Dispute resolution in Australia : cases, commentary and materials [Fourth edition.] 9780455241470, 0455241473

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DISPUTE RESOLUTION IN AUSTRALIA Cases, Commentary and Materials

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DISPUTE RESOLUTION IN AUSTRALIA: CASES, COMMENTARY AND MATERIALS DAVID SPENCER Professor and Associate Dean Learning & Teaching Faculty of Law and Business Australian Catholic University

LISE BARRY Senior Lecturer Director of Programs Director of Learning and Teaching Macquarie Law School

LOLA AKIN OJELABI Senior Lecturer Director of LLB Programs La Trobe Law School La Trobe University

FOURTH EDITION

LAWBOOK CO. 2019

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW 2009 First edition.................. 2005 Second edition............. 2009 Third edition................. 2014 Fourth edition............... 2018 ISBN: 9780455241470

© 2019 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 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. Product Developer: Lucas Frederick Edited and typeset by Newgen KnowledgeWorks 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

To Mary-Anne, Millie and Prue … “Be the change that you want to see in the world” Mahatma  Gandhi Your strength is my strength. Thanks. David.

To Gordon, Eloise, Jack, Mike and Catherine, who continue to hone my conflict resolution skills. Lise.

To my family … Let your light shine continually. Thanks for all that you are. Lola.

PREFACE The fourth edition of Dispute Resolution in Australia: Cases, Commentary and Materials welcomes two new co-​authors in the form of Dr Lise Barry and Dr Lola Akin Ojelabi. Lise and Lola bring a fresh perspective to this text that flows from their own expertise in dispute resolution and the many years they have been practising, teaching and researching dispute resolution. David would like to thank Dr Samantha Hardy for her great work on the two previous editions of this text which influence this and undoubtedly subsequent editions – thanks Sam and all the best. Dispute resolution continues to expand in its usage by our courts and tribunals as they seek to facilitate the just, quick and cheap resolution of disputes and by virtue of this to assist in the management of their case load. In the public and private sectors, we continue to see dispute resolution as the first stop to resolve disputes rather than automatically litigating. In this respect, it is now commonplace for all manner of contracts and agreements to contain dispute resolution clauses. For those that decide to commence adversarial proceedings as soon as disputes arise, the courts and tribunals have rightly been ordering parties to the dispute resolution process agreed to in their contract or agreement and treat the commencement of such actions as an abuse of the court’s process. The other interesting observation is the continued rise in dispute resolution training in both public and private organisations and corporations and dispute management and conflict coaching to prevent the escalation of disputes. To this end, we have amalgamated the chapter on conflict coaching with the chapter on other dispute resolution processes, so it is positioned alongside dispute management processes. Further, the fourth edition contains more recent extracts that ensure the text contains the latest in research informed writing while at the same time continuing to extract seminal pieces of work that are timeless in how they speak to the theory, philosophy and practice of dispute resolution. Other changes from the previous edition include: • Chapter 2 on understanding conflict extends the discussion of conflict analysis and intervention with new extracts addressing social conflicts and value-​adding; • Chapter 4 on mediation reflects recent developments in the field of mediation including the 2015 National Mediator Accreditation Standards (NMAS). Recent international work in the field of transformative and narrative mediation and Australian writing reflective of the extent to which mediation has been incorporated into Australian courts and tribunals as a fundamental part of managing the administration of justice; • Chapter 5 on other dispute resolution processes has been restructured with additional and more current material as well as the amalgamation of the chapter in the previous edition on conflict coaching; • Chapter 6 on arbitration and Chapter 13 on legal issues both have up-​to-​date case law and legislation compared to the previous edition; • Chapter 7 on dispute resolution in criminal law updates the increased incorporation of restorative justice processes and victim offender mediation into criminal law procedures in Australia. New material includes how dispute resolution is being used in matters involving serious crime including sexual assault and historical abuse. This is particularly timely following the recent Royal Commission into Institutional Responses to Child Sexual Abuse; • Chapter 8 on dispute resolution in family law incorporates recent changes to the Family Law Act that place a greater emphasis on the best interests of the child and child informed practice, new research on how family dispute resolution practitioner’s approach their role of issuing s 60I certificates and an updated section on collaborative law; • Chapter 9 on workplace disputes has updated information on amendments to the Fair Work Act 2009 (Cth) that provide the Fair Work Commission with powers to deal with workplace bullying

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Dispute Resolution in Australia: Cases, Commentary and Materials

and harassment and confer on the Commission powers to prevent disputes by working proactively with employer and employee groups; • Chapter 10 dealing with online dispute resolution (ODR) includes a large amount of new material that reflects the significant growth in this important delivery mode of dispute resolution. This chapter includes extracts from a recent article by Colin Rule who designed the ODR for eBay, one of the world’s largest online DR platforms to resolve e-​commerce disputes; • Chapter 12 on culture and dispute resolution has been revised and updated to include Pedersen’s current work on the “Cultural Grid”. There is also new commentary and materials analysing the role of culture in Indigenous dispute management which provides a better understanding of the cultural discourse in Indigenous settings; • Chapter 14 on ethics and standards features an updated section on “What Is Ethics” and “Making Ethical Decisions”. There is new material to enhance the discussion on the complexity of ethics in dispute resolution. Further, there are updated extracts from the current NMAS and a new section on ethical principles for ODR; and • Chapter 15 on the future of dispute resolution has almost been completely revised to include new material on ODR, restorative justice, legal education, the Global Pound Conference Series and future challenges for dispute resolution. David, Lise and Lola would like to thank Lucas Frederick, Product Developer at Thomson Reuters, for his professionalism and continuing faith in the need for this text to better inform the practice of dispute resolution in Australasia. We would also like to thank our editor, Raghavendra Kaup, for his expertise and hard work on this edition. As is always the case with books that enjoy co-​authorship, three authors often employ slightly different writing styles, and no matter how talented the publisher’s editor is, the different styles are sometimes apparent. It is healthy to have such differing styles in the one book, and we set our readers the challenge of discerning which author wrote which chapter. To the best of our knowledge, the law is correct at the time of writing. We hope you enjoy the fourth edition of Dispute Resolution in Australia: Cases, Commentary and Materials and trust you find it an invaluable companion for the theory and practice of dispute resolution. Professor David Spencer Dr Lise Barry Dr Lola Akin Ojelabi Melbourne Sydney October 2018

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TABLE OF CONTENTS Preface...........................................................................................................................................   vii Table of Cases..................................................................................................................................   xi Table of Statutes...........................................................................................................................   xvii

Chapter 1: Introduction.....................................................................................   1 Chapter 2: Understanding Conflict..................................................................   53 Chapter 3: Negotiation....................................................................................   81 Chapter 4: Mediation.....................................................................................   131 Chapter 5: Other Dispute Resolution Processes.............................................   257 Chapter 6: Arbitration...................................................................................   323 Chapter 7: Dispute Resolution in Criminal Law.............................................   389 Chapter 8: Dispute Resolution in Family Law................................................   441 Chapter 9: Dispute Resolution in the Workplace..........................................   537 Chapter 10: Online Dispute Resolution..........................................................   599 Chapter 11: The State and Dispute Resolution..............................................   649 Chapter 12: Culture and Dispute Resolution.................................................   677 Chapter 13: Legal Issues.................................................................................   737 Chapter 14: Ethics, Standards and Dispute Resolution.................................   813 Chapter 15: The Future of Dispute Resolution..............................................   893 Index............................................................................................................................................  929

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TABLE OF CASES A Abu Dhabi Gas Liquefaction Co Ltd v Eastern Bechtel Corp [1982] 2 Lloyd’s Rep 425 ...........  [6.170] Aerospatiale Holdings Australia Ltd v Elspan International Ltd (1992) 28 NSWLR 321 .............  [6.80] Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 209 ..........................  [13.75] Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 ; [1999] NSWSC 996 ..............................................................   [4.570], [8.130], [13.95], [13.205], [13.210], [13.215], [13.220], [13.225], [14.420] Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 ........................................................  [13.225] Allco Steel (Qld) Pty Ltd v Torres Strait Gold Pty Ltd (Unreported, Supreme Court of Queensland, 12 March 1990, Master Horton) ................  [4.495] Allen v Allen and Bell [1894] P 248 .......................................................................................  [6.220] AMEV Finance Ltd v Artes Studios Thoroughbreds Pty Ltd (1988) 13 NSWLR 486 .....................................................................................................  [13.25] Angela Therese Harvey (nee Alecci) v Eileen Therese Alecci [2002] NSWSC 898 ....................  [4.485] Ashville Investments Ltd v Elmer Contractors Ltd [1988] 3 WLR 867; [1988] 2 All ER 577 ..........................................................................................................  [6.150] Attorney-​General v Wigan Corporation (1854) 5 De GM & G 52 ..........................................  [6.160] Australian Boot Trade Employees Federation v Whybrow & Co (No 1) (1910) 10 CLR 266 ............................................................................................................  [6.20] Australian Broadcasting Commission v Parish [1980] FCA 33 ; (1980) 43 FLR 129 ..............  [13.105] Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526; 153 ALR 393 ..............................................................................  [13.55] Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) (2002) ATPR 41-​901; [2002] FCA 1294 ...........................................................  [13.85] Australian Competition and Consumer Commission v Black on White [2002] FCA 1605 .......  [13.85] Australian Crime Commission v Stewart (2012) 286 ALR 713 ................................................  [13.55] AWA litigation, the first AWA Ltd v Daniels (t/​a Deloitte Haskins and Sells) (Rolfe J, 18 March 1992, unreported) ...........................................................................................  [13.25] AWA Ltd v Daniels (t/​a Deloitte Haskins & Sells) (1992) 7 ACSR 463 .....................................  [13.25] AWB Ltd v Cole (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46; [2006] FCA 571 ..................  [13.55] Azmin Feroz Daya v CNA Reinsurance Co Ltd & Ors [2004] NSWSC 795 ............................  [14.420]

B Backhouse and Taylor, Re (1851) 20 LJQB 233 ......................................................................  [6.125] Balabel v Air India [1988] Ch 317; [1988] 2 All ER 246 ..........................................................  [13.55] Baltic Shipping Co v Dillon [1991] NSWCA 19; (1991) 22 NSWLR 1 ...................................  [13.105] Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 .......................................................  [7.400] Barrett v Queensland Newspapers Pty Ltd v Queensland Newspapers [1999] QDC 150 (19 July 1999) ..................................................................................................  [4.555] Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 .........  [6.160] BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 .................  [13.210] Bruinsma v Menczer (1995) 40 NSWLR 716 .........................................................................  [13.85] Buta v Municipal Committee of Lahore (1902) LR 29 Ind App 168 .......................................  [6.275]

C Cannon v Griffiths (No 2) [2015] NSWSC 1329 ..................................................................  [13.105] Cannon v Griffiths [2015] NSWSC 1055 .............................................................................  [13.105] Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 ........  [6.170] xi

Dispute Resolution in Australia: Cases, Commentary and Materials

Capolingua v Phylum Pty Ltd (as Trustee for the Gennoe Family Trust) (1991) 5 WAR 137 ............................................................................................   [4.570], [13.240] Capricorn Inks Pty Ltd v Lawter International (Australasia) Pty Ltd [1989] 1 Qd R 8 ...............  [5.235] Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121 ..................  [13.50] Challender v Royle (1887) 36 ChD 425 ................................................................................  [6.160] Chilton v Saga Holidays plc [1986] 1 ALL ER 841 ..................................................................  [6.220] Chloride Batteries Australia Ltd v Glendale Chemical Products Pty Ltd (1988) 17 NSWLR 60 .......................................................................................................  [5.250] Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 ......................   [13.225], [13.240] Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 ......................................................................................................  [13.210] Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 .......................................  [13.160] Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266; [2005] FCA 1247 .............................................................................................................  [13.55] Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 ...........................................  [13.240] Commonwealth v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662 ..................................  [6.170] Computershare Ltd v Perpetual Registrars Limited (No 2) [2000] VSC 233 ...........   [13.180], [13.215] Cutts v Head [1984] 1 All ER 597 ..........................................................................................  [13.50]

D Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 .............................  [13.55] Drew v Drew and Leburn (1855) 2 Macq 1 ..........................................................................  [6.220] DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151; 203 ALR 348; [2003] FCA 1191 .......................................................................................  [13.55]

E Electra Air Conditioning BV v Seeley International Pty Ltd ACN 054 687 035 [2008] FCAFC 169 ......................................................................................................................  [6.170] Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995) 36 NSWLR 709 ..........................................   [1.195], [13.200], [13.205], [13.210], [13.215], [13.220], [13.225], [13.230], [14.335] Ella v The Queen (1991) 103 FLR 8 .....................................................................................  [13.160] Emery v Wase, 5 Ves 846; 8 Ves 505 .....................................................................................  [6.200] Esso Australia Resources v FCT (1999) 201 CLR 49; (2000) 168 ALR 123 ...............................  [13.50]

F Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404; 141 ALR 92 ................................................................................................  [13.55] Feletti v Kontoulas [2000] NSWCA 59 ...................................................................................  [1.205] Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285 ...........................................................................................  [13.25], [13.45], [13.85] Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45 ..........................................................................................................  [6.170] FR Waring (UK) Ltd v Administracao Geral do Acucar E do Alcool EP [1983] 1 Lloyd’s Rep 45 ...................................................................................................  [6.170] French Government v Tsurushima Maru (owners) (1921) 7 Ll L Rep 244 ..............................  [6.125] French Government v Tsurushima Maru (owners) (1921) 8 Ll L Rep 403 ..............................  [6.125]

G Gao Haiyan v Keeneye Holdings Ltd [2012] 1 HKLRD 627 .......................................   [6.235], [6.240] George Harrison v Delcie Schipp [2002] NSWCA 27 .............................................................  [4.485] xii

Table of Cases

Glenvill Projects Pty Ltd v North North Melbourne Pty Ltd [2013] VSC 717 ..........................  [5.240] GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146 ; [2001] QSC 180 ..............................................................................................................  [13.55] Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 .........................................................................................................  [13.55]

H Haines v Carter [2001] NZLR 167 .......................................................................................  [13.160] Harris v Caladine (1991) 172 CLR 84; 65 ALJR 280 ...............................................................  [6.170] Hart v Kuna [1999] VCAT 626 .............................................................................................  [13.175] Hartogen Energy Ltd (in liq) v Australian Gas Light Company (1992) 36 FCR 557; 109 ALR 177 ................................................................................................  [13.55] Heart Research Institute Ltd v Psiron [2002] NSWSC 646 ......................................................  [5.225] Heileman Brewing Co v Joseph Oats Corp 871 F 2d 648 (7th cir, 1989) ...............................  [4.545] Heydon v NRMA Ltd [2000] NSWCA 374 .............................................................................  [1.205] Heyman v Darwins Ltd [1942] AC 356 ..................................................................................  [6.150] Higgins v Higgins [2002] NSWSC 455 ..................................................................................  [4.485] Hillas & Co Ltd v Arcos Ltd [1932] All ER Rep 494 ...............................................................  [13.225] Hoghton v Hoghton (1852) 15 Beav 278; 51 ER 545 (4) ......................................................  [13.45] Hooper Bailie Associated Limited v Natcon Group Pty Limited (1992) 28 NSWLR 194. .....................................................................  [1.195], [13.180], [13.200], [13.210], [13.230] Hopcraft v Hickman (1824) 57 ER 295 ..................................................................................  [6.200]

I Idoport Pty Limited v National Australia Bank Limited [2001] NSWSC 427 .....................................................................................................................  [4.485] Insbury v Craig [1990] 1 Qd R 309 .....................................................................................  [13.160] Ipoh v TPS Property No 2 [2004] NSWSC 289 .........................................................   [5.225], [5.240]

J Joplin v Postlethwaite (1889) 61 LT 629 ................................................................................  [6.180] Jungheim, Hopkins & Co v Foukelmann [1909] 2 KB 948 .....................................................  [6.125]

K Kirkawa Corp v Gatoil Overseas Inc “The Peter Kirk” [1990] 1 Lloyd’s Rep 154 .................................................................................................  [6.170] Knight v Henderson [1958] VicRp 26; [1958] VR 134 ............................................................  [6.170] Kurtz & Co v Spence & Sons (1887) 58 LT 438 .......................................................   [13.45], [13.25] Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 ....................................................................................................................  [14.420]

L Lam v Austintel Investments Australia Pty Ltd (1989) 97 FLR 458 ........................................  [14.420] Lange v Marshall 622 SW 2d 237 Mo Ct App (1981) ..........................................................  [13.130] Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352 ....................................................................................................................  [14.420] Legal Services Commissioner v Mullins [2006] LPT 012 .......................................................  [14.420] Linfield Linen Pty Ltd v Nejain (1951) 51 SR (NSW) 280 .......................................................  [6.160] Lukies v Ripley (No 2) (1994) 35 NSWLR 283 ..........................................................   [13.25], [13.35] xiii

Dispute Resolution in Australia: Cases, Commentary and Materials

M Mann v O’Neill (1996-​1997) 191 CLR 204 ...........................................................................  [11.75] Markovina v The Queen (No 2) (1997) 19 WAR 119 ...........................................................  [13.160] Marks v GIO Australia Holdings Ltd (No 2) (1996) 66 FCR 128 .............................................  [13.85] Masters v Cameron (1954) 91 CLR 353 ...................................................................   [6.255], [13.75] Matthews v AusNet Electricity Services Pty Ltd [2014] VSC 663 ............................................  [11.85] McCosh v Williams [2003] NZCA 192 .................................................................................  [13.120] McKenzie v Edmondson (1996) 15 WAR 391 ......................................................................  [13.160] Merchants’ Marine Insurance Co Ltd v North of England Protecting & Indemnity Association (1926) 32 Com Cas 165 ................................................................................  [6.125] Mond v Berger [2004] VSC 45 ..............................................................................................  [6.264] Morrow v Chinadotcom [2001] NSWCA 82 ..........................................................................  [1.195] Morrow v Chinadotcom Corp [2001] NSWSC 209 ...............................................................  [4.485]

N Neale v Richardson [1938] 1 All ER 753 ................................................................................  [6.190] Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976 ..........................................................................................................  [13.55] North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] 1 QB 705 ...........................................................................................................  [13.160] Norwest Holst Construction Ltd v Co-​operative Wholesale Society Ltd [1998] EWHC Tech 339 ...................................................................................................  [6.285] NRMA Ltd v Morgan (1999) 31 ACSR 435; [1999] NSWSC 407 ............................................  [1.205]

O Orchard v South Eastern Electricity Board [1987] 1 QB 565 ................................................  [14.420]

P Paddock v Forrester (1843) 3 Man & G 903; 133 ER 1404 (3) ..............................................  [13.45] Pan Atlantic Group Inc v Hassneh Insurance Co of Israel Ltd [1992] 2 Lloyd’s Rep 120 ..........  [6.125] Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (1998) 195 CLR 1 ..........................................................................................................  [13.240] PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 ....................................................  [4.515] Phoenix v Pope [1974] 1 WLR 719 ........................................................................................  [6.180] Pierson v Ray (1967) 386 US 547 ........................................................................................  [13.150] Pittorino v Meynert [2002] WASC 76 ..................................................................................  [13.160] Plimpton v Spiller (1876) 4 Ch D 286 ...................................................................................  [6.160] Poulet Frais Pty Ltd v Silver Fox Co Pty Ltd (2005) 220 ALR 21 ..............................................  [13.90] Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357; 207 ALR 217; [2004] FCAFC 122 ...............................................................  [13.55] Preston v Luck (1884) 27 ChD 497 .......................................................................................  [6.160]

Q QH Tours Ltd v Ship Design & Management (Aust) Pty Ltd (1991) 33 FCR 227 ....................  [6.150]

R R v Birks (1990) 19 NSWLR 677 ..........................................................................................  [13.160] R v MacNeil-​Brown [2008] VSCA 190 ...................................................................................  [7.400] Rajski v Powell (1987) 11 NSWLR 522 .................................................................................  [13.150] xiv

Table of Cases

Rajski v Tectran Corporation Pty Ltd [2003] NSWSC 476 .........................................   [13.65], [13.70] Remuneration Planning Corporation Pty Limited v Fitton [2001] NSWSC 1208 ....................  [4.485] Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 ...................................................................................................  [13.225] Ringland v Lowndes (1864) 17 CB (NS) 514; 144 ER 207 .....................................................  [6.125] River Steamer Co Mitchell’s Claim, In re (1871) LR 6 Ch App 822 (5) ...................................  [13.45] Rodgers v Rodgers (1964) 114 CLR 608 ................................................................................  [13.25] Rolland v Cassidy (1888) 13 App Cas 770 .............................................................................  [6.275] Ruffles v Chilman (1997) 17 WAR 1 ........................................................  [6.180], [11.115], [11.120] Russell v Russell 14 Ch D 471; 28 WR Dig 154 ......................................................................  [6.180]

S Scott Paper Co v Drayton Paper Works Ltd (1927) 44 RPC 151 .............................................  [13.15] Scott v Avery (1856) 10 ER 1121 ..........................................................  [13.185], [13.190], [13.210] 789TEN v Westpac [2004] NSWSC 594 ................................................................................  [13.35] Sharjade Pty Ltd v RAAF (Landings) Ex-​Servicemen Charitable Fund Pty Ltd [2008] NSWSC 1347 .................................................................................  [13.105] Shaw and Sims, Re (1851) 17 LTOS 160 ...............................................................................  [6.125] The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenards Pty Ltd [2004] FCA 1570 .........................................................................  [13.85] Singh v Singh [2002] NSWSC 852 ........................................................................................  [4.485] Sparnon v Apand Pty Ltd (1996) 68 FCR 322; 138 ALR 735 ..................................................  [13.55] State Bank v Freeman Freeman v NSW Rural Assistance Authority (unreported, Supreme Court of NSW, 31 January 1996, CL No 12670 of 1995/​AL No 30101 of 1995) ..................................................................  [4.570]

T Tapoohi v Lewenberg (No 2) [2003] VSC 410 ......................................................   [13.130], [13.135] Thomas v Austen (1823) 1 LJ (OS) KB 99 (1) ........................................................................  [13.45] Thorby v Goldberg (1964) 112 CLR 597 .............................................................................  [13.160] Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610; [2005] 4 All ER 948 ...................................................................  [13.55] Tiki International Ltd, Re [1994] 2 Qd R 674 .........................................................................  [6.275] Turnell v Sanderson (1891) 60 LJ Ch 703 ..............................................................................  [6.180]

U United Group Rail Services Limited v Rail Corporation New South Wales [2009] NSWCA 177 ........................................................................................   [13.230], [14.420]

V Vawdrey v Simpson [1896] 1 Ch 166 ....................................................................................  [6.180] Von Schultz v Attorney-​General of Queensland [2000] QCA 406 ........................................  [13.150] Von Schulz v Morriello [1998] QCA 236 .............................................................................  [13.160] Vulic v Bilinsky [1983] 2 NSWLR 472 .....................................................................................  [1.205]

W WJ Green & Co (1984) Pty Ltd v Green (unreported, Supreme Court of Western Australia, Parker J, 24 April 1997) ...................................................................................  [13.160] Walford v Miles [1992] 2 AC 128 ..........................................................  [13.225], [13.230], [14.335] Walker v Wilsher (1889) 23 QBD 335 (6) ..............................................................................  [13.45] xv

Dispute Resolution in Australia: Cases, Commentary and Materials

Walmsley v White (1892) 40 WR 675; 67 LT 433 ..................................................................  [6.180] Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 ...............  [6.170] Waugh v H B Clifford & Sons Ltd [1982] Ch 374 ................................................................  [13.160] Wentworth v Rogers [2004] NSWCA 109 ..............................................................................  [13.75] Western Australia v Taylor (Njamal People) (1996) 134 FLR 211 ..........................................  [13.225] WFA v Hobart City Council [2000] NSWCA 43 ......................................................................  [6.210] Williamson v Schmidt [1998] 2 Qd R 317 .............................................................................  [13.35]

X Xuereb v Viola (1989) 18 NSWLR 453 ...................................................................................  [5.250]

Y Yesodei Hatorah College Inc v The Trustees of the Elwood Talmud Torah Congregation (2011) 38 VR 394 ......................................................................................  [6.255] Yoseph v Mammo [2002] NSWSC 585 .................................................................................  [4.485]

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TABLE OF STATUTES Competition and Consumer (Industry Codes –​Oil) Regulations 2017 s 41: [5.90] s 43: [5.90]

COMMONWEALTH Administrative Appeals Tribunal Act 1975 s 34D(2): [13.170]

Conciliation and Arbitration Act 1904: [1.30], [5.110], [6.10], [6.20], [6.310], [9.170] Pt VI: [5.110]

Administrative Decisions (Judicial Review) Act 1977: [5.240] Age Discrimination Act 2004: [1.40], [9.415]

Conciliation and Arbitration Act 1984: [6.10]

Australian Consumer Law: [10.100] s 24(2): [10.90] s 24(3): [10.90]

Courts (Mediation and Arbitration) Act 1991: [1.40]

Australian Crime Commission Act 2002: [13.55]

Crimes Act 1914: [13.55]

Australian Human Rights Commission Act 1986 s 11: [9.415] s 31: [9.415] s 46PD: [9.415] s 46PF: [9.415] s 46PF(1A): [9.415] s 46PF(5): [9.415]

Disability Discrimination Act 1992: [9.415] Dispute Resolution Act 2011: [14.340], [14.345] s 4: [14.340] s 4(1): [14.345] s 4(1A): [14.345] s 6: [14.345] s 7: [14.345] s 12(1): [14.345] Pt 2: [14.345]

Australian National Mediator Practice Standards s 7: [4.650] Australian Solicitors’ Conduct Rules 2012: [1.180], [1.185], [14.370] r 3: [14.370] r 7.2: [1.185] r 17A: [1.185] r 19: [14.370]

Fair Work Act 2009: [1.30], [9.05], [9.75], [9.170], [9.210], [9.230], [9.235], [9.255], [9.265], [9.275], [9.290], [9.300], [9.310], [9.320], [9.350] s 3(e): [9.320] s 89A: [9.170] s 146: [9.320] s 186(6): [9.170], [9.320] s 576: [9.240], [9.245] s 595: [9.170], [9.245] s 595(2): [9.170] s 595(2)(c): [9.240] s 595(3): [9.170], [9.240], [9.245] s 627: [9.350] s 650: [9.245] s 653A: [9.245] s 682: [9.390] s 739: [9.170] s 789FD: [9.370] Pt 3-​1: [9.350] Pt 6-​2: [9.320] Pt 6-​4B: [9.370]

Civil Dispute Resolution Act 2011: [1.40], [4.40], [4.535] Commercial Arbitration (National Uniform Legislation) Act 2011 s 39: [13.145] Commercial Arbitration (National Uniform Legislation) Act 2013 s 39: [13.145] Commonwealth of Australia Constitution Act 1900 s 51: [1.25], [6.17], [6.18] s 51(xxxv): [1.30], [5.110], [6.15], [6.20], [6.25], [9.350] Community Justice Centre Act 2005: [7.165]

Fair Work Amendment Act 2012: [1.30]

Commercial Arbitration Act 2011: [6.30] s 39: [13.145]

Fair Work Amendment Act 2013: [9.365], [9.370]

Competition and Consumer Act 2010: [5.85] Sch 2, s 18: [13.40]

Fair Work Regulations 2009: [9.310], [9.320]

xvii

Dispute Resolution in Australia: Cases, Commentary and Materials

Family Law Amendment (Shared Parental Responsibility) Act 2006: [1.40], [8.35], [8.50]

Family Law Act 1975: [1.40], [1.125], [4.40], [5.155], [8.05], [8.35], [8.45], [8.50], [8.120], [8.130], [8.240], [8.345], [8.365], [8.375], [8.385], [8.490], [8.540], [8.555], [10.125], [11.20], [14.275] s 4AB: [8.355] s 10B: [8.245] s 10F: [4.40], [8.45] s 10G: [8.200], [8.205] s 10G(1): [14.200] s 10H: [8.490] s 10J: [8.490] s 10L: [8.30], [8.435], [8.440] s 11E: [8.25] s 11F: [8.25] s 12A: [8.170] s 12B: [8.170] s 12E: [8.175] s 12F: [8.175] s 12G: [8.175] s 13A: [8.35], [8.40] s 13A(2): [8.85] s 13C: [8.20], [8.25] s 13E: [8.435], [8.440] s 13F: [8.435] s 13G: [8.435] s 38BD: [8.205] s 60B(1)(a): [8.155] s 60B(1)(b): [8.155] s 60CC: [8.155], [8.360] s 60CC(2): [8.150], [8.155] s 60CC(2)(b): [8.155] s 60CC(3): [8.155] s 60CC(3)(h): [8.155] s 60CC(5): [8.155] s 60D: [8.190], [8.195] s 60D(i): [8.195] s 60D(ii): [8.195] s 60I: [8.75], [8.85], [8.130], [8.140], [8.230], [8.490] s 60I(1) to (3): [8.80] s 60I(7): [8.80], [8.90], [8.100] s 60I(8): [8.80], [8.110] s 60I(9): [8.80], [8.85], [8.90], [8.100] s 60I(10): [8.95], [8.100] ss 61A to 61F: [8.160] s 62B: [8.180] ss 63A to 63H: [8.145] ss 64A to 64D: [8.145] s 65DAC: [8.130] s 65DAC(3)(b): [8.130] s 75(2): [8.220] s 90G: [8.145] s 106A: [8.440] Pt VII: [8.90], [8.100], [8.130] Pt VIII: [8.440] Pt VIIIA: [8.440] Pt VIIIAB: [8.440] Pt VIIIB: [8.440]

Family Law (Family Dispute Resolution Practitioners) Regulations 2008: [1.125] reg 25: [8.215] reg 25(2): [8.215], [8.405] reg 28: [8.215] reg 30: [8.215] Pt 7: [8.210] Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011: [8.35], [8.350] Family Law Reform Act 1995: [1.40], [8.50] Family Law Regulations 1984: [8.35], [8.130], [11.20] Family Law Rules 2004: [8.35], [8.80], [8.130] Sch 1, r 1: [8.70] Sch 1, r 6: [8.185] Sch 1, Pt 2: [8.75] Pt VII: [8.80] Federal Circuit Court of Australia Act 1999: [5.230] s 34: [9.245] Federal Circuit Court Rules 2001 r 10.01: [13.170] r 27.02: [13.170] Federal Court of Australia Act 1976: [4.25], [5.250], [11.85] s 18ZI(2): [8.205] s 50: [13.105] s 53A: [1.195], [4.495], [9.245], [11.85], [13.60], [13.145] s 53A(1A): [6.35] s 53B: [13.60] s 53C: [13.145] s 54: [13.60] Federal Court Rules 2011 Ord 19, r 5: [6.220] Ord 23: [13.85] Ord 72, r 7(1)(b): [4.40] r 28.01: [11.85] r 28.05: [11.85] r 28.23: [13.170] r 28.25: [13.170] r 28.33: [13.170] Pt 28: [11.85] Federal Magistrates Act 1999 s 93D: [8.205] Franchising Code of Conduct cl 36: [4.525]

xviii

Table of Statutes

Income Tax Assessment Act 1997: [13.105]

AUSTRALIAN CAPITAL TERRITORY

Industrial Relations Act 1988: [5.110] s 170MH: [9.170]

Commercial Arbitration Act 2017:[6.30] s 39: [13.145]

Industrial Relations Reform Act 1993: [9.340]

Court Procedures Act 2004 s 52D: [13.145]

International Arbitration Act 1974: [6.10], [6.107] s 3(4): [10.100] s 9(1)(a): [10.100] s 16: [6.70], [6.80] s 21: [6.80], [6.90] Sch 2: [6.80]

Court Procedures Rules 2006: [5.230], [5.250] r 1176(1): [4.40] r 1182: [13.170] r 1184: [13.60] r 1185: [13.145] r 3252: [6.35]

International Arbitration Amendment Act 2010: [6.85]

Crimes (Restorative Justice) Act 2004: [7.190], [15.80]

Judiciary Act 1903–​1965 s 31: [6.160]

Discrimination Act 1991: [5.120] Evidence Act 2011: [13.20] s 53: [13.60] s 131(1): [13.60]

Migration Act 1958: [8.130], [11.85] Native Title Act 1993: [1.40], [1.195], [4.40], [8.130], [11.85], [12.315], [12.340], [12.360], [13.225] s 86C: [13.170] s 94N: [13.170] s 108: [12.345] s 109: [12.350] s 190E: [12.345] s 203BK(3): [12.345]

Legal Profession Act 2006 s 579(1): [1.185] s 580: [1.185] Legal Profession (Barristers) Rules 2014 r 17A: [1.185], [1.195] Legal Profession (Solicitors) Conduct Rules 2015 r 7.2: [1.185]

Racial Discrimination Act 1975: [9.415], [12.305]

NEW SOUTH WALES

Resolution Act 2011: [4.455]

Civil and Administrative Tribunal Act 2013: [5.230]

Sentencing Act 1997: [7.165]

Civil and Administrative Tribunal Regulations 2013 Sch 1, reg 2: [13.145]

Service and Execution of Process Act 1992: [10.20] Sex Discrimination Act 1984: [9.415]

Civil Procedure Act 2005: [13.70] s 26: [1.190] s 27: [4.475] s 29: [13.170] s 30: [13.65] s 31: [13.60], [13.65] s 33: [13.145] s 38(1): [6.35] s 56: [4.465] Pt 6: [11.50]

Trade Practices Act 1974: [1.80], [5.85], [14.420] s 51AD: [4.525] s 52: [13.85] Pt IIIA: [1.195] Work Health and Safety Act 2011: [9.370] s 7: [9.370] s 789FC(2): [9.370] s 789FD(1): [9.370] s 789FD(2): [9.370]

Commercial Arbitration Act 1984: [6.80] s 27: [1.190], [1.195] s 27D: [13.145]

Workplace Relations Act 1996: [1.40], [5.110]

Commercial Arbitration Act 2010: [4.385], [6.30], [6.95] s 1: [6.107] s 1(1): [6.105] s 1(3): [6.105]

Workplace Relations Amendment (Work Choices) Act 2005: [9.220] Workplace Relations and other Legislation Amendment Act 1996: [1.30]

xix

Dispute Resolution in Australia: Cases, Commentary and Materials

s 27D: [6.225], [6.230] s 28: [6.245], [6.248] s 28(3): [6.248]

Commercial Arbitration Act 2010 — cont s 1(3)(c): [6.108] s 1(4): [6.105] s 1C: [6.100], [6.102] s 7: [6.110], [6.112], [6.113] s 7(2): [6.170] s 8: [6.113] s 11: [6.120], [6.123] s 11(3): [6.123] s 11(4): [6.123] s 12: [6.130], [6.133] s 12(1): [6.133] s 12(3): [6.133] s 14: [6.233] s 15: [6.233] s 16: [6.145], [6.147] s 17: [6.155], [6.156] s 17(1)(a): [6.158] s 17(1)(b): [6.158] s 17(2): [6.158] s 17(2)(a): [6.158] s 17(2)(b): [6.158] s 17(2)(c): [6.158] s 17(2)(d): [6.158] s 17A: [6.157], [6.158] s 19: [6.165], [6.167] s 19(1): [6.205] s 19(3): [6.205] s 19(4): [6.167] s 20: [6.263] s 25(2)(a): [6.267] s 26: [6.195] s 27D: [1.190], [4.385], [6.233] s 27D(2)(b): [6.233] s 27D(4): [6.233] s 28: [6.247] s 29(1): [6.260] s 30: [6.263] s 31: [6.263] s 31(1): [6.263] s 31(4): [6.263] s 32: [6.267] s 32(2): [6.267] s 33: [6.267], [6.283] s 33(3)(c): [6.283] s 33(6): [6.283] s 33(7)(c): [6.283] s 34: [6.272], [6.273] s 34(2)(a)(ii): [6.273] s 34(4): [6.267] s 34A: [6.280], [6.283] s 36(1)(a)(ii): [6.205] s 38: [6.280] s 39: [13.145] s 46(1)(b): [6.80] s 52: [6.150] Pt 5: [6.165], [6.185]

Community Justice Centres Act 1983: [1.40], [11.40] s 28: [13.25] Contracts Review Act 1980: [13.75] Conveyancing Act 1919 s 54A: [13.165] Court Suppression and Non-​Publication Orders Act 2010 s 8(1)(a): [13.105] s 8(1)(e): [13.105] s 10: [13.105] Courts Legislation Amendment Act 2004: [5.195] ss 110H to 110Q: [5.195] Courts Legislation (Mediation and Evaluation) Amendment Act 1994: [5.195] Criminal Procedure Regulation 2010 Pt 7: [7.190] District Court Act 1973 s 164A: [1.195] Evidence Act 1995: [13.20], [13.85] s 110P: [13.65] s 110P(4): [13.65] s 110P(5): [13.65] s 110Q(b): [13.65] s 110Q(c): [13.65] s 117: [13.50] s 118: [13.50] s 119: [13.50] s 131: [13.65] s 131(1): [13.20], [13.60], [13.65], [13.85] s 131(2): [13.65], [13.80] s 131(2)(b): [13.65] s 131(2)(c): [13.65] s 131(2)(g): [13.65] s 131(2)(h): [13.80], [13.85], [13.90] s 131(4): [13.65] s 131(5): [13.65] s 131(6): [13.65] s 135: [13.65], [13.85] s 136: [13.75] s 138: [13.85] Farm Debt Mediation Act 1994: [1.40], [1.195], [4.465] s 15: [13.75] Home Building Act 1989 s 18G: [4.225] Interpretation Act 1987 s 33: [6.102] s 33(3): [6.102]

Commercial Arbitration (Amendment) Act 1990: [6.225] s 27: [6.225] xx

Table of Statutes

Legal Profession Act 1987: [1.150] s 144: [1.195]

Supreme Court Act 1979 s 20: [13.170]

Legal Profession Act 2004: [4.465]

Supreme Court Rules 1987: [5.250] r 48.13(16): [13.170]

Legal Profession Uniform Conduct (Barristers) Rules 2015: [1.185] r 36: [1.185] r 38: [1.200]

QUEENSLAND Bar Association of Queensland Barristers’ Conduct Rules (2016) r 8: [6.35]

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015: [1.185] r 7.2: [1.185]

Civil and Administrative Tribunal Act 2009: [4.395]

Retail Leases Act 1994: [1.195], [4.465]

Civil Proceedings Act 2011: [5.230] s 36: [13.60] s 41: [5.190] s 48: [13.165] s 49: [13.170] s 50: [13.170] s 52: [13.145]

Strata Schemes Management Act 1996: [4.465] Supreme Court Act 1970: [5.195], [13.70] s 110K: [1.190], [1.195], [4.495], [4.570] s 110L: [1.195] s 110N: [13.75] s 110P: [13.75] s 110P(4) and (5): [13.65] s 110P(5): [13.75] s 110P(6): [13.65] s 110P(6)(a): [13.65], [13.75] s 110Q: [13.65], [13.70] s 110Q(b): [13.65], [13.70] Pt 7B: [13.65], [13.70]

Commercial Arbitration Act 2013:[6.30] s 38: [1.185] Courts of Conciliation Act 1892: [1.40] Dispute Resolution Centres Act 1990: [1.40], [7.165], [7.190], [11.40] s 35(1): [13.145] s 37: [13.60]

Supreme Court Amendment (Referral of Proceedings) Act 2000: [4.515]

Domestic Violence (Family Protection) Act 1989: [4.625]

Supreme Court Rules 1970: [5.195] r 48.13(8): 13[13.60] r 48.13(14): 13[13.60] Pt 13 r 5: [13.225] Pt 22 r 6: [13.85] Pt 72: [5.255]

Industrial Relations Act 2016: [9.130]

Supreme Court Rules (Amendment No 387) 2003: [5.195]

Personal Injury Proceedings Amendment Act 2002: [4.465]

Uniform Civil Procedure Rules 2005: [5.250] r 20.7: [13.70], [13.170] r 20.14: [5.250] Pt 20, Div 3: [5.255]

Supreme Court of Queensland Act 1991 s 113: [13.150]

Legal Profession Act 2007 s 220: [1.185] Motor Accident Insurance Amendment Act 2000: [4.465]

Uniform Civil Procedure Rules 1999: [4.475], [5.230], [5.250]

Young Offender’s Act 1997: [7.175], [7.190]

Youth Justice Act 1992: [7.190], [7.235]

NORTHERN TERRITORY

SOUTH AUSTRALIA

Bar Association Incorporated, Barristers’ Conduct Rules r 17A: [1.185]

Commercial Arbitration Act 2011: [6.30] s 39: [13.145] Conciliation Act 1929: [1.40]

Evidence (National Uniform Legislation) Act: [13.20] s 131(1): [13.60]

Criminal Law Sentencing Act 1988: [7.190] Evidence Act 1929: [13.20] s 67C: [13.20], [13.60] s 131: [13.85]

Local Court (Civil Procedure) Act s 16(1)(e): [6.35] xxi

Dispute Resolution in Australia: Cases, Commentary and Materials

s 32(2)(c): [6.265], [6.268] s 32(3): [6.268] s 33: [6.268], [6.272] s 34: [6.270], [6.272] s 34(2): [6.272] s 34(3): [6.272] s 34(4): [6.268] s 34A: [6.272]

Evidence Act 1929 — cont s 131(1): [13.85] s 131(2)(h): [13.85] s 135: [13.70], [13.85] s 138: [13.85] Legal Practitioners Act 1981: [1.185] Local Government Act 1999: [5.230]

County Court Civil Procedure Rules 2008: [6.30]

South Australian Civil and Administrative Tribunal Act 2013 s 79(1): [13.145]

Equal Opportunity Act 1995: [13.175] s 105: [13.175] s 109: [13.175] s 109(3)(a): [13.175] s 131(2)(e): [13.175] s 136: [13.175]

Supreme Court Act 1935: [5.230], [5.250] s 51: [6.35] s 65(2): [13.145] s 65(3): [13.60] s 65(6): [13.60] s 65(7): [13.170] s 66: [6.35] s 70: [13.145] s 72: [13.60] s 83A(9): [13.145]

Equal Opportunity Act 2010: [5.135], [15.40] Evidence Act 2008: [13.20] s 131(1): [13.60] Farm Debt Mediation Act 2011: [15.40]

Young Offender’s Act 1993: [7.190]

Health Services (Conciliation and Review) Act 1987 (Vic): [15.40]

TASMANIA

Legal Profession Uniform Law Application Act 2014: [1.185]

Alternative Dispute Resolution Act 2001: [5.230] s 8: [13.170] s 11: [13.60] s 12: [13.145]

Magistrates’ Court Act 1989 s 103: [6.30] s 106: [6.30]

Commercial Arbitration Act 2011: [6.30] s 39: [13.145]

Mental Health Act 2014: [5.95], [5.100], [15.40] s 244: [5.95] s 244(5): [5.95]

Evidence Act 2001: [13.20] s 131(1): [13.60]

Retail Leases Act 2003: [15.40]

Legal Profession Act 2007 s 221A: [1.185]

Small Business Commissioner Act 2003: [15.40]

Legal Profession (Barristers) Rules 2016: [1.185]

Supreme Court Act 1986 s 24A: [13.60] s 27A: [13.145] s 33V: [11.85] s 33ZF: [13.170] s 110K(6)(a): [13.65] s 110P(4): [13.65] s 110P(4): [13.65]

Supreme Court Rules 2000: [5.250] r 521: [13.170] r 772: [6.35]

VICTORIA Children Youth and Families Act 2005: [7.190] Civil Procedure Act 2010: [5.230], [10.20] s 66: [6.35]

Supreme Court (General Civil Procedure) Rules 2005: [5.250] rr 50.07.1 to 50.07.4: [11.60] r 50.70(4): [13.170] Pt 72: [11.65]

Commercial Arbitration Act 1984: [6.80] s 7: [6.272] s 22(2): [6.250], [6.255] s 28(1): [6.250] s 28(4): [6.250] s 31: [6.260] s 32: [6.268]

Supreme Court (General Civil Procedure) Rules 2015 r 50.08(2)(a): [6.30] r 50.08(3)(a): [6.30] xxii

Table of Statutes

NEW ZEALAND

Victorian Civil and Administrative Tribunal Act 1998: [13.175] s 28.1: [13.210] s 28.5: [13.210] s 74: [13.175] s 78: [13.175] s 88: [13.175] s 88(7): [13.175] s 90: [13.175] s 91: [13.175] s 92: [13.175] s 93: [13.175] s 109: [13.175] s 143(6): [13.145] Sch 1: [13.175]

Children Young Persons and Their Families Act: [7.180] Fair Trading Act 1986: [13.120] Uniform Mediation Act 2001: [4.645], [11.20]

UNITED NATIONS UNCITRAL Arbitration Rules Art 33(2): [6.255] UNCITRAL Model Law Art 1: [6.80] Art 1(3): [6.80] Art 7(2): [10.100] Art 7(3): [10.100] Art 7(4): [10.100] Art 18: [6.80] Art 24(3): [6.80] Art 35(2): [10.100]

WESTERN AUSTRALIA Commercial Arbitration Act 2012: [6.30] s 39: [13.145] Inheritance (Family and Dependants Provision) Act 1972: [13.160] Rules of the Supreme Court 1971 O 4A, r 8(4), (5): [13.170] O 24A, r 3(9): [13.170]

UNCITRAL Rules 1976: [6.80]

UNITED KINGDOM

Sentencing Act 1995: [7.165]

Arbitration Act 1889 s 5: [6.190]

State Administrative Tribunal Act 2004 s 163(7): [13.145]

Arbitration Act 1950 s 1: [6.285]

Supreme Court Rules 1971 O 31A: [13.240]

Arbitration Act 1979: [6.285] s 1: [6.285], 88

Young Offenders Act 1994: [7.165], [7.190], [7.235]

Arbitration Act 1996: [6.45], [6.80], [6.264] Judicature Act 1873: [5.05], [5.260] s 56: [5.260] s 57: [5.260] s 58: [5.260] Pt 72: [5.260]

INTERNATIONAL Asian International Arbitration Centre (AIAC) Fast Track Arbitration Rules: [6.45], [6.305]

EUROPE Principles of European Contract Law (PECL) Art 1.106(1): [13.225]

xxiii

CHAPTER 1

Introduction [1.05] [1.10]

OVERVIEW.......................................................................................................................  1 ORIGINS OF DISPUTE RESOLUTION................................................................................  2 [1.15] Aboriginal Dispute Resolution................................................................. 2 [1.20] Resolving Indigenous Disputes................................................................ 2 [1.30] Constitutional change.....................................................................................  4 [1.35] Public and private sector growth.....................................................................  4 [1.40] Conflict Management: A Practical Guide................................................... 5 [1.45] THE A IN ADR..................................................................................................................  7 [1.50] Settling Large Case Litigation: An Alternative Approach................................ 7 [1.65] The Language of Alternative Dispute Resolution........................................ 13 [1.75] DEFINING DISPUTE RESOLUTION.................................................................................  14 [1.80] Dispute Resolution Guidebook............................................................... 14 [1.90] Mediation: Principles, Process, Practice................................................... 19 [1.95] SELECTING A DISPUTE RESOLUTION PROCESS.............................................................  20 [1.100] Alternative Dispute Resolution............................................................... 21 [1.115] THE LEGAL PROFESSION AND DISPUTE RESOLUTION...................................................  25 [1.120] Mediation: Principles, Process, Practice................................................... 26 [1.135] Lawyers and Mediation: Beyond the Adversarial System?............................ 27 [1.150] Liability of Lawyers to Advise on Alternative Dispute Resolution Options......... 32 [1.160] Lawyers as Mediators: More Responsibility?............................................. 35 [1.170] The “New Advocacy” and the Emergence of Lawyer Representatives............. 39 [1.180] Lawyers Behaving Badly in Mediations: Lessons for Legal Educators............... 42 [1.185] MODEL RULES OF PROFESSIONAL CONDUCT AND PRACTICE......................................  46 [1.190] Role of the Bar..............................................................................................  47 [1.195] The Bar in Mediation and ADR.............................................................. 48 [1.210] QUESTIONS..................................................................................................................  52

OVERVIEW [1.05]  Dispute resolution processes are a major element in managing civil disputes and an

important managerial tool of business in Australia. The rise in the acceptance of dispute resolution in law and business has largely occurred through the introduction of legislation empowering courts to refer proceedings to a variety of dispute resolution processes, most commonly mediation. Further, the business community has seen the financial and organisational benefits of resolving disputes through non-​adversarial methods and has instigated internal and external processes to resolve disputes at an early stage before they escalate to the point where curial resolution is sometimes the only way to resolve them. Because of this, today in Australia, and across the world, dispute resolution is a significant tool in the administration of justice and the conduct of business. Further evidence of the acceptance of dispute resolution as being part of the fabric of law and business is the fact that nearly every law and business school throughout Australasia, Europe and the Americas teaches dispute resolution as either a compulsory or elective undergraduate subject. This occurs, notwithstanding that Western law schools still teach adversarial appellant law to educate students in the doctrinal foundations of law. There are many postgraduate courses that offer a suite of dispute resolution subjects, which constitute specialist [1.05]  1

Dispute Resolution in Australia: Cases, Commentary and Materials

postgraduate qualifications in the subject. Further, numerous private providers teach the theory and practice of dispute resolution that allow their graduates to become qualified under the National Mediator Accreditation System. Thus, dispute resolution is firmly entrenched in the academic, legal, professional and business cultures of Australia and all signs indicate that its growth will continue.

ORIGINS OF DISPUTE RESOLUTION [1.10]  It is difficult, if not impossible, to track the origins of dispute resolution because nego-

tiations between human beings are as old as the ability to communicate itself. For example, Aboriginal and Torres Strait Island people have been involved in their own form of dispute resolution via customary law for almost the entirety of their existence, put conservatively at somewhere between 40,000 and 100,000 years.

Aboriginal Dispute Resolution [1.15]  L Behrendt, Aboriginal Dispute Resolution (Federation Press, Sydney, 1995) p 7. As in any complex society, traditional Aboriginal groups had their own legal system and methods of resolving disputes. People lived in small communities with large extended families. There were strong kin ties and notions of community and reciprocity. Such a close-​knit environment necessarily required the existence of a complex workable system of resolving conflict and a method of communal decision making. Those processes needed to be able to produce effectively outcomes that members of the community would comply with. The ability of the group to function harmoniously in its day-​to-​day existence was necessary for its survival. The closeness and interdependence of a community meant that it was imperative for disputes to be resolved quickly and without animosity. The resolution process had to provide a mechanism that would ensure parties would comply with the decision of the group thus ensuring that the social, political and economic status quo of the community would be maintained.



