15.25] industry-based schemes, [5.20], [9.50], [9.75], [13.85], [14.35] industry codes of conduct, [9.65], [13.85] legislative schemes, [9.80] states and territories, [9.80] overview, [9.10], [9.45], [9.50], [9.55], [15.25] range of processes, [9.45] small business, [9.45]

C Canada collaborative practice, [4.20] research, [4.95] confidentiality, [12.50] judicial involvement in ADR, [8.105] mini trials, [6.20] standards and guidelines, [14.60] Case appraisal definition, [6.40], [6.45] overview, [6.20] Case management court-based ADR, and, [1.65], [1.70], [8.05], [15.65] Family Court, [8.60] Family Court of Western Australia, [8.50] Federal Court of Australia, [8.60] judicial intervention, [6.165] overview, [1.65] Victoria, [8.35] Caucuses, [7.40] — see also Private sessions Chartered Institute of Arbitrators Australia, [15.80] Child-related proceedings — see Less adversarial trial Children and young people — see also Family disputes complainants, as, [9.23]

| C

juvenile justice conferences, [9.20], [9.22] peer mediation and ADR training, [13.135] restorative justice, [3.105], [9.22] restorative schools, [9.20] technology, and, [15.20] victim-offender mediation, [3.105], [9.22] Codes of conduct — see also Ethical standards confidentiality, [12.35] industry codes of conduct, [9.65], [13.85] legal practitioners, [11.35] overview, [14.45] Collaborative practice — see also Partnering alternative forms, [4.90] background to development, [4.10] United Kingdom, [4.25] United States, [4.10], [4.15] Canada, [4.20], [4.95] characteristics of process, [4.35] collaborative agreements, [4.05], [4.35], [4.90] effect of agreement, [4.35] commercial area, [4.90] costs, [4.95] disqualification provisions, [4.35], [4.90] Europe, [4.25] family disputes, [4.05], [4.10], [4.15], [4.115], [9.10] collaborative agreements, [4.35] research, [4.95] United States, [4.10], [4.15], [4.95] interest-based negotiation, [4.35], [4.40], [4.75] International Academy of Collaborative Professionals, [4.25], [4.90], [4.95] Law Council of Australia, [4.30] models of practice, [4.05] multidisciplinary team model, [4.75] requirements, [4.40] team collaborative model, [4.50] United States, [4.15], [4.70] multidisciplinary approach, [4.05], [4.20], [4.75] multidisciplinary team model, [4.75] non-family areas, in, [4.90], [4.115] overview, [1.15], [4.05], [4.115], [6.05] participants, [4.05] practice groups, [4.35] research, [4.95] client survey results, [4.95] skills of practitioners, [4.80] stages of process, [4.45] agenda items, [4.60] assessment stage, [4.50] client preparation meeting, [4.55] debrief meetings, [4.70] four way meetings, [4.65], [4.95] initial client interview, [4.50] joint meetings, [4.65], [4.75] legal advice, [4.55] other practitioner meetings, [4.60] purpose of meetings, [4.75] skills of practitioners, [4.80] 865

Alternative Dispute Resolution

Collaborative practice — cont timing, [4.85] standards and guidelines, [4.30], [4.95], [14.90], APP E team collaborative model, [4.50] training and trainer standards, [4.30] types of disputes, [4.90] United Kingdom, [4.25] United States, [4.10], [4.15] models of practice, [4.15], [4.70] research, [4.95] uniformity measures, [4.15] withdrawal, [4.95] Collaborative problem solving, [1.35] Co-mediation debriefing, [7.135] process steps [7.40] structure [APP A] Commercial disputes arbitration, [1.60], [6.85], [9.45], [13.85] bias rule, [6.165] content of decisions, [6.155] legislation, [6.85] standards and guidelines, [14.90] collaborative practice, [4.90] fast track case resolution, [8.05] future trends, [15.30] negotiation, [2.15] Communication difficulties, [15.20] Communication skills agenda setting, [7.60] neutral terminology, [7.60] sample agenda, [7.65] visual aids, [7.60] clarification and exploration, [7.70] emotions, [7.75] questions, [7.70] creating an atmosphere, [7.35] discussion stage, [7.70] dispute counselling, [7.30] emotions, [7.75] impartiality, [7.25] intake processes, [7.30] listening skills, [7.10], APP A active listening, [7.10], [7.20], [7.45], [7.50] barriers or blockers, [7.10] case study, [7.15] dispute counselling, [7.30] influential factors, [7.20] interrupters, [7.10] parties’ opening statements, [7.45] processing information, [7.10] reflecting, [7.50], [7.55] summarising and paraphrasing, [7.50], [7.55] universals, [7.10] negotiation, [2.45], [7.05], [7.110] 866

effective negotiation, [7.110] self-knowledge, [2.45], [2.50] unconditionally constructive negotiation, [7.50], [7.110] neutrality, [7.25] opening statements, [7.35], [7.40] active listening, [7.45] content of statements, [7.40] parties’ statements, [7.45] overview, [2.45], [7.05], [7.10] questions, [7.70] alternatives to settlement, [7.105] closed questions, [7.70] debriefing, [7.135] journalists questions, [7.70] private sessions, [7.100] reframing, [7.80], [7.90] reflecting, [7.50] example, [7.55] reframing, [7.80] example, [7.85] levels of reframing, [7.80] mediation, [3.40] questions, [7.80], [7.90] round tables, [7.35] summarising and paraphrasing, [7.50] example, [7.55] training and education, [7.05] Community Justice Centres overview, [1.60], [8.25], [9.10] transformative mediation, [3.25] Community sector children and young people, [9.20] court-based ADR, and, [9.10] examples of organisations, [9.10] facilitative processes, [9.45] family dispute resolution, [9.10] legal aid schemes, [9.15] government bodies, [9.10] health care, [9.35] Human Rights Commission, [9.10] legal aid schemes, [9.15] neighbourhood disputes, [9.25] non-government bodies, [9.10] funding and accreditation, [9.10] overview, [1.60], [9.10], [13.85] public policy disputes, [9.30] states and territories, [9.10] children and young people, [9.20] health care disputes, [9.35] transformative mediation, [3.25] Complaints handling — see also Dispute management accessibility, [5.35] Australian standards, [5.20], [9.70] risk management, [5.60], [5.65], [9.70] basic principles, [5.20] benchmarks, [5.20] accessibility, [5.20], [5.35] underlying principles, [5.20]

Index

Complaints handling — cont complaints policy, [5.30], [5.55] consumer behaviour, [5.10], [5.80] consumer feedback, [5.25], [5.30] active communication, [5.40] strategies to encourage, [5.40] disclosure issues, [5.65] effective systems, [5.10], [5.20], [5.25], [5.80] elements of systems, [5.20], [5.85] accessibility, [5.35] active communication, [5.40] assessing complaints, [5.55] complaints policy, [5.30], [5.55] consumer feedback, [5.25], [5.30], [5.40] handling complaints, [5.60] information, [5.65], [5.70], [5.75] leadership, [5.25] monitoring of system, [5.70], [5.75] resolving complaints, [5.65] responsiveness, [5.25], [5.45], [5.50] staff requirements, [5.30] time frames, [5.50] tracking complaints, [5.50] evaluations of systems, [5.10] fairness, [5.65] health care sector, [5.25], [5.35], [5.60], [9.35] information, [5.65], [5.75] health care complaints, [9.35] recording information, [5.70] sensitive information, [5.65] use of information, [5.70] international standards, [5.20] investigating complaints, [5.65] negative consumer surprise, [5.10] overview, [5.05], [6.05] positive consumer surprise, [5.10] privacy issues, [5.65] processes, [5.20] quality assurance, [5.05], [5.10] research, [5.85] resolving complaints, [5.65] responding to complaints, [5.25], [5.45], [5.50] time frames, [5.50] risk management, [5.05], [5.10], [5.20], [5.60], [9.70] social networking, [5.15] staff requirements, [5.30], [5.45] assessment of complaints, [5.55] understanding complaints, [5.55] standards and guidelines, [5.20], [5.60], [5.65] statement of values, [5.30] technological impacts, [5.15] telecommunications industry, [5.10] Conciliation — see also Mediation blended processes, [6.85], [6.95] conciliators, [6.10] definition, [6.10], [6.15] differences within process, [1.20]

| C

facilitative, [6.10] health care complaints, [6.10], [9.35] historical background, [1.60], [6.10] international relations, [1.60] mediation, and, [6.10] nature of process, [6.10] negotiation strategies, [2.25] overview, [6.10] range of processes, [6.15] referral criteria, [13.70] standards and guidelines, [14.90] use of processes, [6.10] Conciliation conferences judicial involvement, [8.115], [8.130] Conciliation counselling, [6.10] Conduct obligations — see also Pre-litigation obligations ADR practitioners, [11.40] agreements reached in an ADR process, and, [11.45] court-based ADR, [11.05] enforcement, and, [11.40], [11.45], [11.50], [11.55] good faith in negotiation, [11.05], [11.30], [12.20] dispute resolution clauses, [11.30], APP D meaning, [11.30] legal practitioners, [11.35] misleading conduct, [11.35] model litigant obligations, [11.35] professional conduct rules, [11.35] overview, [11.05], [11.55] Conferencing description, [3.110] impartiality, [3.105] mediation process, as, [3.105] models of conferencing, [3.105] neutrality, [3.105] overview, [3.105], [8.40], [9.20] restorative justice, [9.22] Confidentiality arbitration, [12.15], [12.25] codes of conduct, [12.35] common law, [12.10] ethical standards, [12.35], [12.45] exceptions to, [12.10] family dispute resolution, [12.20], [12.50] reporting requirements, [12.45], [12.50] field of intimacy issues, [12.25] good faith, and, [12.10], [12.20] implied, [12.15] legal professional privilege, [12.30] limits to, [12.10] mediation, [12.10], [12.20], [12.45] mediation agreements, [12.25], [12.65], APP B National Mediator Accreditation Standards, [12.40], [12.45], APP E 867