Resolving Indigenous Disputes [1.20]  L Behrendt and L Kelly, Resolving Indigenous Disputes (Federation Press, Sydney, 2008) pp  94-​97. Grievances were dealt with in several ways. It should be stressed that some of these examples are taken from specific nations. There were similar processes in other Aboriginal communities, but there were also elements that would be unique to that region. The council of Elders would not only make decisions for cases brought to them, but also intervened in disputes if they had not been resolved between family members. Meetings were usually held at times when clans congregated for ceremonies. Unauthorised violence was strictly prohibited at ceremonies. In this way, the maintenance of order was a duty extended to adjoining clans. As Berndt and Berndt observe: “Although constituted courts did not exist in traditional Aboriginal Australia, there were councils which did much the same thing, although far more informally and less systematically”. Women often played a prominent part in the process. Women also had power to adjudicate if a woman had broken the law, and would administer punishment accordingly … [95] At all levels of the dispute resolution process, uncontrolled retaliation –​though often a natural instinct –​was discouraged. Disputants were encouraged to spend time getting their emotions under control before they faced the person with whom they were in dispute. Again, women were especially 2 [1.10]

Introduction  Chapter  1

Resolving Indigenous Disputes cont. important in this process. They would often yield their influence over fellow clan members and intervene when disputes got out of hand to ensure that unauthorised violence did not occur … [96] Dispute resolution in pre-​invasion Aboriginal culture reflected the values of the people. These were vastly different to the values of the British legal system, which was to evolve into the Australian legal system. The assumptions and processes underlying a traditional Aboriginal dispute resolution system are contrasted with the assumptions and processes underlying the Australian litigation system in the following table 4. This table only applies to civil law-​type disputes, not criminal law matters. Both Aboriginal and Australian legal systems have different assumptions and processes for dealing with criminal matters –​even though Aboriginal societies had different notions of what might be considered “criminal” and “civil” … [97] Traditional Aboriginale dispute resolution

Australian litigation

Oral complaint

Written complaint

Emotional, informal response

Controlled, formal response

Disputants live together

Disputants often strangers

Usually a jury of Elders

Occasionally a jury of peers

Experience, age and wisdom required for recognition as arbitrator (“Elder” or “peacemaker”)

Formal legal training, experience, and reputation required for appointment as arbitrator (“magistrate” or “judge”)

No rules of evidence

Fixed rules of evidence

Procedure evolves with dispute

Precise procedure

Process occurs with family, or clan, present

Process occurs with strangers, or no observers, present

Disputants and family representatives address arbitrators

Legal representatives address arbitrator

Time not an issue

Deadline intensive

Informal “circle” culture

Formal court culture

Settlement discussed with disputants

Judgment delivered to disputants

Informal, communal appeal available

Formal, hierarchical appeal available

 [1.25]  Having acknowledged the history of Aboriginal and Torres Strait Islander dispute res-

olution, albeit briefly, it is also possible to track the formalisation of Western dispute resolution in Australia. One starting point is the Commonwealth Constitution, which was passed by the Imperial Parliament of England in 1900 and came into force in Australia on 1 January 1901 when the Commonwealth of Australia was officially born. Section 51 provides that: The Parliament shall, subject to this Constitution, have power to make laws for peace, order, and good government of the Commonwealth with respect to:-​(xxxv.) Conciliation and arbitration for the prevention and settlement of industrial disputes beyond the limits of any one State.

The drafters of the Constitution clearly thought that the power to conciliate and arbitrate industrial disputes was an important safeguard for an emerging nation. An example of how important this safeguard was is arguably the fact that the conservative government of Stanley Bruce and Earle Page was brought down in the federal election of 1929 on the basis of an attack on the system of arbitration of industrial disputes. The Labor Party, who won office that year, successfully campaigned in that election that attacking the arbitration system was [1.25]  3

Dispute Resolution in Australia: Cases, Commentary and Materials

an attack on the standard of living of every Australian, thereby threatening the wellbeing of all working Australians. Constitutional change [1.30] The power granted under s 51(xxxv) and under Ch III of the Commonwealth

Constitution led to the passing of the Commonwealth Conciliation and Arbitration Act 1904, which established the Commonwealth Court of Conciliation and Arbitration to hear applications for the making of awards and the resolution of disputes between employers and employees. The Court was empowered to exercise judicial and arbitral powers. In 1956, the Court was split into two separate organisations, being the Commonwealth Conciliation and Arbitration Commission and the Commonwealth Industrial Court, following the decision in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, where the High Court of Australia found, amongst other things, that it was unconstitutional for an arbitral body to exercise judicial power. Thereafter, the arbitral functions of making awards and settling industrial disputes fell to the Commission, and the judicial function fell to the Court. In 1973, the name of the Commission was changed to the Australian Conciliation and Arbitration Commission, and the Commonwealth Industrial Court became the Australian Industrial Court with both bodies maintaining their previous functions. In 1978, the judicial functions of the Australian Industrial Court were transferred to the Industrial Division of the Federal Court of Australia and pursuant to the Industrial Relations Act 1988 (Cth), the Australian Industrial Relations Commission was created which replaced the Australian Conciliation and Arbitration Commission. The Industrial Relations Reform Act 1993 (Cth) amended the Industrial Relations Act 1988 (Cth) to create the Industrial Relations Court of Australia, whose jurisdiction was transferred to the Federal Court of Australia under the Commonwealth Workplace Relations and other Legislation Amendment Act 1996. Despite the rearrangement of the jurisdiction of the original Commission and the numerous name changes and transfers of jurisdiction, the Court and Commission have developed formal methods of conciliation and arbitration that are still operational today. Subsequently, the Commonwealth parliament passed the Fair Work Act 2009 (Cth) and pursuant to that Act, established Fair Work Australia, renamed the Fair Work Commission by the Fair Work Amendment Act 2012 (Cth). The Commission is Australia’s national workplace relations tribunal which amongst other things sets minimum conditions and wages; facilitates good faith bargaining and enterprise agreement making; deals with applications in relation to unfair dismissal; and resolves a range of collective and individual workplace disputes through conciliation, mediation and in some cases public tribunal hearings. Public and private sector growth [1.35] In its early days, dispute resolution in Australia functioned in two distinct spheres.

The initial sphere of influence dating back to the mid 1980s was in the private sector where private and at least one government sponsored agency commenced training lawyers and people in business to mediate disputes. The key agencies that pioneered dispute resolution and are still operating today are Australian Disputes Centre (formerly known as the Australian Commercial Disputes Centre); Resolution Institute (formerly known as Lawyers Engaged in Alternative Dispute Resolution (LEADR) and now amalgamated with the former Institute of Arbitrators and Mediators Australia); The Accord Group; and Mediate Today. In addition, there are numerous lawyers and business people who advocated the use of dispute resolution to 4 [1.30]

Introduction  Chapter  1

resolve disputes in a consensual way. Responding to the growth in, predominantly, mediation from the United States, these and other private agencies trained the initial batch of Australian mediators. They also offered mediation, arbitration and other services to customers in dispute. The second sphere is in the public sector which flourished under the emergence of legislation providing non-​adjudicative dispute resolution as a first step before litigation. Legislation has more than doubled in the last 20 years in Australia with nearly all courts, tribunals and commissions having mandatory or voluntary dispute resolution programs in place prior to parties proceeding to trial or hearing. Today, we find the growth of dispute resolution is complete with burgeoning private and public sectors and dispute resolution being an integral part of organisational governance procedures. This topic will be discussed in more detail in Chapter 14, [14.05]. For the moment, the rise of dispute resolution in Australia is the history of the public and private sectors complementing each other to create a firm base of non-​adjudicative dispute resolution dovetailing with adjudicative forms of dispute resolution to provide an array of methods to resolve conflict between people in dispute.

Conflict Management: A Practical Guide [1.40]  P Condliffe, Conflict Management: A Practical Guide (5th ed, LexisNexis Butterworths, Sydney, 2016) pp 128-​130. The beginning of the government-​funded Community Justice Centres pilot in New South Wales in 1980 provided the initial impetus for the development of a new movement that we now recognise as ADR. This pilot was followed by similar establishments in Victoria in 1987 and Queensland in 1990. The centres were modelled on community-​based mediation services which had sprung up in great profusion in the United States. These services, institutionalised within government bureaucracies, aimed at providing services to a long-​neglected and ill-​used sector of conflict –​community disputes. They also pioneered the use of mediation in public issue disputes, victim–​offender mediation (sometimes called “conferencing”) and family mediation. The legal profession quickly followed these developments and established a specially constituted forum, Lawyers Engaged in ADR (LEADR, which became known as Leading Edge Alternlative Dispute Resolution and which in 2015 merged with the Institute of Arbitrators and Mediators (IAMA) to form Australia’s largest ADR organisation), to develop and lobby for the use of mediation within the legal system. Many universities [129] and law schools now offer ADR or mediation courses. Other professions have been slower to embrace these new approaches, but this is rapidly changing, especially in the environmental planning and human service fields. Key developments in Australian ADR 1892

Courts of Conciliation Act 1892 (Qld) is proclaimed.

1904

Arbitration and Conciliation Court (Cth) provides for informal conferences.

1929

Conciliation Act 1929 (SA) provides for pre-​trial interviews.

1931

Courts of Conciliation Act 1892 (Qld) is amended to streamline procedures.

1974

Consumer Claims Tribunal adopts neutral third-​party referees.

1975

Family Law Act 1975 (Cth) provides for counselling and conferences.

1975

Institute of Arbitrators and Mediators Australia (IAMA) is established.

1977

Anti-​discrimination Act provides for conciliation.

1979

Land and Environment Court (NSW) provides for conferences.

1980

Community Justice Centres (NSW Pilot Project) Act is proclaimed.

1983

Community Justice Centres Act (NSW) provides for community-​based services. [1.40]  5

Dispute Resolution in Australia: Cases, Commentary and Materials

Conflict Management: A Practical Guide cont. 1983

Victorian County Court Building Cases List makes provision for referral to mediation.

1984

Norwood (SA) Community Mediation Service is established.

1985

Noble Park (Vic) Family Mediation Centre is established.

1985

Australian Commercial Disputes Centre (ACDC) is established.

1987

Neighbourhood Mediation Centres are established by Legal Aid Dept (Vic).

1987

Formation of the Australian Dispute Resolution Association (ADRA), the first state-​based ADR association, based in Sydney.

1987

Federal Court pilot ADR program begins in the NSW District Registry.

1988

ACT Conflict Resolution Service is established.

1989

Establishment of LEADR, now known as Leading Edge ADR —​a not-​for-​profit lobby, professional and service organisation.

1990

Dispute Resolution Centres Act 1990 (Qld) is proclaimed, establishing the Community Justice Program, now known as Dispute Resolution Centres.

1991

Courts (Mediation and Arbitration) Act 1991 (Cth) introduces voluntary (since 1997, mandatory) mediation to the Federal Court.

1991

Canberra Mediation Service is established.

1992

“Spring Offensive” is initiated by the Supreme Court of Victoria with review of waiting cases, many of which were referred to mediation. Equivalent ‘Settlement Week’ occurs in NSW.

1993

Administrative Appeals Tribunal introduces mediation conferences.

1994

Farm Debt Mediation Act 1994 (NSW) is proclaimed. [130]

1995

Establishment of the National Alternative Dispute Resolution Advisory Council (NADRAC) by the Commonwealth Attorney-​General to monitor and promote the use of ADR.

1995

Family Law Reform Act 1995 (Cth) establishes the centrality of ‘Primary Dispute Resolution’.

1996

Native Title Act 1993 (Cth) amendments give increased emphasis to mediation before the Native Title Tribunal.

1996

Workplace Relations Act 1996 (Cth) is referred to mediation for the first time in industrial disputes.

2000

NADRAC discussion paper, The Development of Standards for ADR.

2004

NADRAC discussion paper, Who Says You’re a Mediator? Towards a National System for Accrediting Mediators, outlines the need for mediator accreditation and standards.

2005

National Mediation Conference appoints sub-​committee to consider accreditation and standards for mediators.

2006

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) is implemented, mandating mediation in cases seeking parenting orders.

2007

Introduction of a new accreditation scheme for family mediators under the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).

2008

Implementation (1 January 2008) of National Mediation Accreditation Standards through a committee convened by NADRAC.

2010

Civil Dispute Resolution Act 2010 (Cth) is enacted, providing a leading example of a statutory attempt to improve timeliness and party responsibility to settle disputes before litigation commences. (Similar legislation is replicated in some states.)

2010

Introduction of the Model Commercial Arbitration Bill (MCAB) to replace state commercial arbitration legislation.

2013

NADRAC is abolished by the Federal Government.

2015

Merger of two leading ADR organisations (LEADR and IAMA) into the Resolution Institute.

2015

National Mediation Accreditation Standards are updated.

 6 [1.40]

Introduction  Chapter  1

THE A IN ADR [1.45]  Arguably the first person to coin the phrase “Alternative Dispute Resolution” (ADR)

was American lawyer and academic Professor Eric Green, who in the 1970s was counsel in a large commercial case regarding the alleged infringement of certain patents relating to computerised charge authorisation and credit-​verification devices. The parties were on the trial trail with proceedings on foot and pre-​trial discovery well underway. The parties agreed to run a mini-​trial or senior management review process whereby the parties would attend a two-​day “information exchange” chaired by a neutral third party –​a former civil judge. The information exchange was just that a chance to exchange information via the parties themselves presenting their sides of the dispute to senior management. The senior management were charged with the responsibility of resolving the dispute and the third party’s role was to moderate proceedings and effect a compromise. After his experience in that case, Green authored a landmark article that referred to the process as “an alternative approach” –​ADR was born in the formal sense.

Settling Large Case Litigation: An Alternative Approach [1.50] E Green, J Marks and R Olson, “Settling Large Case Litigation: An Alternative Approach” (1978) 11 Loyola of Los Angeles Law Review 493 at 493-​511. Introduction Over 50 years ago, Judge Learned Hand told the Bar of New York, “As a litigant, I should dread a lawsuit beyond almost anything else short of sickness and death”. Judge Hand’s remark is even more true today. The burgeoning costs and demoralizing delays of dispute resolution through formal, legal means are central to the crisis which so many now perceive in the American system of civil justice. For the individual litigant efforts are being made to confront and resolve the crisis. By far the largest single cost of litigation is attorney’s fees. In this area, the OEO Legal Services Program and the Legal Services Corporation have made significant strides towards providing free counsel to the poorest Americans. Group and prepaid legal service programs have been started to provide legal services to middle income Americans at affordable prices. In addition, there is growing recognition that less formal mechanisms of dispute resolution may provide the best answer to the problems of expense and delay which beset individual civil litigants in our courts. For example, mandatory arbitration of smaller [494] civil suits in the federal courts seems inevitable; in Los Angeles, a pilot Neighborhood Justice Center has been set up to resolve minor disputes entirely outside the courts. Interestingly, however, while these and other innovations promise more efficient dispute resolution procedures for individual litigants, very little attention has been devoted to developing alternative dispute resolution mechanisms for the large corporate litigation that consumes hundreds of thousands of dollars in legal costs and hundreds of days in court and lawyer time. Arbitration stands as almost the only well developed alternative to full-​scale litigation for entities which find themselves embroiled in disputes [495] which cannot be solved through normal business negotiations. Yet, binding arbitration is often not acceptable to the parties. Convinced of the justness of its cause, a plaintiff may be willing to risk the compromise that reputedly so often characterizes arbitration awards; unsure of the nature and extent of its liability, a defendant may be unwilling to give up the protection of full pretrial discovery, strict evidentiary rules and well-​defined substantive standards, especially when the damages claimed are in six, seven or more figures. For these and other reasons, many litigants and corporate attorneys approach arbitration “like a lonesome cat in a strange alley”. Moreover, in spite of binding arbitration’s often being seen as simply too dangerous, surprisingly little thought has been given to the possibility that efforts at settlement might consist of something more than traditional non-​binding negotiations between lawyers or corporate executives in which [1.50]  7

Dispute Resolution in Australia: Cases, Commentary and Materials

Settling Large Case Litigation: An Alternative Approach cont. dollar bargaining is the primary focus. Indeed, the literature of litigation settlement is made up of little other than “how-​to-​do-​it” manuals focusing, for example, on the resolution of personal injury cases. [496] Yet merely because the legal difficulties of lower and middle income Americans may constitute more important social problems on most people’s scale of values, it is important not to lose sight of the fact that the crisis in American civil justice extends beyond those groups into large case litigation. The problems of large case litigation are ones which affect the quality of civil justice as a whole. The pretrial paper wars and extended trials of many such cases play a significant role in clogging the dockets of our courts, both state and federal. Further, the extraordinary costs of litigating such cases affect not merely the corporations themselves, but, of necessity, their employees and shareholders, and the consumer. There are several possible reasons why there has been a dearth of innovative ideas aimed at devising alternate dispute resolution mechanisms for large case litigation. Perhaps the corporate litigation bar should be blamed for a lack of imagination, for an unwillingness to take risks, and for a failure to apply careful cost-​benefit analysis to their activities on behalf of their clients. Perhaps corporate managements should be blamed for too often allowing themselves to be insulated from the litigation process, either because they seek to avoid ultimate responsibility or because they mistakenly believe that the complexities of the process are for lawyers only. Perhaps the true culprit is the relative insularity of most American legal education: Another barrier to the active participation of lawyers in the creation of new “justice-​ producing” institutions lies in the structure and content of legal education. Law schools rarely teach the essential skills of negotiation and mediation; rather, their concentration on the dissection of appellate court cases emphasizes the escalation of disputes rather than their prevention or early settlement … The dearth of interdisciplinary study makes it difficult for lawyers to perceive alternative ways of dealing with different types of existing disputes and those likely to arise from emerging technologies. [497] Whatever the reason, the failure of the corporate litigation bar to develop alternate dispute resolution mechanisms is particularly puzzling given another usual characteristic of their corporate clients. Most companies have a firm policy of attempting to avoid litigation by investigating and resolving disputes on a businesslike basis as promptly as possible. They generally “prefer the procedural uncertainties of private settlement techniques to the substantive uncertainties of the courts”. It is common, for example, for corporate management faced with a ripening conflict with another company to schedule a meeting at which responsible employees from each company appear and present both sides of the dispute. In such circumstances the business principals of the companies sit as fact-​finders and as judges. They may or may not consult counsel. By contrast, once litigation is initiated such simple and informal attempts at dispute resolution rarely occur. Settlement discussions involving corporate management thereafter generally subordinate debate on substantive issues to a more direct consideration of what it will take to settle the case … Demon Litigation Corporate executives and in-​house counsel know that it can be disastrous for a company simply to be sued, let alone suffer an adverse judgment. There is no escaping one infallible premise –​resolving the dispute will be very costly. Payment will be either to the plaintiff, to defense counsel, or –​worst of all –​to both. House counsel and management also know that successfully defending a large lawsuit is frequently more costly than simply paying a large settlement to the plaintiff. Indeed, defendants are often convinced that this is the only basis for the suit in the first place. [498] The cost of large corporate litigation also has a great impact on plaintiffs. Since the defendant is typically in possession of the money or property that is the subject matter of the dispute and has the use of it during the pendency of the suit, the defendant will often have both reason and the resources to drag out the litigation. A corporation with an unassailable claim and sufficient resources 8 [1.50]

Introduction  Chapter  1

Settling Large Case Litigation: An Alternative Approach cont. to prosecute fully a court case may find that discovery hurdles placed by the defendant between the summons at the starting line and the judgment at the finish have made the prize not worth the pursuit. The cost of prosecuting or defending a large corporate lawsuit involving unresolved legal contentions, complex factual issues, many witnesses, and the usual roomfuls of documents may be divided into two basic categories –​(1) pretrial discovery and motion costs and (2) trial costs. Discovery and motion costs usually accrue at a slower rate than trial costs, but build up over a longer period of time –​ often for two, three, or as many as five years. Reliable figures are hard to come by, especially for pretrial costs of litigation, but one authority estimated in 1975 that the cost to the client of counsel’s merely reading and taking notes on the documents produced in a moderately-​sized civil litigation –​defined as a case involving 10,000 documents of an average of ten pages per document and generating 5000 pages of transcript –​is $300,000. This figure did not include the more time-​consuming process of searching the documents for combinations of facts and analyzing the assembled data. Allowing for inflation, which affects the legal profession as much as it does industry, these figures would be even higher today. Indeed, there is a growing feeling among business-​oriented attorneys and critical commentators that modern discovery practice, introduced as a great reform, is now more of a problem than a solution. One critic states: Coupled with requests for class action treatment, discovery has been perverted into a vehicle for extracting substantial settlements, with [499] some defendants reluctantly consenting to this extortion in order to avoid years of involvement, enormous expenses and attorneys’ fees, and the inordinate drain upon corporate time and energy that is inevitably involved in the defense. But discovery and other pretrial costs are not the only factors that make suing or being, sued, even unjustly, a major economic event for a corporation today. Should the parties not reach a settlement after exhausting themselves in the discovery and pretrial motion phase of the litigation, costs escalate significantly in the immediate pretrial preparation phase, as counsel “staff-​up” with experts, associates and paralegals. Costs increase again for the trial itself. In one extreme but not unique case, the SCM antitrust suit against Xerox, the legal costs during trial to SCM and Xerox combined have been conservatively estimated to be $50,000 a day, five days a week, or over $1,000,000 a month. Trial is expected to last five to eight months. The pretrial costs were likely even higher. The two sides took pretrial depositions from a total of 233 potential witnesses. Of course, the stakes are high –​SCM seeks $1.8 billion in damages. Moreover, the tangible costs that show up directly on the income statement under “legal costs” are only a part of the actual costs of large corporate litigation. Management time and energy and technical resources diverted from normal activities to the litigation process are additional overhead items, with no productive possibilities, that increase the cost of goods produced or services rendered. Thus, prospect of an indirect as well as a direct drain on the corporate resources during two to five years of litigation is often a strong incentive for top management to seek some means of informally resolving litigation and getting employees back to productive work, even if it means paying money management feels is not owed. There is a third party whose interests also must be recognized –​the judicial system. Although comprising only a small percentage of cases, [500] large corporate litigation increasingly consumes a disproportionately large amount of judicial and lawyer resources, contributing to an already severe congestion problem. This problem is assuming crisis proportions in some places as delays run into four or five years and court systems approach the breakdown point. In the federal system, the district court civil case load continues to show an upward trend, as it has for the last fifteen years. In 1976, 130,597 civil cases were filed in the district courts, compared to [1.50]  9

Dispute Resolution in Australia: Cases, Commentary and Materials

Settling Large Case Litigation: An Alternative Approach cont. 117,320 in 1975 and 59,284 in 1960. This is an increase of 11.3% over 1975 and 120.3% over 1960. An even more disturbing statistic is that of the 136,753 cases pending in the district courts at the close of 1976 (exclusive of land condemnation cases), 9,414 had been pending for more than three years. Moreover, the trend is to greater delay. The percentage of cases pending for more than one, two, and three years in 1976 increased over 1975 by 25.5%, 23.5% and 24.5%, respectively. The statistics for the federal courts of appeals are similarly alarming. The number of new cases docketed in 1976 showed a 10.5% increase over 1975, and a 281.7% increase over 1962. Altogether, 18,408 cases were filed for appeal in 1976, compared to 4,823 in 1962. [501] Given such statistics, it is obvious that either radical reform of the dispute resolution process or a commitment of vastly more resources to the judicial system, or both, are necessary just to keep matters from getting worse than they already are. But private lawyers representing corporate clients increasingly disgruntled with large legal fees cannot wait for long term reform. The corporate litigator must explore every available dispute resolution mechanism that might be advantageous to the client … [507] Some General Observations For the parties involved, the success of the Information Exchange was testimony enough to its value. For others who may be interested in similar experimentation, however, several additional aspects of the procedure might be pointed out. Every case is different, and what worked in the case discussed might not work at all in another situation. In considering whether to try a procedure like the one described or to create a new model, counsel and clients must consider many variables and make a cost-​benefit analysis to determine the best way to proceed. In this analysis the following factors may be relevant. First, very little of the money expended on the Information Exchange would have been wasted had the proceeding not resulted in a resolution of the dispute. The Information Exchange forced each side rigorously to organize the mass of facts and legal arguments which had been gathered over two and one half years of discovery and legal maneuvering, just as they would have had to do to prepare the case for pretrial and trial. The “introductory statements” were short versions of what would have been trial briefs, the “oral presentations” were outlines of what would have been trial evidence, and the exhibits were the same as those that would have had to be collected and organized for trial. Thus, the procedure as implemented demanded preparation by counsel and experts which would have been directly useful at trial had the case not been settled. The only Information Exchange expenditures which were not related to activities which would have had to have been incurred in any case for trial were those relating to the negotiations which led to the Information Exchange and those for the time spent at the Information Exchange itself. For one of the parties, these amounted to approximately 25% of total Information Exchange expenditures. These non-​transferable expenditures were the only monies risked by that party’s management in carrying out the Information Exchange. Total costs to judgment would have been approximately ten times greater. Because management considered that it was thus risking a relatively small amount of money in order to avoid an [508] otherwise certain expenditure of a great deal more, it viewed the required financial investment as well worth the risk that the procedure might be a flop. Moreover since the pending Information Exchange forced counsel to concentrate their efforts within several weeks, rather than over many months or years, there was no need for them to spend preliminary time to reeducate themselves on the case as crises or significant events occurred. The matter as a whole had to be mastered and kept in mind during the entire period. Because of this necessity for organizing the case in a short time, connections between relevant facts and legal theories, which might not otherwise have been made until pretrial or trial, were made significantly earlier. Had the litigation continued, this would have fostered more focused discovery and pretrial preparation. In sum, had the case not been settled, the intensive time spent by counsel in preparing for the Information Exchange would likely have been worth significantly more to the client than the same amount of less focused time spent during the long pretrial phase of the case. 10 [1.50]

Introduction  Chapter  1

Settling Large Case Litigation: An Alternative Approach cont. Apart from the prospects of earlier settlement and of the client’s obtaining a better return per dollar in attorney’s fees spent, there are other potential advantages for client and attorney alike from an Information Exchange procedure. Significantly, it may provide a means for a client to discipline its attorneys. For example, sometimes where there is little or no pressure coming from the court, defense attorneys approach a case –​even an important one –​in a relatively relaxed manner. Thus, they may not immediately investigate or organize the factual and legal aspects of the case in a sufficiently thorough manner to appreciate fully the true legal situation and proper settlement posture. In other circumstances, the lack of pressure sometimes leads attorneys into over-​litigation, unnecessarily dotting “i’s” and crossing “t’s” with regard to both discovery and legal research. An attorney’s judgment about what is essential may be controlled by the amount of time and associate resources available. In either case, the Information Exchange procedure can serve as a useful management tool, forcing careful and early analysis on the one hand and selective judgment on the other. From the attorney’s perspective, the Information Exchange procedure may have the equally important effect of involving and educating the client. In the end, decisions with regard to settlement and legal expenses must be made by the client’s responsible executive. Often, however, attorneys feel that these executives do not devote enough attention to litigation and therefore are unable to make well-​informed judgments. Even where corporate in-​house counsel is actively involved in a case, it is [509] important for the outside litigator primarily responsible for the case to be able to deal with a decision making executive who actually understands the detailed allegations and facts of the case in more than a second-​hand manner. The Information Exchange provides an opportunity for educating an executive to make rational decisions about the litigation. This can pay off in more ways than just settling the case. Even if the Information Exchange does not lead to settlement, it will leave the business principals with a much more accurate understanding of the nature of the dispute and with a greater appreciation of counsel’s later attempts to mobilize corporate employees to assist in pursuing or responding to resumed discovery and in preparing for trial. Moreover, the procedure provides the executive with an opportunity to actually see, hear and take the measure of the antagonists in a situation akin to that which will obtain at trial. Thus, for client and attorney alike, the Information Exchange which does not lead to settlement will by its very nature still serve to reduce uncertainty with regard to the other side’s position. Especially where an Information Exchange provides an opportunity for free questioning of the other side with regard to its legal and factual arguments, there is a higher likelihood that one will ferret out the other side’s “best case” than with traditional discovery techniques. The Information Exchange described above came at a relatively late stage in the proceedings, after considerable pre-​trial sparring and discovery. Communication had broken down and compromise through traditional settlement negotiations did not appear possible. Nevertheless, it seemed reasonable to believe that each party was still capable of acting with a minimum of rationality –​desiring to resolve the case as favorably as possible, with the least expense and risk, and the least delay. What was crucial to the ultimate resolution was that litigators on both sides, conscious that there remained some remote possibility of creating an avenue of communication, did not simply throw up their hands and begin to gird for trial. Just as important, executives on both sides were willing to risk an untried procedure. Thus, counsel devised a procedure which combined in a new way features of various well-​known dispute resolution mechanisms. For example, the Information Exchange assured a particular form of participation for the parties –​the opportunity to present proofs and arguments –​which is basic to one scholar’s definition of the adjudicatory process. However, unlike adjudication and arbitration, the Information Exchange [510] did not establish a win/​lose situation. In this respect, it resembled mediation, conciliation or negotiation. The parties did set their own rules of procedure and select a third party to help resolve the dispute. In these respects the Information Exchange procedure followed an arbitration model; however, unlike an arbitrator, the advisor had no binding decision-​making capacity. Yet his very presence –​and the ultimate prospect of his advisory opinion –​provided a strong incentive to the parties to be both credible and careful in their presentations. In essence, the advisor was [1.50]  11

Dispute Resolution in Australia: Cases, Commentary and Materials

Settling Large Case Litigation: An Alternative Approach cont. akin to a mediator or conciliator, except that his charge was merely to help determine the probable victor at trial rather than also to facilitate compromise. Had the case been at a different stage or had there been different crucial issues, the structure of the Information Exchange would surely have been different. For example, if the Information Exchange had come earlier in the litigation, before the bulk of discovery, a longer period of expedited, limited pre-​Information Exchange discovery might have been necessary. Nevertheless, since reducing discovery costs is a primary incentive for trying such a procedure, it seems advisable to attempt such an approach as early in the case as possible. Realistically, however, the need for a formalized settlement procedure will rarely be appreciated until after traditional, informal negotiations have failed and discovery and other pretrial proceedings have brought home the realities of the process and stated the initial thirst for litigative combat. Further, the rather complex procedure described above seems better suited to cases involving mixed questions of law and fact –​questions dealing with the legal consequences of a variety of factual circumstances –​than with questions solely, or primarily, of law or credibility. Thus, for example, the procedure seems well suited to resolving an antitrust case where the “sticking point” to settlement is the scope and definition of the relevant market, or an unfair competition case where the crucial issue is the propriety of certain disputed business practices. By contrast, where a case turns solely on legal issues, summary judgment procedures are likely to provide a means to resolve it. But where a case primarily turns on factual disputes involving credibility, the kind of Information Exchange procedure described above is not likely to be any more effective in resolving the case than traditional settlement negotiations or arbitration. However, where the factual disputes are technical ones, requiring expert analysis and promising a “battle of the experts” at trial, a modified Information Exchange procedure involving a neutral expert might be the best approach. Thus, in a circumstance where, for [511] example, the performance of a product is at issue, a joint testing procedure carried out by each side’s experts and a neutral expert might well provide sufficient data to foster a settlement through traditional negotiations, without the necessity of also having a full-​blown Information Exchange. Conclusion Obviously the concept presented here is not a panacea. By itself it is no cure for the court congestion and delay that plague our formal dispute resolution system, or for the ruinous litigation costs that increasingly concern corporate executives. Even so, the success of this procedure should demonstrate to the corporate litigation bar that successful alternatives to million dollar litigation can be devised. If such alternatives are to be developed and implemented, the corporate litigator must be familiar with the features of different dispute resolution mechanisms so that when faced with a situation in which an Information Exchange or some other dispute resolution proceeding seems appropriate, different characteristics can be borrowed from those traditional mechanisms. The end result, like a Dr. Seuss creation, may not be immediately recognizable as anything remotely familiar. But the only appropriate criterion is whether it will work.

 [1.55]  The statistics quoted in Green’s article as to the costs of litigation and the workload

of the various courts in the United States are dated but are an indication of the crisis facing litigants and governments at the time Green wrote his paper and are continuing to this day. According to a submission to the Committee on Rules of Practice and Procedure, Judicial Conference of the United States by Lawyers for Civil Justice Civil Justice Reform Group, US Chamber Institute for Legal Reform entitled, “Litigation Cost Survey of Major Companies Statement”, the average litigation cost per corporate respondent was nearly $115 million in 2008, representing an average increase of 9% each year (available at http://​www.uscourts. gov/​sites/​default/​files/​litigation_​cost_​survey_​of_​major_​companies_​0.pdf, accessed 24/​1/​18). 12 [1.55]

Introduction  Chapter  1

[1.60]  Argument has raged within dispute resolution circles about the use of the word “alter-

native” in ADR. The title of this book does not refer to the word “alternative” as its use is a misnomer. The Macquarie Dictionary defines alternative to mean:  “affording a choice between two things, or a possibility of one thing out of two … (of two things) mutually exclusive, so that if one is chosen the other must be rejected”. If a plaintiff or defendant wishes to employ, for example, negotiation or mediation as a way to resolve a dispute at first instance, they do not employ it as an alternative to litigation, thereby forfeiting that right. They employ it as a process that is complementary to litigation. In other words, dispute resolution is not an alternative to litigation rather, it is one of a number of processes that seek to resolve disputes before a court may have to adjudicate them. Certainly philosophically, theoretically and practically dispute resolution is an alternative to adjudication, however, in terms of processes employed to resolve a dispute, both consensual and curial methods are not alternatives, rather they are complementary methods. Judges ordering mandatory mediation under the various statutes in Australia do not order parties to mediation to the exclusion of litigation in the sense of them being alternatives. Their Honours make such orders in the hope that time consuming and costly litigation may be avoided through a consensual resolution of the dispute –​they see such processes as being complementary to litigation not an alternative to it.

The Language of Alternative Dispute Resolution [1.65] Sir L Street, “The Language of Alternative Dispute Resolution” (1992) 66 Australian Law Journal 194. The Language of Alternative Dispute Resolution (ADR) An exposition of the language of ADR will, I believe, be of use in dispelling some of the fog that is beginning to cloud the whole field of dispute resolution. The fog has been generated by well-​ intentioned, but misguided, attempts to introduce precision of terminology into a field that, by its very nature, does not lend itself to precision. The British Academy of Experts recently established a working party upon the language of ADR with a view to seeing if it is possible to make some recommendations in respect of the more commonly used expressions. The decision to undertake this exercise derived from the Academy’s recognition that, and I quote from its records: There appears to be a vast difference of understanding and interpretation in respect of the terminology. It cannot be doubted that litigation –​the process of formal determination of a dispute by a court –​ stands clear and positive amongst dispute resolution procedures. It is indeed well that this process, the sovereign remedy of litigation leading to judicial determination, is clearly recognisable and understood. The area of inconsistency and confusion is in the classification of other mechanisms that make up the whole spectrum of dispute resolution procedures. I have on an earlier occasion when invited to address this Institute expressed a deep commitment to regarding ADR as standing for “Additional Dispute Resolution”. I venture to quote my observations from the transcript of the proceedings in relation to the acronym ADR as short for Alternative Dispute Resolution. In so doing I note that the passage relates to the domestic environment rather than international commercial disputation. It is not in truth “Alternative”. It is not in competition with the established judicial system. It is an Additional range of mechanisms within the overall aggregated mechanisms for the resolution of disputes. Nothing can be alternative to the sovereign authority of the court system. [1.65]  13

Dispute Resolution in Australia: Cases, Commentary and Materials

The Language of Alternative Dispute Resolution cont. We cannot tolerate any thought of an alternative to the judicial arm of the sovereign in the discharge of the responsibility of resolving disputes between state and citizen or between citizen and citizen. We can, however, accommodate mechanisms which operate as Additional or subsidiary processes in the discharge of the sovereign’s responsibility. These enable the court system to devote its precious time and resources to the more solemn task of administering justice in the name of the sovereign. I recognise that the phrase “Alternative Dispute Resolution” is by now far too deeply entrenched to be able to be recommitted. In making [p 195] this point, however, my purpose is not to increase the element of terminological uncertainty, but rather to remove preconceptions that have tended to develop out of the use of the word “Alternative”.

 [1.70]  The better way to describe such processes as conciliation, negotiation, mediation, arbi-

tration and litigation is to refer to them simply as “dispute resolution”. Perhaps if a narrower definition is required, then another way to define these processes would be to divide them into either curial and non-​curial dispute resolution or adjudicative and non-​adjudicative dispute resolution (see [1.100]). Nevertheless, all the previously mentioned methods are ways of resolving disputes and, given the flexibility of our justice system, none of them are alternatives to each other, rather, they complement each other. Sir Laurence Street coined the phrase “additional dispute resolution” and other commentators have used the phrase “assisted dispute resolution” to better describe the use of the “A” in ADR. In this book ADR will be referred to as “dispute resolution” and will mean non-​curial methods of dispute resolution unless otherwise stated (see [1.95]).

DEFINING DISPUTE RESOLUTION [1.75]  The task of defining the various forms of dispute resolution that have developed over the

years is a challenging one. While most processes have distinguishing features capable of description and differentiation compared to other forms of dispute resolution, the emergence of hybrid forms of dispute resolution has blurred the descriptive lines between the various processes. This development is only problematic from the perspective of ascribing a definition, which is of use in cases where contracts or legislation require an accurately defined dispute resolution process. Particularly from the contracts perspective, to satisfy the rules of contractual drafting, parties to a contract must know with some degree of certainty what process of dispute resolution they are agreeing to participate in should a dispute arise under the contract. Otherwise the emergence of hybrid forms of dispute resolution is a healthy development as it is evident that dispute resolution (see [1.95]) is adapting to serve disputants. Its ability to adapt is one of the strengths of dispute resolution and it should be practised and encouraged to develop in this way.

Dispute Resolution Guidebook [1.80]  R Charlton, Dispute Resolution Guidebook (LBC Information Services, Sydney, 2000) pp 3-​10. The Definitional Dilemma Dispute resolution schemes have proliferated over the last decade. For the dispute resolver and for the consumer of dispute resolution services life was simpler in regard to the choices available in the 1980’s 14 [1.70]

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Dispute Resolution Guidebook cont. and even into the early 90’s. One could negotiate, arbitrate, litigate, or mediate. When mediation and alternative dispute resolution began to enjoy “flavour of the month” endorsement, some dedicated litigators insisted that litigation was itself an alternative process, the rationale being that it was an alternative to the traditional way of settling disputes down the centuries, mortal combat … Dispute Resolution Processes and Definitions The mediation definition has remained fairly constant since the first mediation program was introduced in Australia in 1980 and is quite [4]‌simple. However, for those seeking an understanding [sic] “what goes on” in mediation, this has become unnecessarily complicated and cloudy, due to initiatives to apply separate descriptions to different types of mediations such as “community mediation”, “victim offender” mediation and to different philosophies applied and processes conducted under such banners as “expert mediation”, “shuttle mediation” and so on. In order to not add to these complications, the definition of mediation discussed in this book is simple and traditional. The dispute resolution processes and guidelines discussed in this book include conciliation, facilitation and early neutral evaluation, as well as complaint handling guidelines. Dispute resolution processes, such as expert appraisal, arbitration, mini-​trial and expert determination, are not discussed. This is because, with the exception of arbitration, these processes are not widely used, and are variations of each other. The titles of these processes do, in a sense, speak for themselves … NADRAC Definitions The National Alternative Dispute Resolution Advisory Council (NADRAC) developed definitions “primarily to assist NADRAC in its advisory role to the Federal Attorney-​General”. It states that the definitions contained in its paper “are benchmark definitions which will enable ready comparisons to be made regardless of the range of names which might attach to particular ADR processes”. This is to “encourage a shared understanding of the particular [5]‌process under consideration or discussion”. NADRAC’s definitions have assisted with clarity and have been drawn on to describe the dispute resolution process discussed in this chapter. Some practitioners argue that it really does not matter what process is adopted or what it is called, since the expression “mediation” is generic. This overlooks the Trade Practices Act provisions which contain the requirement to deliver to customers the particular service which is contracted to be provided. The NADRAC definitions should put an end to such arguments. Mediation Mediation is a process by which the parties to a dispute, with the assistance of a neutral third party (the mediator), identify the issues in dispute, develop options around these issues, consider alternatives and endeavour to reach an agreement which encompasses the underlying needs and interests of the parties. The neutral mediator has no advisory or determinative role in the content of the dispute or the outcome, which is entirely up to the parties. The mediator may, however, determine the mediation process, that is the steps and stages involved in the process, whereby resolution is reached or attempted. In order to avoid complicating this description it is not intended to elaborate on the definition except to mention a couple of mediation methods in the interest of clarity: Co-​mediation Co-​mediation encompasses the description of general mediation. The only difference is that two neutral third parties (the mediators) conduct the session. The co-​mediation model is commonly used in community mediations, matrimonial matters, disputes over wills and in some multi-​party matters. There are many rationales in support of the co-​mediation model, one being “two heads are better than one”. In a mediation involving matrimonial concerns, the co-​mediators may be a male and a [1.80]  15

Dispute Resolution in Australia: Cases, Commentary and Materials

Dispute Resolution Guidebook cont. female. This is said to assist the parties in regard to a perception of gender balance, in that one or other of the parties does not feel disadvantaged by having a solo mediator of the opposite sex. [6]‌ Shuttle Mediation NADRAC defines “shuttle mediation” as a separate process in itself. In shuttle mediation the parties do not meet face to face, but are located in different rooms and the mediator “shuttles” between them conveying the parties’ viewpoints, settlement ideas and financial offers. Another shuttle method is where the mediator meets the different parties at different times for all or part of the process. The mediator in fact acts as a messenger. However, there is no doubt that some mediators, under the guise of traditional mediation, use this method for the majority of the mediation session. The parties [sic] face-​to-​face contact is restricted to opening statements and to the closing stages. This practice is identified in this book as “shuttle mediation”. Expert Mediation According to NADRAC, the role is the same as with any mediator, including the neutrality obligation. However, using the AS 4608-​1999 description of conciliation, the third party may have input into the resolution by using his or her substantive expertise. There are differing views on the benefits or otherwise of having an “expert” mediator, conduct a mediation. One school of thought is that a competent mediator should be able to mediate in any dispute regardless of the subject matter. This view is based on the premise that the mediator has no decision-​making role and is merely in charge of the process, not the content. Further, concerns about “experts” have been expressed in regard to the temptation to bring their own long-​held views into the forum, compromise their neutrality, structure the mediation in a manner to coincide with their view and steer the parties and the process to such an outcome. On the other hand some parties may feel comfortable with a person who they feel has some expert knowledge and understands the particular technical language and concepts. Certain complicated technical terminology may baffle a dispute resolver who is outside the technological loop and this may be detrimental to the efficiency of the process. Familiarity with the subject matter of a dispute may assist the dispute resolver in their reality testing role. Separately, some government agencies, such as those operating a mediation program under a particular statutory scheme, may [7]‌conduct mediations along traditional lines, but provide the option for the mediator to call upon a third party, usually a departmental employee, to provide information on the legislative boundaries which may affect their decision making. The Strata Schemes and Mediation Services Branch has developed this useful option in their program. It provides the opportunity to clarify any legislative uncertainty, and can operate as a reality test to the more creative ideas which the parties have contemplated, thus promoting greater workability of this agreement. Conciliation This term often applies to matters which are the subject of a complaint, but not exclusively so. Complaint conciliation contrasts with dispute conciliation or expert mediation in the sense that in the latter processes there are usually two parties with a mutual dispute. In a complaint, there is usually one party who is aggrieved and a complaint target who, up to a certain point, may not have perceived that a dispute exists, but who may either voluntarily or by statute take part in the conciliation process with the aim of achieving a resolution. The process employed by the dispute resolver in a complaint conciliation may be exactly the same as that in traditional mediation. Where a dispute exists, the conciliator is normally an expert in the 16 [1.80]

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Dispute Resolution Guidebook cont. subject matter of the dispute and can offer advice and suggestions as to the manner of resolution. This is discussed under “Expert Mediation” above. In some statutory conciliation programs, the conciliator is empowered to make suggestions as to the terms of settlement, provide advice on likely settlement terms and may actively encourage the participants to reach an agreement which accords with their own ideas or the requirements of the statute under which the conciliation is attempted. Each agency would have its own terms of reference in this regard. For example, the NSW Health Conciliation Registry uses the classic mediation process and the conciliator has no advisory or determinative role. Other programs have different practices which accommodate a customised application to their particular program (for example: Financial Services Complaints Resolution Scheme, Family Court, Equal Opportunity Commission, Aged Care Dispute Resolution Scheme). In some statutory schemes, participation may not be voluntary for a respondent to a complaint. It may be mandatory to attend once the complaint has been processed. [8]‌Processes employed under the conciliation banner do not always involve a face-​to-​face meeting nor even the parties speaking directly to each other at all. The conciliator may act as the conduit who speaks to one party at a time, usually by telephone, and transmits concerns and ideas from one party to the other without the parties actually speaking together. This is a variation on shuttle mediation. A confusing aspect is that this process can be described by a particular agency as “mediation”, “facilitation” or even “case management”. Telephone conciliations can involve a three-​way conversation whereby the conciliator conducts the meeting and assists the parties to speak together, minus the face-​to-​face contact. Facilitation There are several processes to which this term can apply: • Generally, facilitation is undertaken with a group of parties. The facilitator is neutral in the sense of not usually having an advisory or determinative role. The task for the facilitator may be to identify problems to be solved, tasks to be accomplished or disputed issues to be resolved. The facilitation process may conclude at this point and another process is then followed, or the facilitator may go on to assist the parties to develop options and consider alternatives in an endeavour to reach agreement. Sometimes the facilitator may suggest options, drawing on what the parties have said. • A facilitator may be employed to assist in planning meetings being held by a company or organisation. The group of planners may have a mutually desired outcome, but have diverse views on priorities or how a desired end might be achieved. • Facilitated negotiation is a process in which the parties to a dispute, who have already identified the issues to be negotiated, utilise the services of a facilitator to assist in negotiating the outcome. • A dispute resolver is sometimes employed to facilitate a public meeting, committee meeting or a workshop. A group of residents, for example, may be in conflict amongst themselves or may have a common interest whereby they seek to put their views to a government instrumentality via a public meeting. In the committee meeting context, a board of an organisation may be in dispute amongst themselves and require a neutral person to assist the flow of the meeting and ensure that everyone has the opportunity to put a point of view or a particular person or faction is not allowed to dominate. [9]‌ • A facilitator in the workshop context is not strictly a dispute resolver, but acts more as an [sic] wheel oiler to promote interaction from the audience and dilute any tendency to dominance by particular audience participants. • An intake worker whose role is confined to bringing a matter to the mediation or conciliation table is described as a facilitator in some programs. The role here is to co-​ordinate the holding and the arrangements for a meeting, usually following an approach by one of the parties to a dispute. The facilitator (so-​called) will then contact the other party and discuss the benefits of a meeting. This person may have the role of supplying the names of several suitable mediators. The facilitator [1.80]  17

Dispute Resolution in Australia: Cases, Commentary and Materials

Dispute Resolution Guidebook cont. may then assist the parties in choosing a mutually agreeable person and then proceed to arrange the details of the meeting. A more appropriate term for such a person would be “co-​ordinator”. This would avoid confusion with the dispute resolving or dispute prevention role of a facilitator, although such a co-​ordination needs to have negotiation and dispute resolution skills simply to get all parties to agree on arrangements. Arbitration This is a process in which the parties to a dispute present arguments and evidence to a neutral third party (the arbitrator) who makes a determination. An arbitrator can be part of a court-​annexed scheme, or the parties may choose an arbitrator who is not necessarily legally qualified. The choice of arbitrator may be based on his or her particular expert knowledge of the subject matter, for example an engineer or accountant. Arbitration is a process which is most often confused with mediation in the public mind. The media commonly uses the term “arbitration” when it is in fact mediation that is the process being employed. As the two processes are the most diametrically opposed of all the alternatives, such erroneous references continue to perpetrate the definitional confusion. Of all the “alternatives”, arbitration is a process as close to judicial determination as one can get and is often not classed as ADR. Early Neutral Evaluation Some Australian courts have an early neutral evaluation program for matters in the court list. This involves engaging an evaluator, usually a legal practitioner, who specialises in or practices extensively in the subject matter of the dispute, for example wills and estates. The process involves each side putting their case before the evaluator. [10] The evaluator first encourages the parties to settle the matter along consensual lines and may take on a chair person’s role at this point. If settlement does not occur through this consensual means, the evaluator will produce his or her evaluation of the likely court outcome based on what he or she has heard on the merits of each side’s argument. The parties may then negotiate or attempt to negotiate a settlement based on the evaluation. Early neutral evaluation is a cousin to processes called expert appraisal or expert determination. Med-​Arb This is shorthand for a process where mediation and arbitration are combined in one session. It is normally employed by statutory bodies dealing with consumer or injury claims or administrative appeals. The dispute resolver may first encourage parties to settle via a normal (although often truncated) mediation process. If settlement does not eventuate the mediator then has the power to give advice on outcomes or even impose a decision. However, the process may be described as “mediation” to the parties and they may believe they are entering into a traditional mediation process. “Med-​Arb” is a term which may be understood by insiders practising dispute resolution. It is not one which would be familiar to consumers, even though it is a process which is increasingly practised as statutory schemes continue to proliferate, particularly where there is a time limit on the session. Colloquially, it has been described as “speediation”. Statutory ADR Schemes Many statutory ADR schemes now exist. It is not possible to set out all or any of the variations a particular agency may inject into the classic equation. Cost considerations may mean that a time-​limit is imposed –​thus the “speediation” element operates. Whether they are described in the organisation’s literature as “mediation” or “conciliation”, it is important for a person entering into a dispute resolution process under the scheme, or for that person’s adviser, to check out the actual process to be followed and which they are expected to enter into. Many programs, run under the mediation or conciliation umbrella, may be conducting programs which operate somewhat differently from the 18 [1.80]

Introduction  Chapter  1

Dispute Resolution Guidebook cont. simple or classic definitions described. Is the “mediation” being offered the classic process in which the parties take responsibility or is it something else, such as a Med-​Arb arrangement? Is the proposed “conciliation” a face-​to-​face process, a telephone hook-​up or a “no contact” shuttle method.

 [1.85]  Another important reason to embark upon the process of accurately defining dis-

pute resolution processes arises because of the development of standards for practitioners of dispute resolution. A fuller discussion on standards being adopted by the dispute resolution profession will be discussed in Chapter 15, [15.05], of this book. However, the following excerpt rounds out the discussion on defining dispute resolution and, in particular, mediation.

Mediation: Principles, Process, Practice [1.90] L Boulle, Mediation: Principles, Process, Practice (3rd ed, LexisNexis Butterworths, Sydney, 2011) pp 13-​15. There are several reasons for difficulties in defining or describing mediation. At the outset the term itself can refer to three different phenomena. It can refer to a set of aspirational values and principles such as self-​determination and empowerment which could be operationalised in problem-​solving or dispute resolution situations –​an aspirational approach to the concept. It can refer to an analytical process involving discrete stages, steps, skills and techniques which mediators can contribute in problem-​solving situations –​the procedural approach. It can also refer to the occupational practice carried out by different kinds of mediators in different settings and with wide variations in procedure and mediator conduct –​the occupational approach. As shown in the text there are divergences and inconsistencies among the aspirational, procedural and occupational approaches to mediation and its essential significance. An early problem in capturing the definitional essence of mediation lay in the difficulty of obtaining direct information about what occurred in practice as most mediations are conducted on a private and confidential basis. This limitation has declined over time under the glare of surveys, case studies and increasing references in court decisions to what transpires in practice. Nonetheless, mediation remains a relatively unobserved and unobservable practice. Another reason for definitional problems is found in the flexibility and open-​ended nature of the language and terms used in defining or describing mediation. While these have some core areas of certainty they also contain a high degree of indeterminacy which precludes full clarity of boundaries. Concepts such as “party self-​determination” and “mediator neutrality” have elastic meanings, as later discussions indicate, and the differences are exacerbated when mediation is examined in different cultures and legal systems. [14] A further reason is the fact that mediation theory is derived in large part from other disciplines such as psychology and law, game theory and decision science, anthropology and sociology. While mediation theory draws from these disciplines in its theory construction, it is still developing its own explanatory and justificatory foundations. Mediation therefore lacks a strong sense of its essential attributes and is still constructing a coherent theory and accepted set of core features which enable it to be differentiated from other processes. An additional reason is that the term “mediation” is used in different senses by different groups and factors such as economic and professional self-​interest cause groups to define and describe mediation for their own partisan purposes. There are political dimensions to defining and describing mediation which cause its meaning to be pulled and pushed in the service of different sectoral interests, such [1.90]  19

Dispute Resolution in Australia: Cases, Commentary and Materials

Mediation: Principles, Process, Practice cont. as lawyers, government agencies or community organisations. The different “spheres of meaning” compete with one another for political control and hegemonic domination. Finally, there is enormous diversity in mediation’s practice. Clients adopt it for different purposes, mediators have significant variations in background, training, techniques and operational style, and it operates in varying social and legal contexts. In Australia mediation is encountered in high-​e nd commercial disputes, in anti-​discrimination cases, in neighbourhood conflicts, in problems among school students, and in numerous other social circumstances. There are significant differences between the situations of private commercial mediation and statutory forms of institutionalised mediation. The former are usually well-​resourced, have few time limitations, and are often conducted by lawyer mediators; some forms of the latter are conducted by highly-​trained mediators but resource and time limitations can render the process “poor, short and nasty”. This diversity of Australian mediation practice has contributed to the definitional challenges. As important as any theoretical or statutory definitions are operational definitions. These emerge from the actual practice of mediation, the intentions of those who promote it, and the attitudes and beliefs of mediation educators and trainers. What high-​status mediators do in their practices, and are known to do, also influences the way mediation is defined. The process is being fashioned and shaped in the contrasting circumstances of commercial and family disputes, of private and agency-​based services, of highly-​priced and free services, of lawyer and counsellor mediators, and both with and without the use of professional advisers. There is sometimes talk of “classical mediation” or the “orthodox mediation process” or the “standard model of mediation”, with other versions being [15] regarded as adaptations to, deviations from, or vulgarisations of the norm. However, while there are clearly limits to what can be classified as mediation, it is difficult to insist on the narrow orthodoxy these terms imply. Despite the difficulties there remain imperatives to define mediation in numerous settings. These include situations in which various closely­related forms of dispute resolution are juxtaposed in legislation, in court and industry schemes and in multi-​staged dispute resolution clauses: for example, mediation, conciliation, arbitration and case appraisal are all options in a single court context. Differentiation is logically implied where there is more than one form of dispute resolution in a single context and practically impelled where there are compliance requirements and legal consequences flowing from the choice of process. Moreover, standard-​setting and the increasing regulation of mediation require definitions for the sake of consistency and uniformity –​neither mediation nor other ADR processes can be regulated unless they are first defined or described. Mediation standards generally, and accreditation systems such as the NMAS in particular, rely on inclusive definitions of the system.



SELECTING A DISPUTE RESOLUTION PROCESS [1.95] Another issue related to defining processes of dispute resolution and the hybridi-

sation of dispute resolution is the concept of “fitting the forum to the fuss”. This concept means simply first determining the type of dispute the disputants are dealing with and then matching the right dispute resolution process to the dispute that will best serve the disputants and give them the best chance of resolving the dispute. Often this means evaluating the disputants themselves and, based on their personalities, abilities and relationship with the other disputant, matching them with a dispute resolution mechanism that will serve them well. 20 [1.95]

Introduction  Chapter  1

Alternative Dispute Resolution [1.100]  T Sourdin, Alternative Dispute Resolution (5th ed, Lawbook Co, Sydney, 2016) pp 545-​552. Should an ADR Process be Used? 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. NADRAC has indicated that this issue is an important one to consider when creating standards for mediators. Many professional ADR organisations have also considered this issue. For example, the “Let’s Talk” 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: • 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. 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 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; • when the matter significantly affects persons or organisations that are not parties to the ADR process; • 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 (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. 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. 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? In its 1995 ADR Steering Committee Report, the Supreme Court of New South Wales recommended developing positive criteria for referral to ADR processes. These were largely adapted by [1.100]  21

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Alternative Dispute Resolution cont. the Administrative Appeals Tribunal in 2006. Factors favouring referral to mediation, evaluation and arbitration have been developed and are detailed below. Factors Favouring Mediation Relevant factors favouring referral to mediation include whether: • the matter is complex or likely to be lengthy; • the matter involves more than two parties; • the parties have a continuing relationship; • 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: • 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 Relevant factors favouring evaluation and conciliation include whether: • 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. Factors Favouring Arbitration Relevant factors favouring referral to arbitration include: • 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. 22 [1.100]

Introduction  Chapter  1

Alternative Dispute Resolution cont. 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: 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 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. “Ripeness” refers to the presence of factors that may make the parties more likely to reach agreement or may make mediation more appealing. 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. 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. In relation to court and tribunal referrals to ADR, different courts and tribunals adopt different approaches, with some opting for early ADR referral and others opting for late referral. 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. 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. One study, conducted by Justice Bergin in New South Wales, suggested that in certain types of cases (complex commercial) later referral was appropriate. 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. 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”. 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 within the litigation system, the provision of hearing dates 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. 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 [1.100]  23

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Alternative Dispute Resolution cont. resolve the dispute. A study on interstate disputes highlighted the curvilinear relationship between when the mediation occurs and the duration of dispute. 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. 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. “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 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”.

 [1.105]  When parties decide to use a dispute resolution process, notwithstanding the matters

raised in the previous extract, they may simply select a dispute resolution process based on the level of: • informality; • consensuality; • intervention. In this respect parties have the flexibility to choose a process that will best suit their needs. Those needs may revolve around the level of informality available to explore a wide variety of materials pertaining to the dispute, which, in a court of law, may be prevented by the rules of evidence. Further, a party may just enjoy a more informal setting in which they can explore options for settlement rather than get bogged down in facts and the history of the dispute. They may also prefer a process that is more consensual in its approach to resolution, ie, a process that seeks agreement between the parties as the basis of resolution as opposed to having a solution imposed on them. Finally, parties may prefer a process that features less intervention from a third party neutral and which seeks to ensure that the parties themselves drive the process and the outcome. Conversely, they may prefer a process that ensures a higher level of intervention, which will not require of the parties an onerous level of participation. Figure 1.1 sets out the degree of informality, consensuality and intervention in the most popularly practised dispute resolution processes in Australia. [1.110]  In relation to the term “dispute resolution” as it used in this text, unless otherwise stated, the term will be used in its generic sense to mean any form of non-​curial dispute resolution. Thus, expert determination, referencing out (or refereeing), arbitration and litigation are not classed as methods of dispute resolution unless otherwise stated. The inclusion of chapters dealing with these methods is to ensure a full picture is given of all processes outside court proceedings. Further, in relation to litigation, judicial review by the many tribunals set 24 [1.105]

Introduction  Chapter  1

Figure 1.1 The degree of informality, consensuality and intervention in the various dispute resolution processes Informal/consensual/non-interventionist Negotiation Partnering Dispute advisers Dispute review boards Level of involvement of the Facilitation disputants Mediation Conciliation Collaborative law Expert appraisal Expert determination Early neutral evaluation Mini-trial Referencing out Arbitration Formal/Non-consensual/interventionist

up at federal, State and Territory levels is not to be included in the term “dispute resolution”. However, mediations, conciliations and other non-​adjudicative processes held within the purview of those courts and tribunals are of course included within the term “dispute resolution”.

THE LEGAL PROFESSION AND DISPUTE RESOLUTION [1.115]  Dispute resolution has been adopted, or some might say appropriated, by the legal

profession. Under the various statutory dispute resolution schemes, the lists of mediators, conciliators and arbitrators are dominated by lawyers. The various courts and tribunals in Australia are themselves encouraging their own judges, registrars and members to be trained in dispute resolution, such training being conducted both locally and overseas. The Victorian Law Institute and the NSW Law Society has for a number of years held the “spring offensive” and “settlement week” respectively where, with the co-​operation of the courts and legal practitioners, litigants pursuing the resolution of disputes in the courts are offered the opportunity to resolve them via mediation. Solicitors and barristers in all jurisdictions in Australia are embarking upon training in dispute resolution to better represent their clients at the various dispute resolution processes being offered both privately and in the public sphere. Most State and Territory Law Societies and Institutes and Bar Associations have dispute resolution committees that promote the use of and professional development in dispute resolution to their respective memberships. The dispute resolution processes themselves have taken on the aura of legal proceedings in terms of legal representation, the limits of confidentiality and disclosure and the contractual style settlement agreements drafted upon resolution. In every way, dispute resolution is generally being conducted in “the shadow of the law”. In the following extract Professor Laurence Boulle explains more fully the notion of dispute resolution operating in the shadow of the law. [1.115]  25

Dispute Resolution in Australia: Cases, Commentary and Materials

Mediation: Principles, Process, Practice [1.120] L Boulle, Mediation: Principles, Process, Practice (3rd ed, LexisNexis, Butterworths, Sydney, 2011) pp 185-​187. Despite portrayals of mediation as an alternative to law and litigation, it always operates in the “shadow of the law”. The expression signifies different [186] factors: that in mediation parties operate with some understanding of their legal rights and obligations, with an expectation of how the dispute would be resolved through the legal process, and with some knowledge of the time, costs and risks associated with litigated outcomes. It also signifies that there may be subsequent litigation on matters arising in mediation such as unlawful party conduct, breaches of confidentiality and challenges to enforceability of mediated settlements. Finally, it suggests the potential relevance of the legal system for all mediations, for example in relation to judicial interpretations of ADR legislation, Agreements to Mediate and relevant court rules. In a more symbolic sense law’s shadow is also relevant in legitimising certain narratives encountered in dispute resolution, namely those consistent with dominant social values, and in marginalising others which are inconsistent with them. In all these respects mediation is said to operate in the shadow of the law. The extent of the law’s shadow varies considerably. The shadow will be deep where a dispute has been packaged and defined as a legal one, where lawyers have taken active roles in its processing, where each side has Senior Counsel’s opinion and where mediation takes place on court referral or with involvement of a court or tribunal official. The deep shadow extends a strong legalism to the operation of mediations, with negotiating parties influenced by a dispute’s likely litigated outcome, and there are greater prospects of subsequent litigation whether or not mediation produces a settlement. Where mediation involves a neighbourhood or organisational dispute with little legal content and it is conducted through a community dispute resolution service, the shadow of the law, in all its senses, will be much weaker. There is therefore a dialectical relationship between mediation and the legal system. Despite the legal shadow overhanging mediation, its existence constitutes both a complement and a challenge to the formal system. As Alexander points out, ADR and mediation interact interdependently with the justice system and their procedures and philosophies have reshaped the contours of legal processes. While ADR might have led to reductions in court hearings and changes in the work practices of some courts, the introduction of mediation into civil procedure systems has revitalised the litigation process. There is evidence that while litigants have a preference for ADR processes over litigation in many situations, the use of ADR processes has also increased satisfaction with litigation. The informality and flexibility of mediation and [187] its potential time and cost savings have contributed to reformulations of court rules and practice directions. The exposure of legal practitioners to mediation has caused some lawyers to become less legalistic, more client-​centred, more collaborative and more self-​reflective. There is also evidence that the language of mediation has changed aspects of legal discourse. This has been evident in terminological changes in family relations, from “custody and access” to “residence and contact”, and more recently to “parenting arrangements for the children”. There is some evidence of substantive law changing under the influence of mediation practice, for example towards acceptance of shared parenting arrangements for children which had previously been avoided and for which there is now a statutory presumption. Another aspect of mediation’s influence on the formal justice system derives from the fact that in providing a “competing” dispute resolution process it has led courts to become more concerned about efficiency, effectiveness and client satisfaction; they now inform the public about their services and even promote their “products” in the dispute resolution market. The influence of mediation and ADR and the changing functions of the courts can challenge constitutional principles. The further development of litigation management systems and court-​connected ADR, and in particular the evolution of judicial resolution and mediation systems, may be limited by Ch III of the Commonwealth Constitution, as may be additional changes to the basic features of the adversarial system. The roles of judges as case managers, as facilitators of settlements and as 26 [1.120]

Introduction  Chapter  1

Mediation: Principles, Process, Practice cont. mediators have yet to be called into question in terms of constitutional principle. If this does occur it may be found that there are limits on the extent to which there can be further combinations of litigation, case management and mediation at the Commonwealth level.

 [1.125]  Despite the fact that most dispute resolution is practised in the shadow of the law,

it is not only legal practitioners who are involved and not all dispute resolution processes are legalistic in nature. For example, the work of the Community Justice Centres of New South Wales and the Queensland Dispute Resolution Centres, albeit funded by the respective Attorney-​General’s Departments and accepting many referrals from the New South Wales Local Court and the Queensland Magistrates Court, strive to keep their mediations out of the shadow of the law. Their focus is on reaching a consensual agreement between parties –​often in a form not found within the structures of the courts –​who are living within the same local community. Further, private provider organisations, such as Relationships Australia, although government-​funded to varying degrees, seek to assist families by offering, amongst other things, mediation services that help people avoid costly litigation. However, even these service providers, while employing non-​lawyer mediators, are required to ensure that their mediators meet the practice requirements prescribed by the law –​in this case, the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth)  –​a new system of accreditation that came into force on 1 July 2009 which sets out the qualifications of family law dispute resolution practitioners operating under the Family Law Act 1975 (Cth). [1.130]  Practising dispute resolution in the shadow of the law raises the issue of how a law-

yer’s role in a dispute resolution process sits with the role of the same lawyer representing a client in the adversarial justice system if the dispute proceeds to litigation. Given that lawyers are trained in adversarial justice, the question arises as to whether lawyers are ill-​equipped to participate in achieving consensual outcomes through dispute resolution. In their landmark paper Anne Ardagh and Guy Cumes suggest a more central and proactive role for lawyers engaged in the resolution of disputes. Further, they suggest some important factors for the structural reform of mediation in the legal sphere.

Lawyers and Mediation: Beyond the Adversarial System? [1.135]  A Ardagh and G Cumes, “Lawyers and Mediation: Beyond the Adversarial System?” (1998) 9 Australian Dispute Resolution Journal 72 at 73-​79. Lawyers in Mediation Dissatisfaction with present legal processes and pressure from courts, government and the private sector for reform of the adversarial legal system have encouraged Australian lawyers to embrace mediation. The movement of [74] lawyers into mediation may be seen as a desire to meet a changing demand and to control a perceived expanding area of legal services. The problem with lawyers moving into this area is that they bring their legal “baggage” with them, that is, their adversarial legal culture. Conflict is managed by lawyers within the domain of the law as they perceive it and as they have their clients understand it. In lawyers’ education and management of disputes there is little or no recognition of parties’ underlying needs and how these might be satisfied outside legal norms. Asking lawyers to practise facilitative mediation is anomalous without a radical change in legal education, [1.135]  27

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Lawyers and Mediation: Beyond the Adversarial System? cont. philosophy, training and development of skills. Lawyers’ concerns are with facts and certainty; from this follows a legal solution to the dispute. Mediation’s focus is with feelings and ambiguity; and from the drawing out of feelings and perceptions comes resolutions to the conflict. If lawyers are to be mediators and/​or to participate as lawyers in mediation sessions, a lessening of emphasis on legal methods and solutions is necessary. Lawyers can practise in relation to mediation processes in the following ways: (a) lawyers as mediators; and (b) acting for a client within a mediation process. Lawyers as mediators can be divided between those who act as genuine neutral third persons to facilitate a dispute resolution process between two or more persons and those who “mediate” a dispute between their own client and another party (with or without representation) in an informal, ad hoc arrangement. If lawyers act as “mediators” in the latter sense, in the absence of a third party neutral, the role they perform is merely to effect a settlement between disputing parties, rather than, permitting parties to express and develop a range of options arising from their own interests and needs. In other words, this is a misuse of the terminology and procedure of mediation: a lawyer cannot be a neutral where his or her own client is concerned and therefore any matter that should be mediated must be referred by the lawyer to an independent, neutral third person. The role of lawyers acting for clients within a mediation process facilitated by a third person has been analysed by Sordo who points out that the lawyer’s role is one of advice in the mediation session rather than representation of a client. Acting in the clients’ interests (which Sordo says is part of the lawyer’s duty in mediation) may be problematic, if it undermines the client’s independence of input. Mediation is the maximisation of the client’s interests and needs as identified by the client, not the orchestrated presentation of a case by a lawyer on behalf of a client. There may be a conflict of interest between the lawyer’s duty to a client and their duty to allow the free operation of a genuine mediation process. Sir Laurence Street has observed that lawyers who do not understand that their role is not one of advocacy are “a direct impediment to the mediation process”. Lawyers’ traditional role is one of advice and representation in the area of substantive law and legal rights. There will always be a place for this. People do not always want to settle matters themselves; they look for an agent to act for them. Moreover, in the present system, citizens do not know how to proceed in the complicated procedures of the law. Additionally, citizens may not know that there are alternative dispute resolution methods. Hence they have no choice but to instruct a lawyer. [75] Given this traditional lawyer/​client relationship, control by lawyers of mediation services may add an extra difficulty for citizens in their access to dispute resolution services. It could set up a barrier to personal, direct and inexpensive alternative dispute resolution methods. Further, it could be seen as merely adding an extra arrow to the lawyer’s quiver instead of giving citizens a real choice of services or a real alternative to the legal culture. The question then is: will lawyer mediation merely become a further tool and tactic in the adversarial process? Criticism has been levelled at what some see as an “ADR industry” occupied by “opportunistic lawyers” usurping the field of mediation: “the colonisation of mediation by lawyers in government and private practice … will mean that mediation skills will become professional artifacts ... locked up within the lawyering role, not to be shared, but to be given down, at a fee”. It can be argued that lawyer mediation is a way of containing and preserving dispute resolution services within the profession and infusing legal culture into general dispute resolution processes. It is of little value to the consumer to take a dispute to a lawyer who starts a legal process which costs the client in lawyer’s fees, court fees, time, emotion and entrenchment of positions; then to be referred by the court during the course of the proceedings to mediation. Such a referral to the Law Society Mediation program in New South Wales incurs a financial cost of several hundred [sic] of dollars. Lawyers’ control of this process is amplified by the requirement that the Law Society panel of mediators is restricted to New South Wales solicitors. Lawyers should, at the very least, not have a monopoly on dispute resolution services. There are other helping professions and dispute resolution services which involve different non-​legal skills which 28 [1.135]

Introduction  Chapter  1

Lawyers and Mediation: Beyond the Adversarial System? cont. can be applied at different times or stages of a dispute. The existence of other dispute resolution services prevents the exclusive domination of the field by lawyers and provides an alternative, beyond the adversarial system. Beyond the Adversarial System: A New Ideal Litigation is a process, which includes both pretrial and trial stages of legal proceedings. Although the final stage of litigation is the trial, the litigation process commences at a very early point in the lawyer’s contact with the client. All the stages of the process are contained within an adversarial culture. Mediation as typically used by lawyers is but a stage in the litigation process, not beyond the adversarial system. We advocate as an ideal a distinct and separate process of facilitative mediation within a structure which is beyond the adversarial system, outside the control of legal practitioners and outside traditional legal processes. This structure could include lawyer-​mediators, but not be restricted to them or controlled by them. One form of this model may be the incorporation of early dispute resolution services within the court structure. However, in order for this to be an alternative to the adversarial system, it would need to be accessible, free and community based; informal and separate from adversarial legal processes; not [76] merely a referral from legal proceedings to mediation, but a genuine, first instance of dispute resolution involving non-​court personnel. Such an ideal mediation service can be distinguished from the so-​called “ADR industry” including lawyer-​mediation. The latter is a form of professional, private ownership of dispute resolution. Mediation as an alternative to the adversarial system should apply the principles of fairness through the provision of inexpensive, equitable, efficient and speedy access to justice. If mediation is to be beyond the adversarial system, more basic reform is needed than simply giving lawyers short courses (four days) in mediation processes. Nevertheless, short courses may serve an educative function for lawyers about mediation processes. According to recent research, lawyers have limited experience in referring cases to mediation, representing clients in a mediation and acting as mediators. Structural Reform The fundamental premises of reform must be based upon structural reform and the key principles of fairness. The principles of an ideal alternative structure, distinct from lawyer-​and/​or court-​annexed mediation, include: • Non-​extension of an initial chosen professional practice (for example, law) The practice of mediation should be independent of (outside of) any other professional practice. • Provision of a philosophical rationale for mediation Mediation is based upon a set of philosophical premises that are quite different from traditional lawyer practice. Lawyers are paid to fix other people’s problems, to manage and eliminate conflict, rather than to facilitate individual resolution processes. Conflict is categorised and compartmentalised by rules and legal remedies and resolution is sought through the tactics of law-​based solutions. In contrast, mediators have no stake in the dispute or in the desirability of having it resolved. They view disputes as an opportunity for others to restructure or reframe their social, personal, business or organisational relationships. • Provision of specialised skills and training Mediators are trained from the outset to facilitate discussion between disputants with a view to encouraging them to see the other person’s point of view and to negotiate a fair result, not a win/​ lose situation. Lawyers act on the instructions of, and in the interests of, their clients and their skills are developed to maximise their potential to win or to achieve the most favourable result for their client. [77] [1.135]  29

Dispute Resolution in Australia: Cases, Commentary and Materials

Lawyers and Mediation: Beyond the Adversarial System? cont. • Support for a system that is organisationally based An organisational basis means that mediators are initially selected, employed with and responsible to a director or manager. They are given lengthy standardised training and if deemed suitable are selected for accreditation for an initial trial period. Reaccreditation may be possible. Such a model exists within the New South Wales Attorney General’s Department (Community Justice Centres) and in other Australian jurisdictions, for example, the Australian Capital Territory. This model could be either extended or it could be adapted within the organisational structure of courts. This would establish mediation as a form of free public ownership of dispute resolution which would involve a partnership between community and government, based upon the notion of public trust. Lawyer-​mediators are basically self-​selecting and lawyer-​mediation training has not been standardised or accredited. In fact, this was rejected by the New South Wales Law Reform Commission a few years ago. To quote one lawyer-​mediator, “the absence of uniform standards and lack of any general standards or monitoring means that there is no guarantee of competence by people calling themselves specialists, nor any bar to any of us (lawyers) holding ourselves up as experts”. The same author notes that, in contrast, New South Wales Community Justice Centres do not allow mediators who were trained many years ago “to sit on a panel until kingdom come without any training or reassessment occurring”. • Institution of a legislative base Legislation ensures accountability and control of the process of mediation and of the mediators. This includes supervision of mediators in the sense that they must account for each session which they conduct by way of a written report to a co-​ordinator who is responsible for reading each report and following up where necessary. This is an important part of quality control, consumer protection and community service. Lawyers are not supervised as mediators or accountable to an organisation in the sense that each mediation session they perform is overseen by a manager or regulatory process. Lawyer-​mediation is essentially self-​regulatory, although the legal profession and lawyer mediation in the broad sense is regulated by law societies which provide guidelines for lawyer-​mediators. • Encouragement of community representatives as mediators and enhancement of the democratisation of the justice system Wide community participation in dispute resolution is analogous to the jury system, employing people with non-​legal backgrounds as direct participants in the justice system. It also ensures broader consumer confidence and trust in the system. Principles of Fairness Principles of fairness include the following: • accessibility of persons to dispute resolution mechanisms and services in terms of affordability, equity and fairness; [78] • efficient and speedy resolution of disputes; • empowerment –​the control by the disputants of the dialogue, the ownership of the outcome and the ability to make real choices; • participants’ knowledge and understanding of the process; • personal and active (rather than passive) participation; • principles of natural justice; • impartiality of mediators and the opportunity to be heard. What these fairness principles require for lawyers is that in order for persons to have affordable, equitable, efficient and speedy resolution of disputes, lawyers need to apprise clients of, and be willing to refer them immediately to, mediation services, rather than starting into litigation processes. The dilemma here is that the lawyer stands to lose the client (that is, the business opportunity). 30 [1.135]

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Lawyers and Mediation: Beyond the Adversarial System? cont. Lawyers need to inform clients of alternative processes to the resolution of their disputes in order to empower them, allow ownership of their own disputes and give them the opportunity to exercise real choice. Only in this way can clients have the knowledge and understanding of all available processes of dispute resolution. In order for clients to hear each other and participate without hindrance, a lawyer’s role within the mediation process should be limited. Perhaps it is preferable that lawyers not be present in the mediation so long as the client has the opportunity to consult a lawyer either during the process, or after it, about any formal agreement to be made. These considerations raise the question whether legal issues and procedures can be separated from what, the parties really or ideally would want. While ever lawyers participate in mediation, their background, training and professional and ethical obligations will almost always require the law to take precedence over the client’s non-​legal interests and needs. In those cases where law and procedure can be separated from parties’ interests, for example, in a dispute over access, to children, or a dispute over the provision of a service, adversarial representation and mediation without legal representation should be quite separate processes. Conclusion In this article we have examined, first, the role of lawyers in mediation and questioned whether the participation of lawyers in mediation sessions is different from the traditional negotiation and settlement practices of lawyers and, secondly, whether mediation by lawyers effects real change in society, in legal culture and in the structure, cost and control of dispute resolution processes. We have argued that mediation could be a real alternative to the adversarial system if established as a formalised, structured dispute resolution system, independent of the legal profession. This requires a partnership between the community and the state and a new paradigm of dispute resolution, beyond the adversarial system, where mediation is accessible and understandable. [79] This proposal may create a dilemma for lawyers if it requires them to choose between their role as traditional lawyers or as mediators. Can they do both equally well? It has been observed that “it is difficult to understand … how lawyers can become mediators on the basis of qualifications and experience in a discipline which is, in fact, the antithesis of mediation”. For lawyers to be mediators, legal education needs to provide training and skills to enable lawyers to be dispute resolvers in the broadest sense. Perhaps such education may lead to a profession, divided into mediators and litigators, that is, the alternative dispute resolvers as opposed to the traditional lawyers. Ultimately there needs to be fundamental change in the way lawyers proceed if we are to move beyond the adversarial system. Facilitative mediation is a process which addresses many of the deficiencies of the adversarial system. Lawyers have a critical role in fostering or hindering its development as a primary dispute resolution system. Presently the incorporation of mediation as a stage within the adversarial system retards meaningful reform of the legal system. Mediation must be realistically incorporated into primary dispute resolution processes at the earliest stages of a dispute, actively embody principles of fairness and ideally be structurally separate from adversarial processes, practices and institutions. We advocate a rethinking of the relationship between lawyers’ practice and mediation in order for real change to begin.

 [1.140] The reference by Ardagh and Cumes that standards and accreditation do not apply to mediation conducted by lawyers or others was remedied by the introduction in 2008 of the Approval and Practice Standards for mediators. This now means that lawyers and others seeking to act as mediators for the courts and other statutory schemes must be accredited by the National Mediator Accreditation Scheme. This will be further discussed in Chapter 14, [14.05]. [1.140]  31

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The principles of an ideal alternative structure as discussed by Ardagh and Cumes are still relevant today, as are their principles of fairness. It is material to note that their first fairness principle, that of access to dispute resolution, has yet to be achieved. Only those people or organisations that are financially able can access court-​annexed dispute resolution, as proceedings need to be commenced to ensure such access. While State and Territory governments have taken the responsible decision to set up community or neighbourhood justice centres, these are generally restricted to community-​type disputes, leaving out the vast number of people in civil and commercial disputes that cannot afford to commence proceedings in court. Australia still has a long way to go to provide non-​curial dispute resolution to the fiscally disenfranchised masses. [1.145]  If one accepts that the roles of the lawyer, that of advocate for adversarial justice

and of non-​curial dispute resolution can be reconciled, then the next issue is whether dispute resolution is part of the practice of a lawyer and if so, do lawyers have a duty to advise their clients about dispute resolution options before accepting instructions to proceed to litigation?

Liability of Lawyers to Advise on Alternative Dispute Resolution Options [1.150]  D Spencer, “Liability of Lawyers to Advise on Alternative Dispute Resolution Options” (1998) 9 Australian Dispute Resolution Journal 292 at 292-​298. Introduction All lawyers in Australia assume several duties upon being admitted to their respective Supreme Courts. The objects of these duties include clients; the respective courts of admission; other members of the profession; and, some say, the public. One of the many duties lawyers have to their clients is the duty to advise them in a competent manner. This usually means providing clients with the correct legal advice, setting out their rights and the benefits or otherwise of the various forms of dispute resolution. It could also be said that the duty to advise includes peppering any such advice with a view to resolving disputes in the shortest possible time and with a minimum of cost to the client … [293] Is ADR Part of Legal Practice? Lawyers have become the natural adoptive parents of ADR. Disputes have a tendency to climax in court action and the architects of litigation are clearly lawyers. In this respect, lawyers have an understanding of the adversarial problem-​solving techniques employed by most courts in the Western world and they have an understanding of legal and evidentiary issues which may have a bearing on the effectiveness of an ADR process. Hence, from a philosophical and practical viewpoint, lawyers are inextricably linked to ADR. Therefore, it is not surprising to find that lawyers dominate the practice of ADR in Australia. The link between lawyers and ADR is now so well established that organisations such as Lawyers Engaged in ADR (LEADR) conduct ADR training courses especially for lawyers who may be involved in representing their clients, or who wish to become ADR practitioners themselves. The New South Wales Law Society has a Dispute Resolution Committee which advises on policy issues involving ADR, as well as maintaining a panel of third party neutrals. On 30 August 1995, the New South Wales Law Society, in conjunction with the New South Wales Law Foundation, launched the Mediation Information Kit. The kit states its aims and objectives as being “to disseminate information among the legal profession on the use of mediation to promote negotiated settlement of disputes and the early resolution of litigated matters”. The kit also lists reasons why practitioners should use mediation, the second of which states, “expansion of solicitors’ practices by the provision of an additional service as an alternative to litigation particularly in situations where litigation is neither cost-​effective nor desirable”. 32 [1.145]

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Liability of Lawyers to Advise on Alternative Dispute Resolution Options cont. The kit contains several documents setting out the Law Society’s mediation model, guidelines, precedents, mediation initiatives, index of government and non-​profit organisations offering alternative dispute resolution, and recent legislative developments in the field of mediation and early neutral evaluation. Page 1 of the guidelines states: [294] The Council [of the Law Society of NSW] has approved the revised guidelines and resolved that the activity of mediation by solicitors, subject to the revised guidelines, be declared to be appropriate to be undertaken as part of a solicitor’s practice. From the information contained in the mediation information kit, it would seem that the New South Wales Law Society sees the use of mediation as a method of expanding the business of lawyers by providing additional services. It is also clear that it sees ADR as being a legitimate part of legal practice … One way of establishing whether mediation is part of the practice of law is to consult the insurers of lawyers, that is, those who determine what areas of practice are deemed to be within the purview of legal practice and therefore to be included under the insurable heads of cover. In New South Wales, solicitors pay professional indemnity insurance through the Law Society’s Master Policy, which provides that those solicitors who, as part of their legal practice, act as mediators will be entitled to indemnity under that insurance policy. Further, solicitor lawyers who conduct mediations under the Law Society’s Mediation Program (such as the various settlement week activities and when mediating under the Society’s model dispute resolution clause) are specifically covered under the Law Society’s Errors and Omissions Policy which covers all the Law Society’s activities. In answering the initial question of whether ADR is part of the practice of law, we are now in a position to draw on some conclusive proof that would allow us to answer the question in the affirmative. First, there is the philosophical argument that lawyers are proponents of ADR by virtue of their professional involvement in litigation. Secondly, the existence of the New South Wales Law Society’s Dispute Resolution Committee is proof that the lawyers’ governing body considers that ADR forms part of legal practice. Thirdly, the New South Wales Law Society has produced a Mediation Information Kit which encourages lawyers to advise their clients of mediation options and provides specific instructions for their conduct … Finally, specific directions under the New South Wales Law Society’s Master Insurance Policy go to some lengths to advise lawyers that they will only be covered for [295] professional indemnity insurance if, when acting as a third party neutral, they do so as part of their ordinary course of legal practice, and not as a business in its own right. Another persuasive argument that ADR forms part of legal practice is its adoption by the courts themselves. Most States of Australia have passed ADR legislation which generally provides that courts may refer matters in their lists to a variety of ADR processes, most commonly, mediation, early neutral evaluation and arbitration. Many courts have formed panels of ADR practitioners for use in court-​ referred ADR and a high proportion of those practitioners are lawyers. Given the above evidence, it is possible to state that ADR is considered by the legal profession as a legitimate part of the practice of law. After establishing this hypothesis, it is now possible to move on and pose the question, do lawyers have a duty to advise clients of ADR options? Duty to Advise [There are] two important issues in the question of the duty to advise clients of ADR options. The first is the subject of competition for services. If lawyers do not advise of ADR options, then clients will seek that information from other lawyers or non-​lawyers. The second issue is that of lawyers leaving themselves open to professional negligence actions. These two issues are compelling reasons for lawyers to advise clients of ADR options … [296] Australia is experiencing a growth in ADR legislation and service providers … many individuals and organisations are using ADR clauses in contracts, or seeking out the services of ADR providers to avoid lengthy and costly litigation … the various representative bodies of lawyers, the judiciary and the legislature have accepted the role of ADR in the practice of law and are encouraging its use … [297] In an effort to reconcile the dilemma a lawyer has between the duty to [1.150]  33

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Liability of Lawyers to Advise on Alternative Dispute Resolution Options cont. the client to advise of the most cost-​efficient methods of resolving the dispute and the potential loss in fees through giving such advice … the solution lies in the philosophical underpinnings of the legal profession. That is, “As a profession, the lawyer must subordinate his [sic] self-​interests to those of the client” he suggests that the benefits of ADR are that lawyers can dispose of their cases more efficiently, have fewer problems in recovering fees with clients who are likely to be more satisfied with the fees and the professional service, and participation in a process that is more professionally satisfying than the traditional adversarial one. Indeed, as more and more clients recognize the advantages of ADR, they may expect their lawyers to discuss the appropriateness of alternative procedures and use them when in the client’s best interests. The failure of lawyers to do so may find the sophisticated client shopping for a new lawyer. The Hon Mr Justice de Jersey, of the Queensland Supreme Court, delivered a similar but more vehement message to the Australian Bar Association, at the ABA Conference in 1990. His Honour fired a poignant salvo at the Bar, stating that the public perception of lawyers is that they take matters to court because they earn more money. In this respect the public have become distrustful of lawyers. His Honour made it clear that the Bar holds a privileged position in society because it serves the vital public interest, but, “Unfortunately at the moment it is not serving that interest to a large extent. That is because fees are so high that middle income earners are denied recourse to the courts”. Justice de Jersey suggests that embracing ADR solutions would assist to promote the public interest as well as justifying the Bar’s privileged position in society. His Honour, like other ADR advocates, concedes that the use of ADR equates to a reduction in the costs of legal services. However, he suggests that the Bar seize the benefits of ADR, namely, the prospect that the reduction in legal costs may enhance the public perception of the Bar, as well as increasing the Bar’s capacity to serve the public interest. His Honour sounds a warning to lawyers who do not embrace ADR: “Lawyers who plough on in the traditional way do so at their peril. The peril is that they will lose their clients. They will end up with dissatisfied clients. Word will get around. They will be perceived to be interested principally in large fees. I think that a clear sighted recognition of the ADR trend is important to the future of the Bar”. [298] His Honour states that the rationale of survival is the wrong reason to embrace ADR, and goes on to suggest that helping litigants is a better reason. [The] second issue is that of the threat of litigation against lawyers who do not appropriately advise their clients on ADR options. This issue is generally of great concern to lawyers as litigation can not only result in damages payouts affecting cash flow and insurance premiums, but in the case of a lawyer struck from the roll of legal practitioners, the ability to practice law ad infinitum. However, is this a realistic outcome for a failure to advise appropriately? Given that society is allegedly becoming more litigious, commentators on the development of ADR believe it is very much a realistic outcome where a client is dissatisfied with the litigation process. Two American family lawyers are on record as saying: The lawyer’s duty to advise a [domestic relations] client about the option of private mediation is a key element of the family lawyer’s ethical responsibility, and that the failure to do so could result in malpractice exposure. Moberly goes further and states that not only could a failure to advise of ADR options be the subject of a malpractice or negligence suit, but could result in charges of violation of professional responsibility. Proving such charges will be discussed later. Needless to say, such a threat over a mere failure to advise is cause enough for any lawyer to think twice before omitting to give advice on ADR options. While there appear to be some proponents of the view that failure to advise should constitute, and will constitute when tested in court, some form of professional misconduct, there are others who disagree. New Jersey lawyer Michael Prigoff believes that making a failure to advise, punishable by professional discipline and/​or a negligence suit is placing too much of a burden on lawyers. He suggests that there are already enormous burdens placed on lawyers when acting for clients to avoid any allegation of negligence. He cites the requirement of a written costs agreement in every matter as one of those 34 [1.150]

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Liability of Lawyers to Advise on Alternative Dispute Resolution Options cont. burdens, a situation recently replicated in New South Wales with the 1993 amendments to the Legal Profession Act 1987 (NSW). To enable a client to sue successfully for negligence because the lawyer did not advise of ADR options would mean lawyers having to embark on lengthy, and costly, verbal and written advice to clients. At a time when lawyers are being criticised for increasing legal costs, this requirement would do nothing to assist in the more cost-​efficient delivery of legal services to clients. It is interesting to note that Prigoff agrees with Professor Sander on the professional obligation to advise clients accordingly and he concedes that he himself always discusses ADR options with every litigation client. His main concern seems to be the formalisation of that process, brought about by legislatively enshrined sanctions: [T]‌he proposal to make this responsibility a matter of professional discipline or malpractice liability is overkill and unfair micro-​management of the practice of law. In the real world of clients and lawyers, it unfairly burdens the Bar and will prove counterproductive to the goals sought by ADR, at least with respect to smaller disputes.

 [1.155] If lawyers have an obligation to advise their clients about non-​curial methods of

resolving disputes, what becomes of the lawyer engaged to mediate and the role of that lawyer as an “expert” in mediation and the law? Is the lawyer as mediator expected to provide legal advice, particularly when a party’s rights are being compromised in mediation? Noone picks up on this critical point in the following extract and traverses the issue of immunity from liability for lawyers acting as mediators.

Lawyers as Mediators: More Responsibility? [1.160]  M A Noone, “Lawyers as Mediators: More Responsibility?” (2006) 17 Australasian Dispute Resolution Journal 96 at 100-​103. Legal Practitioners as Mediators The legal profession was initially skeptical of the developments in ADR. The development of mediation was in part a reaction to the traditional adversarial legal dispute system. People were dissatisfied with a number of aspects of the legal system, including the dominating and controlling role of legal practitioners. But in less than a decade, the legal profession had co-​opted and embraced mediation into the scope of its professional services. The establishment of organisations like Lawyers Engaged in Alternative Dispute Resolution (LEADR), the development of specialist sections within legal professional associations and development of courses on ADR in law schools are all indications of the institutionalisation of mediation. A number of lawyers act as mediators but a much larger [101] number are now involved in mediations representing their clients. Mediation is now an integral part of the litigation process. Status of a Legal Practitioner The legal profession is a regulated and licensed occupation and to practise law a person must first be “admitted to practice” (a one-​ off event) and then annually obtain a “practising certificate”. Unqualified legal practice is an offence punishable with up to two years imprisonment. When a person is admitted to legal practice they become an officer of the court. As a result of this status, a legal practitioner owes various duties to the court and the administration of justice. These duties include acting with frankness, candour and honesty in relations with the court and not engaging in abuse of process or bringing administration of justice into disrepute. Concurrently a legal practitioner has a fiduciary relationship with his or her client. A lawyer owes undivided fidelity to the [1.160]  35

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Lawyers as Mediators: More Responsibility? cont. client’s interests, unaffected by personal interests or any other person. They are bound by strict codes of fiduciary duties including confidentiality and conflict of interest. Lawyers’ Liability Legal practitioners are bound by both legislative and common law duties and codes of behaviour. Lawyers’ duties of skill and care are derived both from the contract of retainer (a tortuous duty to take reasonable care) and as a fiduciary. Lawyers, like psychologists and other professionals who act as mediators, remain liable for breaches of their own professional codes of conduct. Some State law societies have adopted guidelines for solicitors who act as mediators and a breach of these could warrant a finding of unprofessional conduct. For instance, it is generally accepted that legal practitioners should not act as a mediator in a case involving their own client, although this is not specifically prohibited. Similarly, the Law Council of Australia’s Ethical Standards for Mediators states that a mediator must disclose all actual and potential conflict but can proceed if the parties agree and the mediator considers he or she can properly discharge his or her duties. In the comment to the standard, it states (inter alia): In particular a mediator who is a partner or an associate of any representative retained by either of the parties should not act as mediator without the fully informed consent of all parties. This approach contrasts with the basic fiduciary principle that, in a contentious matter (a dispute), a lawyer or the lawyer’s firm must not represent two or more clients whose interests may conflict. The justification for the departure from this principle for lawyers in mediation might be (as noted by the judge in Tapoohi) that, absent some specific agreement, a mediator does not act for a party in the same sense that a lawyer acts for a client. The mediator is required to stand back from this conflict, to assist the parties to resolve it; it is not to promote the interests of one party perhaps to the disadvantage of the other. However, this issue is not so straightforward if the mediation is evaluative or the mediator proffers advice or encourages certain settlement options. [102] Lawyers’ Immunity Lawyers generally cannot contract out of liability for services they provide. At common law, lawyers cannot, by means of an exclusion clause in the retainer agreement, reduce their standard of care or exempt themselves from liability for default in the performance of their professional responsibilities. In Victoria, lawyers are legislatively prohibited from contracting out of liability to their clients unless this is permitted by other legislation such as the professional standards scheme. [A]‌n Australian lawyer … must not make any agreement … with a client to the effect that the … lawyer will not be liable to the client for any loss or damage caused to the client in connection with legal services to be provided … but for the agreement the … lawyer would be liable. If a lawyer does enter into such an agreement, it is said to be void. Three policy reasons for prohibiting lawyers from limiting their liability are: (a) public confidence in lawyers and the justice system would be diminished if lawyers could avoid actions for negligence by having a broadly worded exclusion clause in the retainer agreement; (b) the public service aspect of professionalism is inconsistent with the notion that lawyers can exclude liability to their clients; (c) and by including an exclusion clause in the retainer, the lawyer is putting personal interests above those of the client, which is a conflict of interest and duty. Although there have been attempts to include exclusion clauses in retainer agreements, the courts have not accepted them.

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Lawyers as Mediators: More Responsibility? cont. The one exception to unlimited liability for legal practitioners is the advocate’s immunity. The High Court recently affirmed the principle that barristers and solicitors are immune from claims of negligence in relation to conduct in court or conduct intimately related to court. This is in contrast to developments in the United Kingdom and New Zealand, where the immunity has been abolished or diminished. The reasons for maintaining the immunity were the “unique and essential function” of the judicial system as part of government structure in the “quelling of controversies” and a concern to have “finality”. Previous policy grounds used to support the immunity were disregarded. Issues for Lawyers Acting as Mediators Although there are no cases which set out the standard of care required of lawyers who act as mediators, the cases governing lawyers’ standard of care may give some guidance. The standard of care is that of a qualified, competent and careful lawyer in the given circumstances in the practice of their profession. A lawyer is not guilty of negligence merely because they have committed an error [of] judgment unless that error is gross. If a lawyer holds themselves out as an expert, they will be subject to a higher standard of care than a non-​expert. The promotion of lawyers as mediators by their professional organisations for “their special skills, training and experience” would imply a level of expertise above that of other mediators. It is likely that the standard of care required of them will be high. Additionally, it is likely that the courts will impute a term into the agreement to mediate to ensure that the service (mediation) will be provided with a higher standard of care and skill where mediators hold themselves out as having particular expertise or knowledge in the subject matter. [103] Detail of the appropriate standard of care needs to address aspects of process, legal advice and protection of rights. Much will depend on the nature and form of the mediation. For instance, when a mediator is developing options, considering alternatives and leading participants toward settlement, can they provide legal opinion? If reality testing really means bestowing legal advice or making statements such as “in my experience the court will not give you that” to what extent can the mediator be held accountable if their views are erroneous and should such assertions be made in any event? The response to these questions will depend on the nature of the mediation being undertaken and whether the parties are legally represented. As noted previously, evaluative mediation is more likely to give rise to actions against the mediator from parties who claim they were given “bad advice”. There seems to be general agreement that restricting the mediator’s involvement in matters of process entails fewer liability risks for the mediator. Once a mediator provides legal advice to the parties, the standard could become that of a lawyer acting in a conventional legal practice. If this is the situation then the lawyer may face professional conduct issues, such as conflict of interest. It is common practice for mediators to get the parties to sign an agreement to mediate. One of the clauses in these agreements grants immunity from liability. However, when the mediator is a legal practitioner, there is real doubt about the appropriateness and lawfulness of such exclusion clauses. Lawyers are not generally permitted to limit their liability and yet the Law Societies’ precedents contain such an exclusion clause: 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. There is a stark contradiction between unlimited liability in most areas of legal work and limited liability when lawyers work as mediators. Given the recent High Court case on advocates’ immunity it seems most unlikely that when these exclusion clauses are tested a court would find them valid. As the High Court illustrated, they discounted a range of public policy reasons that had previously justified the immunity, including the special status of lawyers performing advocacy; implications for standards of advocacy; divided loyalty; the witness analogy; and the flood gates argument. The critical policy

[1.160]  37

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Lawyers as Mediators: More Responsibility? cont. reason underpinning their decision to retain the advocates’ immunity was the need to have finality of the “quelling of controversies” by the courts. On the basis of this reasoning, it is unlikely the courts would support immunity for a lawyer acting as a mediator. The courts could see this as abrogating their critical role within the justice system and would not support an immunity that prevents them from having the final say on disputes. As a result, the validity of these exclusion clauses in the agreements to mediate between lawyers and the parties is most uncertain. Additionally, the relevant legal professional indemnity insurance schemes provide cover for mediations conducted by lawyers if they form part of the normal work of the legal practice. Given this approach, it would seem illogical for lawyers to simultaneously be permitted to sign agreements containing exclusion clauses. The public policy reasons generally prohibiting exclusion clauses in a lawyer’s retainer could apply equally in the context of a lawyer acting as mediator signing an agreement with the parties. This is the case especially if one or more of the parties are not legally represented. [104] Conclusion [I]‌f a mediator remains within the confines of the pure mediation model, immunity is unnecessary. The very definition of mediation protects the mediator from liability. A mediator’s role is to assist the parties to reach mutually acceptable settlements. The extent of potential liability of mediators is still open to speculation and most uncertain. It is unlikely to be tested before the courts while there is widespread use of immunities for mediators. However, the use of immunities is subject to critique and the extent of the immunity is likely to change in the future. When lawyers act as mediators, they need to be conscious and cautious about their mediation style in order to avoid potential liability and fulfil their professional responsibilities. In all other areas of their work, they act for one client, are partisan, and give advice. In mediations, lawyers need to be mindful of the need to be impartial and treat the parties fairly without bias. To prevent the prospect of claims against them, lawyers acting as mediators need to practice facilitative mediation and clearly differentiate their role as mediator from that of legal advisor. The prospect of a court finding that a lawyer acting as a mediator has fiduciary duties may well be higher because lawyers are often chosen for their expertise, knowledge, skills and their familiarity with the nature of fiduciary duties. This includes an understanding of the duties of trust and confidence. Lawyers need to be vigilant in identifying conflicts of interest irrespective of the Law Societies’ guidelines. Finally, the impact of a lawyer’s duties as an officer of the court has not yet been fully explored in the context of mediation. However, lawyers who act as mediators should be concerned about the lawfulness of exclusion clauses in agreements to mediate. More importantly, lawyers acting as mediators should fulfil their professional responsibilities and not seek immunity in mediation. In the context of the general critique of mediators’ immunities, lawyers should be enhancing the administration of justice by leading the way and deleting these clauses from their agreements to mediate.