Alternative Dispute Resolution

Confidentiality — cont opening statements, [7.40], [12.10], APP A overview, [12.05], [12.10], [12.55], [12.80] private agreements, [12.25] private sessions, [7.100] reporting requirements, [12.45], [12.50] harm or abuse, [12.50] standards, [12.35] statutory conferral, [12.20] United States, [12.15], [12.45], [12.50] without prejudice privilege, [2.85], [12.20] common law privilege, [12.25] exceptions, [12.20], [12.25] scope of privilege, [12.25] Conflict — see also Dispute system design analysis and diagnosis, [13.05] approaches adopted, [1.30] conflict management systems, [13.05], [13.130] constructive confrontation, [13.05] cooperative conflict — see Cooperative conflict cost of conflict, [13.10] cultural context, [15.15], [15.20] definition, [1.25] description, [1.25] habits, [1.30] historical perspectives, [1.25], [1.35] approaches to conflict, [1.40] cooperative behaviour, [1.45], [1.55] institutions and structures, [1.40] human needs, [13.05] human reactions, [1.25], [1.30] overview, [1.25], [13.05] parties in, [1.20] resolution — see Conflict resolution social growth, [1.25] sources of conflict, [1.40], [13.05] systemic approach, [13.05] transforming, [1.20] workplace conflict, [13.15] Conflict coaching case study, [2.75] development of process, [2.65] models, [2.65] multi-group negotiations, [2.80] overview, [2.65] stages of process, [2.70] T-group process, [2.80] uses, [2.65] Conflict resolution coaching models, and, [2.70] collaborative practice models, as form of, [4.05], [4.115] communication material used in, [2.65] decisional models of, [1.55] experts, [1.45] facilitated consensus-building, [1.35], [4.15] human needs or interests, based on, [1.55] informal, [1.45] 868

mediation environmental conflicts, of, [3.80] model, phase in, [3.30] range of processes, diverse, [1.60] system, [1.115] theory, [1.35], [1.55] transformative mediation, and, [3.25] Conflict transformation, [1.55] Construction disputes — see also Commercial disputes; Partnering dispute resolution boards, [6.75] description, [6.80] Consumer advocacy, [9.50] Consumer rights children and young people, [9.23] Cooperative conflict behaviour, [1.35], [1.45], [1.50], [1.55] Counselling — see also Dispute counselling conciliation counselling, [6.10] Court-based ADR — see also Pre-litigation obligations; Tribunals Australian Capital Territory, [8.55] blended processes, [1.70] case management, [1.65], [1.70], [8.05], [8.35], [15.65] community-based ADR, and, [9.10] conduct obligations, [11.05] evaluative studies, [15.70], APP G Family Court of Australia, [8.60] arbitration, [6.85], [8.60] Child Responsive Program, [8.70] family dispute resolution, [8.50], [8.70] impact of reforms, [8.70] judicial involvement, [8.105], [8.115], [8.135] less adversarial trial, [6.115], [6.140], [6.150], [8.70] primary dispute resolution, [1.10], [8.70] Family Court of Western Australia, [8.50] Federal Circuit Court of Australia, [8.60], [8.75] family dispute resolution, [8.70] Federal Court of Australia, [8.60] arbitration, [6.85], [8.60] eCourt forum, [10.65] evaluation of program, [8.60] judges’ role, [8.105], [8.110] native title mediations, [8.85] online services, [10.65] registrars’ role, [8.130] federal system, [8.60] future trends, [15.30] growth in the use of, [8.140] intake processes, [7.30] judicial involvement, [1.120], [8.105]–[8.130]

| D

Index

Court-based ADR — cont bias, [8.125] constitutional impediments, [8.120] mediators, judges as, [8.105], [8.110], [8.120], [8.125] natural justice, [8.125] perceived difficulties, [8.105] private meetings with parties, [8.110], [8.115], [8.125] key issues, [8.100], [8.105], [8.130] mandatory referral, [8.05], [8.135], [13.40], [15.45] cases, [8.135] future trends, [15.45] New South Wales, [8.20], [8.135] objections, [8.135] Queensland, [8.30] South Australia, [8.55] Tasmania, [8.55] Victoria, [8.35] multi-door systems — see Multi-door systems New South Wales, [8.15], [8.105], [8.135] District Court, [8.25] Land and Environment Court, [8.25] Local Court, [8.25] Supreme Court, [8.20], [8.105] New Zealand, [8.90] judges’ role, [8.110] Northern Territory, [8.55] online dispute resolution, [10.65] overview, [1.65], [1.120], [8.05], [8.100], [8.130], [9.05], [12.80], [15.30] Queensland, [8.30] directions conferences, [8.30] mandatory referral, [8.30] referral strategies, [13.40] reporting requirements, [7.130] screening for referral, [13.45] South Australia, [8.55] staffing, [8.05] standards and guidelines, [14.75] United States, [14.85] Tasmania, [8.55] types of processes, [8.05] United States, [1.60] Victoria, [8.35] judicial involvement, [8.105] Portals Scheme, [8.35] Western Australia, [8.50], [8.135] criminal case conferencing, [8.40] Courts — see also Litigation; Tribunals ADR processes, and, [1.65], [1.70] arbitration, [6.85] conciliation conferences, [6.10] court, definition, [11.35] expert advisers, [6.65] expert determination or referral, [6.65] expert witnesses, [6.65] Family Court — see Family Court of Australia Federal Court — see Federal Court of Australia

future trends, [15.30] judicial role, [8.100], [8.105] online dispute resolution blended with, [10.65] overview, [8.05], [12.80], [15.30] role of courts, [1.70], [11.25] States and Territories, [8.10] Australian Capital Territory [8.55] New South Wales [8.15]-[8.25] Northern Territory [8.55] Queensland [8.30] South Australia [8.55] Tasmania [8.55] Victoria [8.35]-[8.45] Western Australia [8.50] technology, and, [10.65] United States, [1.60], [1.65], [1.70] virtual courts, [10.60] Credit and Investments Ombudsman, [9.50] Criminal cases conferencing, [3.105], [8.40], [9.22] Cultural context ADR processes, and, [15.15] cultural errors in conflict resolution, [15.15] cultural orientations, recognition of, [15.15] culturally and linguistically diverse community knowledge of, mediator, [14.20], [14.25] residence in, mediator, [14.30] high-context cultures, [15.15] inter-faith dialogue, [15.20] low-context cultures, [15.15] online dispute resolution cultural differences, and issues arising from, [15.50] societal changes, [15.20]

D

Debriefing ADR process, after, [7.135] co-mediation and, [7.140] objectives of, [7.145] purposes, [7.145] Decision-making ADR processes, and, [9.05] analytical stage, [6.135], [6.145] identification of issues, [6.145] timing of questions, [6.145] approaches, [6.125] artificial intelligence, [6.175], [10.70] bias, [6.140], [6.165] tentative views, [6.165] blended processes, [6.115], [6.120], [6.140] communicating decisions, [6.155] concurrent evidence processes, [6.135], [6.140], [6.160] 869