 [1.165]  Dispute resolution is part of legal practice and lawyers have a duty to advise their

clients of non-​curial methods of resolving disputes. Lawyers may be liable to clients should they confuse their role of court advocate with dispute resolution advocate, and in the latter case, adopt an evaluative form of dispute resolution that seeks to advise parties rather than allow parties to reach their own conclusion to the dispute. Alternatively, can lawyers wear “two hats” and competently represent clients in both adversarial and consensual proceedings in and out of court? Cooper explores this issue in the following extract. 38 [1.165]

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The ‘New Advocacy’ and the Emergence of Lawyer Representatives [1.170] D Cooper, “The ‘New Advocacy’ and the Emergence of Lawyer Representatives in ADR” (2013) 24 Australasian Dispute Resolution Journal 178 at 181-​186. Professional Obligations of Lawyers as Dispute Resolution Advocates There are several key obligations that lawyers owe to their clients when representing them in negotiations, mediations and conciliations, the following are those most relevant to the current discussion. [182] The Duty to Consider Settlement Wolski asserted that lawyers owe a duty to their clients to consider settlement. This is supported by the Law Council of Australia’s Model Rules of Professional Conduct and Practice: A practitioner must where appropriate inform the client about the reasonably available alternatives to fully contested adjudication of the case unless the practitioner 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 litigation. These model rules are not binding on legal practitioners, but there are mirror provisions contained in professional conduct rules throughout Australia that are binding and enforceable. Duties of lawyers to encourage clients to consider settlement are also contained in legislative obligations in most areas of Australian law. It is this duty that imposes an onus on lawyers to work with clients to ascertain the most appropriate dispute resolution processes for their dispute and to advise them of the advantages and disadvantages of these alternatives. There may be particular reasons why in some cases court proceedings must be preferred –​for example, where the other client is not prepared to make full disclosure of essential information or where there is extreme urgency and the case will be prejudiced by any delay. The Duty of Loyalty to the Client Perhaps the obligation most relevant to this discussion is that legal practitioners owe a duty of loyalty to their clients and must act in their client’s best interests to advance their cases. The Law Council of Australia’s Model Rules of Professional Conduct and Practice state: A practitioner must seek to advance and protect the client’s interests to the best of the practitioner’s skill and diligence ... This notion of acting in the client’s best interests was described by Moynihan J in Legal Services Commissioner v Baker: The lawyer should put the client’s interest first and treat the client fairly and in good faith, giving due regard to a client’s position of dependence upon the practitioner. This obligation remains relevant in dispute resolution settings outside of court. As Macfarlane stated, “[t]‌here is no lessening of the lawyer’s responsibility to achieve the best possible outcomes for his client in client resolution advocacy”. It is this duty that must be at the forefront of dispute resolution advocates’ minds. Although trained as to the advantages of integrative negotiation and collaborative and problem-​solving [183] approaches, legal practitioners must ensure that their clients achieve the best possible outcomes, subject to following their instructions. Macfarlane describes this in terms of “the goal of the conflict resolution advocate is to persuade the other side to settle –​on her clients’ best possible terms”. Dispute resolution advocates will to some extent always be, “adversaries” because lawyers, on opposite sides of legal cases, have obligations to remain loyal to and promote the interests of their clients. As a commercial litigator has explained: [1.170]  39

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The ‘New Advocacy’ and the Emergence of Lawyer Representatives cont. I see a completely different form of adversary process. You can call it a mediation because we’re working together to come up with a deal, but we’re still adversaries –​I’m still trying to get the best possible deal that I can. A distinction can be drawn, however, between lawyers as adversaries acting in their clients’ best interests and lawyers behaving in an adversarial manner that some might argue is more appropriate in a courtroom. The latter is not suitable conduct for dispute resolution advocates; for example, antagonistic questioning of a client imitating cross-​examination. Macfarlane certainly envisages that lawyers as “conflict resolution advocates” fall within a non-​adversarial practice framework. Following this approach, at this stage of the investigation, dispute resolution advocacy can continue to be described as falling within the realm of non-​adversarial practice. The Duty of Competence and Diligence In recent times, specific guidelines have been developed for dispute resolution advocates that fall within the general duty of competence and diligence. The Law Council of Australia has produced Guidelines for Lawyers in Mediations, which are not binding and state that “[i]‌t is not intended that that the guidelines derogate in any way from the usual obligations imposed on lawyers by law or any ethical rules, professional conduct rules or standards”. In relation to the role that lawyers should play in mediation, they provide: Mediation is not an adversarial process to determine who is right and who is wrong. Mediation should be approached as a problem-​solving exercise. A lawyer’s role is to help clients to best present their case and assist clients and the mediator by giving practical and legal advice and support ... The skills required for a successful mediation are different to those desirable in advocacy. It is not the other lawyer or mediator that needs to be convinced; it is the client on the other side of the table. A lawyer who adopts a persuasive rather than adversarial or aggressive approach, and acknowledges the concerns of the other side, is more likely to contribute to a better result. It is interesting to note that similar guidelines in New South Wales espouse this same language and provide that the role of legal practitioners in mediation is: To participate in a non-​adversarial manner. Legal representatives are not present at mediation as advocates, or for the purpose of participating in an adversarial court room style contest with each other. It is argued that neither provision is completely accurate when stating that lawyers are not present at mediation as “advocates”. Rather, it is suggested –​that lawyers should not take on the role of aggressive adversarial advocates; however, it is fitting for them to act as assertive dispute resolution advocates or, as Macfarlane has termed them, “conflict resolution advocates”. The reference to [183] participating in a non-​adversarial manner highlights that the use of extreme positional bargaining or aggressive and hostile behaviour towards the opposing lawyer or client is inappropriate in mediation settings. The Duty to Give Legal Advice The advantage of clients having legal representation during mediation and conciliation processes is that they have the benefit of legal advice before, during, and after the process. Lawyers can reality-​test offers and counter-​offers with clients and ensure they are aware of the pros and cons of any proposed settlements. They can advise as to how negotiation offers compare with likely court outcomes and weigh up the benefits of early settlement as opposed to paying the legal fees required to reach judicial decisions. Wolski has highlighted that this involves providing the client with information and advice to: enable the client to make informed decisions about what is, and what is not, in the client’s best interests by advising the client of the relevant law, the issues in the case, the client’s possible rights and obligations, the options available to the client and the likely consequences of those options. 40 [1.170]

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The ‘New Advocacy’ and the Emergence of Lawyer Representatives cont. In this context, lawyers must be careful not to unduly coerce their clients to settle. However, it has been held that advice to accept a settlement “is not negligent merely because a court subsequently considers that a more favourable outcome would or might have been obtained if the original dispute had been litigated to judgment (or a more favourable compromise would or might have become available later)”. The Duty to Follow the Client’s Instructions The final relevant obligation is the duty to follow the client’s instructions. This duty can conflict with lawyers taking collaborative and problem-​solving approaches if clients have not been educated in these strategies. Lawyers must coach their clients as to how to engage in integrative negotiations. Legal practitioners are bound to follow their clients’ instructions and this can cause difficult issues in dispute resolution when lawyers may perceive their clients have unrealistic expectations and are seeking improbable settlements. The New Advocate There are many examples of where lawyers will need to “advocate” for their clients in dispute resolution settings. In court-​connected conciliation processes, lawyers often put forward positional offers, particularly where financial issues are concerned, and provide the relevant facts in support. Conciliators form views about appropriate ranges for settlement, based on this information. This is because legal negotiations generally take place in “the shadow of the law”. If settlement is not achieved, conciliators may have to make recommendations for procedural orders, such as for the filing of further documents. If Party A is alleging that full discovery has not been made and Party B is withholding information, Party A, via his or her lawyer, will need to convince the conciliator that orders are required for the discovery of further documents, which may be crucial to a fair determination of the case. [185] Even in facilitative mediation processes where integrative negotiations are being employed, lawyers cannot always act “co-​operatively” because they have overarching obligations to act in their client’s best interests. Although the general aim of mediation is “to reach an agreement which accommodates the interests –​and needs of all the disputants”, this will not always be possible. In some cases an offer that accommodates the needs of one party may not meet the needs of the other client. An example is a family law scenario where both parents want the child to live with them for the majority of the time. On this particular issue, one parent will be a “winner” and one a “loser”, even if the parents agree to a half-​time arrangement because this was not the outcome that either party was seeking. Also a half-​time arrangement, although a “compromise” in terms of interest-​based negotiations, may not be in the best interests of the child. Wolski makes this point when stating that: However, it is not possible to rule out competitive negotiation and lawyer dominance in mediation ... and there is no absolute prohibition on lawyers acting competitively (rather than co-​operatively) in mediation ... The primary obligation on legal representatives (aside from their duty to the court) is to further the interests of their clients. Sometimes a client’s interests will be best, furthered by an adversarial advocacy approach, just as might be the case in negotiation ... An adversarial approach is all the more suitable in, settlement and evaluative models of mediation. It is suggested that even an adversarial advocacy approach can fall within the realm of non-​adversarial practice if one includes lawyer engagement in dispute resolution processes that occur outside court, if necessary to protect the client’s best interests. This is not to say that aggressive adversarial behaviour or “zealous advocacy” should be promoted. An understanding of and an ability to implement integrative negotiation strategies and collaborative behaviour forms the core knowledge and skills of an effective dispute’ resolution advocate. However, the role is a complex one and must be flexible and responsive to the particular situation at hand. In practice, not all lawyers are trained in integrative negotiation and, not all choose to implement [1.170]  41

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The ‘New Advocacy’ and the Emergence of Lawyer Representatives cont. this model. In some cases, legal practitioners may find themselves with opponents who are acting in aggressive and positional manners. In such instances they may have to counter such tactics themselves with assertive or positional negotiation. Further, not all clients genuinely want to take a collaborative approach and might be using a process such as mediation as a delaying tactic or “fishing” expedition. Although lawyers should not assist clients to use dispute resolution for such adverse means, they will need to be able to identify such tactics, learn how to respond to them and educate their clients on the benefits of taking a more collaborative approach. Conclusion: Dual Challenges The dispute resolution advocacy role of lawyers is an important one, particularly because the majority of legal disputes settle before reaching an adjudicated decision. The “new lawyer” and, in particular, the “new advocate” is spending the majority of the working week acting for clients in dispute resolution processes outside of court –​that is, in non-​adversarial settings. The analysis in this article has demonstrated that dispute resolution advocacy can be categorised as a subset of non-​adversarial practice. Dispute resolution advocates will to some extent remain [186] adversaries and at times might have to advocate for their clients when seeking to obtain the best possible deal. They are, however, still engaged in non-​adversarial processes in terms of dispute resolution as distinct from adversarial court proceedings. Lawyer representatives acting in negotiation, mediation and conciliations should not engage in aggressive “adversarial” behaviour that belongs in a court environment, such as antagonistic questioning or extreme positional bargaining. The challenge for lawyers is, as Macfarlane has argued, to become accustomed to wearing “two hats” and be competent and efficient both when representing clients in judicial settings as “court advocates” and when acting for clients outside of court as “dispute resolution advocates”. It is suggested that in both settings they can engage in client-​centred practice: take a problem-​solving and holistic approach, identify the clients’ underlying interests, and analyse the conflict. In each context they should identify the issues, formulate a dispute resolution strategy, and look for legal and non-​legal solutions. When engaged in both forums, lawyers can be settlement-​focused, seeking to resolve their clients’ cases as quickly and cost-​effectively as possible, while keeping conflict to a minimum. There is a challenge for law schools in training future lawyers to be competent not just in non-​ adversarial practice but also in the specifics of dispute resolution advocacy. Ideally, law students would be introduced to non-​adversarial practice at an early stage in their studies and then given the opportunity to learn higher level knowledge and skills in dispute resolution advocacy at the end of their degree, just before they enter the workplace. Future lawyers need to be educated about a range of models, including distributive negotiation, evaluative mediation, and conciliation processes. In addition, knowledge of their professional obligations and the skills to balance these duties is essential so that future dispute resolution advocates will abide by the duty of loyalty and seek to advance and protect their clients’ interests, whether representing them inside or outside of court.

 [1.175]  Cooper made a further contribution to this debate when she gave an account of “law-

yers acting badly” in family law mediation. In an entertaining but poignant way, she classed such lawyers into six categories.

Lawyers Behaving Badly in Mediations: Lessons for Legal Educators [1.180]  D Cooper, “Lawyers Behaving Badly in Mediations: Lessons for Legal Educators” (2014) 25 Australasian Dispute Resolution Journal 204 at 206-​210. 42 [1.175]

Introduction  Chapter  1

Lawyers Behaving Badly in Mediations: Lessons for Legal Educators cont. The Process Thwarter In some conferences, lawyers attempt to thwart the process by intervening at the outset, while the mediator is making an opening statement, seeking to explain what offers and counter-​offers have been made and, in some instances, producing a draft agreement that can be used as a starting point for negotiations. These advocates usually have the best intentions but such an intrusion interferes with the top triangle of the mediation process. If the chairperson allows the document to be introduced, from that point onwards, the conference will revolve around the terms of the draft agreement. This “hijacks” the process because rather than allowing the parties to own the mediation, tell their stories, explain their issues, and work with the mediator to develop options and possible solutions, the lawyer has made assumptions about what the relevant issues are and what may be appropriate solutions. If this top triangle phase is circumvented the mediator may not have the information to fully identify the parties’ relevant issues or uncover their underlying interests. This in turn may mean that important issues and opportunities to discern information that can assist with option generation may be lost. An early agreement may be reached, but often breaks down prior to the end of the conference because it has not addressed important needs. This case scenario highlights what can happen when lawyers do not understand the steps in the mediation process and the reasons for the mediator spending sufficient time with parents in the top triangle. Although lawyers are sometimes focused on time management and balancing workloads, an understanding of the purpose of each step may mean they have more patience with the process. A similar lack of understanding leads some lawyers to request that conferences take place by way of shuttle, meaning that one parent and lawyer are in a separate room to the other parent and legal representative. Some lawyers make this demand because of concerns that the parties may argue, in other words, that conflict may occur. This demonstrates a lack of understanding of the benefits of parents listening to each other’s stories. In some cases this can provide parents with a greater understanding of each other’s positions and underlying concerns. It can allow them to vent their feelings and “unburden their emotions”. It may also assist the mediator to discern underlying interests and agenda issues. Such discussions may open up the lines of communication between parents in high conflict, plagued by misunderstandings and data and relationship disputes. Another scenario that occasionally arises is misunderstandings about whether settlement has been reached prior to the conference. For example, a lawyer advising that agreement was reached the day before as a result of informal discussions between the parties. However, in private meetings it was ascertained that the mother felt coerced into an agreement as the father had told her that it was fruitless to attempt to negotiate more time with her children as she suffering from a psychiatric [207] disorder. The mother was undergoing treatment for her condition, which was stable, and her treating psychiatrist did not foresee any difficulties with her spending time with her children. After having the opportunity to obtain legal advice, the conference was re-​convened as the mother was unhappy with the proposed agreement. The Zealous Adversarial Advocate Macfarlane has described “zealous advocacy” as being the pursuit of rights where the legal representative continually seeks to justify the client’s initial position and perceives that the only relevant ethical duty is the duty of loyalty to the client and the furtherance of his or her best interests. The legal representative takes an aggressive stance and enters into the mediation process without a focus on settlement, failing to take the opportunity to reassess and reality test the client’s initial position. An example of such a stance is a father and his lawyer commencing a mediation with a position that the existing parenting arrangement, where the mother spent time with her six-​year-​old son four nights a fortnight, should continue. The father had made allegations against the mother of physical and verbal abuse of the boy, which had proved to be unsubstantiated. Throughout the conference the father’s lawyer focused on advocating for his client’s initial position. He continually pointed out the strengths of his client’s case and deficiencies in the mother’s case. The father’s representative even [1.180]  43

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Lawyers Behaving Badly in Mediations: Lessons for Legal Educators cont. attempted to engage in cross-​examination of the mother across the mediation table, seeking to elicit answers to questions that would support his client’s position. This scenario also raises the legal requirement that both parties make a “genuine effort” during the course of a parenting mediation. It could be argued that the father had not made a “genuine effort” as this has been described as requiring a “real attempt” to resolve issues and a willingness to put forward options for resolution, consider options for resolution put forward by the other party and focus on the needs and interests of the child. Reflecting on this case, the father and his lawyer did not enter the mediation process with a collaborative and problem-​solving focus. The father’s lawyer was solely focused on promoting his client’s interests. This is clearly a duty that lawyers owe to their clients; the Australian Solicitor Conduct Rules state that a solicitor must “act in the best interests of a client in any matter in which the solicitor represents the client”. However, this duty must be balanced with the duty of competence and diligence and the duty to assist the client to consider settlement. For example, the Law Council of Australia has produced Guidelines for Lawyers in Mediations. In relation to the role that lawyers should play in mediation, they provide: Mediation is not an adversarial process to determine who is right and who is wrong. Mediation should be approached as a problem-​solving exercise. A lawyer’s role is to help clients to best present their case and assist clients and the mediator by giving practical and legal advice and support … The skills required for a successful mediation are different to those desirable in advocacy. It is not the other lawyer or mediator that needs to be convinced; it is the client on the other side of the table. A lawyer who [208] adopts a persuasive rather than adversarial or aggressive approach, and acknowledges the concerns of the other side, is more likely to contribute to a better result. This highlights the complexity of the lawyer’s role in non-​adversarial processes. Although the lawyer in question had a duty to promote the client’s best interests, it is still possible to compromise and reach a settlement for slightly less than the client’s initial position without neglecting that duty. Also, in family mediation, lawyers have a duty to focus their clients on parenting arrangements that will be in the best interests of the child, and to emphasis children’s rights to meaningful relationships with both parents, rather than parental rights to time. The Misguided Advisor If lawyers do not have a comprehensive understanding of the relevant law and how to apply it, they may provide their clients with inappropriate advice as to the range of likely outcomes if the case proceeds to court, termed “the boundaries of resolution”. This can lead to clients anticipating far more generous outcomes than courts can actually provide and consequently more substantial settlements than they can realistically achieve at mediation. Such misguided advice can create major difficulties during negotiations as one client will not have an accurate idea of what his or her negotiating bottom line should be. This may lead to a client rejecting a reasonable offer. It can also result in spending a large amount in legal fees to proceed to court when the case could have settled much earlier at the mediation. The Distributive Bargainer An understanding of and an ability to implement integrative negotiation strategies forms the core knowledge and skills of an effective dispute resolution advocate. The use of interest-​based negotiations and what Lewicki terms “logrolling” (also called trade-​offs and concessions) assists with finding creative solutions. Unfortunately in some conferences lawyers adopt unrealistic positions, become entrenched in distributive bargaining and are sometimes unable to extricate themselves, perhaps due to a fear of “losing face”. A recent illustration saw a mediator clarifying the details of a parenting agreement which would enable a boy to be re-​introduced to spending time with his father on an incremental basis. The boy was about to have an operation and the father’s lawyer requested that his client attend at the hospital 44 [1.180]

Introduction  Chapter  1

Lawyers Behaving Badly in Mediations: Lessons for Legal Educators cont. to be with him immediately before and after his operation. The mother objected because, as the primary carer, she would be with her son at these times and her domestic violence protection order (which had a distance requirement) meant that the father could not be in the same room with her. The mother was amenable to the father visiting the hospital and working out an arrangement; however, the father’s lawyer demanded that the mother set aside the protection order because she clearly did not need it (the father denied there had been any violence). When the mother refused the lawyer requested that the mother should at the very least set aside the distance requirement. [209] A deadlock ensued when the mother refused to agree to amend her order. The mediator suggested a range of alternatives, for example, that the father could visit earlier in the day while the mother vacated the room. However, the father’s lawyer kept reiterating the need for the mother to amend her order. The mother became very upset at the behaviour of the father’s lawyer and decided that she no longer wanted to proceed with any part of the parenting agreement. By being inflexible and not focusing on his client’s underlying interests –​to re-​establish contact with his son and provide him with some support around the time of the operation –​the lawyer was unable to see his way out of his position and refused to participate in option generation. The parents were in such high conflict that they had both reported they could not be in the same room without arguing. Consequently it would not have been in their child’s best interests for both parents to be in the same room with him immediately prior to his operation. It could also be argued that by continually demanding that the mother set aside her protection order, the father’s legal representative engaged in unethical behaviour in attempting to coerce a client into an agreement that potentially compromised her safety. The Passive Advocate Rundle has provided guidance for lawyer representatives in identifying a spectrum of roles that lawyers may play in mediation differentiated by their levels of involvement in the process. They include “absent advisor”, “advisor observer”, “expert contributor”, “supportive professional participant”, and “spokesperson”. For example, where a client is confident and assertive and participating in a facilitative mediation, it may be appropriate for a lawyer to play “advisor observer”, adopting a fairly neutral role, allowing the client to make the opening statement and to work with the mediator to develop options and solutions, but being available to provide support, legal advice and negotiation assistance, when required. In some mediation processes, lawyers fail to identify the correct role to play within this spectrum and in so doing may leave their clients unsupported or open to the possibility of a detrimental outcome. This is an example of what Dewdney has described as “the passive legal representative”. In the above scenario, while the father’s lawyer was demanding that the mother amend her protection order, her legal representative remained silent. The father’s lawyer was entering into inappropriate “spokesperson” territory, making demands that were potentially compromising the father’s interests, without seeking a private meeting to obtain his client’s instructions. In the alternative, the mother’s lawyer was unfortunately playing the “advisor observer” role and not intervening in discussions to provide support to her client, leaving her potentially exposed. This created a power imbalance leading to the mediator interposing, insisting on private meetings so that both lawyers could take proper instructions from their clients. The Legal Takeover The case study above is also an example of what Dewdney has described as “the legal take-​over” in that the father’s lawyer remained entrenched in his position and acted as a “spokesperson”, without consulting with this client to obtain specific instructions about this issue. Another illustration of this type of behavior was a situation in which a mother’s lawyer made a statement that could have been construed as an offer without first consulting his client. The parents had reached agreement about week-​to-​week parenting arrangements and were about to discuss [1.180]  45

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Lawyers Behaving Badly in Mediations: Lessons for Legal Educators cont. arrangements for the school holidays. The mother was concerned about the father having periods of [210] overnight access longer than one night because the child was four years old and had not previously spent longer periods of overnight time away from her. At this point the mother’s lawyer declared in open session that the father should have “half school holidays” as “that’s what fathers are entitled to”. Although this was totally contrary to what his client felt comfortable with, the father from that point onwards was in a much stronger negotiating position because he started with the assumption that he was entitled to half of the school holidays. This is an unfortunate example of a lawyer not acting in his client’s best interests and failing to follow his client’s instructions as he was ethically required to do. A further example that Dewdney has provided is lawyers who fail to provide their clients with the opportunity to actively participate in mediations, for example, by the lawyers making the opening statements instead of allowing clients to perform this function. Dewdney suggests that a way of overcoming such difficulties is for mediators to include specific information in their opening statements about the role that lawyers will be expected to play during the course of mediation sessions.



MODEL RULES OF PROFESSIONAL CONDUCT AND PRACTICE [1.185] The Law Council of Australia represents the legal profession at the national level

to promote the administration of justice, access to justice and general improvement of the law and, in executing these roles, it advises governments, courts and other federal agencies on ways in which the law and the justice system can be improved for the benefit of the community. The Law Council drafted a set of Model Rules of Professional Conduct and Practice (Model Rules) in February 1997. Between 2000 and 2002 a committee of the Law Council amended those rules, which were ultimately adopted by the Law Council on 16 March 2002. The Model Rules seek to provide a national standard of conduct amongst legal practitioners and it was envisaged that this standard would ultimately be adopted by each of the State and Territory law societies and the institutes. The Rules apply principally to legal practitioners practising as solicitors, or as barristers and solicitors. The term “practitioner” is used throughout to refer to persons practising as solicitors, or as barristers, or as barristers and solicitors or incorporated law firms. The advocacy rules, which are contained within the Model Rules, apply to all practitioners who are engaged in advocacy, whether their predominant style of practice is that of a solicitor or a barrister. While the Model Rules are reflected in most jurisdictions, they have not been implemented verbatim in any jurisdiction. It is also noteworthy that there is considerable commonality between the Law Council’s Model Rules and the Australian Bar Association’s Model Rules of 2002. In March 2009, the Law Council of Australia formed the National Conduct Rules Reference Group to develop uniform national conduct rules. This Group considered submissions and representations made by various domestic and international stakeholders, such as the England and Wales Solicitors’ Code of Conduct and the American Bar Association Model Rules of Professional Conduct. In June 2011, the Law Council of Australia adopted the Australian Solicitors’ Conduct Rules, which were updated in March and April 2015 and largely reflect the Model Rules. According to the Law Council of Australia: 46 [1.185]

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The adoption of the Australian Solicitors’ Conduct Rules by each state and territory will ensure all of Australia’s solicitors are bound by a common set of professional obligations and ethical principles when dealing with their clients, the courts, their fellow legal practitioners, regulators and other persons. (see,  https://​www.lawcouncil.asn.au/​policy-​agenda/​regulation-​of-​the-​profession-​and-​ethics/​ australian -​solicitors-​conduct-​rules, viewed 31/​1/​18)

The Australian Solicitors’ Conduct Rules were made as the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 under the Legal Profession Uniform Law which commenced in New South Wales and Victoria on 1 July 2015 and subsequently adopted in Queensland and South Australia. Model Rule 12.3 (with similar wording in the Australian Solicitors’ Conduct Rule 7.2) relates to legal practitioners advising clients on dispute resolution alternatives to litigation and states: A practitioner must where appropriate inform the client about the reasonably available alternatives to fully contested adjudication of the case unless the practitioner 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 litigation.

The following table lists State and Territory adoption of Model Rule 12.3. Table 1.1   Adoption of the Law Council of Australia’s Model Rule 12.3. Jurisdiction

Legislative equivalent or enactment of the Law Council’s Model Rule 12.3 and Australian Solicitors’ Conduct Rule 7.2

Australian Capital Territory

Regulation 7.2 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) made pursuant to s 580 of the Legal Profession Act 2006 (ACT) and reg 17A of the Legal Profession (Barristers) Rules 2014 (ACT) made pursuant to s 579(1) of the Legal Profession Act 2006 (ACT).

New South Wales

Regulation 7.2 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) made pursuant to the Legal Profession Uniform Law 2015 (NSW) and reg 36 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW).

Northern Territory

Regulation 17A of the Schedule to the Constitution of the Northern Territory Bar Association Incorporated, Barristers’ Conduct Rules.

Queensland

Regulation 7.2 of the Australian Solicitors Conduct Rules made pursuant to the Legal Profession (Australian Solicitors Conduct Rules) Notice 2012 (Qld) and reg 38 of the Bar Association of Queensland Barristers’ Conduct Rules (August 2016) made pursuant to s 220 of the Legal Profession Act 2007 (Qld).

South Australia

Adopted by the Law Society of South Australia pursuant to the Legal Practitioners Act 1981 (SA).

Tasmania

Legal Profession (Barristers) Rules 2016 (Tas) made pursuant to s 221A of the Legal Profession Act 2007 (Tas), which adopt the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW).

Victoria

Legal Profession Uniform Law Application Act 2014 (Vic), which adopt the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) and the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW).

Western Australia

Regulation 17A of the Conduct Rules of the WA Bar Association.

Role of the Bar [1.190]  The following extract discusses the role of the Bar in the promotion of and compliance with statutory requirements for dispute resolution. It should be noted that references to s 110K of the Supreme Court Act 1970 (NSW) are now embodied in s 26 of the Civil Procedure Act 2005 (NSW). References to s 27 of the Commercial Arbitration Act 1984 (NSW) are now embodied [1.190]  47

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in s 27D of the Commercial Arbitration Act 2010 (NSW) although s 27D has been drafted in such a way that it nullifies some of Emmett’s concerns in relation to confidentiality. References to r 17A of the NSW Barristers’ Rules are now embodied in reg 36 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW). The Legal Profession Act 1987 (NSW) has been superseded by the Legal Profession Uniform Law 2014 (NSW). Finally, references to the Trade Practices Act 1974 (Cth) are now embodied in Competition and Consumer Act 2010 (Cth).

The Bar in Mediation and ADR [1.195]  S Emmett, “The Bar in Mediation and ADR” (2001-​02) Bar News (Summer) 25 at 25-​27. Recent Developments in Mediation and ADR Beyond the Bar There now exists a myriad of Commonwealth and State enactments dealing with mediation. In several instances, this legislation compels mediation or other dispute resolution processes prior to the enforcement of rights, for example, Farm Debt Mediation Act 1994 (NSW), Retail Leases Act 1994 (NSW), Native Title Act 1993 (Cth). In addition, the Federal Court and the Supreme Court have power to order parties to mediation without the consent of the parties. The District Court and the Local Court have powers of referral only with consent of the parties. Mediation has long since been used in the Family Court, Land and Environment Court and Local Court where there are nearly always emotional, financial or historical issues beyond the purely legal issues. Similarly, conciliation has long been used in industrial tribunals. Below are some of the more relevant recent developments in the ADR area. “ADR” has become the general term for processes by which disputes are resolved outside the court system. The new frontier for ADR is in conflict avoidance and conflict management, rather than just conflict resolution. However, it is the conflict or dispute resolution aspect of ADR that has particular relevance for the Bar and which intersects with and confronts the Bar’s traditional role as that of advocate only. Section 110K Supreme Court Act 1970 (NSW) From the NSW Bar’s point of view, probably the most relevant recent amendment is s 110K Supreme Court Act 1970 (NSW), which came into force on 1 August 2000, empowering the Court to order parties to mediation or neutral evaluation without their consent. There concerns worthy are of consideration about a process that is untransparent, largely unregulated and seemingly operating without universally accepted, endorsed or enforceable standards of conduct. These concerns are particularly valid from a court’s point of view in circumstances where it can make orders compelling parties to participate in a process that may not be the parties’ process of choice and may be a further hurdle to access to the courts. On one level, this lack of regulation and transparency is a serious problem with mediation as it currently stands –​there ought to be concerns about compulsory processes without satisfactory supervision. On another level, the flexibility and confidentiality are the very reasons for the popularity of the process where the commercial world is much more concerned with cost effective, pragmatic dispute resolution management. An origin of these concerns and tensions may lie in s 27 of the Commercial Arbitration Act 1984 (NSW), whereby an arbitrator may, with the consent of the parties, also act as “mediator”, although if so acting must observe the rules of natural justice and not engage in private conferencing. I would suggest it is unfortunate to describe such a process as “mediation” where it prevents such a fundamental step in a mediation process as private conferencing. It is the absence of any determinative or advisory role on the part of a mediator that enables use of such strategies. Once a mediator trespasses into either the determinative or advisory role, the risk exists of perceived or actual compromising of the very neutrality that is central to the parties’ confidence in the use of mediation. 48 [1.195]

Introduction  Chapter  1

The Bar in Mediation and ADR cont. Of course, parties may agree to hybrid or varied processes. However, the integrity of the process selected is highly dependent on the parties being able to make properly informed choices, perhaps necessarily on advice from appropriately trained and skilled advisers. This is not a simple task where there exists such a plethora of processes and definitions that are still not yet consistently accepted by ADR practitioners themselves. Commercial Contracts Many commercial contracts now contain conditions making mediation a pre-​requisite to commencing litigation. This form of conflict management is prevalent, for example, in the regulation of infrastructure utilities (such as electricity, telecommunications and rail) in accordance with Part IIIA of the Trade Practices Act 1974. In disputes concerned with access to monopolistic utilities, the ACCC approves regimes for resolution that involve an integrated form of negotiation, mediation, expert determination and arbitration, often in the early stages without lawyers. These regimes are directed to avoiding potential litigation and the involvement of lawyers and as such are readily embraced by the relevant industry users. Generally, the courts will uphold their terms provided the clauses are sufficiently certain. (See: Morrow v Chinadotcom [2001] NSWCA 82; but see also Elizabeth Bay Development Pty Ltd v Boral Building Services (1995) 36 NSWLR 709; Hooper Bailie Associated Limited v Natcon Group Pty Limited (1992) 28 NSWLR 194.) There is a move within organisational industries to use “mediation” as, almost, a dispute resolution management process that identifies how the issues of the dispute, once distilled; are most effectively managed and resolved. For example, it may be that some issues in a dispute are best resolved by consensual methods whereas other issues may need either expert determination (binding or non binding), arbitration, court determination or a combination of the above. The value of this type of mediation as a tool in the crystallization of different parts of a dispute and the mechanics for their future resolution is now emerging as an effective conflict management process. Regulatory Bodies Regulatory and semi-​regulatory bodies are increasingly using compulsory mediation or binding arbitration or both rather than the courts. To mention two prominent examples: the World Intellectual Property Organisation (well known as WIPO) manages disputes arising from the regulation and registration of internet domain names by way of binding arbitrations that are often conducted on the papers only and thereby are significantly [26] more cost effective; the National Registration Authority manages disputes in Australia between chemical owners and potential lessees of the use of the chemicals in compounds by way of mediation and or binding arbitrations. Also, s 144 of the Legal Profession Act 1987 (NSW) provides for disputes between clients and legal practitioners to be referred to mediation, although participation is voluntary … Barristers’ Rule 17A states: A barrister 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 barrister believes on reasonable grounds that the client already has such an understanding of these alternatives as to permit the client to make decisions about the client’s best interest in relation to the litigation. In light of the introduction of Rule 17A in January 2000, barristers need to address the requirements of the Rule and their ability to comply. One can readily envisage a scenario where a disgruntled client who has lost a case becomes aware of Rule 17A and alleges that the barrister’s failure to comply resulted in the client being unaware or not understanding the alternatives available and that, as a result of this failure to inform, the client has lost the opportunity to resolve the case on more favourable terms and should therefore be compensated. Even without identifiable damage, the barrister may still be vulnerable to a professional conduct complaint. [1.195]  49

Dispute Resolution in Australia: Cases, Commentary and Materials

The Bar in Mediation and ADR cont. A number of questions arise for the barristers regarding compliance with this provision: 1

What are all the alternative processes available to a client to fully-​contested adjudication?

2

What are the elements of each of these processes?

3

What are the possible outcomes for a client in respect of each of these processes?

4

What is involved in preparation for and what is the time and cost of each of these processes?

5

What will fully-​contested adjudication involve for the client, including outcomes?

6

How does a barrister assess which of the processes is reasonably available to a given client?

7

What constitutes reasonable grounds for a belief by a barrister that a client has such an understanding of the alternative processes?

8

What is the meaning of “the clients’ best interests in relation to the litigation”?

9

What is the level of understanding required by the client to excuse the barrister from discussing alternative processes?

10 Are there any other circumstances which excuse discussion of the alternatives (e.g. urgency of interlocutory steps)? 11

Is discussion with the instructing solicitor sufficient to satisfy a barrister of a client’s understanding of the alternatives?

The first question –​what sort of alternatives for compliance are available –​is one to which the Bar must give particular thought given that Rule 17A specifically imposes a requirement on a barrister to inform about “alternatives”. This may not be as readily answerable as one might think. Even the courts do not speak of the same alternatives in their ADR referral sections. For example, the Supreme Court (s 11OK Supreme Court Act 1970) and the District Court (s 164A District Court Act 1973) speak of mediation or neutral evaluation, whilst the Federal Court (s 53A Federal Court of Australia Act 1976) speaks of mediation or arbitration. Below are three of the more relevant of many categorisations, which further highlight the difficulties in determining which “alternatives”: i National Alternative Dispute Resolution Advisory Council (NADRAC) states that processes involving third party intervention fall into three broad categories (see NADRAC Definitions March 97, and unchanged by NADRAC Report 2001): • Determinative (adjudication, arbitration, expert determination, references) • Advisory (early neutral evaluation, case appraisal, conciliation) • Facilitative (mediation, facilitation, conciliation) (There is a real debate in the ADR industry as to the overlap, if any, between mediation and conciliation and the extent to which any advisory role by the neutral is appropriate in mediation. The difficulty is enhanced by the plethora of definitions both within Australia and internationally. There is currently a subcommittee of the United Nations examining the UNCITRAL Rules in respect of this issue.) ii In the Barristers Resolution Service the following alternative processes are identified: • Arbitration • Expert determination/​references • Early neutral evaluation or appraisal • Mediation • Conciliation iii The Law Reform Commission purports to map these processes on a continuum from the least to the most adjudicative: 50 [1.195]

Introduction  Chapter  1

The Bar in Mediation and ADR cont. • Negotiation • Mediation • Neutral evaluation • Conciliation • Expert advice and assessment • Arbitration However, whatever the appropriate alternatives and definitions, there has been a growing demand for an integrated approach to the various processes. I would suggest that a barrister’s obligation is to turn one’s mind to the intention of Rule 17A and its pragmatic compliance. The questions raised above simply illustrate the need for careful consideration of the duty imposed. [26] Barristers in Mediation It is important for the Bar to consider the role it will take in these sorts of consensual dispute resolution processes. The important point to stress is that alternative means of dispute resolution are not just a vast set of ill-​defined processes. ADR has come to be perceived as an industry in itself closely interwoven with litigation. It is obviously important that compromises reached through mediation be achieved against a background of an informed understanding of a party’s rights and the remedies available through the courts, [27] together with an assessment of the likely outcomes from a court. Solicitors are effectively carrying out this role more and more often without recourse to the Bar. In a mediation it can be very useful to have the benefit of the skill of an advocate. However, where that skill is perceived as the only constructive role for a barrister, then it is often not seen as adding sufficient value. The barrister’s role should be seen more in terms of advising the client in facilitating a settlement with which the client can live rather than a settlement with which the barrister can live. Mediation is not there to enforce a party’s legal rights, but to manufacture a mutually tolerable resolution. Consensual resolution will usually have a greater prospect of acceptance and endurance than adjudicated outcomes, because it fosters communication among parties and creative consideration beyond rights-​based parameters for dealing with conflict. There is a perception among solicitors and dispute resolution practitioners that barristers tend to see the dispute in terms of court outcomes only and often ignore the wider issues which can lie at the heart of a conflict. Failure by legal advisers to address these issues is a common impediment to settlement. Mediation provides parties with an opportunity to identify and explore these relevant personal factors in a confidential forum where voluntary participation is founded in good faith. Whilst the notion of “good faith” has difficulties for lawyers in terms of certainty, it is a notion that is well understood and embraced by parties participating in a mediation process and is a fundamental cornerstone to the success of that process –​it is also one of the distinguishing features between mediation and structured settlement negotiations. It is a tool to facilitate constructive discussions and is not intended for use as a weapon between parties. Similarly confidentiality of discussions is a tool which should facilitate full and frank disclosure and discussion of issues thereby offering parties the best opportunity for teasing out resolution options for consideration. The absence of a desire of a party to participate in that spirit (despite the statutory obligation to participate in good faith imposed by s 110L of the Supreme Court Act 1970 (NSW)) may be a relevant factor for a court to consider before it makes a mandatory order to mediate. If barristers are to remain advocates only, rather than dispute resolution advisers (and all that those three words import), they need to appreciate the effect that that will have on the Bar’s traditional work and its perceived ability to participate in mediation, ADR and dispute management. [1.195]  51

Dispute Resolution in Australia: Cases, Commentary and Materials

The Bar in Mediation and ADR cont. Finally, all this highlights the need for an understanding of these various ADR processes, their proper definitions and uses coupled with a universally accepted standard of conduct and accreditation. One of the practical difficulties with a universal standard has been the administrative framework it would require and the enforceability of any sanctions or licenses [sic] to be applied. Within professional bodies, such as the Bar Association, many of these concerns can be accommodated. Similarly, appointment to various panels can go some way to identifying, adopting and enforcing a standard of skill, experience and conduct. However, the field of dispute resolution practice is far wider than that being conducted by professionals and panels.

 [1.200]  While Emmett’s article is a little dated, mainly because of the changes to legislation,

it still has currency in the debate over the role of the legal profession in dispute resolution. In particular, his list of questions for barristers who are required to comply with r 38 of the NSW Barristers’ Rules is still on point for advocates practicing in our courts today and raises real issues about the level of compliance required of the legal profession. [1.205]  There have been no cases litigated in Australia where a legal practitioner has been

sued for failing to advise a client of dispute resolution options. However, there have been cases in Australia where legal practitioners have been successfully sued for failing to advise clients of certain information or tendering incorrect advice: see NRMA Ltd v Morgan (1999) 31 ACSR 435; [1999] NSWSC 407 (although later reversed by the NSW Court of Appeal in Heydon v NRMA Ltd [2000] NSWCA 374); Feletti v Kontoulas [2000] NSWCA 59; Vulic v Bilinsky [1983] 2 NSWLR 472. It is only a matter of time before the issue of a legal practitioner failing to advise a client on dispute resolution options comes before a court under an action for common law negligence or for professional misconduct or unsatisfactory professional conduct pursuant to relevant State and Territory legislation regulating the legal profession. [1.210] QUESTIONS

1.

What are the historical origins of dispute resolution?

2.

Has dispute resolution flourished in the private or public sector or both?

3.

Should there be an “A” in Alternative Dispute resolution? If so, what should it stand for?

4.

How do you define dispute resolution?

5.

What factors should be considered when choosing a dispute resolution process?

6.

Should the legal profession be as involved in dispute resolution as they currently are?

7. Does the training of lawyers prevent them from being effective dispute resolution practitioners? 8.

Should lawyers properly advise their clients of dispute resolution options? If so, how can they properly do so?

  

52 [1.200]

CHAPTER 2

Understanding Conflict [2.05] [2.10]

INTRODUCTION...........................................................................................................  53 DEFINING CONFLICT....................................................................................................  54 [2.15] Dictionary of Conflict Resolution............................................................ 54 [2.25] Disputes and Conflicts......................................................................... 56 [2.30] ANALYSING CONFLICT.................................................................................................  57 [2.35] Assessing a Conflict............................................................................ 57 [2.45] A Wide Range of Conflict Analysis Models................................................ 58 [2.55] How We Experience Conflict?................................................................ 59 [2.65] CAUSES OF CONFLICT..................................................................................................  60 [2.70] Moore’s Pizza................................................................................... 60 [2.80] Building and Testing a Hypothesis.......................................................... 62 [2.90] What Causes Conflict –​A Broader View................................................... 63 [2.100] CONFLICT INTENSITY AND ESCALATION......................................................................  64 [2.105] Becoming a Conflict Competent Leader................................................... 64 [2.115] On Enemy Images and Conflict Escalation............................................... 66 [2.125] Conflict Escalation and De-​escalation Models........................................... 68 [2.135] Social Conflicts.................................................................................. 70 [2.140] RESPONDING TO CONFLICT........................................................................................  71 [2.145] Avoiding and Engaging in Conflict......................................................... 71 [2.155] Dual Concern Model........................................................................... 72 [2.165] How People Avoid Conflict.................................................................... 73 [2.175] How People Engage in Conflict.............................................................. 74 [2.185] Using a Values-​Based Approach in Mediation........................................... 76 [2.195] Some Good News and Some Bad News about Conflict............................... 77 [2.200] CONCLUSION...............................................................................................................  79 [2.205] QUESTIONS..................................................................................................................  79

INTRODUCTION [2.05]  There are many different theoretical approaches to understanding conflict found in a

range of academic disciplines. Conflict is studied by a range of scholars and practitioners in fields as diverse as psychology, political science, anthropology, law and social science. The field of conflict and conflict resolution is multi-​disciplinary. This chapter introduces a range of definitions of conflict and some models for analysing conflict. It also explores some of the possible causes of conflict, and considers how conflict can escalate. It discusses typical responses to conflict and also acknowledges that conflict can have both positive and negative consequences. It is fundamentally important for a conflict resolution practitioner (whether a lawyer, arbitrator, conciliator, mediator or other conflict support professional) to understand conflict dynamics to support people to constructively manage or resolve conflict. The correct analysis of the cause of a conflict and an understanding of different ways to approach it will assist the practitioner to select or design the most appropriate intervention. As Chapter 1 has already demonstrated, there are many different types of dispute resolution interventions. A  correct conflict analysis followed by an appropriate intervention will lead to constructive conflict management at worst, and effective dispute resolution at best. An incorrect analysis is likely to lead to a non-​productive outcome at least, and escalation of the conflict at worst. [2.05]  53

Dispute Resolution in Australia: Cases, Commentary and Materials

DEFINING CONFLICT [2.10]  There are many ways of defining the term “conflict”. As the following extracts demon-

strate, the term can be defined narrowly or broadly, in relation to individuals or groups, focusing on social science or legal aspects, and positively or negatively.

Dictionary of Conflict Resolution [2.15] D Yann, Dictionary of Conflict Resolution (Jossey Bass, San Francisco, 2002) “conflict”, pp  113-​117. Disagreement or incompatibility. Derived from the Latin conflictus, meaning “to strike together”, it is used to denote both a process and a state of being. Here are some sample definitions of this sometimes subtle, complex concept: • “A situation in which a choice must be made in the absence of dominance (ie, a decision must be made that requires a tradeoff)” [Swingle, 1970, p 222]. • “An inseparable part of social interaction. Conflict cannot take place without involvement of two or more parties. Mutually incompatible goals among parties amidst a lack of coordinating or mediating mechanisms give birth to conflict. In this broad sense, conflict is a generic social phenomenon involving individuals, societies, states and their collectives” [Azar, 1990, p 5]. • “An expressed struggle between at least two interdependent parties, who perceive incompatible goals, scarce rewards, and interference from the other party in achieving their goals. They are in a position of opposition in conjunction with cooperation” [Kiely and Crary, 1986, p 39]. • “When two or more individuals have preferences or goals which cannot be attained by all and a decision must be made as to whose preferences or goals will prevail. In conflict, each party desires to attain dominance, the state or position of being in control and, thereby, achieve the desired goal or preference” [Edwards, 1981, p 82]. • “Conflicts involve struggles between two or more people over values, or competition for status power and scarce resources” [Moore, 1986, p 16]. • “A situation in which authority or power is being exercised without the sanction or approval of those over whom it is being exercised” [Burton, 1969, p 126]. • “A conflict arises when two or more people or groups endeavor to pursue goals which are mutually inconsistent” [Nicholson, 1975]. • “ ‘Conflict’ is a term with different meanings, depending on the user. For present purposes, conflict is defined as mutual hostility between or among individuals or groups. Hostility might be expressed in words (insults, name-​calling, sarcasm, defamation, etc) or in actions (killing, fighting, destroying another’s property, withholding needed assistance, etc). Obviously, this definition lacks great precision and does not outline the many possible subtle forms of conflict” [Nye, 1973, p xi]. • “Conflict can also be defined as escalated natural competition of two or more parties who believe they have incompatible goals and whose aim is to neutralize, injure, or gain advantage over the other party or parties” [Holsti, 1983]. In its more common use, conflict refers narrowly to a disagreement, the expression or manifestation of a state of incompatibility. In this sense, conflict connotes an interactive process involving some active or physical contest between parties, the act of disagreeing, disputing, or engaging in hostilities. When used in this manner, conflict is synonymous with dispute. Distinctions between these two terms may be useful, and commentators have struggled with a variety of sometimes incompatible distinctions. Burton [1969, p 2] describes conflict as a more extreme form of dispute, involving hostile action and the potential destruction of people and institutions. Disputes occur in situations where the issues are negotiable, while conflict is behavior that goes beyond “normal disagreements”. Noting that some social scientists would differ, Starke [1968, pp 74-​75] believes that conflict requires an element of competition or rivalry over inconsistent values, claims, goals, or interests; thus conflict is a broad range 54 [2.10]

Understanding Conflict  Chapter  2

Dictionary of Conflict Resolution cont. of rivalries inclusive of a dispute, which in international relations normally means a disagreement on points of law, principle, or fact [p 89]. Compare Costantino and Merchant [1996, pp 4-​5], who, from an organizational design perspective, attempt to distinguish conflict as a process of disagreement or dissatisfaction of which a dispute is one of several possible by-​products. In a less common use, conflict refers broadly to a state of incompatibility or disharmony. Generally this state requires conditions and behavior that give rise to a grievance, as defined by Miller and Sarat [1980-​1981, pp 526-​527] and Felstiner, Abel, and Sarat [1980-​1981]. Examples of such conditions would be interdependence combined with scarce resources or divergent interests, and examples of such behavior would be competitive, uncooperative, or incompatible behavior. If one combines the notions of conditions and behavior, conflict is incompatible behavior between parties whose interests differ. In this context, interests refers to the recognized and unrecognized stakes, abstract as well as concrete, affected by the parties’ interaction; incompatible behavior is action, real or perceived, that frustrates or opposes the other, purposefully or not. Take away either the difference in interests or the incompatible behavior and there is no conflict. This comports with Donohue and Kolt’s [1992, p 4] definition of conflict as “a situation in which interdependent people express differences in satisfying their individual needs and interests, and they experience interference from each other in accomplishing these goals”. See also Levinger and Rubin, 1994. When speaking of conflict resolution, it may be preferable to conceptualize conflict as a state rather than a process, thereby making it easier to distinguish between conflict resolution processes and the conflict that such processes are supposed to affect. For example, this use of the term simplifies the distinction between conflict, a state, and dispute, a process. A dispute is an articulation of the conflict, a symptom, so to speak, rather than the conflict itself. A conflict can exist without a dispute, but a dispute cannot exist without a conflict. For example, two sisters want the only orange in the house and begin arguing over who should get it. The conflict is that each wants the orange (interests differ), but neither is willing to yield it to the other (incompatible behavior). The dispute is their argument over it, and disputing is a method of resolving the conflict. In this sense, conflict that gives rise to a dispute is manifest, while conflict that has not given rise to a dispute is latent. Some other dichotomous classifications are being used. For example, Kolb and Bartunek [1992, p 3] refer to public and private conflicts in a manner somewhat similar to the definitions of manifest and latent. Public conflicts are “in the open” enough to be handled by the applicable norms and conflict management machinery within the community or organization in which they arise. Although typically latent, private conflicts may be manifest to the disputants but not apparent to or perhaps not recognized as a dispute by the larger community or organization. Coser [1956] distinguishes between realistic and nonrealistic conflict. Whereas realistic conflicts arise from the frustration of specific demands, nonrealistic conflicts arise from the need to release tension. Other authorities note that incompatible behavior can exist merely when parties perceive their goals to be incompatible, when in fact no actual incompatibility of interests exists. Moore [1986, p 174, citing Aubert, 1963] distinguishes between consensual or interest-​based conflict, in which parties are in a sense collaborating to compete for the same limited resources, and dissensual or value-​based conflict, in which parties are promoting incompatible norms or principles for application to a situation. Without distinguishing dispute from conflict as described earlier, some social conflict theorists use the dichotomous classification of constructive and destructive conflict. Noting that these are easier to define at their extremes, Deutsch [1973, p 17] focuses on outcome satisfaction, noting that a conflict is destructive if participants are dissatisfied with the outcomes and feel they have lost as a result of the conflict. Conversely, a conflict is constructive if outcomes are satisfying to all participants who feel they have gained as a result of the conflict. Noting that no conflict is wholly constructive or destructive, Kriesberg [1998b] explores the degree of constructiveness and destructiveness through assessing the way the conflict is waged as well as its outcomes. A conflict is increasingly destructive as the means used are more severe, as greater harm is caused to more people, as the scope of participation is larger, as the other side is viewed as increasingly illegitimate, and as characteristics tend to perpetuate the conflict. A conflict is more constructive when the means used tend more toward persuasion through [2.15]  55

Dispute Resolution in Australia: Cases, Commentary and Materials

Dictionary of Conflict Resolution cont. promises of benefits rather than toward coercive threats or actions, the other side is increasingly viewed as a legitimate entity, and mutually acceptable outcomes are sought [pp 21-​22]. Although much conflict is so complex as to defy easy categorization, these constructs can help focus interventions on particular aspects of the conflict. There are a number of subterms that distinguish different types of conflict by the setting in which it occurs. In psychology, conflict is generally used to describe an individual’s internal state in which desires or impulses are in opposition. The term intrapersonal conflict may be used to distinguish this internal, psychological conflict from interpersonal conflict between two or more individuals. Conflict between two individuals or entities may be referred to as dyadic conflict or, when involving several actors, multiparty conflict. The term interpersonal conflict is commonly used to distinguish conflict among individual humans from conflict within and among nonhuman entities or states. Thus the terms intraorganizational or intragroup conflict are used to denote conflict between individuals within a group over issues relating to that group’s purpose, organization, or action. Interorganizational or intergroup conflict denotes incompatibility or disagreement between groups, while international conflict is conflict between entities recognized under international law. An emerging term is intercultural conflict, which may occur between individuals or groups and involves incompatible perceptions, values, or behaviors resulting from differences in respective cultural preferences. Although cross-​cultural conflict is sometimes used with the same meaning as intercultural conflict, it implies a comparative approach to understanding universals and differences in conflict-​handling across different cultures (see culture). Multicultural conflict refers to conflict usually found in multiethnic settings with many overlapping and interacting cultures.

 [2.20]  In the previous extract, Yann introduced the possible distinctions between the concepts

of “conflict” and “dispute”. Moffitt and Bordone, in the following extract, argue that the distinction is really not helpful. They also point out that different descriptions of a conflict or dispute are not always merely academic –​people involved in a conflict often describe the situation very differently in terms of timeline, characters, labels and scope.

Disputes and Conflicts [2.25]  M Moffitt and R Bordone, “Perspectives on Dispute Resolution” in The Handbook of Dispute Resolution (Jossey Bass, San Francisco, 2005) Ch 1, pp 2-​3. Are disputes and conflicts the same thing? Some scholars use the terms interchangeably, while other see important differences between the two. Part of this derives from disciplinary differences. Social scientists are more likely to study “conflicts”, while those with legal training may focus on “disputes”. Neither discipline has settled on a single definition of either term, however. In the Dictionary of Conflict Resolution, for example, the definition of the term conflict occupies more than twenty paragraphs, even without considering its many compound usages. If there is a difference between popular uses of the terms dispute and conflict, it might roughly be described as one of magnitude. Most observers would intuitively say that a border war is a conflict, and an argument with a hot dog vendor is a dispute. Conflicts are often seen as broader (involving more people), [3]‌deeper (extending beyond surface issues into questions of value, identity, fear or need), and more systematic (reaching beyond a single interaction or claim). Yet such line drawing in real life is rarely so obvious. Even more important, we are not convinced that the work of precisely differentiating between disputes and conflicts merits the effort. No body of knowledge or advice should hinge on whether the condition being described falls into the category of dispute or conflict. We do not interest ourselves 56 [2.20]

Understanding Conflict  Chapter  2

Disputes and Conflicts cont. with questions about what labels observers put on the dynamics they study, but instead focus on what insights observers have to offer about the people experiencing the problem, their views of the problem, and the processes by which they are seeking to resolve their differences … Even beyond questions of definitional boundaries, one often sees disagreement about how best to describe a dispute. Disputants may differ in the timeline they use to describe a set of circumstances underlying a dispute. Figuring out who has the most legitimate claim or who is at fault can depend on when one begins the story. (“The project is late because you committed us to an unrealistic deadline without consulting me” versus “If you had managed your workload better last month, we would have been done with the project on time”.) Disputants may differ in the characters they would include in the list of relevant participants or decision makers. (“This has nothing to do with him; leave him out of this”.) Disputants sometimes use different labels for each other. The other person may be an opponent, an adversary, a counterpart, or a partner, for example. Disputants may have different visions of the scope of the dispute. For example, each may have a different view of which facts, feelings, issues, and concerns are relevant and appropriate to be included in the description of the dispute.



ANALYSING CONFLICT [2.30] While the distinction between conflict and dispute may be considered unnecessary,

perception of a situation as either a conflict or a dispute is critical to determining the type of intervention required. In the following extract, Furlong explains the importance of correctly analysing a conflict before deciding what action to take to address it.

Assessing a Conflict [2.35]  G Furlong, “Introduction” in The Conflict Resolution Toolbox: Models and Maps for Analyzing, Diagnosing and Resolving Conflict (John Wiley & Sons, Ontario, Canada, 2005) pp 1-​3. Imagine for a moment that you are faced with a conflict. Imagine, for example, that your new neighbor loves to have guests over many nights of the week until the early hours of the morning, keeping you up with the noise. When you talk to your neighbor, he laughs and tells you, “Loosen up, have some fun. Come and join us if you want! You need to enjoy life more!” You go home after the conversation and get increasingly angry. You think about how insensitive he is, how little he cares for other people. You begin to think that he may actually be retaliating for the fact that your dog barks every now and then, which he complained about once. Given how you see the problem, you vow to call the police the next time he has a party during the week. This conflict is headed for a significant escalation. We are all faced with conflict situations in many aspects of our lives, whether in our personal life, in the workplace, or with just about anyone we meet. Given how common conflict situations are and how frequently we deal with conflict, you would think that we’d all be pretty good at handling conflict. [2]‌The reality is a bit different, in that most people report little confidence in addressing or handling conflict. Why? Managing conflict effectively is a simple two-​step process that starts with: 1.

how we assess the conflict we’re facing, followed by

2.

what action (or inaction) we decided to take to address it.

Whenever we are faced with a dispute, the first thing we do is try to make sense of it –​try to determine what the conflict is about. In other words, Step One is trying to diagnose the conflict. Once we’ve [2.35]  57

Dispute Resolution in Australia: Cases, Commentary and Materials

Assessing a Conflict cont. decided on (or guessed at) the cause, Step Two is taking some type of action based directly on what we think has caused it. In the example above, the homeowner has assessed the conflict in Step One as being caused by the neighbour’s being insensitive, uncaring, maybe even vengeful. Based on this diagnosis, in Step Two, the homeowner decides the reasonable and appropriate way to address this conflict is by calling the police to curtail the neighbour’s uncaring, insensitive and vengeful behaviour. The conflict was assessed, and an action that seems to make sense is taken based on that assessment. But how accurate was this assessment? In every conflict, we employ these two steps, either consciously or unconsciously. In fact, how good we are at managing conflict will be based, fundamentally, on how skilled we are at these two steps: 1.

creatively and insightfully diagnosing what is causing a conflict, and

2.

effectively and skillfully taking action to resolve the conflict.

In many cases, the barrier to effectively managing a conflict is that we diagnose the conflict unconsciously, react emotionally, [3]‌make choices and apply tools based on a poor diagnosis, and end up escalating the situation.

 [2.40]  While the extract from Furlong ([2.35]) is talking about how a person actually involved

in a conflict might diagnose the cause of the conflict and then decide what action to take to resolve it, the same principles apply to a conflict resolution practitioner. Analysing conflict is not easy, because conflict can be very complex. A conflict can involve at least two people with different backgrounds, personalities, thoughts and feelings. We can ask the people involved what has caused the conflict between them, but we are likely to get very different answers from each of them. Also, people in the middle of conflict often find it difficult to step back and analyse their own conflict situation, so the answers we receive may not be entirely reliable. There are many models for explaining and analysing conflict. Some are very simple, and some are very complex. In the following extract, Furlong explains the importance of conflict analysis models for the conflict resolution practitioner.

A Wide Range of Conflict Analysis Models [2.45]  G Furlong, “A Wide Range of Conflict Analysis Models” in The Conflict Resolution Toolbox: Models and Maps for Analyzing, Diagnosing and Resolving Conflict (John Wiley & Sons, Ontario, Canada, 2005) pp 11-​12. There is no magic formula that resolves all disputes. Because conflict situations can be so diverse, and because models are not exclusive representations of “truth”, we are not looking for a single model that will make sense of every conflict in the world. Rather, we need to be comfortable with a wide range of models that will help us in diagnosing different problems, in vastly different circumstances, with different people … Diagnosis is about framing the conflict in a way that has coherence and makes sense. The effective practitioner needs a wide range of diagnostic models and frameworks that help organize and make sense of a wide range of situations. As described by Bernard Mayer, these models are essential for the practitioner: A framework for understanding conflict is an organizing lens that brings a conflict into better focus. There are many different lenses we can use to look at conflict, and each of us will 58 [2.40]

Understanding Conflict  Chapter  2

A Wide Range of Conflict Analysis Models cont. find some more amenable to our own way of thinking than others … We need frameworks that expand our thinking, that challenge our assumptions, and that are practical and readily usable. Mayer’s “lens” analogy is useful. For example, conflict can be viewed through a communication lens, a type of conflict lens, an “interests” lens, a personality lens, a structural lens, a cultural lens, a dynamics of conflict lens, and more. This means that an effective practitioner should have a constellation of diagnostic models to help frame and understand different situations; as experience grows, the practitioner will become more skilled at choosing the one(s) that will help create effective interventions.

 [2.50]  In order to analyse a particular conflict, we need to collect information about it. This

information can sometimes be difficult to obtain, and challenging to interpret. In the following extract, Mayer explains that conflict emerges and is experienced across three, sometimes contradictory, dimensions.

How We Experience Conflict? [2.55]  B Mayer, “How We Experience Conflict?” in The Dynamics of Conflict: A Guide to Engagement and Intervention (Jossey Bass, San Francisco, 2012) pp 3-​5. Conflict emerges and is experienced along cognitive (perception), emotional (feeling), and behavioral (action) dimensions. We usually describe conflict primarily in behavioral terms, but this can oversimplify the nature of the experience. Taking a three-​dimensional perspective can help us understand the complexities of conflict and why a conflict sometimes seems to proceed in contradictory directions. Conflict as Perception As a set of perceptions, conflict is our belief or understanding that our own needs, interests, wants, or values are incompatible with someone else’s. There are both objective and subjective elements to this dimension. If I want to develop a tract of land into a shopping center, and you want to preserve it as open space, then there is an objective incompatibility in our goals. If I believe that the way you desire to guide our son’s educational development is incompatible with my philosophy of parenting, there is a significant subjective component. If only one of us believes an incompatibility to exist, are we still in conflict? As a practical matter I find it useful to assume that a conflict exists if at least one person thinks that there is a conflict. If I believe that we have incompatible interests and proceed accordingly, I am engaging you in a conflict process whether you share this perception or not. The cognitive dimension is often expressed in the narrative structure that disputants use to describe or explain a conflict. If I put forward a story about an interaction that suggests that you are trying to undercut me or deny me what is rightfully mine, I am both expressing and reinforcing my view about the existence and nature of a conflict. The narratives people use provide both a window into the cognitive dimension and a means of working on the cognitive element of conflict. Conflict as Feeling Conflict is also experienced as an emotional reaction to a situation or interaction. We often describe conflict in terms of how we are feeling –​angry, upset, scared, hurt, bitter, hopeless, determined, or even excited. Sometimes a conflict does not manifest itself behaviorally but nevertheless generates considerable emotional intensity. As a mediator, I have sometimes seen people behave as if they were in bitter disagreement over profound issues, yet been unable to ascertain exactly where they disagreed. Nonetheless, they were in conflict because they felt they were. As with the cognitive dimension, conflict on the emotional dimension is not always experienced in an equal or analogous way by [2.55]  59

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How We Experience Conflict? cont. different parties. Often a conflict exists because one person feels upset, angry, or in some other way in emotional conflict with another, even though those feelings are not reciprocated by or even known to the other person. The behavioral component may be minimal, but the conflict is still very real to the person experiencing the feelings. Conflict as Action Conflict is also understood and experienced as the actions that people take to express their feelings, articulate their perceptions, and get their needs met, particularly when doing so has the potential for interfering with others’ needs. Conflict behaviour may involve a direct attempt to make something happen at someone else’s expense. It may be an exercise of power. It may be violent. It may be destructive. Conversely, this behavior may be conciliatory, constructive, and friendly. Whatever its tone, the purpose of conflict behavior is to either express the conflict or to get one’s needs met. Here, too, there is a question about when a conflict “really” exists. If you write letters to the editor, sign petitions, and consult lawyers to stop my shopping center and I don’t even know you exist, are we in conflict? Can you be in conflict with me if I am not in conflict with you? Theory aside, I think the practical answer to both of these questions is yes.

 [2.60]  One of the difficulties for a conflict resolver is that, of the three dimensions of con-

flict, only conflict as action is easily observed. How a person perceives or feels about conflict is not always obvious, nor necessarily reflected in a person’s actions. The fact that these dimensions are constantly changing throughout the course of the conflict also means that the conflict resolver needs to be constantly alert. It is important to keep reassessing the conflict throughout the course of any chosen intervention, to ensure that the process is still appropriate.

CAUSES OF CONFLICT [2.65] There are different types and causes of conflict. Conflict may be categorised into

different types based on actors in the conflict and the relationship between them, subject matter of the conflict and the mode of conflict engagement. For example, a conflict may be violent or non-​violent depending on how parties engage and it could be inter-​personal, intra-​personal, intra-​state (ethnic conflicts) or inter-​state (international conflicts). Causes of conflict may also be economic, political or territorial and some conflicts may involve many layers, thus increasing their complexity and requiring different forms of interventions to resolve or manage them. Christopher Moore’s model of causes of conflict and appropriate interventions is known as the “Circle of Conflict” (or sometimes “Moore’s Pizza”). The “Circle of Conflict” is useful for conflict analysis which in turn helps design appropriate conflict interventions. Moore’s model identifies how each type of conflict is typically caused and what sorts of interventions are useful for each. He categorises conflict into five main types: relationship conflict, data conflict, value conflict, structural conflict and interest conflict.

Moore’s Pizza [2.70]  C Moore, The Mediation Process: Practical Strategies for Resolving Conflict (3rd ed, Jossey Bass, New York, 2003) pp 64-​65. 60 [2.60]

Understanding Conflict  Chapter  2

Moore’s Pizza cont.

Circle of conflict: causes and interventions Possible Value-Related Interventions Avoid defining problem in terms of value Allow parties to agree and to disagree Create spheres of influence in which one set of values dominates Search for superordinate goals that all parties share

Possible Relationship Interventions Control expression of emotions through procedure, ground rules, caucuses, and so forth Promote expression of emotions by legitimizing feelings and providing a process Clarify perceptions and build positive perceptions Improve quality and quantity of communication Block negative repetitive behaviour by changing structure Encourage positive problem-solving attitudes

Possible Data Intervention Reach agreement on what data are important Agree on process to collect data Develop common criteria to assess data Use third-party experts to gain outside opinion or break deadlocks

Relationship conflicts are caused by Strong emotions Misperceptions or stereotypes Poor communication or miscommunication Repetitive negative Value conflicts Data conflicts behaviour are caused by are caused by Lack of information Different criteria for evaluating ideas or behaviour Misinformation Exclusive intrinsically valuable Different views on what is relavant goals Different ways of life, ideology, Different interpretations of data Different assessment procedures or religion Structural Conflicts are caused by Destructive patterns of behaviour or interaction Unequal control, ownership, or distribution of resources Unequal power and authority Geographical, physical, or environmental factors that hinder cooperation Time constraints

Interest conflicts are caused by Perceived or actual competition over substantive (content) interests Procedural interests Psychological interests

Possible Structural Interventions Clearly define and change roles Replace destructive behaviour patterns Reallocate ownership or control of resources Establish a fair and mutually acceptable decision-making process Change negotiation process from positional to interest-based bargaining Modify means of influence used by parties (less coercion, more persuasion) Change physical and environmental relationship of parties (closeness and distance) Modify external pressures on parties Change time constraints (more or less time)

Possible Interest-Based Interventions Focus on interests, not positions Look for objective standards and criteria to guide solution development Develop integrative solutions that address needs of all parties Search for ways to expand options or resources Develop trade-offs to satisfy interests of different strengths

 [2.70]  61

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[2.75]  Moore also explains a process by which a mediator can build and test a hypothesis

about the causes of, and appropriate interventions for, a particular conflict.

Building and Testing a Hypothesis [2.80]  C Moore, The Mediation Process: Practical Strategies for Resolving Conflict (3rd ed, Jossey Bass, New York, 2003) p 66. The cycle of hypothesis building and testing is the basic process of intervention and conflict resolution (see Figure [below]). Interventions are categorised into two broad stages: activities which a mediator engages in prior to the formal problem-​solving stage and activities engaged in after the formal problem-​solving stage has commenced. The two broad stages are then further divided into twelve stages: five pre-​commencement of formal problem-​solving and seven post-​commencement.

Mediator process of building and testing a hypothesis

2. Develop hypothesis about critical situations faced by parties and causes of conflict

3. Search for theories that explain conflict and that suggest interventions

4. Select theory and implied intervention; develop hypothesis about what intervention should accomplish

1. Collect data about dispute through observation, secondary sources, or interviews with parties

6. Verify or nullify hypothesis

5. Make intervention (test hypothesis)

 [2.85]  One of the great strengths of Moore’s pizza is the direct linking of possible interven-

tion to the type of conflict that is diagnosed. His description of the process of hypothesising in relation to the dispute also provides a model for all dispute resolvers in most dispute contexts, and a useful framework to chart interventions. Bernard Mayer, in his book The Dynamics of Conflict describes a broader view of the causes of conflict, and has reworked Moore’s pizza to reflect this. 62 [2.75]

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What Causes Conflict –​A Broader View [2.90] B Mayer, “What Causes Conflict?” in The Dynamics of Conflict: A Guide to Engagement and Intervention (Jossey Bass, San Francisco, 2012) pp 8-​10. Conflict has multiple sources, and theories of conflict can be distinguished from one another by which origin they emphasize. Conflict is seen as arising from basic human instincts, from competition for resources and power, from the structure of the societies and institutions people create, from flawed communication, and from the inevitable struggle between classes. Although most of these theories offer valuable insights and perspectives on conflict, they can easily point us in different directions as we seek a constructive means of actually dealing with conflict. What we need is a practical framework that helps us use some of the best insights of different conflict theories.

Cu ltu

er

re

Po w

If we can understand and locate the sources of conflict, we can create a map to guide us through the conflict process. When we understand the different forces that motivate conflict behavior, we are better able to create a more nuanced and selective approach to handling conflict. Different sources of conflict produce different challenges for conflict engagement. The wheel of conflict, illustrated in [the] Figure [below], is one way of understanding the forces that are at the root of most conflicts. This conceptualization of the sources of conflict arose out of my work as a conflict practitioner and conversations with colleagues at CDR Associates and elsewhere, and it is derivative of the circle of conflict developed by Christopher Moore (2003). Moore’s circle consists of five components: relationship problems, data problems, value differences, structural problems, and interests. This has proven a valuable tool for analyzing the sources of conflict, but I have chosen to rework it to reflect a broader view of human needs and the issues that make it hard for us to directly address these needs.

Emotions

Needs Survival needs Interests Identity needs

Values

Structure

Communication

History

rso

n

it y

at a

Pe al

D

Human needs are at the core of all conflicts. People engage in conflict either because they have needs that are met by the conflict process itself or because they have needs that they can only attain [2.90]  63

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What Causes Conflict –​A Broader View cont. (or believe they can only attain) by engaging in conflict … My point here is that people engage in conflict because of their needs, and conflict cannot be transformed or resolved unless those needs are addressed in some way. We should not understand needs as static and unchanging. We all have a range of needs, but how we experience these is influenced by the context and the unfolding interaction. For example, I might start negotiating to sell a house mostly concerned about money, timing, and certainty, but if the hard work I have done to remodel my home is dismissed as sloppy or in poor taste, then I might suddenly find myself more concerned with issues of identity, pride, and self-​image. In this way, the needs we experience are constantly evolving and changing as we interact with others. Needs are embedded in a constellation of contextual factors that generate and define conflict. To effectively address needs, it is usually necessary to work through some of these elements, which affect how people experience their needs and how they choose to pursue them. Five of these factors are particularly critical to understanding how conflict unfolds: the ways in which people communicate, their emotions, their values, the structures in which they interact, and history ...

 [2.95]  Mayer emphasises that the context in which a conflict occurs has a significant impact

on how the conflict progresses, and what kinds of interventions might be most suitable for constructively managing or resolving it. He stresses that the dynamics of conflict change over time and with each interaction between conflicting parties.

CONFLICT INTENSITY AND ESCALATION [2.100] Over time the level of conflict intensity might increase or decrease, and different

types of interventions may be required depending on how far the conflict has escalated. The following extracts describe different levels of conflict intensity and typical patterns of conflict escalation. It is fundamentally important for the conflict professional to understand how far a conflict has escalated in order to select an appropriate intervention.

Becoming a Conflict Competent Leader [2.105]  C Runde and T Flanagan, Becoming a Conflict Competent Leader: How You and Your Organization Can Manage Conflict Effectively (2nd ed, Jossey Bass, San Francisco, 2012) pp 99-​112. Recalling our definition of conflict –​“any situation in which people have apparently incompatible interests, goals, principles or feelings” –​we see that intensity begins at very low levels. In fact, in the earliest stages of conflict, many people may not perceive anything that they would describe as intense. As conflict evolves (and the evolution can occur with alarming speed), the intensity may grow to painful proportions. In the spirit of upgrading our personal “radar” that helps spot and predict potentially stormy interactions, we offer the following intensity levels related to conflict situations: … Differences (Level One): when two people see a situation differently, understand the other party’s position and interests well, and feel no or very little discomfort regarding the difference. A conflict at this level of intensity seldom escalates to levels where interpersonal damage occurs. That’s the good news. But occasionally escalation does occur. … Misunderstanding (Level Two): situations where what is understood by one party is different from what is understood by the other party or parties. Identifying the basis of the misunderstanding is usually critical to resolving the issue, but is not necessarily significant in regard to the intensity of the conflict. What is significant is that the parties recognize that a misunderstanding has occurred and address it. When it is 64 [2.95]

Understanding Conflict  Chapter  2

Becoming a Conflict Competent Leader cont. not acknowledged, the potential exists for the misunderstanding to escalate quickly to a more damaging level of conflict. A misunderstanding in and of itself may not create a great degree of intensity. But the longer a misunderstanding lingers, the more damage it can generate … In addition, the more important the issue that is misunderstood, the higher the potential is for an escalation of intensity. … Disagreement (Level Three): when two people see a situation differently and, regardless of how well they believe they understand the other’s position and interests, feel some degree of discomfort. … The danger with disagreements lies in two specific areas. First a disagreement has much greater potential for escalation than a difference and as least as much potential as a misunderstanding. There is a degree of emotion involved, which is often the fuel for generating the heat in conflicts. Second, because we are all programmed to spot trends and patterns, we are quite adept at spotting any series of disagreements with the same person. Once people see a trend of disagreements, they are more likely to slip into blaming, labeling, attributing, and otherwise making assumptions about the other person. Obviously such reasoning enables conflict to evolve to more destructive levels. … Discord (Level Four): situations where the conflict causes difficulties in the relationship of the people involved even when they are not dealing with the original conflict. … The point is that once a conflict reaches the level of discord, the parties involved begin to experience ongoing difficulties with their relationship. When a person begins to respond to a conflict partner by avoiding, criticizing, yielding, demeaning, blocking, scheming, or sabotaging (you get the picture), it is clear that the relationship is suffering and that both parties are experiencing discomfort. Serious damage to the relationship can result if the conflict is not addressed effectively. It is imperative that the conflict partners find ways to cool their emotions and engage in dialogue that can move the conflict back down the intensity scale. … Polarization (Level Five): conflict situations characterized by severe negative emotions and behavior with little or no hope for reconciliation. In our discussions with those who have found themselves at this most intense level of conflict, two common themes seem to be present. One is the apparent inability or unwillingness of the conflict partners to try to see the other party’s side of the story. The differences between the parties are so severe that accusations and negative attributions become common. Working towards some sort of resolution seems completely futile. The second theme is the active recruitment of others to support one’s position.

 [2.110]  Understanding the stage a conflict is at is important in developing conflict compe-

tency. Conflict competency is as much about analysis as it is about designing an appropriate intervention with all the skills and tools of conflict intervention in place. It is about understanding the issues, knowing the parties, understanding relations between parties and between parties and third parties who may be involved overtly or covertly and understanding what is at stake and consequences that may result if the conflict is resolved or remains unresolved. While Runde and Flanagan’s categorisation of conflict stages is sufficiently detailed, Spillman and Spillman offer a more detailed categorisation particularly in relation to intra-​group conflicts. The principles, however, apply equally to inter-​personal conflicts. Spillman and Spillman explain that as conflict escalates, disputants tend to regress in their thoughts and behaviour in relation to the conflict, even while they interact quite normally with others not involved in the conflict situation. [2.110]  65

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On Enemy Images and Conflict Escalation [2.115] K Spillman and K Spillman, “On Enemy Images and Conflict Escalation” (1991) 43 International Social Science Journal 57 at 57, 67-​70. The Syndrome of the Enemy Image Just as doctors describe complex but typical patterns of illness as syndromes, certain phenomena in the socio-​political field can also be so described. The following seven characteristics belong to the syndrome of the enemy image: 1.

Distrust (everything originating with the enemy is either bad or –​if it appears reasonable –​ created for dishonest reasons).

2.

Placing the guilt on the enemy (the enemy is responsible for the tension which exists and is to blame for everything that is negative under the predominating circumstances).

3.

Negative anticipation (whatever the enemy does is intended to harm us).

4.

Identification with evil (the enemy embodies the opposite of what we are and strive for, wants to destroy what we value most and [58] must therefore be destroyed).

5.

Zero-​sum thinking (anything which benefits the enemy harms us and vice versa).

6.

De-​individualization (anyone who belongs to a given group is automatically our enemy).

7.

Refusal of empathy (we have nothing in common with our enemy; there is no information which could divert us from our enemy perception; human feelings and ethical criteria towards the enemy are dangerous and ill-​advised).

[67] ... Escalation stage one forms part of normal everyday life. Even in good relationships there are moments when opposing expectations, needs or ideas result in conflicts. These can only be resolved with great care, differentiated thinking and mutual empathy, ie, a mutual [68] perspective taking. In this phase one is aware of tensions. An effort is made to find objective solutions with the other side and one is prepared to behave in a co-​operative manner. If for any reason it is impossible to reach a consensus, if one of the partners sticks obstinately to his point of view, the conflict escalates to the next stage. In stage 2 the parties fluctuate between cooperative and competitive positions. There is an awareness of the common interests, but one’s own wishes predominate and increase in importance. Differentiated dealing with information becomes limited in favour of one’s own arguments. The matters in dispute are extended, additional associations of the conflict are suggested, logic and understanding are used in order to convince or win over the opposing side. The striving to assert oneself and not to permit any weakening of one’s own position becomes more and more important, and the temptation increases to leave the field of mere argument until, at one point, the conflict escalates because of some action taken by one of the parties involved. By entering stage 3 of escalation, the field of concrete actions, there is a growing fear that the grounds for a common solution of the problems could be lost. Interaction between the groups becomes more sensitive and irritable. All hope is focused on action, replacing the fruitless and nerve-​ racking discussions. This change is experienced as satisfying and reduces inner tensions, at least for the moment. The expectations of the parties involved, though, are paradoxical: both expect, by means of pressure and resolution, to bring about a change in the opposing party, while at the same time neither is prepared to yield voluntarily. Thus the contradiction immanent in escalation evolves: measures taken by one party to bring about a change in the opponent (meaning de-​escalation) are understood by the opposing party as a signal towards escalation. In stage 3 the pressure to conform is increasing within the group. This pressure is one of the first visible warning signals of intensifying escalation. Differing opinions, ie, different ways of perceiving and evaluating the course of conflict are less and less accepted. This pressure causes many members in the group, who in fact have a different or more differentiated point of view, to remain silent and become bystanders. The difficulty in opposing such pressure of conformity lies in the fact that 66 [2.115]

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On Enemy Images and Conflict Escalation cont. the group reacts to such opposition with a total withdrawal of attention, evoking deep-​seated fears of loneliness, loss and annihilation. The increasing uniformity of opinion involves a narrowing and decreasing differentiation of perception and a reduction of the potential of action and thought. The mature, complex view of reality is sacrificed for a reduced simplified version, which is more easily sustained emotionally. The actual issues of conflict become blurred and less important while they general characteristics (the gestalt) of the opponent becomes the centre of attention and concern. Collective stereotypes like radicals, fascists, Jews, capitalists, etc. are increasingly applied as negative identifications of the opponent. With all the difficulties involved, though, the opponent still has a face. Power play, the competition between different perspectives dominates the field which each one hopes to win. As in the third stage of the emotional development, the issues of power and impotence, law, guilt, and order become predominant. With continuing tensions, readiness to use empathy gradually disappears. In order to decrease inner tensions, one is tempted increasingly to turn to action in order to obtain a better leverage vis-​à-​vis the opponent. This again can lead to a point of no return, where both parties refuse any kind of empathy and thereby reach the critical stage 4 of escalation. At stage 4 the cognitive functioning regresses to the developmental stage 2, ie, to the level of the six to eight year old. Admittedly, one is aware of other perspectives, but no longer capable or prepared to consider the thoughts, feelings and situation of the other, nor to take them into account in one’s own behaviour. Thus, individual differentiations also disappear –​a further very serious indication of increasing escalation. In the emotional sphere, the black-​and-​white allocations predominate, ie, everything that is “not-​ I”, or “not-​we” is threatening and evil and therefore rejected. Thus the gap between the opposing groups widens continuously. At the same time mutual projections increase: negative aspects of one’s own group which are not acknowledged as belonging to the group’s image, are projected onto the outer world or the opposing party. Also, oppressive emotions [69] are directed against the opponent along the lines: “because I am afraid, you must have threatened me”. Besides, the parties feel mutually forced into certain roles by the opposing side, from which they can hardly escape, but which do not correspond to their own image of themselves. Through such a projective identification a group can often feel challenged to certain behaviour without being conscious of it, which corresponds exactly to the image projected by the opponent. The behaviour of the parties involved at this stage of escalation can only be understood if one estimates correctly and is aware of the extent of regression and how these projective images stand between the parties and determine what happens. These images pursue the parties like evil spirits which they reject but simultaneously wish to attribute to the opponent; in other words, each side both provokes and combats a certain behaviour of the opposing party. The pressure upon indifferent persons or groups to take sides increases further. Anyone maintaining contact with both groups becomes suspect. If the conflict cannot be halted at this stage, the escalation reaches a dramatic increase in intensity. This comes about as a result of one side committing or threatening to commit some action, which is felt by the opposite side as an offence, a “loss of face” that has to be dealt with accordingly. At escalation stage 5, clear indications of a progressive regression appear in the form of a comprehensive ideologizing and totalizing of antagonistic perspectives. “Sacred values”, convictions and superior moral obligations are at stake. The discourse assumes almost mythical dimensions. Symbiotic feelings in the group progress (or rather regress) to the feeling of “we [70] (two) are one” that are accompanied by phantasies of omnipotence. This is when escalation reaches a hallucinatory-​ narcissistic sphere. The entire self-​conception, as well as the conception of the world are drawn into the conflict and individual perceptions and evaluations with regard to the conflict disappear. What remains is one [2.115]  67

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On Enemy Images and Conflict Escalation cont. concept, one image, shared by all. In relation to the opposing party, the individual now perceives himself almost exclusively as a member of his group, just as he perceives individuals of the opponent group: inter-​personal behaviour thus seems wiped out, inter-​group behaviour determines what happens. Accordingly, power and violence assume impersonal forms, the perception of the opposing side freezes into the rigid image of the enemy. Thus, the emotional allocation of information is again reduced to the elementary allocation pattern of early childhood by the contrasting features, strange/​familiar, threatening/​safe or evil/​good, and in the cognitive area; one’s own point of view represents reality. At this level of escalation (or regression) there is no longer any qualitatively different way of thinking and feeling. By threatening and creating fear, both parties strive towards total control of the situation, thus escalating the conflict further. In order to remain credible and to restrain the enemy from an act of force, the threatening group feels compelled to commit acts of force itself. This, in return, proves to the threatened group the aggressive nature of the threatener and provokes counter-​force and thus further escalation that can lead as far as total annihilation and self-​destruction. The enemy is devalued into a thing and completely dehumanized. Thus, any association and feelings of community are lost and any kind of human ethical standards and scruples in dealing with the enemy also disappear. The emotional and cognitive patterns of differentiation that enable human beings to feel empathy, suffer a total breakdown in relation to the enemy. However, the very same human beings are capable –​on the basis of the revived infantile splitting processes of “good” and “evil” –​to function within their own (good) group as though they were perfectly rational and normal. This is what makes it so difficult for an inexperienced or uninformed observer to take into account their true, deeply regressed self-​and other-​perception, and to deal with it consciously in endeavours of conflict resolution.

 [2.120] The previous extracts have shown that conflict tends to follow typical patterns of

escalation. Ramsbotham et  al, in the following extract, explain that conflict also has typical patterns of de-​escalation. Their model goes well beyond the types of conflicts generally referred to in this book, expanding to violent conflict and wars; however, the basic principles of selecting an appropriate intervention based on the level of conflict escalation, for the purpose of de-​escalating conflict, are broadly applicable.

Conflict Escalation and De-​escalation Models [2.125]  O Ramsbotham, T Woodhouse and H Miall, Contemporary Conflict Resolution: The Prevention, Management and Transformation of Deadly Conflict (3rd ed, Polity, Cambridge, 2012) pp 12-​13. Conflicts are dynamic and can develop and change at astonishing speed. They can also take long periods of time to gestate unnoticed before they suddenly erupt into overt violence. The process of conflict escalation is complex and [13] unpredictable. New issues and conflict parties can emerge, internal power struggles can alter tactics and goals, and secondary conflicts and spirals can further complicate the situation. The same is true of de-​escalation, with unexpected breakthroughs and setbacks changing the dynamics, with advances in one area or at one level being offset by relapses at others, and with the actions of third parties influencing the outcome in unforeseen ways. Here we offer the simplest model in which escalation phases move along a normal distribution curve, from the initial differences that are part of all social developments, through the emergence of an original contradiction that may or may not remain latent, on up through the process of polarization in which antagonistic parties form and the conflict becomes manifest, and culminating in the outbreak of direct violence and war (see Figure [below])… 68 [2.120]

Understanding Conflict  Chapter  2

Conflict Escalation and De-escalation Models cont.

Conflict escalation and de-​escalation War Violence

Ceasefire Agreement

Polarisation Contradiction

Normalisation

Difference

Reconciliation

The Hourglass Model: A Spectrum of Conflict Resolution Responses Here we combine Galtung’s ideas on conflict and violence with escalation/​de-​escalation phases to produce the “hourglass” model of conflict resolution responses ... (see Figure [below]). The hourglass

The hourglass model: conflict containment, conflict settlement and conflict transformation Conflict transformation

Conflict settlement

Conflict containment

Conflict settlement

Conflict transformation

Difference

Cultural peacebuilding

Contradiction

Structural peacebuilding

Polarisation

Peacemaking

Violence

Peacekeeping

WAR

War limitation

Ceasefire

Peacekeeping

Agreement

Peacemaking

Normalisation

Structural peacebuilding

Reconciliation

Cultural peacebuilding

Note: In de-escalation phases conflict resolution tasks must be initiated at the same time and are nested. They cannot be undertaken sequentially as may be possible in escalation phases – see chapters 5 and 8. We suggest that what is sometimes called deep peacemaking (which includes reconciliation) is best seen as part of cultural peacebuilding. [2.125]  69

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Conflict Escalation and De-​escalation Models cont. represents the narrowing of the political space that characterizes conflict escalation (top half of the hourglass model) and the widening of the political space that characterizes conflict de-​escalation (bottom half of the hourglass model). As the space narrows and widens, so different conflict resolution responses become more or less appropriate or possible…

 [2.130] While the extract in [2.125] shows that conflict escalates and de-​ escalates due to

changes in relation to actors and issues and that these are important considerations in selecting an approach to conflict intervention, Kriesberg in [2.135] shows that outcomes produced through conflict interventions may become the bases of new conflicts and create a cycle of conflicts. This analysis provides an explanation as to why conflict is inevitable in social interactions and why conflict resolution practices are essential in every society. In addition, escalation and de-​escalation of conflict are influenced by internal and external factors which the conflict intervener must be aware of, and also support parties to identify and acknowledge. Although Kriesberg wrote in relation to social conflicts, this also applies to inter-​personal conflicts.

Social Conflicts [2.135]  L Kriesberg, Social Conflicts (2nd ed, Prentice-​Hall, Inc, 1982) p 19. … A simplified diagram of this entire range [of stages of conflict] is shown in Figure 1.5. The series of arrows forming the circle indicates that one conflict emerges, escalates, deescalates, terminates, and results in an outcome that becomes the bases for another conflict. The small arrows entering from

Variation and Stages of Conflict Bases if Conflict Consequences

Internal Factors

Environmental Factors Conflict Emergence

Outcome

Initial Conduct

Termination Escalation

Deescalation

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Understanding Conflict  Chapter  2

Social Conflicts cont. inside and outside of the circle indicate that factors that are internal to an adversary as well as social environmental factors affect each stage in addition to preceding stages of the conflict. In this way the belief among adversaries that they are in a conflict is affected by factors internal to each one of them and only partly relevant to the relationship between them. The view is another way of denoting the mixture of unrealistic and realistic components in a specific fight. The primary circle of the arrows indicates the processes linking each stage of a conflict and shows that each affects the choices made in earlier stages.



RESPONDING TO CONFLICT [2.140] How we deal with conflict is a very individual thing, based on our personalities,

education, experiences and the particular context in which conflict arises. It is possible to categorise typical responses to conflict in a variety of ways. Mayer uses very broad categories of avoidance or engagement. Thomas suggests five general strategies: avoidance, accommodation, compromise, competition and collaboration. There are benefits and risks of each approach, and these are discussed in the following extracts.

Avoiding and Engaging in Conflict [2.145]  B Mayer, “Avoiding and Engaging in Conflict” in The Dynamics of Conflict Resolution (Jossey Bass, San Francisco, 2012) pp 42-​43. We all choose sometimes to avoid and at other times to engage in conflict. Rather than thinking of avoidance or engagement as conflict styles per se, I think the more useful and interesting question is to consider how and when we choose avoidance or engagement. These are two very different processes. The emotional and behavioral jump from avoiding conflict to engaging in it is often enormous. As a result, we sometimes observe what appear to be significant discontinuities in behavior, attitude, and interactional style when a conflict becomes manifest. We have all seen people who appear calm, easygoing, or accommodating until suddenly some switch seems to be thrown that unleashes a much more confrontational, emotional or rigid approach. It may be that some personal value or deep emotion has been touched, but for many this change is largely a result of the different styles they exhibit when they are avoiding a conflict and when they are engaging in one. Of course, for some the jump from avoidance to engagement is not so dramatic, and they are less likely to change their behavior or approach as they engage a conflict. But for most of us there is some emotional and behavioral shift that occurs when crossing the subtle barrier that separates avoidance and engagement. Both avoidance and engagement are key parts of the conflict process, but they involve very different stances toward it. When we are avoiding conflict, our efforts are focused on preventing a conflict from surfacing, denying a conflict’s existence, or staying out of an ongoing conflict. In general we are limiting our investment of emotion and energy in a conflict. When engaging, our energy is directed toward participating in a conflict, asserting our needs, expressing our feelings, putting forward our ideas, and promoting particular outcomes. We sometimes go back and forth between avoidance and engagement many times during the course of a conflict, particularly when long-​term relationships are involved. … Some people are much more comfortable engaging in conflict quickly and if necessary repeatedly. Others will go to great lengths to avoid conflict, to disengage as quickly as possible, and to prevent its recurrence. The specifics of the conflict of course have a lot to do with the pulls people experience toward avoidance and engagement. Most of us can think of conflicts that we would prefer to avoid at almost all costs, and others that we are very willing to engage in, that seem almost fun. [2.145]  71

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Avoiding and Engaging in Conflict cont. Kenneth Thomas (1983; also see Thomas and Kilmann, 1974) a management researcher and teacher, has suggested five general strategies people use to approach conflict. These strategies reflect a varying relationship between satisfying one’s own interests and addressing the interests of others. Collaboration involves an effort to solve both sets of interests; accommodation focuses more on satisfying others’ interests; competition emphasizes one’s own interests; avoidance involves a low commitment to addressing either set of interests; and compromise is directed toward sharing losses and gains jointly. … In many conflicts people move among all of these strategies … But there is no one style that is always preferable and the cultural meaning of these approaches varies tremendously. We are probably most effective in conflict if we can develop the capacity to use a variety of different approaches depending on the circumstances we find ourselves in and the approaches of other disputants.

 [2.150] The five main strategies for approaching conflict can be represented on a graph,

showing where each is placed in relation to the level of concern for the person’s own outcomes and the other party’s outcomes in the conflict. As Pruitt and Kim’s Dual Concern Model (see [2.155]) demonstrates, avoidance is a strategy in which concern is low for both the person’s own, and the other party’s, outcomes. In contrast, problem-​solving (which Mayer calls collaboration) is a strategy in which concern is high for both the person’s own, and the other party’s, outcomes.

Dual Concern Model [2.155] Table adapted from D G Pruitt and S H Kim, Social Conflict: Escalation, Stalemate and Settlement (McGraw-​Hill, Columbus, OH, 2004) p 41, Fig 3.1

The dual concern model

Concern about other’s outcomes

High

Yielding

Problem solving Compromise

Low

Avoiding (inaction/withdrawing)

Contending

Low

High Concern about party’s outcomes

 [2.160]  While the concept of avoiding conflict at first appears fairly straightforward, in the

following extract, Mayer identifies eight major approaches to conflict avoidance. 72 [2.150]

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How People Avoid Conflict [2.165]  B Mayer, “How People Avoid Conflict” in The Dynamics of Conflict Resolution (Jossey Bass, San Francisco, 2012) pp 43-​47. Eight distinct methods of avoidance seem prevalent in conflict. These are as follows: Aggressive Avoidance (“Don’t Start with Me or You’ll Regret It”) Aggressive behavior is sometimes an effort to avoid conflict. Even though it often seems to escalate conflict (and, as with all avoidance strategies, aggressive avoidance often exacerbates conflict), for many people aggressive behavior is best understood as an effort to intimidate others and thus keep them from engaging in a conflict. Escalation can be fight as a means to flight. Passive Avoidance (“I Refuse to Tango”) Staying removed from and nonreactive to a situation is the approach we most often associate with avoidance. There are many passive ways of avoiding a conflict, such as withdrawing from a relationship, avoiding contact, remaining silent at crucial times, creating distractions, changing the subject, or disappearing from the scene. Passive approaches are efforts to avoid conflict through inaction of some kind. Passive Aggressive Avoidance (“If You Are Angry at Me, That’s Your Problem”) We have all encountered people who are masters at provoking others without owning up to their own actions in any way. By getting others to react as they remain above the fray, they often try to have it both ways, both to have a conflict and to avoid it. Sometimes they will use hit-​and-​run tactics: for example, they will make an emotionally charged statement without allowing for a direct response, thereby relieving some of their own tension but preventing genuine conflict engagement. Sometimes people indicate their anger or disapproval of something nonverbally (an expressive roll of the eyes, for example), while verbally denying any dispute or disagreement. Avoidance Through Hopelessness (“What’s the Use?”) One of the easiest ways to avoid conflict is to view the situation as beyond repair or to deny that one has any power to affect a problem. If there is no hope, then what is the point in engaging in conflict? Avoidance Through Surrogates (“Let’s You and Them Fight”) Some people are masters at setting up or at least allowing others to fight their battles while they remain on the sidelines. Sometimes people avoid a conflict about a sensitive issue by engaging over a less sensitive one. Likewise, sometimes people will engage in a conflict with a person who functions as a surrogate for a more intimidating adversary. Avoidance Through Denial (“If I Close My Eyes, It Will Go Away”) The simplest (and most primitive) approach is frequently the most prevalent. Often people deny that a conflict exists, hoping that in some way the denial will become the reality. Sometimes the existence of a conflict is acknowledged, but its scope or magnitude is minimized. Avoidance Through Premature Problem Solving (“There’s No Conflict; I Have Fixed Everything”) Trying to solve the problem before the timing is right, the conflict is understood, feelings have been expressed, values have been articulated, and people have been heard and acknowledged can be a very powerful way of avoiding conflict. Sometimes all someone wants is a solution, but to the extent that the conflict possesses a significant expressive element or more deeply entrenched issues, problem solving can be equivalent to conflict avoidance. Many conflicts are long term or enduring (Mayer, 2009b). By focusing on short-​term solutions to long-​term conflicts, people often avoid the most significant and difficult elements of those conflicts. [2.165]  73

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How People Avoid Conflict cont. Avoidance By Folding (“OK, We’ll Do It Your Way; Now Can We Talk About Something Else?”) People sometimes avoid engaging by caving in –​by accepting more responsibility than they really feel or by conceding on all the issues. Sometimes disputants will sacrifice very important needs to avoid engaging in a conflict or even seeing whether a conflict really exists. People may also make premature or insincere apologies at least in part to avoid engaging in a conflict. An apology under such circumstances can be very close to saying: “What more do you want? I have apologized. Do I really have to listen to you go on and on?” These eight approaches to avoiding conflict are used in a variety of combinations. Someone may first try a passive aggressive approach, and then, when this does not work, have a go at an aggressive outburst to forestall further engagement. In the end he or she may resort to folding or premature problem solving as the avoidance approach of last resort. It is not unusual to see both parties in a conflict participate in a sort of collusion of avoidance … There are times when avoidance is appropriate and necessary. Sometimes timing or priorities make it desirable. Avoidance may also be the best alternative when someone does not have the power or the emotional resources to get his or her needs met through a conflict. And sometimes conflict should be avoided because it is physically or emotionally dangerous. At other times, however, avoidance is a significant problem that can result in later escalation or the sacrifice of important needs and relationships. If we want to comprehend the many different ways in which people approach conflict, we need to have a nuanced understanding of the many faces of avoidance. We can look at avoidance as a style, a decision, a tactic, or a personality trait, but however we categorize it, we should not underestimate its prevalence in people’s approach to conflict. Avoidance, although sometimes necessary and even constructive, is more often a major obstacle to dealing with conflicts in a constructive manner.

 [2.170] When people decide to actively engage with conflict, they may do so in a number

of different ways. In the following extract, Mayer discusses five approaches to engaging in conflict: the use of power, appealing to rights, appealing to fairness, attempting to address the parties’ interests or manipulation.

How People Engage in Conflict [2.175]  B Mayer, “How People Engage in Conflict” in The Dynamics of Conflict Resolution: A Guide to Engagement and Intervention (Jossey Bass, San Francisco, 2012) pp 47-​54. There are those who never give up trying to avoid conflict. But most people, when faced with an ongoing conflict, will eventually engage. When disputants engage in conflict, they do so with an attitude or approach to meeting their needs that is based on both their general assumptions about conflict and their particular circumstances they are facing. We can [48] observe five basic ways in which people try to meet their needs when engaged in conflict. As Ury, Brett, and Goldberg (1988) have suggested, they may work through the exercise of power, an assertion of rights, or through an interest-​based negotiation process. But there are at least two other significant approaches that do not easily fall within this tri-​part framework. One is normative, essentially involving an appeal to fairness, morality, ethics or values. The other approach involves the use of manipulation or indirection (not directly dealing with the issue or conflict but addressing it through surrogate issues or actions). Power-​Based Approaches Power-​based approaches to conflict are often destructive, are sometimes violent, and seldom lead directly to improved relations. However, they are not always harmful. Strikes, public protests, letter 74 [2.170]

Understanding Conflict  Chapter  2

How People Engage in Conflict cont. writing campaigns, boycotts, and efforts to obtain political power may all be thought of as the legitimate exercise of power that can produce positive results. Sometimes individuals or groups must develop their potential to exercise power and demonstrate their willingness to use it before less confrontational approaches can be effective. … Rights-​Based Approaches [49] Because power-​based approaches are often disruptive, costly, and hard on relationships, social structures usually try to implement alternative mechanisms for dealing with conflict. This is particularly the case once it becomes clear that power is sufficiently distributed among the contending parties to make power-​based approaches costly and the outcome doubtful. The usual response when this happens is the creation of a rights-​based framework, through which disputants can attempt to get their needs met by asserting their privilege or claim under some established structure of law, policy, regulation, or procedure. Rights-​based approaches require some codification of entitlements and responsibilities, as well as mechanisms for deciding how these should be brought to bear in any particular situation. The court system is, of course, a primary example of this, but so are disciplinary procedures in schools, organizational policies and procedures, and grievance systems. In fact, almost any formal system is characterized by at least some rights-​based decision-​making structures. Families informally establish such structures as well. For example, any time we tell our children that they can watch TV for one hour per day and that they must alternate who gets to choose the program, we have created a rights-​based framework. … [50] Although power-​and rights-​based approaches are very different, they are not mutually exclusive. For example, there are many rights-​based frameworks for conducting power struggles. There are laws that govern strikes, boycotts, and the exercise of parental authority. Developing one’s ability to engage in rights-​based efforts, or threatening to do so, can in fact be a power play. (“I’ll sue if you don’t do what I want”.) Interest-​Based Approaches Interest-​based problem solving involves asserting one’s needs or concerns and working toward a resolution that adequately addresses them. This also entails trying to understand and address the interests of others. … [51] The essence of the interest-​based approach is not that the disputants are necessarily collaborative or nice but that they try to deal with the conflict by discussing the various needs they have as opposed to trying to impose a solution through the application of power or assertion of rights. The goal of many collaborative problem-​solving efforts is to transform a power-​or rights-​based approach to an interest-​based one. … Normative Approaches (Appeals to Fairness) We often try to get our way in a conflict by asserting a moral right to a certain outcome or course of action. In doing this we are trying to meet our needs through an appeal to what is fair, reasonable, moral, or just. We can call this a normative or principled approach. It is similar to the interest-​based approach because principles are related to interests. However, instead of focusing on interests (what our needs are), we are focusing on what is the “right” thing to do, and we are invoking an external standard of fairness or justice. In appealing to this external set of standards, a principle-​based approach is also similar to a rights-​based approach, but the nature of the standards are different and there is rarely an adjudicative mechanism. Furthermore, normative standards are not appealable to a formal and legally sanctioned oversight body (at least not in secular societies). They are instead based on a mix of a cultural consensus and individual beliefs. The essence of a normative approach is the invocation of some specified or implied standard of conduct. If I say that it is only fair that I get to have something, I am implying that there is some standard of fairness that says it is mine. The heart of my approach in this case is not to assert what my [2.175]  75

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How People Engage in Conflict cont. needs are or to argue that I have a right to something because of some established rule; instead I am asserting a value, which may or may not be formally codified. Manipulation-​Based Approaches (Indirection) [53] The final approach is through indirection or manipulation. There are of course countless ways of doing this. At times this approach may be a form of conflict avoidance, but it can also characterize a conflict engagement strategy. As with all of these approaches, manipulation can be destructive or constructive. If I lie, cheat, mislead, and in general behave in an untrustworthy way, the potential for conflict escalation and long-​term destructive consequences is great. But manipulation is not always destructive, especially when compared to the alternatives. Consider, for example, the challenge of dealing with an elderly parent about his increasingly unreliable driving. The parent may be very resistant to openly giving up the “right” to drive. Suppose, however, that alternative arrangements are always made for transportation, the car license is not renewed, and the parent goes along with this, without ever actually agreeing not to drive. Can we really say that this is a destructive approach to handling that particular conflict? … Manipulation is a very common way in which people handle conflict and to some extent it is probably in most conflicts. The essence of manipulation is to try to get others to meet one’s needs without directly confronting the issue oneself or putting one’s needs or desires clearly on the table. This may be motivated by a sense of powerlessness or vulnerability. People blend and mix these different approaches in many ways, but there are fundamental differences among them. At any given time, one of these is likely to be the dominant way in which an individual engages in a particular conflict. We often go through a succession of approaches –​when one does not seem to work, we go to another. We commonly start with a more normative or interest-​ based approach but then move to a rights-​or power-​based approach when we find our needs are not getting met. We also may change our approach in response to how others are approaching us … [54] There are consequences for any approach that is taken, and there is a problem if a social structure does not achieve a good balance among approaches. It is easy for those of us in the business of collaborative conflict resolution to promote an interest-​based approach, but at times it is in fact the application of power, rights, fairness, and even manipulation that is needed. Overreliance on power, rights, fairness, or manipulation can escalate conflict and damage relationships. However, when disempowered disputants engage in an interest-​based conflict process without having taken steps to develop their power or assert their rights, they are very vulnerable.

 [2.180]  Mayer’s last point about vulnerability makes it imperative to have a conflict reso-

lution process which empowers parties rather than maintain the power imbalance or social hierarchy between them. An interest-​based approach can achieve the goal of empowerment through what Akin Ojelabi and Sourdin in the extract below refer to as a “values-​based” approach to conflict resolution. This approach may be adopted by parties in their attempt at conflict resolution.

Using a Values-​Based Approach in Mediation [2.185] L Akin Ojelabi and T Sourdin, “Using a Values-​Based Approach in Mediation” (2011) 22 Australasian Dispute Resolution Journal 258 at 259-​260. Values are principles that underpin standards, ethical codes and practice requirements [7]‌Whilst many mediators are already subject to ethical standards and practice requirements, overarching values that are reflective of common societal values can support mediation interventions and approaches. 76 [2.180]

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Using a Values-​Based Approach in Mediation cont. For example, mediator ethical requirements in respect of honesty, integrity, transparency, accountability, and responsiveness are directed at supporting broader process values in respect of freedom, justice, peace and equality. Positive values that promote human worth and dignity can assist in analysing needs and interests and what is required to be done to satisfy them. [8]‌For example, recognition of a particular behaviour as bullying will require an understanding of the value of equality and respect for others’ dignity. While values may be difficult to define, their importance in daily life, and in particular, in the resolution of disputes should not be underestimated. For example, in a family dispute, introducing values into a dispute resolution process may enable a domineering parent to think about the rights or interests of a child or a dominating husband to think about the rights or interests of his wife. Introducing values into the process may enable an ardent believer in a cultural tradition which discriminates against particular groups to reconsider the validity and effect of such cultural tradition. Even if such a reconsideration or reflection does not take place, the mediation process will at least prevent further disempowerment of an individual or group. In non-​domestic situations the impact of a values-​based approach [9] can be magnified. The relevance of values lies in promoting what is “ideal” and providing guidance on achieving desired ends. Introducing values can support a conversation where parties can empathise with and recognise each other’s needs and interests with the ultimate result of a fair outcome that is satisfactory to all parties.