Alternative Dispute Resolution

Decision-making — cont advantages, [6.160] empirical study results, [6.160] purposes, [6.160] decisional model, [6.130] analytical stage, [6.135], [6.145] communicating decisions, [6.155] information gathering, [6.135], [6.140] making the decision, [6.150] Family Court, [6.140] less adversarial trial, [6.140], [6.150] framing of decisions, [6.155] information gathering, [6.135] bias, [6.140] concurrent evidence processes, [6.135] elements of stage, [6.140] neurobiology, and, [6.140] judicial decision-making, [6.115], [6.120], [6.130] bias, [6.165] concurrent evidence processes, [6.135], [6.140], [6.160] Family Court, [6.140] information gathering, [6.135], [6.140] making the decision, [6.150] natural justice, [6.165] objectives, [6.120] restrictions on process, [6.125] sentencing, [6.120] making the decision, [6.150] managerial setting, [6.115], [6.125] mediators and, [12.20] natural justice, [6.165] neurobiology, [6.140] overview, [6.115], [6.175] personal qualities of decision maker, [6.170] decisiveness, [6.170] skills, [6.130], [7.05], APP A Definitions ADR [1.05] arbitration, [6.90] case appraisal, [6.40], [6.45] conciliation, [6.10], [6.15] conferencing [3.110] conflict, [1.25] court, [11.35] dispute, [1.25] dispute management system [13.15] dispute resolution boards [6.80] distributive negotiation [2.30] early neutral evaluation, [6.30] expert, [6.25] expert determination [6.70] expert appraisal, [6.25] expert report, [6.25] good faith, [11.25], [11.30] hybrid and combined processes [6.100] indirect negotiation, [2.05] integrative negotiation [2.38] just, [1.85] litigation, [11.35] 870

mediation, [3.05], [3.10], [3.45], [14.10], [15.70] negotiation, [2.05], [2.15] indirect negotiation, [2.05] neutral evaluation, [6.20], [6.35] partnering [4.105] process [4.40] quality assurance, [14.05] reframing, [7.80] standards, [14.05] Determinative processes arbitration — see Arbitration binding or non-binding, [6.05] blended processes, [6.115] business sector, [9.45] decision-making — see Decision-making dispute resolution boards, [6.75] description, [6.80] expert determination, [6.65] description, [6.70] expert referral, [6.65] focus of process, [7.70] objectives, [1.110], [6.110], [6.175] online processes, [10.60] opening statements, [7.45] overview, [1.15], [6.05], [6.60] reality testing, [7.100] skills, [6.110] closed questions, [7.70] opening statements, [7.45] reality testing, [7.100] third parties, [6.05], [6.60], [6.115] Disability mandatory referral [8.135] online dispute resolution, [10.40] Dispute advising communication skills, [7.30] overview, [7.30] role of adviser, [7.30] skills, [7.30] Dispute avoidance workplace, in the, [13.15] Dispute counselling communication skills, [7.30] description, [6.55] information provision, [7.30] intake process, as, [6.50], [7.30] objective, [7.30] overview, [6.50], [7.30], [13.45] role of counsellor, [7.30] skills, [7.30] Dispute, definition, [1.25] Dispute management — see also Dispute system design business sector, [9.45] holistic approach, [9.65]

Index

Dispute management — cont industry-based, [9.50] communication management, [9.65] government agencies, [9.60]

dispute management systems, [13.15] description, [13.15] diversity principle, [13.135] effective design approach, [13.15] essential design components, [13.125] framework for design, [13.120] government agencies, [13.120] human needs, [13.05] intake and assessment, [13.45], [13.50], [13.55], APP C appropriateness of ADR, [13.55] integrated system, [13.30] issues, [13.10], [13.135] mandatory attendance, [13.90] multi-door courthouse, [13.35], [13.90] advantages, [13.35] disadvantages, [13.35] elements of model, [13.40] Family Court trial, [13.40] operation of model, [13.40] screening for referral, [13.45], [13.50] United States, [13.40], [13.45], [13.50] multi-door systems, [13.20], [13.25], [13.35], [13.85] development of systems, [13.35] multi-option systems, [13.20], [13.30], [13.85] objectives, [13.10] organisations, [13.100] Australian standard, [13.100]–[13.110], [13.120] cane toad approach, [13.120] essential components, [13.125] framework for design, [13.120] risk assessment matrix, [13.110], [13.115] United States, [13.130] overview, [13.05], [13.20], [13.135] pre-litigation obligations, [13.90] referral criteria, [13.55], [13.60], [13.95] arbitration, [13.75] conciliation, [13.70] evaluative processes, [13.70] mediation, [13.65] referral screening, [13.45], [13.50] generic classifications, [13.50] referral strategies, [13.40] referral to ADR, [13.55], [13.95] ripeness for referral, [13.80] streamlining systems, [13.95] risk assessment matrix, [13.110], [13.115] support and structures, [13.30], [13.130] systemic diagnosis, [13.05] workplace conflict, [13.15]

Dispute resolution — see also Arbitration; ADR processes; Complaints; Online dispute resolution advisory processes — see Advisory processes assistance to disputants, [6.50] choice of process, [6.50] classification of processes, [1.15], [6.05] determinative processes — see Determinative processes evolution of processes, [1.35] conceptual changes, [1.45] cooperative behaviour, [1.45], [1.55] institutions and structures, [1.40] modern society, [1.45] negotiation theories, [1.50], [1.55] facilitative processes — see Facilitative processes one-child families, [15.20] overview, [1.25], [9.05], [15.55], [15.95] range of processes, [1.60] theory, [1.35] Dispute resolution advisors, [6.50], [6.55] Dispute resolution boards composition of boards, [6.80] description, [6.80] overview, [6.75] partnering and, [4.105] process, [6.80] Dispute Resolution Centres, [1.60], [9.10] Dispute resolution clauses construction, [6.65] Dispute Settlement Centre of Victoria (DSCV), [9.10], [10.25] Dispute system design application, [13.10] Australian standards, [13.100] diagnostic approaches, [13.110] essential principles, [13.105] framework for design, [13.120] negotiation strategies, [13.110] risk management, [13.110] steps in design, [13.120] steps in introduction, [13.100] system design components approach, [13.125] consistency principle, [13.135] cost of conflict, [13.10] courts and tribunals, [13.20] diagnostic, [13.05] dispute management plan [9.50]

| E

Domestic violence — see Family violence

E

Early neutral evaluation definition, [6.30] overview, [6.20], APP B 871

Alternative Dispute Resolution

E-commerce — see also Online dispute resolution disputes, [10.10] domain name, [9.50] schemes first-tier complaints handling mechanisms for, [10.30], [10.65] E-justice platforms, development of, [15.20] Education and training — see Training and education Email online dispute resolution (ODR), [10.10] Enforcement of outcomes arbitration awards, [11.45] compliance with outcomes, [11.45] expert determinations, [11.45] liability of ADR practitioners [12.55] mediation agreements, [11.45] overview, [11.05], [11.45], [11.55] Environment Court of New Zealand, [8.90], [8.110] Environmental disputes appropriateness of ADR, [3.80], [9.30] mediation, [3.80] fairness of outcome, [3.80] overview, [3.80] E-shuttle mediation, [3.30], [10.55] Ethical standards Australian standards, [14.45] collaborative practice, [4.95] confidentiality, [12.35], [12.45] reporting requirements, [12.45], [12.50] Family Practitioner Standards Project, [12.45] mediators’ obligations, [12.45], [12.50] National Mediator Accreditation Standards, [12.45] negotiation, [2.80] overview, [14.40] United States, [12.45] European Union collaborative practice, [4.25] mediation, [15.10] Evaluating ADR processes cost and benefit, [15.60], [15.70] court-based ADR, [15.70], [15.80] critical issues, [15.55] definitional variations, [15.65] mediation, [15.70] empirical studies, [15.70], APP G 872

family disputes, [15.70] future trends, and, [15.55] government policy decisions, [15.55] overview, [1.115], [15.05], [15.55] parties’ needs and preferences, [15.85] past evaluations, [15.75], APP G RAND Report, [15.90] research, sound evaluation, [15.90], APP G who should evaluate, [15.80] Evaluative processes — see also Conciliation case appraisal, [6.20] definition, [6.40], [6.45] early neutral evaluation, [6.20], APP E definition, [6.30] evaluator’s role, [6.20] expert appraisal, [6.20] definition, [6.25] expert reporting, [6.20] liability of practitioners, [12.70] mini trials, [6.20] neutral evaluation, [6.20] definition, [6.20], [6.35] opening statements, [7.45] overview, [6.20], [6.65] reality testing, [7.100] referral criteria, [13.70] standards and guidelines, [14.90] Evidence admissibility of communications, [12.05], [12.10] legal professional privilege, [12.30] statutory confidentiality, [12.20] without prejudice privilege, [12.20], [12.25] arbitration, [6.85] concurrent evidence processes, [6.135], [6.140], [6.160] advantages, [6.160] empirical study results, [6.160] purposes, [6.160] good character, mediator, [14.15] Expert advisers, [6.65] Expert appraisal definition, [6.25] overview, [6.20] Expert determination contractual arrangements, [6.65] description, [6.70] enforceability, [11.45] overview, [6.65] procedure for determination, [11.45] Expert panels, [6.65] Expert referral, [6.65] Expert reporting expert, definition, [6.25]

Index

Expert reporting — cont expert report, definition, [6.25] overview, [6.20] Expert witnesses, [6.65]