 [2.190]  Conflict can be functional or dysfunctional, ie, conflict is not necessarily a bad thing.

Conflict is functional when it brings about positive changes and dysfunctional when it further entrenches societal divides and root causes remain unaddressed. The functions of conflict are best realised through an approach that allows the satisfaction of all parties’ interests to the extent possible. In other words, conflict has an important and positive role in society, if it is managed well, as Pruitt and Kim explain in the following extract.

Some Good News and Some Bad News about Conflict [2.195]  D G Pruitt and S H Kim, Social Conflict: Escalation, Stalemate, and Settlement (3rd ed, McGraw-​ Hill Higher Education, New York, 2004) pp 9-​13. Although conflict is found in almost every realm of human interaction and although episodes of escalated conflict are among the most significant and newsworthy events of human life, it would be a mistake to assume that interaction necessarily involves conflict or that conflict usually takes a heavily escalated form. People manage to get along remarkably well with other individuals, groups, and organizations; they do so with consideration, helpfulness, and skill, and with little evidence of conflict along the way. When conflict does arise more often than not it is settled, even resolved, with little acrimony and to the mutual satisfaction of parties involved. People have been interested in the study of conflict at least since biblical times. The nineteenth and early twentieth centuries provided a dramatic, energetic thrust whose impact is still felt today. Charles Darwin was interested in the struggle within species for “survival of the fittest”. Sigmund Freud studied the internal combat of various psychodynamic forces for control over the ego. And Karl Marx developed a political and economic analysis based on the assumption that conflict is an inevitable part of society. If we conclude, on the basis of the ideas of these three profound thinkers, that conflict is necessarily destructive, we miss the point of their work. For Darwin, the productive outcome of the struggle for survival was the emergence of inherited characteristics that foster survival; new species arise because of the genetic adjustments occasioned by the struggle to survive. Freud similarly envisioned individual [2.195]  77

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Some Good News and Some Bad News about Conflict cont. growth and insight to result from the struggle to understand and address the conflict within. And Marx, in his dialectical materialism, determined that conflict promotes social change, which moves inexorably in the direction of an improved human condition. All three men were keenly aware of the costly consequences of conflict. The point is that conflict can have both good and bad outcomes. We will mention a few of these in the next few sections, concentrating our attention on conflict that emerges into action, that is, overt confrontation. The Good News First, conflict, when it emerges into action, is the seedbed that nourishes social change. People who regard their situation as unjust or see current policies as foolish usually must do battle with the old order before they can be successful. Otherwise, old policies that may advance only a few people’s interests will prevail. Where would we be if, in the interest of avoiding conflict, we routinely stifled reformers or they stifled themselves? A second positive function of overt conflict is to discourage premature group decision making. A group that fears internal confrontation may adopt the first plausible suggestion in order to close off debate among its members. Premature decisions are often poor decisions, in part because they reflect misunderstandings about where group members really stand. A third positive function is to facilitate the reconciliation of people’s legitimate interests. Most conflicts do not end with one party winning and the other losing. Rather, some synthesis of the two positions –​some integrative agreement –​often emerges that fosters the mutual benefit of both parties, as well as the larger collectives of which they are members. In this sense, conflict can be considered a creative force. A fourth positive effect is that by virtue of its first three functions, within-​group conflict often fosters long-​run group solidarity, that is, unity between the group members who have come into conflict. Without the capacity for social change or the reconciliation of individual interests, group solidarity is likely to decline and with it group effectiveness and enjoyment of the group experience (Coser, 1956). The eventual result can be group disintegration. A fifth positive function is that between-​group conflict tends to produce solidarity within the groups that come into conflict. Waging the conflict becomes a unifying project within each group, bringing each group’s members together in a common effort (Coser, 1956; Deutsch, 1958; Johnson, Johnson & Maruyama, 1984). And the Bad News We have seen that much social exchange does not give rise to conflict. Moreover, when conflict does arise, it is often settled without pain and rancour while serving a number of positive functions. Nevertheless, conflict often has a downside. There is a limit to the amount of overt confrontation a society can tolerate, even when it ends up having productive consequences. Such conflict takes time and energy away from other pursuits. A group, organization, or country can become so embroiled in controversy that it is unable to cope with basic environmental demands. Furthermore, conflict that involves heavy contentious tactics is fully capable of wreaking havoc on whatever it touches –​the parties to the conflict, third parties, and society in general. It may seem paradoxical that conflict can have both harmful and beneficial consequences, but this paradox is more apparent than real. What often happens is that positive functions of conflict are swamped by the harmful consequences that derive from the use of heavy contentious tactics. Thus the struggle between the Israelis and Palestinians may enhance solidarity within each group, but this positive effect is dwarfed by the pain and suffering produced by the struggle. In the throes of insult, threat, and physical assault, it is difficult to savor the positive functions of conflict.

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Understanding Conflict  Chapter  2

CONCLUSION [2.200]  This chapter is intended to make people involved in dispute resolution think about

the question of what causes disputes and how people in conflict tend to approach it. The context of this question was to enable the most appropriate conflict resolution intervention to be identified, and implemented, having regard to those causes. As indicated above, the stakes here are quite high: correct diagnosis of the causes of conflict leads to appropriate intervention, but misdiagnosis may lead to inappropriate interventions and, thereby, destructive conflict. A number of theoretical and critical perspectives have been presented, all of which help us to understand conflict better, and thus to tailor the best possible intervention. The chapter also highlights that people’s needs and behaviour, and thus the appropriate intervention, tends to change with the context, over time and depending on how others react. [2.205] QUESTIONS

1.

Why is it so important to understand the nature of conflict?

2.

How does an understanding of the theoretical perspectives of conflict actually assist in better conflict management and resolution practice?

3.

Can conflict be precisely defined? Why/​Why not?

4.

Furlong says that when we do not analyse a conflict correctly, we are likely to make poor choices about how to manage or resolve it. Describe a conflict (either one of your own, or one you know about) that was misunderstood by one of the parties, and explain how that misunderstanding led to an inappropriate response to the situation by that party.

5.

For the conflict you describe in answer to Question 4, can you identify the parties’ perceptions, feelings and actions? What evidence do you have to support your assessment of each party’s perceptions, feelings and actions in the conflict situation?

6.

For the conflict you describe in answer to Question 4, describe how Mayer’s contextual factors (the ways in which people communicate, their emotions, their values, the structures in which they interact, and history) impact on the conflict?

7.

For the conflict you describe in answer to Question 4, explain which of Runde and Flanagan’s levels of conflict intensity or the Spillmans’ stages of conflict escalation you think the conflict represents.

8.

What are the positive aspects of conflict?

9.

What are the negative aspects of conflict?

10. What are the five main approaches to dealing with conflict? 11. Consider Mayer’s categories of avoiding and engaging in conflict. Can you identify conflict situations that you have either observed or participated in recently which fit into his categories? 12. Consider the table adapted from Pruitt and Kim’s Dual Concern Model at [2.155]. Using the conflict situation you identified in Question 11, provide examples of how each of the parties might engage in avoidance, contending, yielding, compromise and problem-​solving.   

[2.205]  79

CHAPTER 3

Negotiation [3.05] [3.20] [3.30] [3.50] [3.75]

DEFINING NEGOTIATION............................................................................................. 81 [3.10] Models of negotiation................................................................................... 82 [3.15] The advantages of negotiation...................................................................... 83 ADVERSARIAL NEGOTIATION........................................................................................ 83 [3.25] Toward Another View of Legal Negotiation............................................... 83 INTEGRATIVE NEGOTIATION......................................................................................... 88 [3.35] The Art and Science of Negotiation......................................................... 88 [3.45] Breaking the Impasse: Consensual Approaches to Resolving Public Disputes..... 91 DISTRIBUTIVE NEGOTIATION........................................................................................ 94 [3.60] Negotiating Conflict............................................................................ 94 [3.70] Distributive Bargaining Strategies......................................................... 100 PRINCIPLED NEGOTIATION......................................................................................... 102 [3.80] Element 1 –​interests................................................................................... 102 [3.85] Element 2 –​options.................................................................................... 103 [3.90] Element 3 –​alternatives.............................................................................. 105 [3.95] BATNAs in Negotiation: Common Errors and Three Kinds of “No”................ 106 [3.100] Element 4 –​legitimacy................................................................................ 109 [3.105] Element 5 –​communication........................................................................ 110 [3.110] Element 6 –​relationship.............................................................................. 111 [3.115] Element 7 –​commitment............................................................................ 112 [3.125] The Five Ps of Persuasion: Roger Fisher’s Approach to Influence................... 113 [3.130] What Roger Fisher Got Profoundly Right: Five Enduring Lessons for Negotiators................................................................................. 116

[3.135] Limitations of the principled negotiation model.......................................... 120 [3.140] The Pros and Cons of “Getting to Yes”.................................................. 120 [3.150] Comment....................................................................................... 123 [3.155] COMPARING MODELS OF NEGOTIATION................................................................... 126 [3.160] Negotiation –​Theory and Techniques.................................................... 127 [3.175] Questions.................................................................................................................... 130

DEFINING NEGOTIATION [3.05] The Macquarie Dictionary defines “negotiation” as a “mutual discussion and arrange-

ment of terms of a transaction or an agreement”.1 A more detailed definition appears in M Anstey, Negotiating Conflict: Insights and Skills for Negotiators and Peacemakers (Juta & Co, South Africa, 1991) pp 91-​92 and states that negotiation is: “A verbal interactive process involving two or more parties who are seeking to reach agreement over a problem or conflict of interest between them and in which they seek as far as possible to preserve their interests, but to adjust their views and positions in the joint effort to achieve agreement”.

Another way of defining “negotiation” is to say that negotiation has certain identifiable elements to it that may be summarised as being: • the existence of a disagreement, conflict or dispute; • the dispute involves two or more parties; 1 Macquarie Dictionary (4th ed, Macquarie Library Pty Ltd, Sydney, 2005) [3.05]  81

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• the parties seek to communicate; • the parties attempt to reach an understanding of the issues; • the parties attempt to resolve the dispute; • the process is usually empowering for the parties; • the process is usually achieved through self-​determination; • the process does not necessarily require intervention by a third party; • the parties generally control the process; and • the parties generally seek to achieve an outcome that is mutually satisfactory. While many of the above elements can be attributed to most forms of dispute resolution, the process of negotiation is really characterised by non-​intervention. Negotiation usually does not involve the use of a third-​party neutral charged with the responsibility of facilitating communications between the parties. Neutral third-​party involvement is usually attributed to dispute resolution processes such as conciliation, mediation, early neutral evaluation and arbitration. Negotiation is generally agreed to by the parties themselves, and they try to understand the issues in dispute and, if possible, seek a resolution on some or all of those issues. The reference to negotiation being a process characterised by the lack of involvement of a third-​party neutral is said to be one of its key empowering elements. Arguably, negotiation empowers its users by allowing them to determine their own process for understanding and resolving issues and to seek and implement an outcome that is consensual. In this respect, there is no introduction of a third party that changes the power dynamic between the parties, and they are in a position to fashion an outcome according to their own needs and their ability to reach consensus without the filtering mechanism of a third-​party neutral. Similarly, the above reference to self-​determination refers to issues of form and substance throughout a negotiation. In terms of issues of form, theoretically, in a negotiation, parties control the process of negotiation –​that is, they decide between themselves the procedures to be followed to achieve their stated aims and objectives. In terms of issues of substance, parties are entitled to preserve self-​interest in a negotiation providing they act in good faith. This means that they are under no obligation to settle or to compromise on an issue that they do not wish to settle or compromise on. However, it is generally accepted that parties should enter negotiations with a view to compromise on some issues to help facilitate a resolution. But negotiating in good faith does not mean having to settle because the process of negotiation demands it. On the contrary, the process of negotiation does not demand the forfeiting of self-​ interest or a requirement to settle –​a point to be discussed in Chapter 13 ([13.05]). Negotiation may be considered a discrete form of dispute resolution that is, a defined process itself, or it may be treated as the method that takes place within the processes of conciliation, mediation or facilitation. For example, mediation is a set of process steps that allows parties to substantively negotiate issues in dispute. Models of negotiation [3.10]  This chapter will deal with the following four central models of negotiation:

(i) adversarial negotiation; (ii) integrative negotiation; 82 [3.10]

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(iii) distributive negotiation; and (iv) principled negotiation. The most popularly practised models of negotiation are those of adversarial and principled negotiation. While detailed accounts will be given of these two models, this chapter will also discuss their limitations. The advantages of negotiation [3.15]  While a negotiated outcome may not always be appropriate or achievable, the advan-

tages of embarking upon a negotiation, as opposed to allowing the dispute to continue or proceeding directly to litigation, include the following: • Parties are in the best position to assess the impact of any proposed solution upon them. • Parties “own” the process and can define its terms in any way they choose. This is not the case in litigation where court rules define the type of evidence and procedures that must be adhered to. • Parties create their own solution and therefore are more committed to ensuring that the agreed settlement works. In litigation, a solution is imposed on the parties. • Parties have a chance of getting part of what they want. A court can only judge that one person wins and the other loses based on the evidence presented in court. • A high volume of civil matters entering the court lists are settled before hearing or judgment. If this were not the case, the court system would soon grind to a halt. Therefore, many jurisdictions now insist that litigants have a pre-​trial conference to see if the matter can be settled before embarking on litigation. Given the high proportion of settlements naturally occurring in matters before courts, negotiation is always worth a try at some strategic point throughout the life of any dispute. • Even if the dispute is not resolved, parties have an opportunity to narrow the issues prior to a court hearing or further negotiation. This can reduce the time, cost, emotion and stress of litigation to the parties.

ADVERSARIAL NEGOTIATION [3.20]  As a general proposition, the adversarial approach to negotiation involves an approach

that seeks to maximise victory. Because negotiations generally take place in the “shadow of the law”, negotiators assume that what is bargained for are the identical, but limited, remedies a court can award when deciding a case. The bargain generally comes down to how much money one person will get (damages) or who will be forced to do or not to do something (injunction or an order for specific performance). In this respect, adversarial negotiation that results in one person being declared the “winner” is often referred to as a “zero-​sum game”. This means that one person’s gain is at the expense of the other person’s loss. If the total gains of one person are subtracted from the losses of the other person, they will sum to zero –​hence, the characterisation of adversarial negotiation as being a “zero-​sum game”.

Toward Another View of Legal Negotiation [3.25]  C Menkel-​Meadow, “Toward Another View of Legal Negotiation: The Structure of Problem Solving” (1984) 31 University of California Los Angeles Law Review 754 at 764-​783. [3.25]  83

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Toward Another View of Legal Negotiation cont. I. Assumptions of the Traditional Model: Adversarial Negotiation Much of the legal negotiation literature emphasizes an adversarial model, implying an orientation or approach that focuses on “maximizing victory”. This approach is based on the [765] assumption that the parties desire the same goals, items, or values. It is assumed that the parties must be in conflict and since they are presumed to be bargaining for the same “scarce” items, negotiators assume that any solution is predicated upon division of the goods. In the language of game theorists, economists, and psychologists, such negotiations become “zero-​sum” or “constant sum” games and the bargaining engaged in is “distributive” bargaining. Simply put, in the pure adversarial case, each party wants as much as he can get of the thing bargained for, and the more one party receives, the less the other party receives. There is a “winner” in the negotiation, determined by which party got more. Legal negotiations, at least in dispute resolution cases, are marked by another adversarial assumption. Because litigation [766] negotiations are conducted in the “shadow of the law”, that is, in the shadow of the courts, the negotiators assume that what is bargained for are the identical, but limited, items a court would award in deciding the case. Typically, it is assumed that all that is bargained for is who will get the most money and who can be compelled to do or not to do something. Indeed, it may be because litigation negotiations are so often conducted in the shadow of the court that they are assumed to be zero-​sum games. In transactional negotiation, the “common business practice” or “form provision” may serve the same limiting function. If the parties cannot resolve a particular point but still prefer to consummate the transaction, they may permit a form provision or common business practice to decide the issue. This may be true even where an unusual provision would more closely meet the parties’ needs. Clauses which assign or allocate risks routinely to one side of a transaction are one example. Although transactional negotiations differ from dispute negotiations because in the former no court can force a solution, the two types of negotiation may be analogous where the shadow of the court or the “shadow of the form contract” encourage a habit of mind in the negotiators to rely on common solutions, rather than to pursue solutions which may be more tailored to the parties’ particular needs. These basic adversarial assumptions affect not only the conceptions of negotiations that their proponents assert, but the behaviors that are recommended for successful negotiation. Indeed, a good portion of the negotiation literature focuses principally on behavioral admonitions, but never examines with any sophistication the sources or assumptions of such tactical injunctions and what their limitations might be. The next section describes these admonitions and the process they produce so that their underlying assumptions may be examined in the succeeding sections. The basis of the description is the negotiation literature; there is at the present time little empirical data on how lawyers actually behave, though the existing [767] literature seems to assume that most lawyers either already do or need to behave in adversarial ways to accomplish their goals. The purpose in beginning with these behavioral admonitions is not to focus on negotiation strategies but to illustrate how the literature implicitly, if not explicitly, assumes a unidimensional conception of negotiation goals. A. The Structure and Process of Adversarial Negotiation The literature of negotiation presents a stylized linear ritual of struggle-​planned concessions after high first offers, leading to a compromise point along a linear field of pre-​established “commitment and resistance” points. In such legal negotiations the compromise settlement point is legitimized by comparing it to the polarized demands of plaintiff and defendant and the relatively improved “joint gain” of the compromise point in comparison to the “winner take all” result achieved in court. In the most reductionist form of this adversarial model, analysts predict that the final outcome of any distributive bargaining problem will be at the “focal point” midway between the first offers of each party. This section reviews the descriptions and prescriptions of adversarial negotiation found in the literature in order to demonstrate their weaknesses and limitations in achieving the types of solutions which might better meet the evaluation criteria suggested above. Several preliminary caveats are in 84 [3.25]

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Toward Another View of Legal Negotiation cont. order. First, much of this literature confuses the descriptive and prescriptive [768] aspects of negotiation. It is unclear, for example, whether the negotiator should make a high first offer because that is what is commonly done and therefore expected, or because a high first offer assures a “focal point” or “compromise” closer to the negotiator’s beginning point. Second, descriptions of the structure of negotiation with its “bargaining range” and offer and counteroffer “concession patterns” should be distinguished from the rather specific tactical exhortations commonly found in the literature. While the former may serve an explanatory purpose, such as describing what zero-​sum negotiations look like, the tactical literature has limitations even within its own assumptions. This is explored more fully below. 1. The Structure of Adversarial Negotiation: Linear Concessions on the Road to Compromise Most disputes are settled out of court. Describing how this majority of cases is settled, writers depict a remarkably uniform negotiation model. Because the parties fear the cost, the length of time to judicial resolution, and the winner-​take-​all quality of the judicial result, most cases are settled somewhere mid-​range between each party’s initial demand. Thus, the structure of adversarial negotiation consists of: 1) the setting of “target points” or [769] “aspiration levels” –​what the parties would like to achieve (target points may be set at the initial demand in the complaint or reduced slightly by a more realistic appraisal of what is possible); 2) the setting of “resistance points” or “reservation points”, the points below which the party seeks not to go (preferring to risk the possibility of winning the polarized game in court); and 3) the ritual of offer and demand with patterns of “reciprocal concessions”. The process results in 4) a compromise solution at some point along the scale where target or resistance points overlap for the two parties. This structure, mapped below, as developed in Bellow & Moulton’s Lawyering Process text, expresses graphically the assumption that negotiations are linear win/​lose games where X’s gain is Y’s loss:

Zone of agreement Ty X

Rx

Ry Tx

Y

T = Target point R = Resistance point

In this negotiation game, X and Y attempt to assess each other’s “target points” and “resistance points” in order to determine whether there is a “bargaining range”. The resemblance of [770] adversarial negotiations to a football field and goals is hardly coincidental. The first issue in the negotiation process is likely to be on whose side of this linear field the negotiation game will be played and who will ultimately “win” or be paid. This issue is covered in the largely contradictory “first offer” literature. Following “resolution” of the first offer controversy, the parties proceed in a pattern of offer-​ counteroffer or demand-​response resulting in “reciprocal concessions” which can be analyzed to give each party information about the other’s target and resistance points. The process continues until a compromise solution is reached somewhere within the bargaining range. Given this linear conception of the structure of negotiation it is easy to see why results are perceived as compromises along this linear scale and why “split the difference” solutions are so common in conventional negotiations. In order to avoid the costs [771] and risk of polarized results in court the parties choose compromise, after a culturally appropriate time of debate and concessions. Although such a model encourages compromise at some midway point, it frequently fails to provide a satisfactory solution for the parties. Consider the example of two children arguing over a piece of chocolate cake. The parental compromise solution, cutting the piece in half, will not be satisfactory [3.25]  85

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Toward Another View of Legal Negotiation cont. to either child if one prefers the cake and the other the icing. Compromises may be highly dysfunctional in cases where one needs a pair, rather than a single shoe to do the necessary walking. A linear negotiation structure might work in those few cases where there is really only one issue, but it is clearly insufficient when the issues in a negotiation are many and varied. For instance, in negotiating a personal injury case one party may seek [772] an apology, as well as lost earnings, rehabilitation costs, and pain and suffering damages. The “concession” of an apology from the other side may or may not reduce the amount of money to be negotiated as compensation for the other things. Similarly, in the formation of a partnership a “concession” on one issue of control does not necessarily move the “result” away from or toward one of the parties, especially if unaccompanied by an equivalent “trade” of contribution. Indeed, it may be impossible to represent graphically the negotiation of a complex, multi-​issue transaction as a two dimensional structure, without imagining a many-​planed axis with hundreds of potential coordinates … [775] 2. The Process of Adversarial Negotiation: Unproductive Competition Adversarial assumptions affect not only the quality of solutions to negotiated problems but also the process by which these solutions are reached. This is especially important because the type and quality of solutions may depend a great deal on the process used. The adversarial conception of negotiation produces a [776] particular mind-​set concerning possible solutions which then tend to produce a competitive process. This, in turn, may cause the parties to miss opportunities for expanding the range of solutions. Thus, by encouraging competitive strategies important in formation may not be communicated and the parties may arrive at unsatisfactory and inefficient solutions. This section briefly explores the processes of adversarial negotiation both in terms of their most common stages and phases and in terms of tactics and strategies, in order to examine the limiting effects of these processes on the outcomes. What is astounding about the conventional literature on tactics and strategies is the assumption of universal applicability. Strategic exhortations are offered without reference to how negotiations might vary in different contexts or under different circumstances, such as under the influence of various clients’ desires. Negotiators are admonished to never make the first offer and to always draft the final agreement as if there were a few simple rules negotiators should obey in order always to maximize individual gain. Commentators on the adversarial negotiation process have described a remarkable uniformity of stages and phases of negotiation that all appear to be derived from the linear negotiation [777] structure described above. Thus, for Raiffa, Williams, Meltsner & Schrag, and Gulliver the phases of an adversarial negotiation will generally proceed along these lines: 1) prenegotiation strategizing or planning to determine target and resistance points, location, and timing of negotiation (Gulliver’s “arena”, Raiffa’s “logistics” and Williams’ “orientation”); 2) offers and responses (expression of differences and issue definitions); 3) information exchange (positions, arguments and objectives “presented”); 4) bargaining (Raiffa’s negotiation dance), where concessions are made and analyzed; 5) closure or agreement, where agreements are made and parties allocate final responsibilities for negotiated relations. These stages and phases of negotiation are intended to lead negotiators of divergent and polarized objectives through the process of argument and concession, to the point of compromise and agreement. The difficulty with such a description of the stages and phases of negotiation is not one of accuracy. The problem is that the stylized ritual of offer/​response, counteroffer/​counter response and concessions may not be of assistance when the issues are multi-​dimensional and the parties seek to discuss a variety of solutions at the same time. Furthermore, these descriptions of negotiations emphasize an argumentative, debate form of discussion [778] that may force the parties into attack and defensive postures which then may inhibit creativity in finding solutions. In short, this form of negotiation debate may lead to competitive reactive dynamics rather than to creative proactive dynamics. For 86 [3.25]

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Toward Another View of Legal Negotiation cont. example, commitment to a particular offer may keep the adversarial negotiator from seeing variations of that offer that might be more advantageous for the parties. By arguing for a particular proposal the adversarial negotiator may lock himself into a “mind-​set” about why that offer must be accepted. Adversarial negotiation processes are frequently characterized by arguments and statements rather than questions and searches for new information. The recommended strategies may not work even on their own terms. Many commentators have offered a number of competitive strategies designed to force the other side to capitulate. The difficulty with all of these strategic exhortations is the assumption that the other side can be bullied, manipulated or deceived. It is true, for example, that some will wilt under pressure, but others are likely to respond in kind. Moreover, even those who wilt at the negotiation table may be resentful later and exercise their power either by failing to follow through on the agreement or by seeking revenge the next time the parties meet. Many of these strategic exhortations may work against the negotiator, even in an adversarial negotiation. For example, if as Meltsner & Schrag suggest, the negotiator chooses his own office for greater comfort in negotiating, the other side may be less comfortable and less amenable to open discussions. In addition, choosing one’s own office for comfort minimizes the chances of learning about the other party by not negotiating on their “turf” or by keeping the other party from its sources of information, such as office files. On a more mundane level, the choice of one’s own office for comfort may actually increase discomfort by encouraging interruptions from co-​workers and telephone calls. Thus, [779] these strategic exhortations, designed to put the other party at a disadvantage, may not even be effective on their own terms. The literature is replete with advice to overpower and take advantage of the other side. But as one of the popular guides to negotiation has so wisely stated, “a tactic perceived is no tactic”. If two competitive negotiators read the same literature it is [780] difficult to see how these strategies will be employed to maximize individual gain. Who will win when both sides know all the same tricks? The one strategic exhortation that seems to dominate most descriptions of adversarial negotiation is the admonition that the negotiator should never reveal what is really desired. Thus, the process of exaggerated offers is designed to cloak real preferences so that one negotiator cannot obtain unfair advantage over another by knowing what the other really wants. In any negotiation, and particularly in lawsuit settlement negotiation, the opposing negotiators may have widely different views of the same case … The logical corollary to the foregoing principle is that one should not reveal his own settling point … Presumably in the optimal negotiation, one will determine his opponent’s settling point without revealing his own. The assumption here, of course, is that in every negotiation each side will attempt to thwart what the other really wants, and therefore the negotiator does well to refuse the adversary such leverage. The principle that one should hide information about one’s real preferences is based on unexplored assumptions of human behavior that negotiators are manipulative, competitive and adversarial. The danger of acting on such assumptions is that [781] opportunities for better solutions may be lost (remember the [782] chocolate cake!) and that when one party behaves in this way, the other side may be more likely to reciprocate with competitive and manipulative conduct of its own. Like many of the other assumptions of the adversarial model, the notion that one should hide information is based on a conception of the court outcome. Trial lawyers may fear releasing information in pre-​trial negotiations because of the presumed loss of advantage at trial. In this era of discovery, however, this fear may be misplaced. Although thoughtless revelation of “all the facts” may not lead to satisfactory solutions either, failure to disclose real preferences has been shown to foreclose some of the most efficient and mutually satisfactory solutions. Moreover, revealing preferences or needs is not the same thing as revealing “evidence”. Competitive descriptions of negotiations foster a perception of the negotiator as the principal actor in legal negotiations. [783] Because legal negotiations are so stylized and are based on understanding [3.25]  87

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Toward Another View of Legal Negotiation cont. of a special culture, the lawyer becomes the provider of what the court would order if the case went to trial, or what the law allows in transaction planning. The client, intimidated by these adversarial and specialized proceedings, depends on the lawyer to structure solutions that are “legal” rather than what the client might desire if the client had free rein to determine objectives. The client may also assume that the lawyer knows the only “right” way to accomplish the result and may therefore be hesitant to suggest other alternatives. Although clients generally engage lawyers to do what they cannot do themselves, they do not necessarily wish to relinquish all control over either the desired outcomes or the process by which they are achieved. This is especially true where the negotiation involves parties who will have to continue a relationship with one another, such as partnership or post-​dissolution custody relationships. The client may also have an interest in how the negotiation is pursued because, if competitive processes are used, the client may have trouble enforcing the agreement or in continuing a relationship with the other party.



INTEGRATIVE NEGOTIATION [3.30]  Integrative negotiation, or bargaining, is characterised by its adversarial nature but is

distinguishable from adversarial negotiation based on its use of concessions and trade-​offs. The onus is on the parties to find enough items of different value to trade them off against items of lesser value. It is the discovery of new items that have value to the disputing parties and then ascribing differing values to those items that are then used to trade-​off that is the central concept of integrated bargaining. In the following extract, Professor Howard Raiffa discusses what integrative bargaining is and how trade-​offs allow the parties to embark upon integrative bargaining with the potential for settlement.

The Art and Science of Negotiation [3.35] H Raiffa, The Art and Science of Negotiation (Harvard University Press, Massachusetts, 1982) pp 131-​149. Two Parties, Many Issues We have already seen that although a buyer and a seller may share no zone of agreement, they still might be able to negotiate a deal if they enrich the menu of possible contracts by introducing contingency payments at different time periods. Such flexibility can enable both parties to exploit their different perceptions of the future, their different attitudes toward risk, and the different ways they feel about money now versus money in the future. They are, in essence, converting a single-​factor problem into a multiple-​factor problem. Such bargaining –​in which there are two parties and several issues to be negotiated –​is called integrative bargaining. The parties are not strict competitors. It is no longer true that if one party gets more, the other necessarily has to get less: they both can get more. They can cooperate in order to enlarge the pie that they eventually will have to divide. To take another example, suppose that Mr Hee and Ms Shee are engaged in two separate negotiations, each negotiation involving a single continuous issue. On the first issue, one of money, Mr Hee needs a value of $60,000 or more to settle, whereas Ms Shee needs a value of $50,000 or less to settle. He wants higher values while she wants lower values, and there’s no zone of agreement. On the second issue, one of time, Mr Hee needs a settlement value of thirty months or less to settle, whereas Ms Shee needs a settlement value of thirty-​four months or more to settle. He wants lower time values while she wants higher time values, and again there is no zone of agreement. Mr Hee and Ms Shee 88 [3.30]

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The Art and Science of Negotiation cont. are involved in two separate, frustrating, distributive bargaining problems, neither of which permits an acceptable compromise. Now let’s see what happens if we link the two problems. She has refused his last offer of $63,000. He has refused her last offer of [132] thirty-​six months. But he might be willing to accept thirty-​six months on the time issue if she would be willing to accept $63,000 on the money issue. She might also be willing to accept this linked proposal. They might, in fact, have different tradeoff rates for money and time, and the linkage of these two problems would allow them to exploit these differences. For him, the money issue may be more important, so that if he gets more of his way in terms of money, he might be willing to give up more in terms of time. She might feel that time is the more important issue and would be willing to give up a lot in terms of money to get more of what she wants in terms of time. A deal could be struck, but will it? How can they communicate their complicated preferences to each other without disclosing too much confidential information? Thus far we have discussed situations in which the parties have engaged in face-​to-​face negotiation; in this case, however, the bargainers may have to engage in what Roger Fisher has termed “side-​by-​side” joint problem solving, in order to squeeze out potential joint gains … [142] Strategic Misrepresentations The art of compromise centers on the willingness to give up something in order to get something else in return. Successful artists get more than they give up. A common ploy is to exaggerate the importance of what one is giving up and to minimize the importance of what one gets in return. Such posturing is part of the game. In most cultures these self-​serving negotiating stances are expected, as long as they are kept in decent bounds. Most people would not call this “lying”, just as they would choose not to label as “lying” the exaggerations that are made in the adversarial confrontations of a courtroom. I call such exaggerations “strategic misrepresentations”. The expression is not my own invention; it was used by game theorists and mathematical economists long before I adopted it … [143] Common wisdom says that one should start negotiations by trying to settle easy questions first. What could be easier than an issue for which each negotiating party prefers the same outcome? But even in this case, if one party feels very strongly about this outcome and the other party is almost indifferent, then the latter can extract a concession from the former by acting strategically. Bargainers are often advised that they should purposely add to the negotiation agenda issues that they do not really care about, in the hope that the other side will feel strongly about one of these superfluous issues strong enough to be willing to make compensating concessions in return for dropping the offending issue. This questionable strategy can, of course, poison the atmosphere of the negotiations, with detriment to both parties. Strategic misrepresentation can also cause inefficiencies. Consider a distributive bargaining problem in which there is a zone of agreement in actual, but not necessarily in revealed, reservation prices. An inefficiency can arise only if the parties fail to come to an agreement. By bargaining hard the parties may fail to come to an [144] agreement, even though any point in the zone of agreement would yield a better outcome for both than the no-​agreement state. Still, one cannot conclude from this observation that a negotiator should unilaterally and truthfully reveal his or her reservation price. Contrast this situation with an integrative bargaining problem, in which it may be possible for the negotiators to enlarge the pie before cutting it. In order to squeeze out potential joint gains, the negotiators must do some joint problem solving. If both sides strategically misrepresent their value tradeoffs, then inefficient contracts will often result. In complicated negotiations where uncertainties loom large, there may be contracts that are far better for each negotiating party than the no-​contract alternative, but it might take considerable skill at joint problem solving to discover those possibilities. Without the right atmosphere and without some reasonably truthful communication of values, such jointly acceptable contracts might never be discerned. It is my impression from observing many negotiation exercises that each negotiator is well advised to behave cooperatively and honestly (for example, by disclosing tradeoffs) in seeking joint gains, but to bargain more toughly when it comes to sharing the jointly created pie … [148] [3.35]  89

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The Art and Science of Negotiation cont. Tradeoffs and Concessions In preparing for negotiations, either bilateral or multilateral, each side should try to sort out its own preferences. Bargainers are continually asked during negotiations whether they prefer one constellation of outcomes to another: Would they rather end up with this or that? Not only must they decide what they ultimately want, but they also must determine what they would be willing to give up in order to achieve their goal. How can a negotiator assess the values of various tradeoffs, and what effect do these values have on the dynamics of negotiations? Suppose that you are the administrator of the Environmental Protection Agency and that you must choose between Policy A and Policy B. Your staff has prepared a table listing the attributes that are of concern to you (some involving economic efficiency, some economic equity, some health indices, some environmental indices, some political indices) and has evaluated the two policies on these attributes. A is better than B on some attributes and worse on others. How can you think systematically about such composite sets of evaluations? This issue arises not only in negotiations, but more broadly in decision and policy making. The problem is mind-​boggling in its complexity, but formal analysis can help bring some order to the morass. One approach is to try to generate scoring systems that assign points to various levels within each attribute and that quantify tradeoffs between issues. This is not easily done, but values can be probed by observing preferences between simple hypothetical choices for which all but two or three attributes have identical scores, and then by invoking some intuitively plausible consistency requirements. Most decision and policy makers are skeptical and suspicious of this whole approach. They just don’t see the need for formalization, believing that the [149] decision maker can simply make a subjective choice among the real alternatives when they are presented at the time of the decision. But now let’s change the setting. Suppose that you as the EPA administrator have to give instructions to a representative who must negotiate a complex contract with industry representatives. Several issues are involved and compromises will have to be made during negotiations. What’s more, you must handle dozens of these same kinds of negotiations simultaneously. At this point, the desire to establish the equivalent of a formal scoring system becomes more compelling: without it, the representative would be at sea, with no way of knowing how to make tradeoffs between issues, and you would not be able to delegate your authority.

 [3.40] Integrated negotiation is dependent on the parties finding items of value to trade.

These items must inherently be of a different value to each party. If each party can find enough items of value, then it may be possible to fashion a resolution. For example, in a negotiation between a manufacturer of goods and a wholesaler, the manufacturer may include some free product if the first order from the wholesaler is above a certain sum or quantity. The free product is cheap for the manufacturer because it only costs the amount of the constituents of the product and the wear and tear on the production machinery. The factory is already tooled up for production, and the infrastructure already exists to produce the product and have it delivered to wholesalers. However, the free product has a higher value for the wholesaler, who can ascribe a retail price to it and hence make a profit. Thus, the value of the product is different for the two parties and may constitute a legitimate negotiating chip in the negotiation over a supply contract. While integrative negotiation is defined by Raiffa as being characterised by two or more parties negotiating over more than one issue or issues and is therefore like principled negotiation, it is distinguishable in its methodology or how it seeks to arrive at a resolution. Therefore, while it is conceded that some commentators use the terms “principled negotiation” and 90 [3.40]

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“integrative negotiation” as being interchangeable, it is suggested that, while the nature of the transaction may be the same, the method of arriving at resolution is different. In this respect, it is important to note that if the parties to an integrative negotiation can find enough items within the negotiation of differing value to each of them, then by participating in a series of structured trade-​offs, there may be no need for the parties to compromise on any issue the subject of the negotiation. Raiffa’s version of integrative negotiation relies on existing options which, by virtue of trade-​offs and concessions, leave the parties with a resolution. In this respect, Raiffa prefers a mathematical scoring system, which he calls “additive scoring”, based upon substantive considerations such as cost, time and quality as the determinants of whether one option outweighs another. His suggestion that options should be ranked to arrive at a resolution distinguishes it from the principled negotiation model that seeks only to consider options that satisfy interests. While one could argue that Raiffa’s additive scoring system is based on the satisfaction of interests, it is not quite apparent that satisfaction of interests is the primary goal. Susskind and Cruikshank (at [3.45]) have suggested that integrative negotiation is a method of crafting resolution by moving zero-​sum or distributive negotiators to become integrative negotiators. They define zero-​sum negotiation as an approach that assumes that there are only limited gains available in any given negotiation. Interestingly, as in principled negotiation, the central requirement for such a move is consideration of a party’s interests, although again, the approach to satisfying those interests is distinguishable from principled negotiation.

Breaking the Impasse: Consensual Approaches to Resolving Public Disputes [3.45]  L Susskind and J Cruikshank, Breaking the Impasse: Consensual Approaches to Resolving Public Disputes (Harper Collins, USA, 1987) pp 178-​184. From Zero-​Sum to Integrative Bargaining Neutrals in any kind of dispute should seek to assist the parties in reaching satisfactory, as opposed to ideal, agreements. This process usually begins with an effort to ascertain that the parties [179] understand their own interests, as well as what the others want and need. Once all the parties understand each other’s interests, and they still find themselves in conflict, the neutral’s next step is to assist the parties in exploring ways of reframing the dispute so that hidden common interests can be uncovered. If it becomes clear that basic interests really are in conflict (and more than just communication or personality problems are involved) and that there is little common ground, the neutral switches gears. That is, when it becomes clear that parties are in a zero-​sum situation (in which it appears that the only way for one to gain is for the others to lose), the intermediary seeks to “change the game” by introducing the possibility of trading things, especially things that the parties value differently. There are obviously limits on what can be traded, including constraints on what the parties in their real-​life situations can offer. Finally, if a package of trades that would satisfy all sides cannot be found, the helper must work privately with the parties to be sure that they have calculated their BATNA’s realistically. If they have, and their away-​from-​the-​table options are indeed more likely to produce “better outcomes” for some or all of them, the neutral should probably exit. The search for satisfactory agreements, then, involves clarification of interests; the search for common ground; the creation of a setting in which the parties can work together to discover differences, which can then be exploited to produce joint gains; and the constant reassessment of alternatives to negotiation. If the parties have overlapping interests, a clarification of those interests and the [3.45]  91

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Breaking the Impasse: Consensual Approaches to Resolving Public Disputes cont. search for common ground should produce a satisfactory agreement. If the parties have conflicting interests, the task of the neutral is to transform the dispute from a zero-​sum situation to an integrative problem-​solving activity. There is, of course, no magic wand that the helper can wave, and neutrals are not in the business of cajoling parties into making concessions in the name of harmony or peaceful coexistence. [180] The transformation involves exploiting the multidimensionality of most conflict situations. When there are lots of issues on the agenda and the parties rank them differently, this creates the possibility of trades. If the parties place a different value on certainty (or respond differently to risk), a small-​but-​certain victory sometimes can be traded for a larger-​but-​uncertain victory. If the parties calculate the time-​value of money differently, this can open up trading possibilities. For example, one side may, for tax reasons, suggest a settlement that involves small payments, from the other side to them, each year for a number of years rather than a larger lump-​sum payment. The other side may agree, finding this solution less of a strain in terms of cash flow. Even individual issues can be fragmented into smaller parts, permitting trades across elements of an issue. Symbolic commitments are a good example: They cost one side very little, and can often be exchanged for money or other tangible returns. The transformation from zero-​sum to integrative bargaining requires the invention and packaging of items to trade. A clear danger is that such trading may encourage extortionate behavior. If one side says to itself, “I get the idea; I’ll gain by making my list of demands longer and longer”, the game is then akin to blackmail. In such a case, the problem for the neutral is how to pursue the search for joint gains without encouraging excessive claiming. Negotiation researchers have documented the inevitable tension between “creating and claiming value” in any dispute resolution situation: This follows earlier studies of “mixed-​motive bargaining”. Every negotiation, whether zero-​sum or integrative, recreates this tension. In a zero-​sum situation, the tension is obvious. Every proposal that one offers in an effort to discover possible joint gains –​that is, to create value –​will not be accepted by the others without promises in return. This is to be expected if the [181] parties are thinking solely in zero-​sum terms. But even in an integrative bargaining situation, in which the parties have indicated a desire to find an all-​gain outcome, the possibility exists that an honest statement of what one side might give up in exchange for something will be exploited by one of the other participants. Even assuming that disputing parties have been successful in creating joint gains by exploiting differences, this fact alone is no guarantee that the gains they have created can or will be divided equally. So, for example, the parties may find things to trade that they value differently. One side may come out a little bit ahead and the other may come out way ahead. Nobody is worse off, but they are not equally better off. Intermediaries in public disputes must be honest about this problem. When they say to the parties that they can help find all-​gain outcomes, they should clarify that they are not promising that everyone will “beat their BATNA” (or satisfy their interests) to the same extent. We might imagine that everyone would be happy as long as assisted negotiation allowed them to satisfy their underlying interests; nevertheless, we are all aware of situations in which one side would rather not accept a gain if it means that another side gains even more. Thus, neutrals have to keep an eye on the overall “score card” as the parties search for joint gains. They should remind the parties that real costs are associated with not finding mutually beneficial trades. In addition, they should indicate that excessive or extortionate claiming will undermine the very process of inventing joint gains which leads to satisfactory agreements. The transformation from a zero-​sum perception of a conflict to a willingness to search for joint gains does not depend on the parties adopting “soft” (as opposed to “hard”) negotiating styles. Based on extensive studies, negotiation researchers have established that cooperative negotiators are not necessarily more successful than competitive negotiators in reaching [182] satisfactory agreement. Negotiators of either style can be effective or ineffective, and this is true regardless of the style 92 [3.45]

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Breaking the Impasse: Consensual Approaches to Resolving Public Disputes cont. of the negotiators they are matched against. Thus, the search for joint gains does not require everyone to be “nice” or to make concessions; nor does it require one side to mimic the attitudes of the other. Effective but tough negotiators know their own interests, and they know that by participating in a collaborative process of creating joint gains they may be more likely to serve their own interests. They also know that there will be very little to claim if differences cannot be exploited through packaging and trading. Creating and claiming, as noted earlier, are distinct activities. “Competitive-​style” negotiators are likely to stress the claiming part of the process, and may require tangible “victories” at each step along the way. By contrast, “cooperative-​style” negotiators are less inhibited about throwing themselves into the creating part of the creating and claiming process. They are also more willing to wait until the end to tote up the score. But claiming can preempt creating, and it is important for the participants to realize this. Some negotiators attempt to solve this problem by constantly switching their negotiating posture: from claiming to creating and back again. It may be impossible to move back and forth between the two attitudes, however, if claiming creates tension or hostility. It may in fact be necessary in some disputes to go through a period of claiming, or zero-​sum bargaining, so that the parties see what they might be able to achieve this way. Once the process of creating begins, though, and an integrative problem-​ solving mode is established, it is best to stay on this track. Facilitators and mediators rarely try to convince the parties to change their styles of negotiation. They do, however, take advantage of the emergence of the “group mentality” that develops as negotiations proceed. As the parties “go at it” over an extended period of time, [183] relationships develop, just as they do when a jury is sequestered. The group may begin as total strangers, but constant interaction at close quarters can lead to accommodation, if not friendship. Though the negotiators are there to advance the interests of the groups they represent, they cannot help but get caught up in the new “group” of which they are a part. This new group may pressure an individual who has not been very forthcoming into changing his or her attitude. As it approaches closure, the group may also bring pressure to bear on a party that is holding out. Momentum in such situations is almost tangible. While the intermediary may encourage all the parties to check back with their constituents before concluding a draft agreement, the group may prefer to push toward a conclusion. There is almost a “team spirit” that emerges as the parties reach the end of their joint task. An effective intermediary may use the emergence of group pressure to move the transformation along, saying to one party, for example, “I don’t know how much longer the rest of the group will stick with this, if you don’t give some sign of your willingness to accept the trades that have been proposed”. This is not to say that the neutral will encourage a party to ignore or sell short its own interests; rather, the neutral may use the pressure of the group to encourage a party to change its behavior, make a more realistic calculation of its BATNA, or offer a counterproposal that the others are likely to be able to accept. We generally hold the view that any distributional dispute in the public sector that appears to be a zero-​sum conflict can be transformed into an occasion for integrative bargaining, assuming the parties have adequate assistance. These sorts of conflicts are uniformly complex, but creative negotiators in any dispute usually will be able to find some possible trades-​whether they be across issues, over time, relative to risk, or whatever. This is not to say, though, that every distributional dispute will yield to resolution through assisted negotiation. The parties [184] may have utterly unrealistic BATNAs, and they may refuse to reassess them regardless of what happens in the negotiations. Even though legitimate interests could be met through the creation of joint gains, the parties may hold out for more gains than can possibly be created. [3.45]  93

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Breaking the Impasse: Consensual Approaches to Resolving Public Disputes cont. Even with the assistance of a skilled intermediary, the parties may not be willing to move from inflated demands to ways of satisfying their true interests –​either because they do not want to be seen as having backed down from their stated positions because they are caught in psychological traps that work against their own best interests, or because internal pressures within their organizations lead them to attach a higher value to sustaining the conflict than to resolving it.



DISTRIBUTIVE NEGOTIATION [3.50]  Distributive negotiation or bargaining is based on the notion that the parties to a nego-

tiation are generally seeking the same goals, items or values. In other words, in a negotiation, the parties are negotiating for the same scarce item or items. Each person wants as much of the item being bargained for as she or he can get, and the more one person receives, the less the other person receives. The “winner” is determined by which person receives the most. Distributive negotiation is like adversarial negotiation in that it is a zero-​sum transaction that produces a win/​lose result. In this respect, the terms “distributive” and “adversarial” regarding negotiation are often interchanged. [3.55] In the following extract, Mark Anstey defines distributive negotiation and lists the phases of distributive negotiation. The selected extract omits the first phase, that of preparation, and only deals with the practical elements of distributive negotiation.