F

Facilitative processes — see also Collaborative practice; Conciliation; Mediation agenda setting, [7.60] blended processes, [6.95], [6.115] communication skills, [7.40] agenda setting, [7.60] clarification and exploration, [7.70] discussion stage, [7.70] effective negotiation, [7.110] opening statements, [7.40] questions, [7.70] community-based ADR, [9.45] conferencing, [3.110] final joint sessions, [7.115] focus of process, [7.70] liability of practitioners, [12.70] objectives, [1.110], [6.175] online dispute resolution, [10.10], [10.55] opening statements, [7.40], [7.45] options for agreement, [7.100] overview, [1.15], [6.05], [6.115] private sessions, [7.100] effective negotiation, [7.110] research, [3.115] skills, [1.110], [6.115], [7.95]–[7.110] agenda setting, [7.60] clarification and exploration, [7.70] effective negotiation, [7.110] final joint sessions, [7.115] opening statements, [7.40] private sessions, [7.100], [7.110] reality testing, [7.100] third parties, [6.05] Family Court of Australia arbitration, [6.85], [8.70] Child Responsive Program, [8.70] conciliation counselling, [6.10] decision-making, [6.140], [6.145], [6.150] family dispute resolution, [8.70], [8.75], [9.10] admissibility of communications, [12.20], [12.50] compulsory attendance, [8.70], [9.10], [11.20], [13.90] confidentiality, [12.20], [12.50] pre-litigation obligations, [8.60], [8.70], [9.10], [11.20], [13.90] impact of reforms, [8.60], [8.70], [9.10], [13.90] Integrated Client Service, [13.40] judicial involvement in ADR, [8.105], [8.115] less adversarial trial, [6.140], [8.70] communication, [6.145]

| F

concurrent evidence processes, [6.140] conduct of proceedings, [6.140], [8.70] evaluation of model, [6.140], [8.70] making the decision, [6.150] overview, [8.70] pre-litigation obligations, [8.60], [8.70], [9.10], [11.20], [13.90] compulsory attendance, [8.70], [9.10], [11.20], [13.90] exceptions, [13.90] primary dispute resolution, [1.10], [8.70], [9.10] range of services, [8.70] Family Court of New Zealand, [8.90] Family Court of Western Australia, [11.10] Family dispute resolution practitioners accreditation system, [9.10], [14.05], [15.05] admissibility of communications, [12.20], [12.50] conduct of mediation, [3.65] confidentiality, [12.20], [12.50] reporting requirements, [12.45], [12.50] Family Practitioner Standards Project, [12.45] intake and assessment, [3.65], APP C power imbalances, [3.65] reporting requirements, [12.45], [12.50] abuse or harm, [12.50] standards, [14.05], [14.80], [15.80] approval standards, [14.80] draft standards, [14.80] practice standards, [14.80] training and education, [14.05] Family disputes arbitration, [6.85] clarification and exploration, [7.70] collaborative practice, [4.05], [4.115], [9.10] advantages, [4.05] background to development, [4.10], [4.15] collaborative agreement, [4.35] research, [4.95] United States, [4.10], [4.15], [4.95] community-based ADR, [9.10] legal aid schemes, [9.15] evaluation studies, [15.70] facilitative processes, [6.115] legal aid schemes, [9.15] mediation models, [3.85] child-inclusive practice, [3.85] one-child families, [15.20] online dispute resolution, [10.20] negotiation support systems, [10.05] operation of system, [1.60] referral criteria, [13.65], APP C Family Relationship Advisory Line (FRAL) family disputes, and, [10.55] 873

Alternative Dispute Resolution

Family Relationship Centres, [3.65], [9.10], [14.65]

debriefing, [7.135] impasse strategies, [7.115] overview, [7.115] reporting requirements, [7.130]

Family Relationship Services Programs, [14.65] Family violence assessment for mediation, [3.65], APP C shuttle mediation, [3.30]

Financial Industry Complaints Service, [9.50], [15.85] Financial Ombudsman Service, [9.50]

Farm debt mediation, [8.95], [9.80], [11.20], [13.90] Federal Circuit Court establishment, [8.75] family dispute resolution, [8.75] impact of reforms, [8.60] overview, [8.10], [8.75] questions of law, [8.75] Federal civil justice system access to justice, [1.60], [1.65], [8.60] dispute system design, [13.30] research need, [15.70] Federal civil litigation system objectives, [1.65], [1.75] acceptable outcomes, [1.85], [1.100] accessibility, [1.90] consistency with interests, [1.75] effectiveness of process, [1.100] efficiency, [1.95] fair or just process, [1.75], [1.85] lasting outcomes, [1.95] resolution or limitation of disputes, [1.75], [1.80] satisfaction of participants, [1.100] timeliness of process, [1.95] Federal Court of Australia arbitration, [6.85], [8.60] assessors, [6.65] assisted dispute resolution, [8.60], [8.65] evaluation of program, [8.60] case management, [8.60], [8.65] eCourt forum, [10.65] expert referral, [6.65] external mediators, [8.55] fast track case resolution, [8.05], [8.65] impact of reforms, [8.60] judges’ role, [8.105] mandatory referral, [8.65] native title mediations, [8.85] online services, [10.65] overview, [8.60] registrars, [8.65], [8.110], [8.130] technology, and, [10.65] Fiduciary duties mediators, [12.75] Final joint sessions agreements, [7.115] reality testing, [7.120], [7.125] 874

First joint sessions opening statements, [7.40] active listening, [7.45] content of statements, [7.40] parties’ statements, [7.45] reflecting, [7.50], [7.55], [7.70] summarising and paraphrasing, [7.50], [7.55] Franchising Industry Code, [9.55], [9.65], [13.85] Funding arrangements, [1.90] Future trends artificial intelligence, [15.50] business sector, [15.25] communication difficulties, [15.20] court-based ADR, [15.30] cultural context, [15.15], [15.20] definitional variations, [6.105], [15.05] evaluating ADR processes, [15.55] factors influencing, [15.05] global changes, [15.10] lawyers’ role, [15.35] litigation, [15.30] unrepresented parties, [15.40] mandatory referral, [15.45] online dispute resolution, [15.50] overview, [15.05], [15.95] social trends, [15.20] technology, [15.50]

G

Good faith bad faith, and, [11.30] business sector, [9.45], [11.30] confidentiality, and, [12.10], [12.20] contractual obligations, [11.30] definition, [11.25], [11.30] determining, [11.30] dispute resolution clauses, [11.30], APP D genuine steps to resolve, [11.30] legal practitioners, [11.30] legislative schemes, [11.30] meaning, [11.25], [11.30] mediators, [12.20], [12.65] National Native Title Tribunal, [11.30] negotiations, [2.85], [9.45], [11.05], [11.30], [12.20]

Index

Good faith — cont overview, [11.30] participant obligations, [14.70] pre-litigation obligations, [11.25], [11.30] Government agencies dispute avoidance, internal and external, [9.60], [13.120] management plans, [9.60], [13.120], [14.65] resolution processes, [9.60] legal services directions [11.30] model litigant obligations, [11.35] Guidelines — see Standards and guidelines

H

Harvard Project preparation of negotiation, [2.45] seven-element model, [2.55] Health care complaints handling, [5.25], [5.35], [5.60], [9.35] disclosure standards, [9.35] conciliation, [6.10], [9.35] overview, [9.35] risk assessment matrix, [13.110], [13.115] states and territories, [9.35] Health Complaints Commissioner, [9.35] Health insurance complaints, [9.35] Horticulture Code, [9.65] Human Rights Commission, [9.10] Hybrid processes — see Blended processes

| I

Industry-based schemes, [5.20], [9.50], [9.75], [13.85], [14.35], [15.25], [15.70] Industry codes of conduct, [9.65], [13.85] Injury dispute resolution insurers and, [9.40] state and territory ADR schemes, [9.40] Institute of Arbitrators and Mediators Australia (IAMA) — see Resolution Institute Institutionalisation of ADR concerns, [6.105], [13.35] overview, [1.115], [1.120], [13.95] Insurers injury dispute resolution arrangements and, [9.40] Intake and assessment — see also Referral to ADR appropriateness of ADR, [13.55], APP C collaborative practice, [4.50] dispute counselling, [6.50], [7.30], [13.45] family dispute resolution practitioners, [3.65] overview, [7.30], [13.45] power imbalances, [3.65] procedure, [13.45] International Academy of Collaborative Professionals, [4.25], [4.90], [4.95] International arbitration enforcement in respect of, [11.50] international commercial arbitrators, appointment of, [11.50] overview, [1.60], [6.85], [15.10] UNCITRAL model law, [6.85] International standards complaints handling, [5.20]

I

Individual negotiation, [15.20]

Internet — see also Online dispute resolution; Social networking access and usage, [10.15], [10.20], [10.30] age, [10.20] broadband access, [10.15], [10.30] disability, [10.15], [10.40] education, [10.15] income, [10.15] remote and rural areas, [10.30] domain name disputes, [9.50], [10.10], [10.60] “e justice” platforms, [15.20] email, use of, [15.20]