Negotiating Conflict [3.60]  M Anstey, Negotiating Conflict (Juta & Co Ltd, Cape Town, 1991) pp 125-​127, 139-​149, 152-​155. Distributive bargaining is associated with situations where parties with competing interests are involved in a process of dividing a limited resource among themselves … The distributive bargaining situation will be reached whenever the perception of the two sides in relation to an issue do not coincide and there is an unwillingness by either to abandon the issue or to modify their perception of it. Buyers and sellers of commodities, contractors, parties in divorce cases, and insurance litigants all use tactics associated with this approach, but is perhaps most closely identified with the practices of labour negotiators … Distributive bargaining is central to labour negotiations and is usually regarded as the dominant activity in the union management relationship … The term itself refers to the activity of dividing limited resources. It occurs in situations in which one party wins what the other party loses. This approach to bargaining tends to centre around substantive issues such as wages, overtime rates, leave or fringe benefits. Such issues have fixed sum, variable payoff characteristics with the consequence that parties find themselves involved in a conflict of interests with a win-​lose orientation. Generally, parties move off divergent positions in a progressive manner towards a point of common settlement, employing power tactics to shift their opponents to a position that most closely approximates their own. Fisher and Ury [126] therefore term this the positional approach to bargaining, noting that the process is characterised by parties successively adopting and then relinquishing a sequence of positions in an effort to achieve settlement without overcommitting or exposing their interests, while at the same time attempting to pressure the other party to do so. 94 [3.50]

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Negotiating Conflict cont. This chapter seeks to describe the phases of the distributive process, to discuss the centrality of power in its use, and to elucidate some of the more common tactics associated with the approach as well as their consequences. Proponents of the distributive approach believe that it is more realistic than the problem-​solving approaches. They point to the inherent adversarialism of many intergroup relations, fears of cooptation, ideological divides, and belief systems and influences of constituencies in arguing that the competitive approach is the norm. Some early research … indicates that even where higher opportunities for gain through cooperation are indicated, people tend to compete where they have a capacity to do so. Therefore, desirable as problem solving may be, this school proposes that competitive bargaining is a more realistic approach. It must be stressed early in this discussion that with new developments in interest based bargaining and joint problem solving, there has been a tendency to discredit distributive negotiation somewhat carelessly. Where the approach is based in carefully reasoned positions, fully motivated and justified by the parties, and where the tactics are aimed at movement on issues rather than attacks on the other party, this is very different from a blunt confrontational approach. The latter is characterised by rigidly held positions, rejection of the other party’s position as a legitimate expression of difference or need, refusals to motivate or justify positions, unreasonable delays, shifting “goalposts”, and the use of tactics intended to subvert the bargaining process or attack the [127] other party. Despite the distributive nature of issues, a cooperative, cordial or respectful bargaining climate may be maintained in relationships. Criticisms of distributive bargaining tend, in my opinion, to have been a little too generalised and fail to distinguish between constructive and destructive approaches. Positional bargaining represents the worst face of competitive exchanges and here the critique has relevance, but to discard more constructive approaches with the same brushstroke, reflects a failure to recognise the complexities of the process and the fact that tactics may fall along a broad continuum with widely divergent consequences for relationships and settlement potentials. Once interests have been explored and understood, and once parties have considered ways to meet each other’s needs, scarce resources or differing perspectives may still reduce the engagement to one of competition. Not all conditions lend themselves to cooperative problem solving, however desirable the process may be. … [139] Phase 2: Opening the Negotiation The opening moves of the parties in the negotiation usually set the tone for the remainder of the process. Bargaining convention holds that, once parties have stated their position, they will endeavour to progressively close the gap identified in their opening declarations of demand and offer. The nature of these opening positions influences expectations of the process, the bargaining climate, trust levels and the tactics the parties choose to use to gain leverage in the exchange. Typically this phase is characterised by the following elements: • the establishment of bargaining boundaries, • setting the bargaining climate, • arguing, defending, motivating, justifying, clarifying positions, and; • manipulating expectations of the process. Establishing Bargaining Boundaries Normally parties open negotiations with their ideal demands and offers, thus setting the boundaries for the process. Not unusually one or both of the parties attempts to gain control over the process at this early stage, by assuming control over the order of items on the agenda, determining whether matters will be negotiated one by one or in the form of a package. Sometimes a tactical effort may be made by a party to delay indicating its position while it probes the aspirations, arguments [140] and motivations of the other. This may allow an adjustment of position before committing too early, and an unwary adversary may start moving under pressure before establishing the other’s position. This [3.60]  95

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Negotiating Conflict cont. would allow a shift off the original planned ideal to psychologically reset the bargaining boundaries, and change the expectations of the process held by the adversary. Movement before ascertaining the demands of the other side precludes the means of assessing relative gains or losses in the process. ... Setting the Bargaining Climate During the opening phase parties to a negotiation try to establish how the other intends to approach the exchange. Scott states that one of the reasons why this phase is important, is: … because attitudes are being formed. Each party is reading signals from what the other says and does, making continued judgments about the other’s character, and framing its own behaviour in response … alert for anything which can be interpreted as aggressive and often ready to themselves to become defensive and counter-​aggressive. [141] Scott suggests working toward a climate that is businesslike and cordial. Messages of submissiveness or hostility by way of gesture or tone of voice may have consequences for the process in the longer term. It is strongly suggested here that sincerity be conveyed where it is genuine. However, sending signals of conciliatory intent and empathy for the other party are counterproductive where it is known that these are insincere. One tactic that some negotiators like to use is reminding of past relations  –​ efforts are made to bring to the other party’s attention to [sic] how amicable relations have been over time, how effectively they have managed to overcome differences in the past and how it is hoped that future relations will not be jeopardised by “today’s problem”. Unfortunately some negotiators use this approach to soften the other side before delivering a really destructive blow to the process. [142] Arguing, Motivating, Justifying, Defending Positions The beginning phase of bargaining is often characterised by prolonged discussion over the opening positions specified by the parties. Justification for demands and offers is demanded, positions are defended, research is referred to, ideas are motivated. This not uncommonly has the appearance of a prolonged argument, and many negotiators complain about constant repetition of motivations and the lack of movement in the process. The prolonged period of repetitious argument has a purpose, however. It provides a vehicle for each to assess the underlying needs and interests of the other party, its strengths and weaknesses, possible concessions, priorities, and commitments, and power capacities. It is the means through which the parties attempt to gauge what might realistically be achieved through the engagement. It is rendered difficult quite often because it is also the means through which the parties attempt to manipulate each other’s expectations, reducing each to having to try to separate bluff from reality before committing to a move in the negotiation. Because the opening phase is often information based, parties tend to return to these arguments during later phases of the bargaining process when movement becomes difficult. My own hypothesis for this is that it allows “breathing space” in negotiations. Parties feel safe with their arguments even if they have already been used and have been shown to have little persuasive effect. Repeating them at least gives nothing away, and at the same time allows time to think about alternatives and put out feelers as to alternatives from the other side. I suspect it also has some value in allowing parties to regroup around their core concerns –​while it may not persuade the other side, it may reaffirm solidarity in one’s own! [143] As mentioned earlier, the argument process is also a means for manipulating expectations of the process. Manipulating Expectations of the Bargaining Process A central feature of distributive bargaining is that of manipulating an adversary’s expectations of the process. Lewicki and Litterer suggest that negotiators must assess the following issues in this respect: 96 [3.60]

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Negotiating Conflict cont. • How much value does each place on a particular outcome? • What are the costs to each of a delayed or difficult negotiation? • What are the costs to each of aborting the negotiation? Each party needs to gain an accurate understanding of the costs and values of the negotiation process and outcome to the other, and not unusually each attempts to conceal the true nature of its own costs and values. Thus if one party sees that the other urgently needs a settlement, is incapable of delaying one, or aborting the negotiation, then it is well placed to press for a more advantageous outcome. It is in this awareness that tactics such as appearing unconcerned or unpressured are rooted. Lewicki and Litterer suggest that the more the other can be convinced that the costs of a delay or cessation of bargaining are low for oneself, the more modest its resistance or fallbacks will be. Likewise, negotiators seldom throw away concessions even if they carry low costs –​by delaying, or appearing very resistant on the matter or demanding valuable concessions in return, they attempt to make the other feel that an important victory has been achieved when it is finally conceded. Typical tactics used for the purpose of assessing the values and needs of the other, and conveying impressions of one’s own include … [144] • Using informal meetings or organisational grapevines to obtain or disseminate information prior to negotiations. • Dropping apparently chance remarks to evoke a response off which to assess commitment levels or feelings on issues likely to arise in formal meetings. • Researching the needs and bargaining activities of the other party indirectly to assess its actual values and need for continued negotiation. • Probing questions to assess values and needs. • Observation of responses to matters or issues “floated” to the other by way of test questions or proposals. • Delaying indicating own position on the basis that a return to one’s principles/​constituency is required. • Selective presentation of facts or arguments which support own case or highlight negative consequences of other’s position. • Controlling own emotional responses to the other’s proposals to conceal or convey impressions of importance or relevance of issues. • Spending greater lengths of time on issues to convey their significance. • Using presentations, or third parties considered to be neutral and expert to provide input on a matter. • Using disruptive actions, creating alliances with new partners, placing time limits on negotiations to bring home to the other party the costs of delaying or terminating negotiations. [145] Clearly, the manipulation of expectations obliges negotiators into the area of “bluff”. It is often only a short step to dishonest and bad faith bargaining from here. In addition, it is these tactics which lead to parties misunderstanding what is possible in negotiations, misjudging the other’s commitment to a position or willingness to use direct power to achieve or defend one. While “bluff” may be central to distributive bargaining, it is also central to its breakdown in many instances. It raises levels of tension, promotes defend-​attack spirals, and may entrench already negative stereotypes and polarised positions. Furthermore, it raises serious ethical questions and may have destructive implications for trust relations. Phase 3: Bargaining The exchange moves out of the opening phase with its characteristic argument process when the parties begin to signal to each other as to their willingness to move, and start making tentative proposals as to movement or concessions. Several elements demand attention: [3.60]  97

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Negotiating Conflict cont. • signalling; • proposing; and • packaging and bargaining. Signalling The fact that parties continue to talk to each other despite the frustration often incurred in the argument phase is essentially a signal of willingness to look for compromise and avoid breakdown in the exchange. However, arguments tend to lock people into their positions and thought sets –​their egos become entwined with their positions, and efforts are directed more toward defending arguments than opening the way for creative problem solving. Parties become afraid to concede even small issues in case these moves are perceived [146] as indications of weakness inducing the other party to apply even more pressure, and to adhere even more strongly to a position. Kennedy et al (1980) suggest that: The way to handle concessions with confidence is to develop skills in signalling behaviour … a signal is a means by which parties indicate their willingness to negotiate on something. It is also more than that: it implies a willingness only if it is reciprocated by the other side. Signalling allows movement to be initiated in a safe manner. It is a means of informing the other party of a willingness to move provided this is reciprocated, in other words, a process of two-​way movement is to be undertaken. It is a means of breaking out of unproductive circular arguments, for testing intransigence on the part of an adversary, and for opening the way to a course of bilateral concessions … [147] Kennedy et al warn against movement without some understanding that it will be reciprocated. They propose that this will not convince the other of one’s good intentions but will only reward intransigence, confirming to the other party that if he only holds fast capitulation will ensue. They note that goodwill moves are often defended on the basis that they “soften up” the other party or “get negotiation underway”. In a blunt rebuttal of this, they write: Both of these defences, in a triumph of delusion over experience, indicate utter confusion as to the tactics that produce better deals. Goodwill concessions, they suggest, harden rather soften [sic] the other party. Proposing A reciprocation of signals of willingness to move allows the parties greater confidence in moving from argument to making proposals. While argument locks them into defend-​attack exchanges, proposals initiate an active search for remedies. In the first instance they are often made tentatively, and in a manner which suggests firmness on generalities but flexibility on specifics. As such, while clarity may not exist on substantive detail, early proposals have a reassuring quality, signalling to the parties that movement and settlement are possible. They allow a process of cautious exploration without [148] overcommitment … Sometimes it may help the process if a party can prevent the other committing too early to a specific position. An early commitment may oblige a party into defending a position for the sole purpose of preserving dignity, thus preventing reasonable exploration of problem [sic] …. As the process continues, parties become more specific as the parties acquire confidence in the other’s willingness to move and become hopeful that a settlement is possible. Several tactics may be employed to ensure that proper exploration of proposals takes place …. Packaging and Bargaining As proposals begin to firm it is suggested that they be bargained as packages rather than as individual items. This initiates a process of concession exchanges and trade-​offs, allowing each party to secure 98 [3.60]

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Negotiating Conflict cont. certain benefits or guarantees in exchange for movement on the same or other items. In this way some flexibility is allowed rather than tests of strength on each item on the agenda. Kennedy et al propose that packaging and bargaining is the most intense phase of the process, demanding creative reshaping of variables in a form that more closely approximates the fears and interests of each party. It is a creative process centred on moving parties from [149] where they are to where they might settle. Rackham and Carlisle concluded from their research that effective negotiators link issues, do not dilute arguments and bargain in packages based in preparation around individual items. Several important guidelines exist for effective packaging and bargaining. The critical skill is that of linking items. This is not a careless lumping together of issues, but a carefully considered and creative exercise. Concessions, trade-​offs and movement are most likely to be effective when they mean something to the other party, and show recognition for their concerns, and understanding of their pressures, values and inhibitions. Concessions should therefore be valued in the other’s terms –​not only in terms of what they cost to give, but in terms of their utility [150] to the other side. A party may believe that it has made very important concessions at considerable cost to itself, and be angered to find that they are received with little excitement by the other side … Effective linking demands that conditions be stated before concessions. Generally opening conditions are made large, and concessions kept relatively modest to allow room for trading, with the proviso, of course, that concessions must be sufficiently attractive to oblige the other party to seriously consider the proposed package … [152] The key to packaging and bargaining is the “if you –​then we” linkage, the basic rule of thumb being never to give anything without getting something … Phase 4: Closure and Agreement The central purpose of negotiation is obviously to endeavour to achieve a settlement in an area of disagreement between parties. However smoothly the preceding phases of opening, signalling, proposing and packaging and bargaining might have proceeded, closing negotiations is often a difficult task. Quite often proceedings “bog down”, with parties becoming cautious and suspicious of the process. New tensions may emerge as each tries to “get the last inch”, play a last power card, or “wait out” the other in an act of brinkmanship. Parties may feel that they have given enough, and that the other should close the gap, or that matters have gone too smoothly [153] and that they might have been “conned” somewhere along the line. Atkinson suggests five tactics which negotiators might use to make their offers credible to opponents in order to overcome suspicions that they are bluffing. • Make offers public through the media. • Put offers down in writing. • Remind the other of consistency in past negotiations. • Walkouts. • Threaten or implement sanctions, such as the strike or lockout to pressurise the other. Some comment is required on these tactics. Making the offer public has become increasingly popular for employers who feel that they are facing unreasonable demands or action on the part of trade unions … Walkouts are dangerous tactics especially if the other side is clearly indicating that further movement is possible providing there is reciprocation. While it has the strong feel of [154] commitment to a position, it also leaves the other party with an all or nothing, take it or leave it choice. If they call the bluff and leave it, it is a humbling experience to have to return to try to re-​open negotiations … The same applies to the use of threats of sanctions –​a party can only make so many threats before it is obliged to exercise a sanction if it is to retain credibility. Once this threshold is passed, and the sanction is actually implemented the nature of the negotiation changes. While threatened or implemented [3.60]  99

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Negotiating Conflict cont. pressure tactics may act quickly to focus minds on the consequences of failing to achieve an agreement, they may also act as obstacles to agreement. The attention of the parties is shifted off wages for instance, to how to defeat or progress a strike. Face saving becomes a factor in continuing or ceasing action promoting the chances of conflict escalation and entrapment. Many strikes have proceeded long beyond their economic rationale simply because there seemed to be no dignified way of de-​ escalating the crisis. It continues to amaze me how much companies will spend on defeating strikes that they would not have considered sharing with workers –​and how much workers will sacrifice to back demands that are [155] clearly unachievable. This is not the stuff of rational trials of economic strength –​it is the stuff of conflict entrapment and brinkmanship. Expressions of commitment then, are valuable sources of leverage in negotiations, but raise the risks of premature or unnecessary deadlocks. Kennedy observes: Playing “chicken” with a dedicated (“irrational”) opponent in fast cars on a highway is also a fast way to die. In negotiating, a mutual chicken game is known as deadlock. He makes several suggestions for avoiding deadlocks: • Place moratoriums on public statements. • Replace attack language with neutral statements on feelings. • Use questions to clarify and reclarify the needs and interests of parties. • Move questions from why something should be done, to how it could be done. Use open vs closed questions. Shift from us vs you approaches to one of acknowledging joint problems. • Re-​examine own levels of commitment to assess the worth of continuing the process. These actions constrain premature public commitments, and allow for the emergence of creative problem solving in place of costly trials of strength over issues of principle, or simply a desire to “teach the other a lesson” or “keep them in their place”. If the other party is sensitive to these issues, then some [156] active searches for face-​savers might be embarked on to allow both an honorable withdrawal from a deadlock … Usually closure in negotiation is brought about by the following: • “either … or” offers (alternatives); • “or else …” offers (threats); or • concession exchanges (reciprocal exchange).

 [3.65]  Anstey paints a picture of the adversarial nature of distributive negotiation although

qualifies it by stating it can still be a consensual process that provides for a cordial and respectful interchange of negotiated outcomes. In the following extract, Katie Shonk agrees with this approach and provides a useful checklist of distributive bargaining strategies.

Distributive Bargaining Strategies [3.70] K Shonk, “Distributive Bargaining Strategies” (Program on Negotiation, Harvard Law School, 20 November 2017, https://​www.pon.harvard.edu/​daily/​negotiation-​skills-​daily/​distributive-​ bargaining-​strategies/​) at 1 (accessed 19 September 2018). Wise negotiators recognize the value of both collaborating and competing at the bargaining table. They look for ways to increase the pie of value for all parties, often by identifying differences across issues and making tradeoffs. And they also rely on distributive bargaining strategies to try to claim as much of that larger pie for themselves. 100 [3.65]

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Distributive Bargaining Strategies cont. What are distributive bargaining strategies? Distributive bargaining refers to the process of dividing up the resource or array of resources that parties have identified. In many negotiations, that means haggling over issues such as price. By comparison, integrative bargaining involves collaboration, or integrating across multiple issues to create new sources of value. People often think that distributive bargaining strategies require adversarial bargaining, such as making tough demands, threats, or bluffs. But in fact, the most effective distributive bargaining strategies do not require you to sacrifice your integrity or resort to dirty tricks. Rather, they require you to set aside plenty of time before your negotiation to engage in clear-​eyed preparation. Putting Distributive Bargaining Strategies to the Test In one study, UCLA School of Law professor Russell Korobkin and UCLA School of Law Empirical Research Group director Joseph Doherty had law school students engage in a settlement negotiation simulation that drew on an example of distributive bargaining. Pairs of students playing the roles of plaintiff’s and defendant’s attorneys were told to attempt to negotiate a settlement of an age-​discrimination lawsuit, based on a real case, in which the plaintiff was suing his former employer for $100,000. Both sides received the same information about the merits of the case and the relevant legal standards. The “facts” gave neither side an edge. What distributive bargaining strategies were most effective? The best predictor of “winning” outcomes in this distributive negotiation –​claiming the lion’s share of the bargaining range –​were negotiators’ estimates of the other side’s bottom line. The more accurately a negotiator estimated his counterpart’s bottom line, the more money that negotiator successfully claimed. The study identified other important factors that may improve your settlement outcomes in the real world, including setting high aspirations (or “targets”), making an aggressive first offer, and being willing to go to court if necessary. A Checklist of Distributive Bargaining Strategies The distributive bargaining strategies identified in Korobkin and Doherty’s study should be effective in any two-​party negotiation. Review the following checklist before you engage in any negotiation where you will be competing for scarce resources: 1.

Estimate their bottom line. Most negotiators understand the value of evaluating their own bottom line –​the least amount they would accept before walking away from the bargaining table. But we often overlook the importance of estimating our counterpart’s bottom line. To do so, research the other party’s bargaining strength and interests, which may include examining the outcomes of her past negotiations and her likely best alternative to a negotiated agreement (BATNA). Once at the table, ask lots of questions to determine her interests and constraints as well.

2 .

Set high aspirations. Another important part of your negotiation preparation is to set an ambitious yet realistic aspiration level, or goal. That doesn’t mean making outrageous demands; rather, prepare arguments that will make your ambitious aspirations seem reasonable.

3.

Anchor aggressively. The negotiator who makes the opening offer in a price negotiation typically gets the better deal, considerable negotiation research shows. Why? Because the first figure named in a negotiation “anchors” the discussion that follows. If you are well informed about the value of the commodity you’re negotiating, prepare to drop an ambitious first anchor.

4.

Identify a strong BATNA. When you have a strong BATNA, you will be in a good position to reject a mediocre agreement. As a result, a strong BATNA is typically your best source of power in a negotiation. After identifying your BATNA, you should take steps to improve it, when possible, by conducting negotiations on multiple fronts. [3.70]  101

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Distributive Bargaining Strategies cont. In the end, when it comes to effective bargaining strategies, the difference between distributive and integrative negotiation is not great. Both aspects of negotiation require you to engage in significant reflection and research before you sit down at the table. The more you know about the issues at stake, your counterpart’s interests and constraints, and your own preferences and limitations, the better positioned you will be to successfully deploy distributive bargaining strategies and claim value in your next negotiation.



PRINCIPLED NEGOTIATION [3.75]  Principled negotiation is the most popular of the negotiation models currently being

taught by dispute resolution training providers, and arguably, being practised in real-​life negotiations (adversarial negotiation being the other commonly used model of negotiation). Most negotiators and mediators are trained in principled negotiation or derivations of it. Its formalisation as the dominant negotiation model began about 30 years ago when Harvard University Law School’s Professor Roger Fisher and negotiation specialist William Ury developed a prescriptive style model to move negotiators from being positional bargainers to become interest-​ based bargainers. Their model has been published in numerous texts, most famously their 1982 text entitled Getting to Yes with co-​author Bruce Patton. The model seeks to solve the problem of parties not being able to reach settlement or, if they do reach settlement, the settlement not lasting beyond the negotiation because it was based on the satisfaction of positions (“what” a person wants) and not interests (“why” a party wants). This is usually the result of parties consciously or subconsciously bargaining according to their positions only. That is, positional bargainers negotiating based on what they want as opposed to why they want it. Principled negotiation promotes the notion that for a negotiation to not only reach an outcome, but an outcome that will last through to implementation, parties should bargain according to their interests and not their positions. While interest-​based bargaining is the overriding theme of the principled negotiation model, the Harvard model promotes the idea that there are seven important elements that should be addressed in any negotiation if it is to achieve an effective and long-​lasting settlement. Element 1 –​interests [3.80]  According to the principled negotiation model, all people have interests. Interests are

the needs, desires and fears that really drive a dispute. They are “why” a person is in dispute with another person. That is, why the person decided the way she or he has that has consequently caused the disagreement. On the other hand, positions are generally a means rather than an end –​that is, they are “what” the person wants in order to discontinue the dispute. Principled negotiators do not argue just positions. Principled negotiators argue interests. In other words, they find out not only what the other person wants in terms of a likely settlement but also why they want their stated position. People tend to naturally argue their positions only because it is easy. It is easy because people do not really have to think about why they are in dispute. They argue the reaction to the reason the dispute arose without arguing why it arose and why they want a certain outcome. Further, people think it is more persuasive to argue positions. For example, the following 102 [3.75]

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stated position from a union official, “Everyone off the building site”, sounds more persuasive than the underlying interest, “Can we talk about health and safety issues on the building site?” Negotiating based only on positions is a common mistake that should be avoided if people wish to participate in principled negotiation. Often in negotiations people formulate an initial demand, that is, what they should ask for (called a “target” or “aspiration” point in adversarial negotiation). They may have a “bottom line”, which they think is dangerous to disclose. Having such a “bottom line” restricts people finding out why the dispute has arisen. It stops the process of discovering what is really causing the dispute because people are too concerned about preserving their “bottom line”. Take the example of a retailer of goods who does not pay its account on time and the wholesaler threatens to sue. The interest underlying the position may be that the goods are always delivered late, and therefore the retailer believes that the wholesaler should similarly wait for their account to be paid. By failing to explore the real interests underlying the positions, the people are less likely to find an acceptable solution. What the retailer probably has not considered is the fact that the wholesaler has to pay the manufacturer for the production and delivery of the goods, who may also be threatening to sue the wholesaler. Such disputes create a “vicious circle” where the potential is for no-​one’s interests to be satisfied. A very important concept for a principled negotiator to follow is to give up thinking that one person can change another person’s mind. The correct approach is to ensure that the other person understands the person’s own point of view and vice versa. In that respect, it is important to consider the other person’s interests so that the principled negotiator will know when the other person is likely to accept a proposed settlement. This involves the principled negotiator not only asking, “What is it that I want, and why do I want it?” but also trying to find out what the other person’s positions and interest are so that a potential settlement addresses both the peoples’ interests. After people have thought about interests, the next important step for the principled negotiator should be to prioritise them. This means they should list the issues in an order that will facilitate agreement at an early stage of the negotiation. In most cases, this means leaving quantum issues until the end as these are often the most contentious and difficult to resolve. If people can establish a “pattern of agreement” early on in the negotiation, then the rest of the negotiation has the possibility of success, particularly in relation to the more challenging issues normally left to the end of the negotiation. Element 2 –​options [3.85]  Principled negotiation is not about arguing over differences and trying to change the

other person’s mind. It is about using those differences to a person’s advantage by coming up with creative options to not only solve the problem in dispute but to perhaps reform an organisation or improve the standards currently applied so that a similar dispute does not arise again. In other words, differences between people can be turned from being negative and destructive into an outcome that has positive ramifications for the individual and/​or organisation. The generation of options helps achieve not only a settlement but can also turn a negative dispute into a positive outcome. If a person walks into a negotiation with only one solution, and the other person does not agree to that solution, then the whole exercise has been a waste of time. Principled negotiators see the key to successful negotiated outcomes as being the generation of options. They do not accept that the key to settlement can only be found with one solution as opposed to multiple [3.85]  103

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items of value to be negotiated over. They do not accept the view that the only way to negotiate over something valuable is to split it up (as is the case in distributive bargaining). Instead, a principled negotiator will take the view that through negotiation, the people can add items of value to the available pool of options, and therefore each person can come out with enough items to satisfy their interests. In short, the more options on the table, the better the chance that each person will accept at least one or more of the available options. A common mistake people make is that they work out what it is that they want first. They then consciously or subconsciously use that initial “want” as the focus of negotiations. In other words, they have blinkered vision during the negotiation process. When their needs are not met, they are then ill-​equipped to handle more creative solutions. Principled negotiators try not to predetermine the solution prior to the negotiation. People who attempt to predetermine the outcome are often unsuccessful in achieving a settlement because they will be disappointed that the outcome is not what they first considered and that they have missed the opportunity to come up with creative options to resolve the dispute. Another way of benefiting from difference is the notion of trading something cheap for something the other person considers valuable. Take, for example, a local council that owns a block of land on which they wish to build a community centre. The local residents form a residents action group and complain about the increase in the traffic in the area and people from outside the area causing security concerns. A possible solution could be to allow resident-​run community groups, such as Neighbourhood Watch, sporting groups, scouts, guides and others, to use the community centre for their meetings free of charge or at a drastically reduced rate. This may be a sufficiently attractive option that would enable them to discontinue their objections. It is cheap for the local council because once the community centre is built, it will not cost them anything to allow the centre to be occupied on nights when it is not being used. However, it is a valuable option for the concerned residents who may not have a proper permanent meeting venue or administration office for their various community-​based groups. There are various methods of generating options. In some business courses these methods are known as “brainstorming”, but whichever description is used, the rules are generally the same. Explaining the rules to the people involved and having them observe the rules is important to the success of an option generation session. The rules for option generation are as follows. • Create a non-​judgmental atmosphere. Option generation is not the same process as the evaluation of options. The process of evaluation occurs later. Option generation requires people to suggest as many ideas as possible without having each idea evaluated. • Look for options, not solutions. Explain to the people that at this point in the negotiation they are only looking to generate some options on a particular issue or issues. These options may or may not form part of the final settlement. • Generate multiple options. Remember, people cannot afford to enter a negotiation with only one solution. If the other side rejects it, then everyone’s time has been wasted. Multiple options will assist people to select a group of options from the suggested package of options. The more options to select from, the more chance the people will agree on a common group of options as the ultimate negotiated agreement. • Encourage crazy ideas. Sometimes the crazy idea carries the day –​so encourage all ideas. Ideas are strange things in that they often spawn other ideas, and it is this spontaneous multiplication of ideas that is the secret of a successful option generation session. In this respect, people often prevent the growth of ideas by rejecting or ridiculing any suggested option. 104 [3.85]

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Element 3 –​alternatives [3.90]  People should not think that just because they are adopting one particular model of

negotiation over another that they should have success every time they negotiate. It is a fact of life that no matter how sound the negotiation model is, or how experienced the negotiators are, negotiations will fail. This may be for a variety of reasons. One common reason is that the settlement being proffered in the negotiation is just not as good as an alternative option available outside of the negotiation. Such an option is known by the acronym of “BATNA” –​the best alternative to a negotiated agreement. Another way to express BATNA is simply to call it a party’s “walk away” position. In other words, what external position to the negotiation would a party walk away from the negotiation to pursue? People in dispute should know their BATNA for two important reasons. First, if people know what their walk away alternative is, then should the negotiation fail, they are in a good position to know when a settlement should be seriously considered. If the proposed negotiated settlement is better than a person’s BATNA, then that person would probably be foolish to reject the settlement given that they would be accepting something not as good as the negotiated settlement. Conversely, if a person’s BATNA is better than the negotiated settlement, then they may be foolish to accept the settlement because walking away from the negotiation will simply produce a better alternative for them. A  notable exception may be accepting a settlement worse than a BATNA because the person may want to get on with their life and put the dispute behind them, but generally people will not agree to settle when they have a more attractive option open to them that is independent of any negotiated outcome. Further, knowing a person’s own BATNA is a comfortable security blanket. People will feel a lot happier if they know exactly whether or not they should reach agreement given the settlement being proposed. Knowing the other side’s BATNA is equally important for the same reasons. A person will have a much better idea of when they are getting closer to a negotiated settlement if they can ascertain with some accuracy the other person’s BATNA. Secondly, knowing both BATNAs is useful when it comes time to assess tactically whether a settlement should be agreed upon. If the settlement is not as good as a person’s own BATNA, then clearly that person may need to either reduce the attractiveness of their own BATNA or increase the attractiveness of the proposed settlement. Conversely, if the settlement is less attractive than the other person’s BATNA, then that person can either work on reducing the attractiveness of the other person’s BATNA or work on increasing the attractiveness of the settlement. Sometimes reducing the attractiveness of the other person’s BATNA is easier than increasing the attractiveness of the settlement. The following are some possible ways to reduce the attractiveness of the other person’s BATNA: • If the other person’s BATNA is to go to court, perhaps there should be a discussion of the costs of such a strategy. Has the other person had a quote from a firm of lawyers? Have they been told about the administrative and managerial time taken to run a dispute through litigation? Someone has to instruct the lawyers and assemble the witnesses and documents used in litigation. While the other person is running the dispute in court they are diverted from continuing their life and job and, if they are representing an organisation, this means that while they are locked in litigation their competitors are out in the market place doing business. Further, there are prohibitive legal costs associated with litigation. Three days in any State or Territory Supreme Court in Australia will cost approximately [3.90]  105

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$150,000 in legal fees. Some litigated matters run for weeks or months at enormous costs to the parties. • If the other person’s BATNA is to let the dispute run on then perhaps they should be asked to consider the cost of that scenario in terms of the counterproductive nature of a continuing dispute. In addition, the adverse publicity that comes from a long-​running dispute may be damaging to the individual person or their organisation, which could translate into lost revenue. • On the financial front, if the other person’s BATNA is either going to court or letting the dispute run on, then it may be fruitful to discuss the notion that a negotiated settlement involving quantum has a net present value. That is, $100,000 today may be worth more to one of the people than the hope of getting $200,000 in two or three years’ time when the dispute is finally heard by a court. If the person can clear debt or expand their business, then that $100,000 may be worth more to them now than the possibility of being awarded more should they win litigation in the future. • If the other person’s BATNA is going to court then perhaps you should discuss the uncertainty of a litigated outcome. There are no guarantees when a person chooses court over negotiation. If there were guarantees, then lawyers would give out written guarantees of success to clients. This uncertainty needs to be brought to the attention of the person who thinks that court is a viable (and sometimes bullet-​proof) BATNA. • If the other person’s BATNA is to let the dispute drag on or go to court then there should be a discussion regarding the loss of any past, present or future relationship. If the people still have the potential to have an ongoing relationship, then its value should be explored as a way to deflate the other person’s BATNA. Often people do not really want to sever the relationship that has been built up over a period of time and that can be of benefit to both people in the future after the dispute has settled. The above are just a few ideas on deflating BATNAs. The point of the exercise is that sometimes it is easier to deflate the other person’s BATNA as opposed to working hard to inflate it and make the proposed settlement more appealing. That is, deflating the other person’s BATNA is often an easier alternative to trying to find options that will make their BATNA look worse than the proposed settlement. One final point on BATNAs –​they must be concrete and not arbitrary. This will prevent people from making mistakes when the time comes to consider whether they should accept a settlement. People should not fall into the trap of assuming they know what their BATNA is until they have thought creatively about what their options really are. For example, there may be a dispute on a building site. The first reaction might be to call every worker off the site. However, a better BATNA may be to institute a “go-​slow” or a “work-​to-​rule” or simply lobby the owners of the project, who may not have been informed about the dispute by their project managers. In other words, the most obvious BATNA is not always an effective alternative to a negotiated agreement.

BATNAs in Negotiation: Common Errors and Three Kinds of “No” [3.95]  JK Sebenius, “BATNAs in Negotiation: Common Errors and Three Kinds of ‘No’” (2017) 33(2) Negotiation Journal 89 at 90, 92-​95, 97-​98. 106 [3.95]

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BATNAs in Negotiation: Common Errors and Three Kinds of “No” cont. Introduction … As one’s “best alternative to a negotiated agreement”, the “BATNA” concept in negotiation has proved to be an immensely useful tool. It is widely accepted that a more attractive BATNA generally increases one’s bargaining power. A minimally necessary condition for an agreement to be mutually acceptable is that each side prefers the deal to its BATNA. Thus, the attractiveness of each party’s BATNA determines whether a zone of possible agreement (ZOPA) –​the range within which any mutually acceptable deal must fall –​even exists and, if it does, where such a zone is located (see Fisher, Ury, and Patton 1991 and, e.g., Raiffa 1982 and Lax and Sebenius 1986). If either party prefers its BATNA to any proposed deal, then no zone of possible agreement exists .... The initial articulation of the BATNA notion along with many later interpretations, however, can be problematic, limiting, and even misleading. Although savvy negotiators and analysts generally avoid these pitfalls, the less sophisticated can go astray in at least three ways, which I analyze below … [92] Common Errors Nitpicky Semantic Problem Number One: Implying That One’s BATNA Cannot Be a Negotiated Agreement Pause, and look back for a moment at the above characterization: the best alternative to a negotiated agreement, “the results you can obtain without negotiating” (Fisher, Ury, and Patton 1991: 104, emphasis added). Or, look at helpful advice from the same book (Fisher, Ury, and Patton 1991: 103): “Develop your BATNA. Vigorous exploration of what you will do if you do not reach agreement can greatly strengthen your hand”. But again, “if you do not reach agreement”. In other words, your BATNA, as literally characterized, is something other than a negotiated agreement (just walking away?). As is widely understood –​but not from the defining words in Getting to Yes –​your BATNA will actually often be another negotiated agreement; your best alternative to a negotiated agreement with party A may be a better agreement with party B. This need not be the “results you can obtain without negotiating” or the best alternative “to a negotiated agreement” as the original characterization suggests. Implicitly and obviously, to sort out this minor bit of semantics, one’s BATNA must be properly understood as the best alternative “with respect to the negotiation at hand” and not with respect to any negotiated agreement elsewhere. More Serious Problem Number Two: Characterizing Your BATNA as Your Best Outside Option, Independent of the Other Side … [93] In such situations, instead of thinking of your BATNA in terms of “your outside options” that are “independent of the other party”, consider a potentially different question: “What are the full consequences of saying my ‘no’ to the other side’s proposal (and possibly, continuing to negotiate, with or without a pause)? How can I most accurately play out and perhaps most effectively influence how the consequences of my saying ‘no’ will affect each side’s interests (preferably positively for you and negatively for them)?” While hardly “outside options independent of the other party”, such consequences can include costs or risks borne by each side, foregone benefits, altered settlement possibilities, damage to the relationship, third-​party effects, and so on. Suppose, for example, that the passage of time strengthens your financial position in a commercial deal while quickly bankrupting the other side. Then, rather than conceptualizing your BATNA in terms of your “outside options independent of the other party”, your BATNA might be to keep negotiating with the same counterpart while continuing to say no until your relative situation has sufficiently improved. And even if saying no while still negotiating affects both sides equally or even favors the other side –​an empirical matter to be determined by comparing the various possible choices –​continuing to negotiate may remain the best alternative to agreement. Prescriptively, the [94] minimally acceptable agreement for you should have at least the expected value (to you) of whatever would happen if you did say “no”. Even More Serious Problem Number Three: Treating Your BATNA Mainly as a Last Resort Conceptualizing one’s BATNA mainly as a kind of last resort, as negotiators often do, can be unnecessarily limiting .... [3.95]  107

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BATNAs in Negotiation: Common Errors and Three Kinds of “No” cont. To the contrary, you should evaluate –​and possibly enhance –​your BATNA not only as a last resort or just when “they are more powerful”, but as an essential element of preparation for every negotiation, once you have assessed the full set of your interests and envisioned the possibility of a valuable agreement .... Available alternatives to agreement often shift during negotiation as a function of changes in information, the underlying situation, the actions of third parties, or other factors .... Suppose that you are “more powerful” in the sense that you have a terrific BATNA and the other party has a lousy one. That BATNA imbalance [95] should play a quietly potent role from the very beginning of the process. If properly played, the odds are good that you will do better than if your BATNA was worse and theirs better. Indeed, as very a first resort, you should estimate how well each side’s BATNA serves its interests. This is essential to determine the minimum acceptable threshold for any proposed deal .... As a practical matter, while assessing BATNAs is a vital step in preparation for negotiation, exploring interests and inventing creative possible solutions is often more effective when BATNAs are in the background –​rather than being continually brandished. Of course, BATNAs often play other key roles during negotiations, not just in the case of impasse. Consider a fairly obvious but garden variety example. Suppose that you adopt a problem-​ solving approach to a business dispute, but the other side stonewalls and stubbornly insists on an extreme position as the only possible resolution. You probe for underlying interests and suggest mutually preferable options. At a certain point during the negotiations, however, perhaps well before any final impasse is reached, you judge that your cooperative approach is not working. At that point (or before), you may choose to hire high-​powered legal counsel, engage consultants to buttress your case, and pre-​emptively file suit in a highly favorable court jurisdiction –​not only about the issue you are negotiating but also perhaps on related issues –​either for leverage or with the idea of proposing a “global” settlement of the issues that now affect both parties, both the “original” issues and those issues about which your suit was brought. Or, rather than actually filing suit, you may decide to persuasively warn the other side that this course of action is increasingly likely. Depending on how successfully you frame your actions to avoid irrational escalation, the other side may now face a credibly worsened BATNA, while yours has been enhanced. With these moves, you may be able to reach a much better deal than was available before your warning or legal actions. Your actions did not need to await impasse. And assessing each side’s legal options should have been part of your background preparation even before negotiating .... [97] Three Kinds of “No” … At a minimum, however, you should be clear that when you say “my BATNA is …”, it is not a global statement. Instead, you should implicitly mean your best alternative “with respect to” a specific counterpart, a particular proposed agreement or class of agreements, and/​or a definite time period or stage in the negotiation process. Indeed, I would like to see this important concept routinely characterized and explained more accurately. In tandem with the term BATNA, it might help to explicitly refer to “three kinds of no” as distinct reasons to refuse a proposed negotiated agreement. First is a “tactical no”, simply turning down a proffered deal in hopes of generating a better offer later in the process. Second, is a “reset no”. As in the lawsuit example above, this “no” may occur at any stage of the process. It can entail moves “away from the table” to improve your own no-​deal option and/​or worsen that of the other side. You often employ the “reset no” with the intention of continuing to bargain or returning to active negotiation with your original counterpart, but in a setup [98] that you have more actively modified to be more conducive to reaching your preferred deal. 108 [3.95]

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BATNAs in Negotiation: Common Errors and Three Kinds of “No” cont. Third, you may utter and mean a “final no”, or the course of action you would take if a sufficiently desirable agreement simply does not seem feasible with your counterpart. If and when you utter a “tactical no”, a “reset no”, or a “final no”, you should assess the implications by analyzing the same questions: how do you envision and evaluate the process playing out from the point of actually conveying your “no”? What does this mean for your minimum conditions going forward? Theirs? The prospects for a more favorable deal? And so on. In short, a great virtue of a focus on one’s BATNA is the discipline of systematically asking of any possible deal: “as compared with what?” The acronym has proved irresistible, but common descriptions can be problematic or worse. It would enhance clarity to emphasize that, typically, one’s BATNA is only meaningful with respect to a specific counterpart and class of possible deals with that counterpart. And some tweaks that distinguish among the three types of “no” could enhance the value of “BATNA” even further.

 Element 4 –​legitimacy [3.100]  A fundamental principle of any negotiation model is the fact that people will have to

negotiate persuasively. As previously stated, this does not mean changing the other person’s mind, as this will rarely occur. On the contrary, it means simply having the people understand each other’s interests and vice versa. It also means arguing persuasively for a certain package of options that could potentially constitute the final settlement. The most persuasive arguments are those that appeal to a person’s logic and are backed up with some authority. In relation to the second concept, that of authority, it is said that negotiated settlements should be legitimate, that is, they should contain some element of objective authority so that people are satisfied that the best deal has been struck. In some cases, satisfying the legitimacy element of a successful negotiation occurs when one person persuades the other that the settlement is legitimate and therefore has a lot to commend it. Legitimacy tends to make the settlement objective and therefore attractive to people. Some negotiators use the term “fairness” when seeking legitimacy. Fairness does not mean splitting everything down the middle. It means satisfying the peoples’ interests by verifying the settlement using objective authority. Legitimacy can be achieved in several ways. One of the easiest ways is the use of external objective criteria. It is important that the criteria are external for the sake of objectivity –​that is, the criteria have not been created by one person to exercise leverage over the other by introducing legitimacy in favour of particular options for settlement that can be seen to benefit that person. Similarly, it is important that the criteria utilised are not biased so that an objective option can be presented for consideration. A simple example of the use of external objective criteria would be a dispute over the value of a piece of real estate. One way to add legitimacy to an option for settlement being considered by the people is to obtain a valuation of the land by a certified valuer. Providing both people agree on who the valuer should be, which goes to the objective nature of the criteria, and that the valuer is accredited, which goes to the authority, the criteria will have in the negotiation, then the people should be persuaded that the option being promoted in the negotiation has the requisite legitimacy. Other examples include scientific or research reports, industry standards or accepted ways of dealing with similar disputes. The challenge is to find [3.100]  109

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external objective criteria that the other person will accept as being legitimate and hopefully move them to settle. Another benefit of considering legitimacy is if one of the people is required to explain the settlement to a constituency such as a board of directors or resident action group. In such cases, often it is difficult to explain the negotiated outcomes to a constituency because they were not inside the negotiation room listening to the negotiation unfold. A settlement with external objective criteria is a lot easier to explain and allows a constituency to be satisfied that their representative has struck the best deal to bind the constituency. Element 5 –​communication [3.105] The communication process adopted by people at the outset can make or break

any negotiation. A good example of this is the standard lawyer’s letter of demand served on potential defendants in any civil dispute. The tenor of such letters usually sets the people on the adversarial path in relation to how they will handle the dispute. Admittedly, not all such letters are phrased in an adversarial tone. Some lawyers write very good letters of demand that allow the other person to open the door to a negotiated settlement should both people desire a consensual outcome. However, at the time when negotiation is suggested, the people may have set the tone for an adversarial negotiation or litigation. Therefore, it is important at this point for the people to set up a system of communication that will serve them well throughout the negotiation phase and the implementation of any negotiated agreement. This involves agreeing on a system of communication whereby the people can speak with each other without inhibition and which enables good management of the working relationship that is necessary for them to reach a successful outcome. Taking the time to set up an efficient and reliable communication system will pay dividends in any negotiation. It will streamline the process of negotiation and not allow mini-​disputes to erupt over process issues. Some communication issues that might be addressed are contained in the following non-​exhaustive list: • The type and limit of delegated authority –​that is, if one or both sides of the dispute are organisations, who is authorised by each organisation involved in the dispute to settle and at what level? • What level of representation is permissible at the negotiation? Do the people agree on legal representation or other advocates or support people? • What method shall be adopted for the transmission of documents? • Do the people want a transcript of daily proceedings throughout the negotiation? • What venue is appropriate for the negotiation? Is neutral territory the desirable option or do the people object to venue swapping between themselves? • Do the people wish to limit the material and discussions, thereby expediting the negotiation? If so in what way? • Do the people wish to make joint press releases at the conclusion of each day? • Do the people want to use a single text negotiation? This approach means the parties always negotiate on a single text or document rather than on several options embodied in various documents brought to the negotiating table. This is a way to control the negotiation frame of reference by ensuring that all people are negotiating on the same option or options for settlement. 110 [3.105]

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Element 6 –​relationship [3.110]  A crucial element of a successful negotiation is the relationship with the other person

or people. Obviously, a good relationship will enable people to resolve their differences efficiently and effectively. A poor relationship will potentially block a resolution. When people are in dispute they usually experience heightened emotions, that is, they experience anxiety and concern over the outcome of the dispute. It is likely that the person attending the negotiation is either individually responsible for the dispute or for getting the organisation that he or she represents into the dispute, and so resolution becomes personal. Addressing the issue of relationships does not mean that there is some onus, after a negotiation, for people to walk hand-​in-​hand into the sunset! People need not like each other or share each other’s values or interests. But it is important to find a level in the relationship that will allow a constructive discourse to occur that will give people the best chance of finding a negotiated agreement. If the people find themselves negotiating, they might as well do it efficiently and that means being able to handle the differences between them in a professional and constructive manner. Once again it is important to consider a workable relationship not only during the negotiation but one that can last throughout the process of implementing any negotiated resolution. In this respect, people should work on mutual understanding, trust and respect, controlled emotions and effective communication. Maintaining a workable relationship throughout the negotiation means separating the people from the problem, that is, do not allow the people to become the focus of the negotiation. Rather, keep the focus firmly on the substantive issue or issues between them. It is worthwhile considering that a personal attack by a person on another person during a negotiation is often a conscious tactic designed to bully and seek submission from the other person. The following modes of behaviour are ways to separate the people from the problem. 1.

Do not assign blame. Assigning blame in a negotiation is generally a counterproductive measure. If people wish to litigate the dispute, then assigning blame and determining liability is vitally important to the court process. However, in negotiation it is of little use. Negotiation seeks a consensual outcome that is not necessarily based on discovering who is to blame and therefore legally liable.

2.

Use role reversals. Role reversal can be an effective way of diffusing a situation where people may be blaming each other instead of concentrating on the substantive issue or issues. It involves a person arguing the other person’s positions and interests back to them and vice versa. Such a process tends to remove the personalities from the negotiation as nobody will want to argue that they themselves are the object of the dispute.

3.

Recognise and legitimise emotions. This involves allowing a person to air their emotions, which often act as a blocking mechanism to the negotiation and have those emotions recognised by the other side. This recognition does not mean that the other person must sympathise with the person airing the emotions. All this process seeks to achieve is to remove the people element from the negotiation and allow people to move on to focus on the substantive issue or issues that are the subject of the negotiation.

4.

Do not react to outbursts. Usually one person will attack another person as a conscious tactic to try and win the negotiation. The person on the receiving end of such an attack should not react to such an attack and therefore should not give credibility to such a negotiating tactic. [3.110]  111

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People who detect a poor relationship should address the issue as it may block any efforts to negotiate a resolution to the dispute. People should not necessarily seek to resolve the relationship difficulties being experienced but should endeavour to improve relationships to the point where a constructive negotiation can take place, thus giving the people the best chance of resolution. Element 7 –​commitment [3.115] Lawyers preparing a case for trial tend to prepare in reverse chronological order.

That is, they prepare their closing address and then ensure that every element of the case, including their opening address, examination-​in-​chief and cross-​examination, are consistent with and lead up to their closing address. People should do the same when preparing for and participating in a negotiation. That is, principled negotiators should think about where they would like to end up after the negotiation and then work towards achieving that end. However, people should not predetermine the result of a negotiation as this will inhibit creative option generation. Rather, a principled negotiator will have a clear understanding of what the product of the negotiation should look like. For example, it may be as simple as having a head of agreement in place at the conclusion of the negotiation or clarification of an issue, but either way, people should know what the negotiation aims to achieve and then work towards achieving that aim. According to the principled negotiation model, people should conduct a negotiation by observing the three “Ps” –​purpose, product and process. 1.

Purpose. Plan the purpose of the meeting by discussing with the other person the aim of the negotiation meeting. It may be as simple as discussing one of a number of issues or generating options on a range of interconnecting issues. The purpose of the negotiation meeting may be to draft the final settlement document according to the result of previous negotiation meetings. The main thing to accomplish is a clear understanding of what people hope to achieve by the end of the negotiation session.

2.

Product. Define the product accurately so that people know what they need to achieve and when they have fallen short of, or exceeded, the desired result. The product could be a head of agreement document based on the settlement forged at the negotiation. In most negotiations, it is desirable that the product is tangible, that is, something material that people can take away with them as a product of the negotiation process.

3.

Process. Plan the process for achieving the purpose and the product. For example, a meeting agenda or a set of guidelines may assist in the process.

[3.120] On 25 August 2012, the dispute resolution world mourned the passing of Professor Roger Fisher, the chief architect of principled negotiation. Harvard University Law School announced his death with a press release by Susan Hackley, where she quoted Professor Fisher’s academic colleague Bruce Patton, “Roger sought unabashedly to change the world and he did so profoundly”.2 The authors believe that truer words have never been spoken. Professor Roger Fisher’s legacy of a better approach to negotiation will live on for generations to come. The April 2012 edition of vol 29 of the Harvard Negotiation Journal was dedicated to Fisher’s work and 2 S Hackley, The Program on Negotiation Mourns the Loss of Co-​Founder Roger Fisher, http://​www.pon.harvard.edu/​daily/​negotiation-​skills-​daily/​the-​program-​on-​negotiation-​mourns-​the-​loss-​of-​co-​founder-​roger-​fisher/​ (viewed 27 August 2012).

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featured articles by his students and contemporaries’ that were (as most of Fisher’s contemporaries were equally his students) tributes to his work and his impact on the world. The following two extracts are from that edition. The first is by Roger Fisher’s co-​author of Getting to Yes and co-​ founder of the Program on Negotiation at Harvard Law School, William Ury and discusses the five “Ps of persuasion”. The second extract comes from an article by Professor James Sebenius, Vice Chair and member of the Executive Committee of the Program on Negotiation at Harvard Law School, who distils from Fisher’s work the five enduring lessons for negotiators.

The Five Ps of Persuasion: Roger Fisher’s Approach to Influence [3.125] W Ury, “The Five Ps of Persuasion: Roger Fisher’s Approach to Influence” (2013) 29 Negotiation Journal 133 at 134-​139. In those first few whirlwind years of working with Roger, I remember trying to fully grasp and understand his approach to the art of persuasion and negotiation. As I worked with him on a host of conflicts, I would often stop and ask myself what was the underlying essence of his practical approach to coping with conflicts. In looking over some old notes from those days more than three decades ago, I stumbled across a jotting from early 1979 in which I sought to distill Roger’s approach into a few key “message units”, a term Roger liked to use. Somewhat whimsically, I framed them at the time for easy remembering as the five Ps of persuasion. I thought it might be useful here to elaborate on these five points as a way to share a bit of Roger’s working methodology for those of us who, in one way or another, continue to walk on the path that he blazed so brilliantly. The five Ps or principles, which I will address in sequence, are: purpose, perceptions, problem solving, proposition, and process. Purpose In that first meeting with Roger, I recall him stressing this point: “Be purposive. Look forward, not back”. It was a simple principle, but a powerful one. Parties in conflict were usually engaged in lengthy finger-​pointing, blaming others for what happened in the past. The challenge was how to get them to shift their focus from “who is wrong” to “what can we do about it”. This was what Roger would continually try to do. Faced with any conflict situation, he would reframe the question as: “Who can do what tomorrow morning to move this situation forward to resolution?” This was the governing question of the devising seminar meetings. Academics would easily get lost in diagnosing the conflict endlessly. Roger appreciated diagnosis, but only if it immediately proceeded logically to a practical suggestion for action. Roger extended this focus on purpose to everything. One of his favourite ways to begin a meeting on any subject was: “What’s our purpose here?” [135] I was accustomed to academic meetings that had no articulated purpose but simply a subject that people would begin to address. By “purpose”, Roger was usually not referring to lofty ideals and objectives like peace, but to more practical and operational objectives. He wanted to know what concretely would be different in the world as a result of this particular meeting, even if it was about the number of paper clips the office should order. Focusing unswervingly on purpose on every occasion concentrated minds. At Roger’s moving memorial service at Harvard’s Appleton Chapel in October, our good friend Jamil Mahuad, the former president of Ecuador, provoked a ripple of knowing laughter when he invoked Roger’s presence: “Roger would be asking us now: what’s the purpose of this service?” Perceptions Once the purpose had been established, the next question was perceptions. As a lawyer, Roger had been trained to focus on the facts. What were the facts of the case? But in negotiation, as he stressed, the facts were, if anything, less important than people’s perceptions of those facts. If you were trying to change someone’s mind, you needed to know where that mind was right now, regardless of the facts. You needed to put yourself in the other person’s shoes. [3.125]  113

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The Five Ps of Persuasion: Roger Fisher’s Approach to Influence cont. Roger constantly sought to understand what he called “partisan perceptions”. When presented with a conflict situation, Roger liked to take a sheet of paper, create two columns, and seek to capture the essence of each side’s views in a series of pithy phrases. If you read one column, say the Israeli view of the conflict, you would understand why the Israelis were right; but if you were to read the opposing column, the Palestinian view, you would see how the Palestinians were also right. Roger delighted in presenting the views of those who were generally dismissed or demonized in such a way that one could appreciate the validity of their perspectives. The partisan perceptions chart would often provoke an almost indignant protest from the interlocutor: “How can both be right?” That would set the stage for Roger, with a knowing smile, to say: “OK, so what do we do about it?” And the conversation would be back to purpose. Reflecting now back on these first two Ps, I can see how the concept of interests, which lies at the core of the method presented in Getting to Yes (Fisher and Ury 1981; Fisher, Ury, and Patton 1991), represents in a way a blend of both purpose and perceptions. The concept of interests combines the subjective element of perceptions with the motivational element of purpose. Problem Solving When Roger wrote advice memos on conflicts, he would typically organize them under four logical sequential headings. The first heading was the [136] problem: what was wrong. The second was the need: what was missing or needed. The third was the approach: how could the need be met. And the fourth was the action-​idea: what operational steps could be taken to carry out the approach. What is wrong?