Industrial relations conciliation and arbitration, [1.60], [6.10]

Intervention order violence, dealing with, [1.80]

Impasse mediation, [3.30] Indigenous ADR cultural context [15.15] cultural preferences, [10.35] good faith [11.30] native title mediations, [8.85] familiar surroundings, [7.35]

875

Alternative Dispute Resolution

J

Joint sessions — see First joint sessions Judicial decision-making artificial intelligence and technology [6.175], [10.70] bias, [6.165] concurrent evidence processes, [6.135], [6.140], [6.160] advantages, [6.160] purposes, [6.160] decisional model, [6.130] Family Court of Australia, [6.140] less adversarial trial, [6.140] information gathering, [6.135], [6.140] natural justice, [6.165] objectives, [6.120] overview, [6.115], [6.120] restrictions on process, [6.125] sentencing, [6.120] Judicial involvement bias, [8.125] Canada, [8.105] conciliation conferences, [8.115], [8.130] constitutional impediments, [8.120] decisional processes [6.140] Family Court of Australia, [8.70], [8.105], [8.115], [8.135] mediators, as, [8.105], [8.130] bias, [8.125] constitutional impediments, [8.120] skills, [8.130] natural justice, [8.125] overview, [1.120], [6.165], [8.100], [8.130] perceived difficulties, [8.105] private meetings with parties, [8.105], [8.115] United States, [8.105]

L

Law Council of Australia collaborative practice, [4.30] professional conduct rules, [11.35] Law Institute of Victoria collaborative practice, [4.35], APP E Law Society of New South Wales evaluator’s role, [6.20], APP B mediation models, [3.40], APP B participants in mediation, [14.70], APP B Lawyers ADR practitioners, [8.100] collaborative practice, [4.95] culture of cooperation, [15.35] 876

future trends, [15.35] mediation, [3.40], [3.90] mediators, [3.10], [3.35] negotiation, [2.85], [3.90] research studies, [2.95] standards of conduct, [2.85] role in ADR, [8.100], [15.35] opening statements, [7.40] traditional role, [8.100] Legal advice collaborative practice, [4.55] Legal aid conferencing children and young people, [9.20] Legal aid schemes family dispute resolution, [9.15] overview, [9.15] Legal practitioners — see also ADR practitioners; Confidentiality; Lawyers conduct obligations, [11.35] future change [8.95] good faith, [11.30] misleading or deceptive conduct, [11.35] model litigant obligations, [9.60], [11.10], [11.35] national model rules, [11.30] professional conduct rules, [11.35] professional misconduct, [11.35] standards and guidelines, [11.35] Legal Profession Uniform Law (LPUL), [11.35] conduct rules, [11.35] Legal professional privilege, [12.30] Less adversarial trial communication, [6.145] concurrent evidence processes, [6.140] conduct of proceedings, [6.140], [8.70] evaluation of model, [6.140], [8.75] making the decision, [6.150] overview, [6.140], [8.70] Liability — see ADR practitioners — see Mediators Listening skills active listening, [7.10], [7.20], APP A influential factors, [7.20] non-verbal content, [7.20] reflecting, [7.50], [7.55] summarising and paraphrasing, [7.50], [7.55] verbal content, [7.20] barriers or blockers, [7.10], APP A case study, [7.15] dispute counselling, [7.30]

Index

Listening skills — cont intake processes, [7.30] interrupters, [7.10], APP A overview, [7.10] processing information, [7.10] universals, [7.10] Litigation — see also Courts; Tribunals; Pre-litigation obligations access to, [11.20] ADR processes, and, [1.65], [1.80], [1.115], [8.05], [8.105], [8.135], [8.140], [15.05], [15.55], [15.95] criticisms, [1.70] judiciary, [1.120] practical implications, [1.70] adversarial decision-making, [6.125] arbitration, distinction, [6.155] bias rule, [6.165] blended dispute resolution, [15.30] client satisfaction, [1.115] costs, [13.80] definition, [11.35] fast track case resolution, [8.05] federal civil system, [1.65] key objectives, [1.75] filing rates, [8.05] reasons for decline, [8.05] flexibility of procedure, [6.85] future trends, [15.30] unrepresented parties, [15.40], [15.70] judicial intervention, [6.165], [8.105] lawyers’ role, and, [8.100] measure of last resort, [11.20] model litigant obligations, [11.35] overview, [1.65], [8.05], [12.80] research into processes, [1.115] unrepresented parties, [15.40], [15.70]

M Mandatory referral — see also Pre-litigation obligations cases, [8.135] future trends, [15.45] New South Wales, [8.20], [8.135] objections, [8.135] overview, [8.05], [8.135], [13.40], [15.45] Queensland, [8.30] screening for referral, [13.45], APP C South Australia, [8.55] Tasmania, [8.55] Victoria, [8.35] Med-arb, [6.10], [6.85], [6.95] Media reporting, [15.20] Mediation — see also Conciliation; National Mediator Accreditation System admissibility of communications, [12.20] advisory mediation, [3.35]

| M

agreements, [7.120], APP B breach of agreement, [11.45] compliance with agreement, [11.45], APP B confidentiality, [12.25], [12.65] enforceability, [11.45] review, [11.45] blended processes, [3.10], [3.35], [6.95] med-arb, [6.10], [6.85], [6.95] client satisfaction, [1.115] co-mediation, [7.140] conciliation, and, [6.10], [14.10] conduct of, [3.65] procedural fairness, [3.70] conferencing, as, [3.105] confidentiality, [12.10], [12.25], [12.40] reporting requirements, [12.45], [12.50] statutory conferral, [12.20] court-based — see Court-based ADR debriefing, [7.135] definition, [3.05], [3.10], [3.45], [14.10], [15.70] description of process, [3.35], [3.45], [7.105] differences within process, [1.20] empowerment, [3.20], [3.60] enforceability of agreements, [11.45] environmental conflicts, [3.80] European Union, [15.10] evaluative mediation, [3.05], [3.10], [3.35], [14.10] facilitative mediation, [3.05], [3.10], [3.15], [3.35] communication skills, [7.55], [7.50] fairness of outcomes, [3.75] environmental conflicts, [3.80] fairness of process, [1.85], [3.75] family sector, [3.65], [3.85] child-inclusive practice, [3.85] formality, [1.20] impartiality, [3.50], [7.25] lawyers’ role, [3.40], [3.90] assistance to clients, [3.90] concerns, [3.90] liability of practitioners, [12.70] narrative mediation, [3.05], [3.30], [3.35], [3.40] native title mediations, [7.35] negotiation strategies, [2.25] unconditionally constructive negotiation, [7.50] neutrality, [3.50], [7.25] objectives, [1.85] online mediation, [10.55] e-shuttle mediation, [3.30], [10.55] specific programs, [10.55] opening statements, [7.40], APP A outcomes, [3.75], [3.80], [3.115] overview, [3.05], [3.10] participants’ role, [3.90], [14.70] participation of parties, [3.40] exclusion or silencing, [3.90] peer mediation and ADR training, [13.135] power imbalances, [3.60], [3.65], [3.90] 877

Alternative Dispute Resolution

Mediation — cont power relationships, [3.60] procedural fairness, [3.70], [3.75] process, [1.20], [3.40], APP B description of process, [3.35] process model, [3.40] process-oriented approach, [3.15] professionalism, [3.60] purpose of process, [3.35], [14.60] reality testing, [3.10], [11.45] referral to mediation, [13.55] criteria for referral, [13.65] registrars’ role in, [8.130] ripeness for referral, [13.80] representatives’ role, [3.90] research, [1.115], [3.115], APP G transformative mediation, [3.25] self-determination, [3.60] shuttle mediation, [3.30], [7.115], [14.75] e-shuttle mediation, [3.30], [10.55] substance-oriented approach, [3.20] technology, and, [10.05] training models, [3.40] transformative mediation, [3.05], [3.25], [3.35], [3.40], [3.50], [15.45] criticisms, [3.25] neutrality, and, [7.25] uses of mediation, [3.05] Mediation models evaluative mediation, [3.05], [3.10] facilitative mediation, [3.05], [3.10], [3.15] family sector, [3.85] child-inclusive practice, [3.85] formulation, [3.40] impasse mediation, [3.30] interaction approaches, [1.20] narrative mediation, [3.05], [3.30], [3.40] overview, [3.05] process-oriented approach, [3.15] settlement mediation, [3.05] shuttle mediation, [3.30] substance-oriented approach, [3.20] therapeutic mediation, [3.05], [3.25] transformative mediation, [3.05], [3.25], [3.40], [7.25] Mediator Standards Board creation and maintenance of, [14.05], [14.40], [15.80], APP E members of, [14.05] registration fee, [14.15], [14.30] Mediators — see also National Mediator Accreditation System; Skills accreditation, [14.05], APP E advice, [3.20], [3.35], [7.105], [14.10] age of mediators, [3.100] agenda setting, [7.60] visual aids, [7.60] alternatives to settlement, [7.105] communication skills, [7.50] competency of, [14.25] agenda setting, [7.60] 878

example, [7.55] conduct of mediation, [3.65], APP B procedural fairness, [3.70] conflicts of interest, [3.100] continuing accreditation requirements, [14.30], APP A, APP E debriefing, [7.135] decision-making powers, no, [12.20] detachment, [3.50], [7.25] ethical standards, [3.55] family mediators, [3.65] fiduciary duties, [12.75] good character requirement, [14.15] good faith, [12.20], [12.65] impartiality, [3.50], [3.55], [7.25] information, provision of, [14.10] Institute of Arbitrators and Mediators Australia (IAMA) — see Resolution Institute intake processes, [7.30], APP C power imbalances, [3.65] interaction approaches, [1.20] intervention, [3.35], [3.50], [3.90], [3.95] investigatory powers, no, [12.20] judges, as, [8.105], [8.130] bias, [8.125] constitutional impediments, [8.120] skills, [8.130] lawyers, as, [3.10] liability, [3.20], [12.20], [12.55] agreements, [12.65] case law, [12.65], [12.75] fiduciary duties, [12.75] misleading or deceptive conduct, [12.75] nature of service, [12.75] statutory frameworks, [12.60] statutory immunity, [12.20], [12.55], [12.75] types of actions, [12.55], [12.65], [12.75] neutrality, [3.50], [3.60], [7.25] options for agreement, [7.105] overview, [3.05], [14.05] power imbalances, [3.60], [3.65] diagnostic and intake tools, [3.65] process-oriented approach, [3.15] qualities, [3.95], [3.100] reality testing, [7.105] reframing, [3.40] registrars’ role as, [8.130] Resolution Institute — see Resolution Institute role, [3.10], [3.35], [3.50] standards, [13.05], [14.05], APP E, APP F international approaches, [14.55], [14.60] practice standards, [14.05], [14.45] substance-oriented approach, [3.20] training and education, [14.05] threshold requirements, [14.20] transformative mediation, [3.25], [3.40], [3.50]

Index

Mini trials, [6.20], [6.95] Misleading or deceptive conduct legal practitioners, [11.35] mediators’ liability, [12.75] Multi-door systems development of systems, [13.35] intake and assessment, [13.45], [13.55] appropriateness of ADR, [13.55] multi-door courthouse, [13.35] advantages, [13.35] disadvantages, [13.35] elements of model, [13.40] Family Court trial, [13.40] operation of model, [13.40] screening for referral, [13.45], [13.50] United States, [13.40], [13.45], [13.50] overview, [13.20], [13.25], [13.35], [13.85], [13.90] referral criteria, [13.55], [13.60] arbitration, [13.75] conciliation, [13.70] evaluative processes, [13.70] mediation, [13.65] referral screening, [13.45], [13.50] generic classifications, [13.50] referral strategies, [13.40] referral to ADR, [13.55], [13.95] ripeness for referral, [13.80] Multi-option systems — see also Pre-litigation obligations business sector, [13.85] community sector, [13.85] overview, [13.20], [13.30], [13.85] support, [13.30]

N

National Alternative Dispute Resolution Advisory Council (NADRAC) admissibility of communications, [12.20], [12.55] ADR service providers, [14.65] classification of processes, [1.15], [6.05] community-based ADR, [9.10] compliance with agreements, [11.45] conciliation, [6.10], [6.15] confidentiality, [12.55], [12.80] court-based ADR, [8.05] demise of, [15.05] descriptions and definitions, [1.15] conciliation, [6.15] conferencing, [3.110] dispute counselling, [6.55] hybrid processes, [6.100] indirect negotiation, [2.05] mediation, [3.10], [3.45], [7.105] partnering, [4.105] standards, [14.05], APP F

| N

determinative processes, [6.60] dispute counselling, [6.55] dispute management plans, [11.35], [13.120], [14.65] evaluating ADR processes, [15.55], [15.80] federal civil justice system, [13.30] encouragement of greater ADR use across, [8.60] genuine steps to resolve, [11.10] good faith obligations, [12.20] government agencies, [9.50] hybrid processes, [6.100] impartiality, [3.50] judicial involvement, [8.120] liability of practitioners, [12.55] statutory immunity, [12.55], [12.60], [12.75] mediation, [3.10], [3.45], [6.10], [7.105] mediator liability, [12.20] statutory immunity, [12.20] multi-option system, [13.30] negotiation, [2.05] conduct of negotiation, [2.85] indirect negotiation, [2.10] neutrality, [3.50] objectives of ADR, [1.75], [1.105] acceptable outcomes, [1.85], [1.100] accessibility, [1.90] additional objectives, [1.105], [1.110] consistency with interests, [1.75] effectiveness of process, [1.100] efficiency, [1.95] fair or just process, [1.75], [1.85] lasting outcomes, [1.95] resolution or limitation of disputes, [1.75], [1.80] satisfaction of participants, [1.100] timeliness of process, [1.95] organisations referring parties to ADR services, [9.10] partnering, [4.105] pre-litigation obligations, [11.10] standards, [14.05], [14.40], [14.50], APP F ADR service providers, [14.65] parties, [14.70] training and education, [14.95] National Mediator Accreditation System accreditated checklist, APP A advice, [7.105] approval standards, [3.100], [14.05], [14.10], APP E competencies, [14.25] complaints system requirement, [5.20] continuing professional development, [14.30] ethical principles, [14.25] experience, [14.20] good character, [14.15] knowledge, [14.25] skills, [14.25], APP A training and education, [14.20] blended processes, [3.10] competencies, [14.25], [14.95] 879

Alternative Dispute Resolution

National Mediator Accreditation System — cont confidentiality, [12.40], [12.45] reporting requirements, [12.45] debriefing, [7.145] description of process, [3.35], APP E development, [14.05] elements of scheme, [14.05], APP E ethical principles, [14.25], [14.95] ethical standards, [3.55], [12.45] reporting requirements, [12.45] immunity of mediators, [12.60] impartiality, [3.50], [3.55] implementation, [14.40] intake processes, [7.30] knowledge, [14.25], [14.95] mediation, definition, [14.10] mediation process, [7.105], [14.60] management of process, [3.65] Mediators Standards Board, [14.05], [14.40] neutrality, [3.50] outcomes, [3.75] overview, [1.120], [3.35], [14.05], [14.95], [15.05] power imbalances, [3.65] practice standards, [14.05], [14.50], [14.60] procedural fairness, [3.70] recognised mediation accreditation bodies, [5.20], [14.05], [14.25], [14.35], [14.40] complaints systems, [14.35] requirements, [14.35] skills, [7.05], [14.25], [14.95] training and education, [14.20], [14.95] National Native Title Tribunal (NNTT) Federal Court of Australia, [8.85] good faith negotiation, identification of, [11.30] impact of reforms, [8.85] mediation conferences, [8.85] overview, [8.85] pre-litigation obligations, [13.90] Native title mediations familiar surroundings, [7.35] Federal Court of Australia, [8.85] National Native Title Tribunal, [8.85] Natural justice decision-making, [6.165] judicial decision-making, [6.165] judicial involvement in ADR, [8.125] overview, [6.165] Negotiation adversarial approach, [2.20], [2.85] research studies, [2.95] agents, [2.85] approaches to negotiation, [1.50], [2.15], [2.20], [2.25], [2.35] categories of approaches, [1.50] assisted negotiation, [2.85] 880

behavioural descriptors, [2.20] collaborative approach, [1.50], [1.55], [2.38] collaborative practice, [4.35], [4.75] commercial disputes, [2.15] competitive approaches, [2.15], [2.20], [2.35] complex negotiations, [2.80], [2.90] conduct of, [2.85] conflict coaching, [2.65] case study, [2.75] multi-group negotiations, [2.80] stages of process, [2.70] definition, [2.05], [2.15] dispute management systems, [13.110] distributive negotiation, [2.15], [2.20], [2.25] case study, [2.40] description, [2.30] good faith, [2.85], [9.45], [11.05], [11.25], [11.30], [12.20] Harvard Project, [2.45] seven-element preparation model, [2.55] indirect negotiation, [2.05], [2.10] individual negotiation, [15.20] integrative negotiation, [2.15], [2.25], [2.35], [2.38] assumptions, [2.35] case study, [2.40] description, [2.38] research studies, [2.95] use of approach, [2.35] interest-based negotiation, [1.50], [1.55], [2.15], [2.25], [2.35] collaborative practice, [4.35], [4.75] preparation for negotiation, [2.55] lawyers, [2.85], [3.90] research studies, [2.95] models of negotiation, [1.50], [1.55] most prevalent model, [2.60] multi-group, [2.80] objectives, [2.15] overview, [2.10], [2.15] positional approaches, [2.20], [2.25] power imbalances, [2.85] preparation for negotiation, [2.45], [2.55] seven-element model, [2.55] workshops, [2.55] principled negotiation, [1.50], [2.15], [2.35], [2.38] problem-solving negotiation, [2.15], [2.25], [2.38], [2.95] public disputes, [2.90] research studies, [2.95], APP G skills in negotiation, [2.45], [7.05], [7.110] effective negotiation, [7.110] self-knowledge, [2.45], [2.50] unconditionally constructive negotiation, [7.50], [7.110] standards of conduct, [2.85] styles of negotiation, [2.15], [7.110] influence on negotiation, [2.20] research studies, [2.95] self-knowledge profile, [2.45], [2.50] technology, and, [10.05]

Index

Negotiation — cont third parties, [2.85] transactional negotiation, [2.15] unconditionally constructive negotiation, [2.55], [7.50], [7.110] uses of negotiation, [2.15] win-win results, [1.50], [1.55] without prejudice, [2.85], [12.20], [12.25] Negotiation theory conflict transformation, [1.55] development, [1.50]–[1.55], [2.15], [2.25] Fisher and Ury, [1.50], [1.55], [2.15], [2.25], [2.35] unconditionally constructive negotiation, [2.55] overview, [2.15]

| O

youth justice conferences, [9.20] New Zealand court-based ADR, [8.90] Environment Court, [8.90], [8.110] Family Court programs, [8.90] NMAS — see National Mediator Accreditation System Northern Territory court-based ADR, [8.55]

O

Oil Code, [9.55], [9.65], [13.85] Neighbourhood disputes, [9.25] Neighbourhood justice centres, [8.45] Neutral evaluation — see also Early neutral evaluation definition, [6.20], [6.35], APP B overview, [6.20] New South Wales — see also Law Society of New South Wales arbitration, [6.85], [8.25] commercial arbitration, [6.85] Supreme Court, [8.20] workers compensation, [6.85], [6.95] Community Justice Centres, [1.60], [8.25], [9.10] transformative mediation, [3.25] court-based ADR, [8.15], [8.105] District Court, [8.25] Land and Environment Court, [8.25] Local Court, [8.25] mandatory referral, [8.20], [8.135] Supreme Court, [8.20], [8.105] court system, [8.15] expert referral, [6.65] farm debt mediation, [8.95], [9.80], [11.20], [13.90] health care disputes, [9.35] legal practitioner disputes, [9.80] mandatory referral, [8.20], [8.135] pre-litigation obligations, [8.15], [11.10] legislative schemes, [8.95], [9.80], [11.10], [11.20], [13.90] steps to resolve disputes, [8.15] retail tenancies, [8.95], [9.80], [11.20], [13.90] strata scheme disputes, [8.95], [9.80], [11.20] Supreme Court, [8.20], [8.105] arbitration, [8.20] mandatory referral, [8.20] mediation, [8.20] tribunal system, [8.15], [8.25] workers compensation, [6.85], [6.95]

Online dispute resolution advisory processes, [10.60] arbitration, [10.60] barriers to ODR, [10.35] digital divide issues, [10.15], [10.30], [10.55] blended processes, [10.65] blind bidding, [10.60] consumer contracts, [10.60] courts, and, [10.65] cultural differences, and issues arising from, [15.50] Cybersettle, [10.60] determinative processes, [10.60] development, [10.05] digital divide issues, [10.15], [10.30], [10.55] age, [10.20] broadband access, [10.15], [10.30] computer literacy, [10.25] culture and preference, [10.15], [10.35] disability, [10.15], [10.40] education, [10.15] income, [10.15] programs to address, [10.55] remote and rural areas, [10.30] domain name disputes, [10.10], [10.60] e-commerce — see E-Commerce e-shuttle mediation, [3.30], [10.55] email, [10.05], [10.30] facilitative processes, [10.05], [10.30], [10.55] concerns, [10.55] family disputes, [10.20] negotiation support systems, [10.05] future developments, [15.50] group video calls, [10.10], [10.25], [10.30], [10.55] growth of systems, [10.05], [10.65] mediation, [10.55] e-shuttle mediation, [3.30], [10.55] specific programs, [10.55] ombudsman programs, [10.60] overview, [10.05], [10.10], [10.65], [15.50] power imbalances, and issues arising from, [15.50] 881

Alternative Dispute Resolution

Online dispute resolution — cont types of services, [10.05] virtual courts, [10.60]

multi-door courthouse, and, [13.35] National Native Title Tribunal, [13.90] New South Wales, [8.15], [8.95], [9.80], [11.10], [13.90] overview, [8.05], [11.05], [11.10], [11.55], [13.90], [15.35] South Australia, [8.95], [11.10], [11.20] states and territories, [11.10], [11.15], [13.90] United Kingdom, [11.15] Victoria, [11.10], [11.20]

Opening statements confidentiality, [7.40], [12.10] content of statement, [7.40] delivery of statement, [7.40], APP A overview, [7.35], [7.40] parties’ statements, [7.45] Options for agreement brainstorming, [7.100] effective negotiation, [7.110] final joint sessions, [7.115] overview, [7.100] private sessions, [7.100] reality testing, [7.100]

P

Parties good faith requirement, [14.70] needs and preferences, [15.85] perceptions of ADR, [15.85] role of, [1.20] standards and guidelines, [14.70] unrepresented, [15.40], [15.70] Partnering — see also Collaborative practice description, [4.105] facilitators, [4.110] overview, [4.05], [4.10], [4.100], [4.110] research, [4.100] types of disputes, [4.100] Personal injury — see Injury dispute resolution Practice standards arbitration, [14.90] Australian standards, [14.45], APP E conciliation, [14.90] family dispute resolution practitioners, [14.80] National Mediator Accreditation System, [14.05], [14.45], APP E overview, [14.05], [14.45] quality assurance, [14.05] service standards, [14.50] Pre-litigation obligations courts’ perspectives, [11.25] family dispute resolution, [8.50], [8.60], [9.10], [11.20], [13.90] genuine steps to resolve, [11.10], [11.30], [13.90] good faith, [11.20], [11.30] intake and assessment, [13.45] legislative schemes, [8.95], [9.80], [11.10], [11.20], [13.90] 882

Pre-trial conferences client satisfaction, [1.115] Primary dispute resolution, [1.10], [8.65] Privacy complaints handling, [5.65] Private sessions impasse prevention, [7.100] overview, [7.100] questions, [7.100] Procedural fairness conduct of mediation, [3.70], [3.75] Public policy disputes development of approaches, [9.30] overview, [9.30]

Q

Queensland court-based ADR, [8.30] directions conferences, [8.30] mandatory referral, [8.30] Dispute Resolution Centres, [1.60], [9.10] fast track case resolution, [8.05] health care disputes, [9.35] tribunals, [8.30] Questions alternatives to settlement, [7.100] closed questions, [7.70] debriefing, [7.145] journalists questions, [7.70] overview, [7.70] private sessions, [7.100] reframing, [7.80], [7.90]

R

Reality testing facilitative processes, [7.40] final agreements, [7.120], [11.45] example, [7.125] mediation, [3.10], [11.45]

Index

| S

Reality testing — cont overview, [7.100], [7.105], [11.45] private sessions, [7.100] uses, [7.105]

Restorative justice, [3.105], [9.22], [15.70]

Recognised mediation accreditation bodies (RMABs), [5.20], [14.05], [14.25], [14.35], [14.40]

Retail tenancies, [8.95], [9.80], [11.20], [13.90]

Referral to ADR — see also Expert referral; Mandatory referral; Multi-door systems; Multi-option systems criteria for referral, [13.55], [13.60], [13.95] arbitration, [13.75] conciliation, [13.70] evaluative processes, [13.70] mediation, [13.65] intake and assessment, [13.45] overview, [13.95], APP A procedure, [13.45] ripeness for referral, [13.80] screening for referral, [13.45], [13.50], APP C generic classifications, [13.50] strategies, [13.40] streamlining processes, [13.95] Reframing definition, [7.80] example, [7.85] levels of, [7.80] mediation, [3.40] overview, [7.80] questions, [7.80], [7.90] Registrar mediation, role in, [8.130] Relationship building, [1.45] Replacement technologies, [10.30] Reporting requirements — see also Expert reporting confidentiality, and, [12.45], [12.50] court-based ADR, [7.130] family dispute resolution, [12.45], [12.50] harm or abuse, [12.50] overview, [1.20], [12.10] Research — see Evaluating ADR processes, APP G Resolution Institute commercial arbitrators, standards for, [14.90] creation and growth of, [15.80] dispute evaluated by, [14.90] Institute of Arbitrators and Mediators Australia (IAMA), formerly, [1.120] professional rules, structure of, [14.90]

Restorative schools United States, [9.20]

Risk assessment matrix, [13.110], [13.115] Risk management, [5.05], [5.10], [5.20], [5.60], [9.70], [13.110], [13.115]

S

Settlement — see also Agreement admissibility of offers, [12.20] alternatives to settlement, [7.100] compliance with settlement, [11.45] Shuttle mediation e-shuttle mediation, [3.30], [10.55] overview, [3.30], [7.115] standards and guidelines, [14.75] SIRO-MED, [10.05] Skills — see also Communication skills; Decision-making agenda setting, [7.60], , APP A neutral terminology, [7.60] sample agenda, [7.65], APP A visual aids, [7.60] agreement stage, [7.120] reality testing, [7.120], [7.125] reporting requirements, [7.130] alternatives to agreement, [7.100] brainstorming, [7.100] clarification and exploration, [7.70] emotions, [7.75] questions, [7.70] creating an atmosphere, [7.35] debriefing, [7.145] development of skills, [7.05], [7.150] discussion stage, [7.70] dispute counselling, [7.30] facilitative processes, [1.110], [6.115] agenda setting, [7.60] clarification and exploration, [7.70] effective negotiation, [7.110] final joint sessions, [7.115] opening statements, [7.40] private sessions, [7.105] reality testing, [7.105] final joint sessions, [7.115] agreement stage, [7.120], [7.125] debriefing, [7.130] reality testing, [7.120], [7.125] reporting requirements, [7.130] first joint sessions, [7.40] opening statements, [7.40], [7.45] 883

Alternative Dispute Resolution

Skills — cont reflecting, [7.50], [7.55], [7.70] summarising and paraphrasing, [7.50], [7.55] impasse prevention, [7.100] intake processes, [7.30] judicial mediation, [8.130] learning stages, [7.150] National Mediator Accreditation System, [7.05], [14.25], [14.95] negotiation, [2.45], [7.05], [7.110] effective negotiation, [7.110] self-knowledge, [2.45], [2.50] unconditionally constructive negotiation, [7.50], [7.110] note-taking, [7.45] opening statements, [7.35], [7.40] active listening, [7.45] content of statements, [7.40] parties’ statements, [7.45] options for agreement, [7.100] final joint sessions, [7.115] reality testing, [7.100] overview, [7.05], [9.05] practising skills, [7.05] private sessions, [7.100] reality testing, [7.100] final agreements, [7.120], [7.125] reframing, [7.80] example, [7.85] levels of reframing, [7.80] mediation, [3.40] questions, [7.80], [7.90] training and education, [7.05] Small business dispute resolution services, [9.45] rate of disputes, [9.45] Social networking complaints handling, [5.15] dispute resolution platforms, [15.20] overview, [5.15] technology and, [5.15] Social trends, [15.20] South Australia court-based ADR, [8.55] pre-litigation obligations, [8.95], [11.20] Standards and guidelines — see also Australian standards; Benchmarks; Codes of conduct; Ethical standards; International standards; National Mediator Accreditation System ADR practitioners, [13.05], [14.05], [14.45], APP E, APP F international approaches, [14.55], [14.60] service standards, [14.50] ADR service providers, [14.65] 884

business sector guidelines, [9.75], [13.85] collaborative practice, [4.30], [4.95], [14.90] complaints handling, [5.20], [5.60], [5.65] confidentiality, [12.35] court-based ADR, [14.75] United States, [14.85] family dispute resolution practitioners, [14.05], [14.80], [15.80] approval standards, [14.80] draft standards, [14.80] practice standards, [14.80] family services, [14.65] legal practitioners, [11.35] mediators, [13.05], [14.05], [14.45] international approaches, [14.55], [14.60] negotiation, [2.85] overview, [15.95] parties, [14.70] power imbalances, [15.40] practice standards, [14.05], [14.45] arbitration, [14.90] conciliation, [14.90] family dispute resolution practitioners, [14.80] quality assurance, [14.05] service standards, [14.50] standards, definition, [14.05] States and territories — see also Supreme courts arbitration, [1.60], [6.85], [13.85] commercial arbitration acts, [6.85], [6.140] community-based ADR, [9.10] children and young people, [9.20] health care disputes, [9.35] courts and tribunals, [8.10] health care disputes, [9.35] immunity of practitioners, [12.75] model litigant obligations, [11.35] pre-litigation obligations, [8.95], [9.80], [11.10], [11.15], [13.90] Strata scheme disputes, [8.95], [9.80], [11.20] Stress conflict, and, [1.30] Supreme courts New South Wales, [8.20], [8.105] arbitration, [8.20] mandatory referral, [8.20] mediation, [8.20] Northern Territory, [8.55] Queensland, [8.30] Victoria, [8.35] Western Australia, [8.40]

Index

System design — see Dispute system design

community-based ADR, and, [9.10] federal tribunals, [8.60] multi-door system — see Multi-door systems New Zealand, [8.90] overview, [8.130], [12.80] referral strategies, [13.40] standards and guidelines, [14.75] states and territories, [8.10] New South Wales, [6.10], [8.15], [8.25] Victoria, [8.35]

T

Takeovers Panel, [6.95] Tasmania mandatory referral to mediation, [8.55] Technology — see also Online dispute resolution artificial intelligence, [6.175], [10.50] decision-making, [6.175], [10.50] online dispute resolution and, [10.70] artificial legal intelligence — see Artificial Legal Intelligence (ALI) branching technology, [10.50] complaints handling, and, [5.15] courts, and, [10.65] disruptive, [10.50] family dispute resolution, [10.05] future development and trends, [10.70], [15.50] innovation in the ADR system, and, [10.70] overview, [10.05] replacement, [10.30] role in ADR, [10.05] SIRO-MED, [10.05] Telecommunications Industry Ombudsman, [5.10], [9.50] Third parties — see also ADR practitioners advisory processes, [6.05], [6.115] assisted negotiation, [2.85] decisional models, [1.55] determinative processes, [6.05], [6.60], [6.115] facilitative processes, [6.05] negotiation, [2.85] overview, [1.15], [1.20] Training and education communication skills, [7.05] family dispute resolution practitioners, [14.05] mediators, [14.05] National Mediator Accreditation Standards, [14.20], [14.30], [14.95] overseas approaches, [14.100] overview, [14.95] role-playing, [7.05] skills, [7.05] threshold and continuing accreditation arrangements, setting up, [14.105] Training schemes, [14.95] Tribunals — see also Administrative Appeals Tribunal; Courts; National Native Title Tribunal blended processes, [6.95]

| U

Trust building, [1.45], [7.35]

U

Unconscionable conduct, [12.75] Unit Pricing Code, [9.65] United Kingdom collaborative practice, [4.25] parties’ needs and preferences, [15.85] pre-litigation obligations, [11.15] standards and guidelines, [14.55], [14.60] United States ADR processes, [1.60] Association for Conflict Resolution (ACR), [13.130] caucuses, [7.40] collaborative practice, [4.10], [4.15] models of practice, [4.15], [4.70] research, [4.95] uniformity measures, [4.15] confidentiality, [12.15] ethical obligations, [12.45] conflict management systems, [13.130] court-connected ADR, [1.60] courts, [1.65], [1.70] dignitary process control features, [6.170] dispute system design, [13.130] incentives, [13.130] pilot studies, [13.130] support and structures, [13.130] judicial involvement in ADR, [8.105] mediation, [3.20] impasse mediation, [3.30] transformative mediation, [3.25] mediator accreditation, [14.05] mediators, [14.55] fiduciary duties, [12.75] standards and guidelines, [14.55], [14.60] mini trials, [6.20] multi-door courthouse, [13.40] screening for referral, [13.45], [13.50] negotiation, [2.85] online dispute resolution, [10.60] personal qualities of decision maker, [6.170] 885

Alternative Dispute Resolution

United States — cont standards and guidelines, [14.50], [14.55], [14.60] court-based ADR, [14.85] training and education, [14.100]

Violence family — see Family violence intervention order dealing with, [1.80], APP C Virtual courts, [10.60], [10.65]

V W Victim-offender mediation, [3.105], [9.22] Victoria artificial intelligence, [10.70] case management, [8.35] collaborative practice, [4.35] complaints, [5.05] court-based ADR, [8.35] judicial involvement, [8.105] Portals Scheme, [8.35] restorative court programs, [8.45] Dispute Settlement Centre, [9.10] online services, [10.25] industry-based schemes, [9.50] Neighbourhood Justice Centres, [8.45] pre-litigation obligations, [11.10], [11.20] Victorian Civil and Administrative Tribunal, [8.45]

West Australian Dispute Resolution Association (WADRA), [15.80] Western Australia court-based ADR, [8.40] mandatory referral, [8.135] Wheat port code, [9.65] Win-win solutions, [1.50], [1.55] Without prejudice privilege, [2.85], [12.20], [12.25] Workers’ compensation arbitration, [6.85] blended processes, [6.85], [6.95] Workplace conflict, [13.15]

Victorian Dispute Resolution Association (VADR), [15.80]

Y

Victorian Law Reform Commission conduct of negotiation, [2.85] good faith, [14.70]

Young people — see Children and young people

886