What might be done?

In theory Step II. Analysis Diagnose the problem: Sort symptoms into categories. Suggest causes. Observe what is lacking. Note barriers to resolving the problem.

Step III. Approaches What are possible strategies or Prescriptions? What are some theoretical cures? Generate broad ideas about what might be done.

Step I. Problem What’s wrong? What are current symptoms? What are disliked facts contrasted with a preferred situation?

Step IV. Action ideas What might be done? What specific steps might be taken to deal with the problem?

In the real world

[Reprinted with the permission of the publisher]

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The Five Ps of Persuasion: Roger Fisher’s Approach to Influence cont. One summer day in 1977, while working with Roger on just such an advice memo at his summer home on Martha’s Vineyard, I asked him why he used this particular structure and not some other. He said it just worked for him, but I wanted to know why. I kept probing and, as I did, the image [137] of a circular diagram came to mind. Problems represented what was wrong in the real world. The need or diagnosis represented what was wrong in theory. Having figured out what was wrong, one would then focus on what might be done. The approach was what might be done in theory, and the action-​ideas were what might be done in the real world to solve the problem. We called this diagram (Figure One), which was featured in Getting to Yes, the Circle Chart (Fisher, Ury, and Patton 1991: 68). The Circle Chart became one of Roger’s favorite problem-​solving tools. Whenever a problem situation would present itself, such as the longstanding border conflict between Peru and Ecuador, Roger would go to the flip chart and draw the Circle Chart and lead the conversation around the four quadrants of the circle. The Circle Chart offered a structure for brainstorming. At the devising seminars, for instance, we would generate a list of conflict symptoms, then turn to possible diagnoses, then to possible approaches, and finally to action-​ideas. Often ideas would pop up out of order so we would keep four flip charts side by side, adding to each. If we came up with an approach or action-​idea first, we might ask, “If that’s the approach, what’s the diagnosis?” or “What’s the problem to which this action-​idea is a solution?” Roger loved creative practical ideas. To encourage creativity in the devising seminars and elsewhere, we would follow the classic rule of brainstorming: invent first, evaluate later. It was often challenging for some of our academic colleagues to postpone their criticism, but the freewheeling generation of ideas was highly effective in producing creative, out-​of-​the-​box proposals. When the time came to evaluate and criticize, Roger would ask participants to frame their response as: “What I like about your idea is. ... My concerns are .... Another option to consider would be ...”. And off we would go. Proposition Roger’s signature idea, in my view, was the “yes-​able proposition”. The “yes-​able proposition” can be understood as the culmination of purpose, perception, and problem solving. You start with your purpose and their perceptions and, through a process of creative problem solving, you formulate what you want in terms of a decision they can realistically make. Roger would often begin the process of devising a yes-​able proposition by framing what he called a “presently perceived choice” –​another of his favorite charts. When, for example, one of the parties to a conflict was widely perceived as recalcitrant and impossibly irrational, such as the Iranians who held American diplomats hostage in 1980 … Roger would often place a sheet of paper in his old battered Smith-​Corona typewriter and create a heading with a question: “Should we release the American hostages today?” He would then make [138] two columns: “If we say Yes” and “If we say No”. Under each column, he would list the costs and benefits of that action to that party. The interlocutor would typically experience an “A-​ha” as he or she realized that it was, in fact, rational for the seemingly irrational party to be acting in the way she or he was acting. This realization, in turn, would allow Roger to steer the conversation back to the question of what could be done “tomorrow morning” to change the perceived costs and benefits. Yes-​ability did not necessarily mean better than fifty-​fifty odds of success. Roger believed in long shots when there was a lot at stake, as there inevitably was. While a yes-​able proposition had to have some chance of success, of course, what distinguished it was that the person crafting the proposal had thought through the other side’s perceived choice and had made it as easy as possible to say yes. Roger wanted people to be clear about what exactly they were asking the other party to do and to make an operational request in such a way that all the other side had to do was to say yes and then action would logically follow. Like the good lawyer he was, he liked to present his “clients”, busy as they undoubtedly were, with an illustrative treaty to sign, or piece of legislation to introduce, or [3.125]  115

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The Five Ps of Persuasion: Roger Fisher’s Approach to Influence cont. a United Nations Security Council resolution to propose, so that all the difficult drafting work was already done for them. Don’t just present the person you are seeking to influence with a problem, present her or him with a solution, Roger always counseled. Process As Roger liked to quip, “the product is the process”. When it came to conflicts, the great bulk of attention went to the substance. What were the issues and what was the right solution? In Roger’s view, that left a great opening: focus on constructive process. He did not believe in magical solutions, but in breaking up big intractable issues into smaller manageable ones that could gradually be worked over time –​a process Roger called “fractionation”. ... One of the best examples of the creative use of process was the development of the one-​text procedure. One day in early September 1978, [139] Roger came back from a neighborly tennis match on Martha’s Vineyard with Secretary of State Cyrus Vance. Vance was preparing for the upcoming summit at Camp David with Egypt’s President Anwar Sadat and Israel’s Prime Minister Menachem Begin, to be hosted by President Jimmy Carter. At a devising seminar dinner, Roger challenged us to come up with ideas for an effective negotiating process for the summit. Professor Louis Sohn, who had been involved for years in negotiating the Law of the Sea, described the single negotiating text approach that had been used to reach agreement among one hundred fifty or so nations. Instead of starting from each side’s obdurate positions, the process would begin from an informal third-​party draft proposal that would be subjected to continuous criticism and revision until it came as close as possible to satisfying the essential interests of each party. At the dinner, we discussed how this single-​text approach could apply to the Egyptian–​Israeli peace talks and wrote up the idea for Secretary Vance. Vance then made good use of this method to help President Carter secure the historic Camp David Accords between Israel and Egypt. The one-​text procedure incorporated and epitomized a key principle of process, one that Roger would later coin as ACBD: “Always consult before deciding”. The one-​text procedure involves a continuous process of consultation, leaving the go-​ahead decision for the very end. ACBD became one of Roger’s favorite phrases, applied to all domains of life from marriage to management to diplomacy. The habit of consulting conveys respect and greatly enhances the chances for buy-​in. ACBD also captured one of Roger’s methods: don’t ask for things, but rather ask first for advice. Rather than ask a funder for money, for example, ask them for advice. Engage them in the problem and then they are much more likely to give. Advice –​giving it and asking for it –​was Roger’s preferred modus operandi. He admired Niccolò Machiavelli not so much for the specific advice he gave but for the way he framed his “message units” as practical advice to the Prince. For Roger, democratic of mind, the “prince” could be a pauper or a “mere” student entering his office, as I was when I first met him. Roger approached international conflicts not as predestined and immovable forces of history but essentially as differences to be coped with, problems to be managed through good process. The goal of all the Ps was a final P, peace –​not the peace of angels, but a practical process for fallible human beings that would incrementally yield a diminution in violence and a better outcome for all.



What Roger Fisher Got Profoundly Right: Five Enduring Lessons for Negotiators [3.130]  JK Sebenius, “What Roger Fisher Got Profoundly Right: Five Enduring Lessons for Negotiators” (2013) 29 Negotiation Journal 159 at 161-​167. 116 [3.130]

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What Roger Fisher Got Profoundly Right: Five Enduring Lessons for Negotiators cont. Focus on the Other Party’s Decision in Order to Craft a Yesable Proposition Throughout their works, Roger and his colleagues maintained a laser focus on understanding and influencing the other side’s decision: precisely what decision do you want them to make, why would they choose to do so, and how can you shape their choice toward this goal? This seemingly simple advice often gets lost in practice, given the common tendency for negotiators to focus primarily on their own problem, intoning about the other side: “that’s their problem. Let them deal with it”. Such negotiators often concentrate on forcefully articulating their own demands –​with comparatively little thought as to how the other side will react and why. Roger’s focus on engineering their decision serves as a valuable corrective .... [162] Roger and his colleagues offered much more than observation or admonition to focus on influencing the other side’s choice. They constructed various “currently perceived choice” tools, typically in the form of explicit “balance sheets” to assess and compare how a decision maker on the other side would be likely to evaluate the impact of saying “yes” to your proposal versus saying “no” … Such devices often reveal barriers to “yes”. Faced with a “no”, Roger counseled constructing a “target future choice” chart with modifications to the “if yes” and “if no” columns that, ideally, would induce a “yes”. Observing that “making threats is not enough”, much of his analysis consisted of how to construct and effectively communicate a “yesable proposition” to the other side that embodies the concrete decision you want them to make. Properly constructed, a yesable proposition would meet all sides’ interests better than a “no” would. It is one thing to urge negotiators to pay attention to the cognitions of others or to put themselves in the other guy’s shoes. Roger’s contribution was of a different and higher order: it systematically inculcated a mindset in which influencing “their decision” is the central focus of your negotiation approach and provided explicit tools to make this focus operational in practice. Make Interests Central A hallmark of Roger Fisher’s approach to conflict and negotiation was its preoccupation with the “interests” of all sides. His notion of interests is expansive: they are whatever each party cares about that might be affected by a negotiation. These range from basic human needs to political reputation to self-​image to relationships to legitimacy to the financial terms in the contract. Interests can be objective or subjective, tangible or intangible, selfish or altruistic. In constructing a currently perceived or target future choice chart, interests constitute the raw material for the process. Only if a potential yesable proposition meets real interests does it stand a chance of acceptance. On first hearing, an admonition to focus on interests can sound self evident, but Roger and his colleagues correctly observed that many people automatically equate interests in a negotiation with their stated “demands” or “positions” on issues. This implies a need to sharply distinguish between interests and positions, to probe behind bargaining positions to uncover the full range of each side’s interests. Behind incompatible positions, Roger and his colleagues argued and demonstrated, compatible interests can frequently be uncovered. Hence, the famous Getting to Yes maxim: “Focus on interests, not positions”. [163] Generate Fresh, Mutually Beneficial Ideas Mechanically splitting the difference between contending positions was never acceptable to Roger Fisher and his co authors. They rejected the pervasive “zero-​sum” mindset that behavioral scientists have extensively documented as the and “incompatibility” biases … Instead, Roger offered a panoply of useful tools, mainly various forms of brainstorming and “devising seminars” … to generate new and creative options to resolve conflicts and come up with “win-​win” possibilities for negotiators. Getting to Yes epitomized this advice in one of its core aphorisms: “invent options for mutual gain”. (Versions of this idea can also be found in various forms in several of Roger’s other books.) Negotiators should psychologically position themselves “side-​by-​side against the problem”, trying to come up with new solutions, rather than “face-​to-​face against each other” seeking to prevail … If interests constitute the underlying ingredients of yesable propositions, value-​creating [3.130]  117

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What Roger Fisher Got Profoundly Right: Five Enduring Lessons for Negotiators cont. options are the form that such propositions will take. Whatever its empirical basis, the notion of a genuinely zero-​sum conflict was anathema to Roger Fisher’s relentlessly optimistic approach. Pay Attention to BATNAs One of the most memorable, cross-​cutting elements of Roger’s work, especially with Bill Ury and Bruce Patton, is a consistent focus on each side’s “BATNA”, their acronym for “best alternative to a negotiated agreement”. Essentially, your BATNA is the most promising course of action you would take absent a negotiated agreement, and the other side has one also. In evaluating whether to accept a possible deal, your BATNA answers the “as compared to what” question. It is the baseline against which proposals [164] should be measured, whether this means going to court, going out on or taking a strike, buying something else or doing without, making the item internally, finding a different supplier or buyer, crafting an alternative alliance, or even mounting an invasion. A necessary condition for the other side to accept a yesable proposition is that the proposition satisfy that side’s interests better than the other side’s BATNA would. (And of course you should only propose and/​or even consider accepting deals that beat your own BATNA.) Beyond implying whether a zone of possible agreement even exists –​it does not exist if at least one side’s BATNA is better than any feasible deal –​BATNAs are tightly associated with bargaining power. Thus, the better my best walk away (BATNA) and the more credible my willingness to walk, the more power I have in the negotiation. While the BATNA concept and its tight relationship to “bargaining power” has long been an analytic staple of game theory, economics, organizational behavior, and sociology … generations of Roger’s students, colleagues, and readers, along with a much wider audience, have adopted the term “BATNA”, finding it to be an irresistibly useful bit of jargon when thinking about no-​deal options. Assessing each side’s best no-​deal option, including how it may change over time, is fundamental to any credible negotiation analysis. However, Roger and some of his colleagues seem ambivalent about its tactical and strategic implications. In Getting to Yes, for example, the BATNA concept appears only after the basic (non-​BATNA) approach has been described and only then under certain, largely defensive conditions associated with “protecting yourself”. The relevant section of the book is actually entitled: “What if they are more powerful? Develop your BATNA”. This aligns with Roger’s frequently expressed aversion to coercive approaches, for example, “be unconditionally constructive” … use “persuasion, not coercion” … “never yield to pressure” … and “making threats is not enough” … which perhaps resulted from his painful experiences in World War Two. Surely, parties should assess their BATNAs, at least informally, at the start of any negotiation. Moreover, once focused on each side’s BATNA as a foundational concept, the option of worsening the other side’s BATNA –​along with strengthening your own –​becomes a logical, tactical, and strategic possibility, to be empirically evaluated for potential (defense, influence, etc) and risks (escalation, relationship damage, etc). Indeed, threatening to and/​or actually making the other side’s BATNA worse is as fundamental to the well-​known tenets of “coercive diplomacy” … as to the Mafia godfather’s “offer you can’t refuse”. For example, Richard Holbrooke partly attributed his success in ending the Bosnian war to his ability to “bomb and talk” (though he stressed the relatively rare conditions under which such an approach will work, citing his Vietnam experience). Although Roger rarely advocated [165] BATNA-​worsening strategies, it is a testament to the power of the BATNA concept that its potent uses in practice and theory go well beyond those that he, as its most memorable exponent, generally preferred. Use Objective Criteria to Transform Negotiations from a Test of Wills to a Search for Fairness Principles To many hardboiled readers of Getting to Yes, its admonition to “insist on using objective criteria” may seem idealistic, even naïve. As formulated, however, this original advice to systematically employ “principled negotiation” is a first cousin to the book’s relentless focus away from bargaining positions and toward underlying interests. At a deeper level, emphasizing interests and principles over positions and power seeks to shift negotiation from a tug-​of-​war mentality –​that can lead to poor agreements, 118 [3.130]

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What Roger Fisher Got Profoundly Right: Five Enduring Lessons for Negotiators cont. soured relationships, impasses, and escalation –​toward a more constructive, joint problem-​solving orientation. Suppose that negotiators have found joint gains and have moved toward or even reached what analysts would call the “Pareto frontier” on which no further mutually beneficial moves are possible. How should they decide among possible deals when their interests now inherently conflict? Rather than argue, insist, or push, Roger and his colleagues urge negotiators to search for principles that are “outside the will of the parties”. They provide much advice on how to operationalize their concept of “principled negotiation”. If a principle can be found that is mutually persuasive –​on the basis of fairness, norms, precedent, what a “wise judge” purportedly would decide, or something analogous –​ the distributive conflict may be resolved more constructively, without the risks and costs of a test of wills. This can be a genuinely game-​changing, productive orientation. Roger used this principle when helping to negotiate the Iran hostage conflict –​he suggested that both nations agree to use international law to help resolve their debt issues and both agreed .... [166] It is easy to poke intellectual holes in a negotiation precept that urges a mutual search for “objective criteria”. What, again, is “objective” in an inherently subjective world? Where is the empirical evidence –​for meaningful negotiations –​that any significant fraction of negotiators place much weight on acting in a principled fashion relative to getting a better deal for themselves? Because we know … that parties can be highly self-​serving in their choices of relevant comparisons for negotiations, are not “principles” likely to serve as tactical proxies for selfish positions? Undoubtedly, these objections hold at times, even often. However, in my experience, offering a structured, well-​articulated alternative to bargaining power and positions, in the form of “principled negotiation”, can push the process in a constructive, relationship-​enhancing direction. I count this as a real contribution to the negotiator’s fundamental toolbox. These Five Contributions as a Whole These five contributions fit together and support each other nicely. Roughly summarized, to influence the other side’s decision (your prime focus as a negotiator), seek to craft a yesable proposition whose advantages to each side outweigh its disadvantages. Imagine a target “balance sheet” for the other side that you wish to tip toward a desirable “yes”. To come up with the yesable proposition that accomplishes this goal, you must develop a deep understanding of the full set of all parties’ interests beyond their stated positions –​as well as of each side’s BATNA. By generating a range of fresh, creative options that satisfy each parties’ interests better than each side’s BATNA, you may, perhaps jointly with the other side, come up with candidate yesable propositions. To choose among feasible options, you should seek and rely on mutually attractive principles or objective criteria outside the will of the parties. Throughout, you should relentlessly reframe the process away from a positional tug-​of-​war and toward joint problem solving, both in the domain of interests and criteria .... In line with much of the broader negotiation literature, Roger and his colleagues consistently highlighted the pivotal role of accurate perceptions and communication in effective negotiation and conflict resolution. This emphasis serves as a useful corrective to many analysts, especially nonbehavioral economists and game theorists, whose models and approaches [167] often implicitly assume that perceptions accurately mirror underlying reality. As noted above, though they rarely cite underlying studies, Roger’s works inveigh against self-​fulfilling perceptions of a “mythical fixed pie” in favor of more creative options that satisfy both sides’ interests. Memorably, these books wisely counsel not to “deduce their intentions from your fears”. In line with extensive psychological research, they urge probing and active listening to correct rampant “partisan perceptions” and attribution errors that can lead to worst-​case assumptions and escalation (Robinson 1997). And they stress the elements of effective communication using various tools of “message analysis” to ensure that intended messages match received ones and that the communication attains its objectives.

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Limitations of the principled negotiation model [3.135]  While principled negotiation has received universal acceptance as being an effective

negotiation model, it has its critics. The critics generally agree that concepts, such as the idea that many interests lie behind positions, are not quite accurate. Also, the idea that options will leave everyone’s interests satisfied is to be treated with suspicion in certain types of negotiations. In relation to objective criteria, the criticisms range from the notion that settling on such criteria can of itself create a dispute, to the idea that objective criteria are inherently subjective despite their objective façade.

The Pros and Cons of “Getting to Yes” [3.140]  J White, “The Pros and Cons of “Getting to Yes”” (1984) 34 Journal of Legal Education 115 at 115-​120. Getting to YES is a puzzling book. On the one hand it offers a forceful and persuasive criticism of much traditional negotiating behavior. It suggests a variety of negotiating techniques that are both clever and likely to facilitate effective negotiation. On the other hand, the authors seem to deny the existence of a significant part of the negotiation process, and to oversimplify or explain away many of the most troublesome problems inherent in the art and practice of negotiation. The book is frequently naive, occasionally self-​righteous, but often helpful. Initially, one should understand what the book is and what it is not. It is not a scholarly work on negotiation; it is not the kind of work that Schelling, Eisenberg or Bartos might write. The book is not rigorous and analytical, rather it is anecdotal and informative. It does not add fundamentally to our understanding of the negotiation process. Rather it points to a need for change in our general conception of negotiation, and points out errors of emphasis that exist in much of the thinking about negotiation. The book’s thesis is well summarized by the following passage: Behind opposed positions lie shared and compatible interests, as well as conflicting ones. We tend to assume that because the other side’s positions are opposed to ours, their interests must also be opposed. If we have an interest in defending ourselves, then they must want to attack us. If we have an interest in minimizing the rent, then their interest must be to maximize it. In many negotiations, however, a close examination of the underlying interests will reveal the existence of many more interests that are shared or compatible than ones that are opposed. This point is useful for all who teach or think about negotiation. The tendency of those deeply involved in negotiation or its teaching is probably to exaggerate the importance of negotiation on issues where the parties are diametrically opposed and to ignore situations where the parties’ interests are compatible. By emphasizing that fact, and by making a clear articulation of the importance of cooperation, imagination, and the search for alternative solutions, the authors teach helpful lessons. The book therefore provides worthwhile reading for every professional negotiator and will make sound instruction for every tyro. [116] Unfortunately the book’s emphasis upon mutually profitable adjustment, on the “problem solving” aspect of bargaining, is also the book’s weakness. It is a weakness because emphasis of this aspect of bargaining is done to almost total exclusion of the other aspect of bargaining, “distributional bargaining”, where one for me is minus one for you. Schelling, Karrass and other students of negotiation have long distinguished between that aspect of bargaining in which modification of the parties’ positions can produce benefits for one without significant cost to the other, and on the other hand, cases where benefits to one come only at significant cost to the other. They have variously described the former as “exploring for mutual profitable adjustments”, “the efficiency aspect of bargaining”, or “problem solving”. The other has been characterized as “distributional bargaining” 120 [3.135]

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The Pros and Cons of “Getting to Yes” cont. or “share bargaining”. Thus some would describe a typical negotiation as one in which the parties initially begin by cooperative or efficiency bargaining, in which each gains something with each new adjustment without the other losing any significant benefit. Eventually, however, one comes to bargaining in which added benefits to one impose corresponding significant costs on the other. For example, in a labor contract one might engage in cooperative bargaining by the modification of a medical plan so that the employer could engage a less expensive medical insurance provider, yet one that offered improved services. Each side gains by that change from the old contract. Ultimately parties in a labor negotiation will come to a raw economic exchange in which additional wage dollars for the employees will be dollars subtracted from the corporate profits, dollars that cannot be paid in dividends to the shareholders. One can concede the authors’ thesis (that too many negotiators are incapable of engaging in problem solving or in finding adequate options for mutual gain), yet still maintain that the most demanding aspect of nearly every negotiation is the distributional one in which one seeks more at the expense of the other. My principal criticism of the book is that it seems to overlook the ultimate hard bargaining. Had the authors stated that they were dividing the negotiation process in two and were dealing with only part of it, that omission would be excusable. That is not what they have done. Rather they seem to assume that a clever negotiator can make any negotiation into problem solving and thus completely avoid the difficult distribution of which Karrass and Schelling speak. To my mind this is naive. By so distorting reality, they detract from their powerful and central thesis. Chapter 5, entitled Insist on Objective Criteria, is a particularly naive misperception or rejection of the guts of distributive negotiation. Here, as elsewhere, the authors draw a stark distinction between a negotiator who simply takes a position without explanation and sticks to it as a matter of “will”, and the negotiator who is reasonable and insists upon “objective [117] criteria”. Of course the world is hardly as simple as the authors suggest. Every party who takes a position will have some rationale for that position; every able negotiator rationalizes every position that he takes. Rarely will an effective negotiator simply assert “X” as his price and insist that the other party meet it. The suggestion that one can find objective criteria (as opposed to persuasive rationalizations) seems quite inaccurate. As Eisenberg suggests, the distributive aspect of the negotiation often turns on the relative power of the parties. One who could sell his automobile to a particular person for $6,000 could not necessarily sell it for more than $5,000 to another person, not because of principle, but because of the need of the seller to sell and the differential need of the two buyers to buy. To say that there are objective criteria that call for a $5,000 or $6,000 price, or in the case of a personal injury suit for a million dollars or an $800,000 judgment, is to ignore the true dynamics of the situation and to exaggerate the power of objective criteria. Any lawyer who has been involved in a personal injury suit will marvel at the capacity of an effective plaintiff’s lawyer to appear to do what the authors seem to think possible, namely to give the superficial appearance of certainty and objectivity to questions that are inherently imponderable. For example, an effective plaintiff’s lawyer will sometimes fix a certain dollar amount per week for the pain and suffering which one might suffer. He will then multiply that amount by the number of weeks per year and the number of years in the party’s life expectancy. Thus he produces a series of tables and columns full of “hard” numbers. These have the appearance of objectivity, but in fact they are subjective, based (if on anything) on a judgment about how a jury would react to the case. Every lawyer who has ever been involved in a lawsuit in which experts have been hired by each side will have a deep skepticism about the authors’ appeal to scientific merit as a guide in determining a fair outcome in the negotiation of any hotly disputed problem. In short, the authors’ suggestion in Chapter 5 that one can avoid “contests of will” and thereby eliminate the exercise of raw power is at best naive and at worst misleading. Their suggestion that the parties look to objective criteria to strengthen their cases is a useful technique used by every able negotiator. Occasionally it may do what they suggest: give an obvious answer on which all can agree. Most of the time it will do no more than give the superficial appearance of reasonableness and honesty to one party’s position.

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The Pros and Cons of “Getting to Yes” cont. The authors’ consideration of “dirty tricks” in negotiation suffers from more of the same faults found in their treatment of objective criteria. At a superficial level I find their treatment of dirty tricks to be distasteful because it is so thoroughly self-​righteous. The chapter is written as though there were one and, only one definition of appropriate negotiating behavior handed down by the authors. [118] Apart from the rather trivial concern about their self-​righteousness, their discussion is troublesome because it discloses an ignorance of, or a disregard for, the subtleties involved in distinguishing between appropriate and inappropriate conduct in negotiation, There is no concession to the idea that certain forms of behavior may be acceptable within certain regional or ethnic groups; that Jews may negotiate differently than Quakers, or city people differently than those in the country. There is no recognition that the setting, participants, or substance may impose a set of rules. Rather a whole host of things labeled “dirty tricks”, “deliberate deception, psychological warfare, and positional pressure” are out of bounds. Consider their treatment of threats: Good negotiators rarely resort to threats. They do not need to; there are other ways to communicate the same information. If it seems appropriate to outline the consequences of the other side’s action, suggest those that will occur independently of your will rather than those you could choose to bring about. Warnings are much more legitimate than threats and are not vulnerable to counter threats: “Should we fail to reach agreement, it seems highly probable to me that the news media would insist on publishing the whole sordid story. In a matter of this much public interest I don’t see how we could legitimately suppress information. Do you?” The statement which they approve (and label as a “warning” and not a “threat”) would likely be construed as a threat. One who wishes to threaten his opponent in a negotiation is not likely to say, “If we do not reach agreement I will see to it that the information concerning your client becomes public”. Rather he is likely to say what the authors suggest, “In a matter of this much public interest, I don’t see how we could legitimately suppress information, do you?” In fact the authors have suggested merely a more subtle and more Machiavellian form of threat. The question of deception is dealt with in the same facile way: Less than full disclosure is not the same as deception. Deliberate deception as to facts or one’s intentions is quite different from not fully disclosing one’s present thinking. Good faith negotiation does not require total disclosure. Perhaps the best answer to questions such as “What is the most you would be willing to pay if you had to?” would be along the following lines: “Let’s not put ourselves under such a strong temptation to mislead. If you think no agreement is possible, and that we may be wasting our time, perhaps we could disclose our thinking to some trustworthy third party, who can tell us whether there is a zone of potential agreement”. In this way it is possible to behave with full candor about information that is not being disclosed. The authors seem not to perceive that between “full disclosure” and “deliberate deception” lies a continuum, not a yawning chasm. They seem to ignore the fact that in one sense the negotiator’s role is at least passively to mislead his opponent about his settling point while at the same time to engage in ethical behavior. Most who have engaged in significant negotiation will concede the tension between those two responsibilities. How does one answer a question about his authority? Can one ethically allow a bumbling opponent who has drawn the incorrect inference about one’s statement to continue in ignorance? Assume for example that one is a skillful negotiator representing a housing authority that is attempting to buy houses subject to condemnation. Assume that the opposing lawyer, a person of marginal competence, concludes incorrectly from a statement that you have made that you have been [119] purchasing similar houses for $20,000, when in fact you have been paying $60,000 for them. When he says, “Now I understand that you have been buying similar houses for $20,000”, can one remain silent? Can one make accurate statements concerning his position in the hope that the 122 [3.140]

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The Pros and Cons of “Getting to Yes” cont. other party will draw incorrect inferences from those statements? “We have other offers, and we are asking $25”. The other offers are in fact at $10. Can one make the foregoing statement in the hope that the other party will draw the inference that the other offers are at or near $25? Each has a different point on the continuum where he will stop. Notwithstanding superficial agreement on generalizations among lawyers, if one stimulates open discussion about lying and dissembling in negotiation, he will find large differences of position among lawyers on specific cases. To suggest that drawing the line between appropriate disclosure and inappropriate deception is easy to mislead the reader. Finally, because the book almost totally disregards distributive bargaining, it necessarily ignores a large number of factors that probably have a significant impact on the outcome of negotiations. For example, Karrass and Ross suggest that a party’s aspiration level is an important factor in determining the outcome of a negotiation, other things being equal. There is evidence that the level of the first offer, and the pace and form of concessions all affect the outcome of negotiation, yet there is no consideration of those matters. Doubtless the authors can be forgiven for that. No book of 163 pages can be expected to deal with every aspect of negotiation. Yet this one suffers more than most, for implicitly if not explicitly, it seems to suggest that it is presenting the “true method”. In his recent article Marvin Mindes identifies three prominent images of lawyers: hero, helper, and trickster. From Machiavelli onward much classical negotiating behavior could certainly be classified as trickster behavior, yet the trickster is the most pejorative of the various lawyer models. In a sense Getting to YES may be regarded as a plea for the recognition that a lawyer can be a good negotiator without deviating at all from his role as “helper”. I believe that the authors are fundamentally mistaken about that. Anyone who would maximize his potential as a negotiator must occasionally do things that would cause others to classify him as a “trickster”, whether he so classifies himself or not. To suggest that the world is otherwise is to mislead the reader. Thus the book is more elegant and urbane than those written by Nierenberglo and Cohen, but at bottom it suffers from some of the same problems. On the one hand the book promises an entirely new technique of negotiation, but it delivers only interesting techniques and insights. On the other hand the book delivers more than it promises in that its argument rests on a series of inarticulated moral premises. In sum, the book is useful; it [120] contains interesting techniques and valid criticism of much negotiator behavior. However, its overstatement and its facile denial of some of the serious difficulties involved in negotiation detract from its quality.

 [3.145]  To ensure a sense of balance, the editors of the Legal Education Journal gave Professor

Roger Fisher the opportunity to “comment” on White’s criticisms. The following extract sets out Fisher’s response.

Comment [3.150]  R Fisher, “Comment” (1984) 34 Journal of Legal Education 120 at 120-​124. The editor has kindly invited me not to “respond” to Jim White’s review, but rather to clarify areas of disagreement between us, and to suggest where my own thinking has changed since Bill Ury and I wrote Getting to YES. But for the editor’s fortunate prohibition, there would be a tendency to react to a review that describes oneself or one’s book as distasteful, self-​righteous, not rigorous, not scholarly, distorting, and naive. Although I do not agree with those adjectives, I, too, see some inadequacies in the book. On the first day of my most recent negotiation course I tore a paperback copy in half to convince students how much work we had yet to do. Although clearer, I believe, than most books on negotiation, concepts such as “position” and “power” are not presented as precisely as they might be, nor is it made sufficiently clear how using objective criteria to talk about fairness can be combined with being an advocate. Getting to YES, [3.150]  123

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Comment cont. however, is beyond recall. With twelve foreign editions and a third of a million copies in print, the book will have to take care of itself. Far more important is jointly working to improve our collective analysis and understanding of the negotiation process. Different purposes? To some extent, I believe, White is more concerned with the way the world is, and I am more concerned with what intelligent people ought to do. One task is to teach the truth –​to tell students the unpleasant facts of life, including how people typically negotiate. But I want a student to negotiate better than his or her father. I see my task as to give the best possible prescriptive advice, taking into account the way other human beings are likely to behave as well as one’s own emotions and psychological state. Suppose a husband and wife come to an expert in negotiation asking advice on how best to negotiate the terms of a separation agreement that will involve children and jointly-​held property. What is the best advice that such an expert could give to both about the process –​about the manner of negotiating that would be most likely to produce a wise and fair outcome while maximizing their ability to deal with future problems, and minimizing their costs in terms of time, resources, and emotional stress? If one of them alone asked for such advice, in what ways would wise recommendations differ? These are the questions I am interested in. The world is a rough place. It is also a place where, taken collectively, we are incompetent at resolving our differences in ways that efficiently and amicably serve our mutual interests. It is important that students learn about [p 121] bluffing and hard bargaining, because they will certainly encounter it. It is also important that our students become more skillful and wise than most people in dealing with differences. Thus, to some extent, White and I are emphasizing different aspects of what needs to be taught. Are distributional issues amenable to joint problem solving? The most fundamental difference between White’s way of thinking and mine seems to concern the negotiation of distributional issues “where one for me is minus one for you”. We agree on the importance of cooperation, imagination, and the search for creative options where the task is to reconcile substantive interests that are compatible. White, however, sees the joint problem-​solving approach as limited to that area. In his view, the most demanding aspect of nearly every negotiation is the distributional one in which one seeks more at the expense of the other. Distributional matters, in his view, must be settled by the ultimate hard bargaining. He regards it as a distortion of reality to suggest that problem solving is relevant to distributional negotiation. Here we differ. By focusing on the substantive issues (where the parties’ interests may be directly opposed), White overlooks the shared interest that the parties continue to have in the process for resolving that substantive difference. How to resolve the substantive difference is a shared problem. Both parties have an interest in identifying quickly and amicably a result acceptable to each, if one is possible. How to do so is a problem. A good solution to that process-​problem requires joint action. The guts of the negotiation problem, in my view, is not who gets the last dollar, but what is the best process for resolving that issue. It is certainly a mistake to assume that the only process available for resolving distributional questions is hard bargaining over positions. In my judgment it is also a mistake to assume that such hard bargaining is the best process for resolving differences efficiently and in the long-​term interest of either side. Two men in a lifeboat quarreling over limited rations have a distributional problem. One approach to resolving that problem is to engage in hard bargaining. A can insist that he will sink the boat unless he gets 60 percent of the rations. B can insist that he will sink the boat unless he gets 80 percent of the rations. But A’s and B’s shared problem is not just how to divide the rations; rather it is how to divide the rations without tipping over the boat and while getting the boat to safer waters. In my view, to treat the distributional issue as a shared problem is a better approach than to treat it as a contest of will in which a more deceptive, more stubborn, and less rational negotiator will tend to fare better. Treating the distributional issue as a problem to be solved (“How about dividing the rations in proportion to our respective weights?” or “How about a fixed portion of the rations for each hour that one of us rows?”) is likely to be better for both than a contest over who is more willing to sink the boat.

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Comment cont. Objective criteria. It is precisely in deciding such distributional issues that objective criteria can play their most useful role. Here is a second area of significant disagreement. White finds it useful to deny the existence of objective standards: “The suggestion that one can find objective criteria (as opposed to persuasive rationalizations) seems quite inaccurate”. To his way of thinking the only approach is for a negotiator first to adopt a position and [p 122] later to develop rationalizations for it: “… every able negotiator rationalizes every position that he takes”. No one has suggested that in most negotiations there is a single objective criterion that both parties will quickly accept as determinative. The question is rather what should be treated as the essence of the negotiation, and what attitude should be taken toward arguments advanced in the discussion. White thinks it better to treat positions of the parties as the essence of the negotiation, and objective standards advanced by either party as mere rationalizations. That is one approach. A different approach is possible and, I believe, preferable. Two judges, in trying to reach agreement, will be looking for standards that should decide the case. They may have their predispositions and even strongly-​held views, but they will jointly look for an agreed basis for decision. Each will typically advance law, precedent, and evidence not simply as rationalizations for positions adopted for other reasons, but honestly, as providing a fair basis for decision. White’s example of litigation is the very one I would advance to demonstrate that however great the disagreement, the wise approach is to insist upon using objective criteria as the basis for decision. It is better for the parties in court to be advancing objective standards which they suggest ought to be determinative than to be telling the court that they won’t take less (or pay more) than so many dollars. The same, I believe, is true for negotiators. Two negotiators can be compared with two judges, trying to decide a case. There won’t be a decision unless they agree. It is perfectly possible for fellow negotiators, despite their self-​interest, to behave like fellow judges, in that they advance reasoned arguments seriously, and are open to persuasion by better arguments. They need not advance standards simply as rationalizations for positions, but as providing a genuine basis for joint decision. What we are suggesting is that in general a negotiator should seek to persuade by coming up with better arguments on the merits rather than by simply trying to convince the other side that he is the more stubborn. A good guideline is for a negotiator to advance arguments as though presenting them to an impartial arbitrator, to press favorable bases for decision, but none so extreme as to damage credibility. (On the receiving side, a good guideline is for a negotiator to listen to arguments as though he were an impartial arbitrator, remaining open to persuasion despite self-​interest and preconceptions.) My experience suggests that this method is often more efficient and amicable than hard positional bargaining and more often leads to satisfactory results for both parties. Power. White seems to find the concept of “raw power” useful for a negotiator. I do not. For a negotiator, the critical questions of power are (1) how to enhance one’s ability to influence favorably a negotiator on the other side, and (2) how to use such ability as one has. My ability to exert influence depends upon the cumulative impact of several factors: skill and knowledge, the state of our relationship, the legitimacy of our respective interests, the elegance of a proposed solution, my willingness and ability to commit myself, and the relative attractiveness to each side of its best alternative. In advance of a negotiation I can work to enhance each of those elements. [p 123] During a negotiation I can orchestrate my use of these factors so that they reinforce and augment each other, or I can use some elements in ways that undermine others. Unless I am careful, a threat to use “raw power” will weaken rather than enhance my total ability to influence the other side, since it is likely to deprive me of knowledge, damage a relationship, and undercut my legitimacy. Incidentally, I consider warnings (of what it will be in my interest to do, or of what will happen independent of my action) to be not simply a more Machiavellian form of threat. Being more legitimate than a threat (of harm I could cause you), a warning tends to exert more influence.

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Comment cont. Deception. White correctly calls attention to the difficult issue of ethical behavior, where disclosure of what a negotiator would be willing to do if he or she had to in order to reach agreement would be damaging to self-​interest. The problem is particularly acute if the substance of the negotiation is haggling over positions –​over statements of what one is willing or unwilling to do. With such positional bargaining in mind White sees the negotiator’s role as being “to mislead his opponent about his settling point while at the same time to engage in ethical behavior”. I believe White fails to appreciate the extent to which the ethical problem is reduced if instead of negotiating by making a series of offers and counteroffers (each often intended to deceive the other as to what one is really willing to do), one treats negotiation as a joint search for an appropriate objective basis for decision, taking into account legitimate interest. If one tries to persuade the other side on the merits, as one would try to persuade an arbitrator, the rewards for –​and need for –​misleading are far less. Changed thinking. Getting to YES says “Don’t Bargain Over Positions”. Students have now taught me that there are categories of negotiations where positional bargaining is the best way to proceed. On single-​issue negotiations among strangers where the transaction costs of exploring interest would be high and where each side is protected by competitive opportunities, haggling over positions may work better than joint problem solving. A typical case would be negotiating a sale on the New York Stock Exchange. Another chapter heading, “Separate the People from the Problem”, also puts the matter too broadly. In some cases the people are the problem; negotiating a good relationship with them may be more important than the substantive outcome of anyone negotiation. And good relations can ease future substantive negotiations. I still think that relationship issues and substantive issues should be separated to the following extent: One should not threaten a relationship as a means of trying to coerce a substantive concession; nor should one make an otherwise unjustified concession in hopes of buying a good relationship. Getting to YES as a whole, I believe, blurs a desirable distinction between descriptive analysis and prescriptive advice. Descriptively, it sorts facts into useful categories: positions vs interests; people issues vs substantive ones; inventing vs deciding; discussing what negotiators will or won’t do vs [p 124] discussing what they ought to do. Those distinctions, like distinctions between reptiles and mammals, or between short snakes and long snakes, are objectively true and, despite possible difficulties in drawing lines, exist as facts in the real world. Whether or not they are useful is another question. We go beyond suggesting these descriptive categories by advancing some prescriptive rules of thumb, indicated by the chapter headings in the book. These are not advanced as guidelines that will in every case produce the desired result. No such guidelines can exist, since negotiators who deal with each other often desire different results. The rules of thumb we advanced are the best we could come up with. Without knowing the particular subject matter of a negotiation or the identity of the people on the other side, what is the best advice one can give to a negotiator? People may prefer to ask different questions, but I have not yet heard better answers to the question on which we were and are working. I am confident, however, that with the continued stimulating participation of people such as Jim White, we jointly will be able to produce both better questions and better answers.



COMPARING MODELS OF NEGOTIATION [3.155] The four models of negotiation discussed in this chapter all have their strengths

and weaknesses. They also have their own areas of exclusivity and commonality. Adversarial negotiation is characterised by its lack of a consensual approach. Integrative negotiation is characterised by its reliance on trade-​offs and concessions. Distributive negotiation is known for its limited distribution of a finite resource. Principled negotiation is characterised by the 126 [3.155]

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generation of options that satisfy the interests of people. The following extract compares adversarial and principled negotiation.

Negotiation –​Theory and Techniques [3.160]  NM Spegel, B Rogers and RP Buckley, Negotiation –​Theory and Techniques (Butterworths, Sydney, 1998) pp 33-​36. Comparing the Strategies Adversarial bargaining is outcome based. The parties start with a defined goal and work towards it. Concession-​making is an integral part of the process, although usually resisted. Interest-​based bargaining places more emphasis on the process and responding to the needs of the parties. It will [34] be more flexible as it responds to the parties’ interests as they develop and become better defined. Because of this, the outcome might be something neither side envisaged but is, in fact, the best possible outcome for both of them. Information is used differently in adversarial and interest-​based processes. Adversarial bargaining is a competition with the winner’s gains made at the loser’s expense. Information is used to gain points either by rewarding the other side for behaviour which is advantageous to you or to punish them for behaving in a way that does not suit you. This means information is revealed in a controlled manner and for a purpose other than informing the other side. On the other hand, interest-​based bargaining depends on an exchange of information. Talking about their underlying needs allows both sides to work together to create an outcome that neither would have achieved alone. This approach requires parties, in their preparation, to determine what information they can disclose without prejudice to their position if the matter does not settle. (This is often more than you might expect.) The well-​prepared negotiator will only disclose further information if the other party is displaying good faith and likewise being disclosive. At this stage, interest-​ based bargaining becomes a dance –​a party will lay a piece of information on the table and wait to see how the gesture is received and whether it is reciprocated. If lawyers are engaged, a history of earlier successful negotiations between the lawyers can promote this process. Between the parties, the establishment of this trust will require an investment of time, an investment which should be recognised and factored into the costs of the deal. If the negotiation is being used to resolve a conflict that has already arisen, greater problems arise for the interest-​based bargainer. One of the first victims of conflict is trust, and while interest-​based negotiation does not require trust, it is enhanced by it. Another distinction is in the way options are generated. In adversarial bargaining the options are usually generated by each side independently determining a position on each issue. These positions are then placed on the table as bargaining chips which are traded off against each other. In interest-​ based bargaining, options are developed at two stages: first while preparing for the negotiation and secondly by both parties at the negotiation table. Because interests include procedural and emotional matters and options will often have been creatively explored, it is common to find in interest-​based bargaining a much broader range of options under consideration than in an adversarial negotiation. Another difference appears when considering who needs to be at the negotiating table. As discussed earlier, when agents are involved the adversarial approach is simpler. It leaves little room for error in transmitting offers, or in disclosing information that will later be regretted. On the [35] other hand, interest-​based bargaining is facilitated by the involvement of the person who will be making the final decision. It is common for the stumbling block in negotiations to be emotional rather than substantive … In these situations an interest-​based process is more likely to reach an outcome than adversarial bargaining because the process is designed to allow emotional factors to be aired and, if possible, addressed. In a shuttle negotiation, where offers are carried back and forth between the parties, the process will usually slide towards the adversarial end of the continuum. It does not seem to matter whether [3.160]  127

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Negotiation – Theory and Techniques cont. the parties are apart because of distance, the heightened degree of conflict or out of fear for their personal safety, the physical limitations imposed by separation make a cooperative approach difficult. Which Strategy is Best? As a lawyer you will need to be familiar with both strategies because (i) most negotiations will include both types of bargaining at different stages, and (ii) you will find yourself dealing with both competitive and cooperative style negotiators. Constructive negotiating requires you to decide consciously when to use each strategy. As a general rule, it is appropriate to begin with an interest-​based approach –​it is always easy to move a negotiation into adversarial mode. It is much harder, though possible, to move it from an adversarial to an interest-​based process. In most cases an interest-​based approach will be more likely to provide an efficient outcome. A negotiation which commences and proceeds in interest-​based mode will probably conclude with competing claims for a fixed resource, most often haggling overprice. The constructive negotiator, seeking the best agreement and the strongest relationship between the parties, will usually try to steer the process away from this end game until interests and options have been thoroughly canvassed. However, once the end game is reached, the constructive negotiator will then consciously shift gears into an adversarial strategy so as to best serve her/​his client. Even in cases which you consider to be simply a matter of dividing up a fixed resource, you may still choose to explore the interests of the other side. Their interests may differ from what you expect and an integrative solution might still be possible. For instance, in settling the division of the property of a deceased estate, your client may have instructed you that it is “all junk” and should all be sold with the proceeds divided evenly between the beneficiaries. However, inquiries of the other beneficiaries’ lawyers may reveal that their clients particularly want certain pieces of jewellery, art works, and furniture. A far more efficient division of the property may be possible [36] which sees these beneficiaries with the particular assets they want and your client with more cash than a share of a straight sale would have realised. In practice it is rare to find a single issue dispute. The sale of a home unit would usually involve haggling over only one matter, price, with settlement in the standard settlement period. However … such a simple sale can be structured to meet each party’s needs so that the settlement date is the earlier of: (1) the sale of the purchaser’s home or (2) nine months from the date of contract with the purchaser to lease the unit in the interim. Often the dollar sum will be less important than establishing a relationship that will ensure repeat business and avoid ongoing disputes. An example is a long-​term supply contract in which a manufacturer requires timely delivery of components. An interest-​based strategy here is more likely to result in a smoother long-​term implementation of the agreement. Adversarial bargaining can be used where communication is difficult or agents are involved. Each of these factors works against the development of a relationship and the disclosure of interests –​two central elements of most interest-​based bargaining. Adversarial bargaining will make the process simpler, and more manageable. The difficulties associated with acting through an agent or representative is one reason so much lawyer to lawyer negotiation is adversarial. Each lawyer will receive instructions, typically in the form of a position, which they will communicate to the other side, often in writing. Once a response is received, the lawyer will need to obtain further instructions before accepting or making a counter-​offer. This structure greatly inhibits flexibility and joint problem-​solving. Lawyers who are committed to resolving disputes should seriously consider moving the process off paper and into a face-​to-​face meeting at which interests and options can be explored.

 [3.165]  The four models of negotiation discussed in this chapter can be used as independent

models of negotiation to be applied depending on the facts of the dispute or the personalities 128 [3.165]

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of the parties themselves. However, while these models can be operated independently of each other, they also have features that allow them to be used in conjunction with each other. Distributive Negotiation Outcome based on the distribution of existing items of value

Adversarial Negotiation Outcome based on a zero-sum calculation of items of value

Single Issue Disputes Multiple Issue Disputes

Principled Negotiation Outcome based on the items of value satisfying parties’ interests

Integrative Negotiation Outcome based on the use of value that can be used as tradeoffs and concessions value

[3.170]  The Figure above sets out the relationship between the four models of negotiation

discussed in this chapter. The threshold qualities of distributive and integrative negotiation are respectively whether the dispute contains a single issue or multiple issues. Once those threshold qualities have been identified, it is possible to participate in distributive negotiation and adversarial negotiation concurrently. That is, a person can distribute an existing option along adversarial lines. This involves people preserving self-​interest while distributing the finite resource or existing option. It is also possible to participate in distributive negotiation while observing principled negotiation. Thus, people can distribute an existing option along interest-​based lines then, they simply seek to negotiate their share of the finite resource while at the same time seeking to base that distribution on satisfying their own interests. Admittedly, the other crucial element of principled negotiation would not be satisfied in such a scenario, that is, the generation of options. However, it is possible to satisfy the core element of interest-​ based or principled negotiation while still participating in distributive negotiation. Integrative negotiation requires people to reach an outcome based on trading options and making concessions. As in the above description of how principled negotiation relates to distributive negotiation, people can participate in integrative negotiation while at the same time adopting principled negotiation. This means basing trade-​offs and concessions on interests. Given the multi-​issue nature of integrative negotiation, it also means partially satisfying the other important element of principled negotiation, that is, option generation. While it can be said that under the integrative model new options are not necessarily generated, existing issues traded off against each other can be a substitute for the generation of options. The process of making concessions is akin to the process of developing a settlement based on the generation of options, that is, option generation does not seek to ensure that every option is part of the [3.170]  129

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final settlement. Rather, concessions are constantly made in principled negotiation to create a package of options that ultimately forms the settlement. The most problematic link between the four models is the link between adversarial and integrative negotiation. Clearly, trading options and making concessions is an anathema to negotiating in an adversarial way. If people negotiate in an adversarial way, then it is presumed that they would not be trading any options and making any concessions. Adversarial negotiation relies on the acceptance of a zero-​sum negotiation. In this respect, it is difficult to argue that people can participate in adversarial negotiation while at the same time participating in integrative negotiation. [3.175] Questions

1.

How do you define negotiation?

2.

What are the advantages of negotiation over litigation?

3.

What are the characteristics of adversarial negotiation?

4.

What are the characteristics of integrative negotiation?

5.

What are the characteristics of distributive negotiation?

6.

What are the characteristics of principled negotiation?

7.

Explain the importance of negotiating on interests in the principled model of negotiation.

8.

Why are BATNAs important in principled negotiation?

9.

What are the limitations of principled negotiation?

10. Accurately describe the relationship between the four models of negotiation and where they cross over.   

130 [3.175]

CHAPTER 4

Mediation [4.05] [4.10]

[4.35] [4.45]

[4.80]

INTRODUCTION........................................................................................................ 133 HISTORY OF MEDIATION IN AUSTRALIA..................................................................... 133 [4.15] Stages of Australian Mediation........................................................... 133 [4.25] Mediation Past and Present................................................................ 134 [4.30] National Mediator Accreditation System and the Mediator Standards Board.......................................................................................... 138 DEFINITIONS OF MEDIATION.................................................................................... 139 [4.40] Mediation in Australia: Development and Problems................................. 139 AUSTRALIAN MEDIATOR STANDARDS BOARD DEFINITIONS...................................... 140 [4.55] Description of a Mediation Process....................................................... 141 [4.65] The Promise of Mediation.................................................................. 142 [4.75] Mediation Research: A Current Review.................................................. 143 THE ROLE OF THE MEDIATOR.................................................................................... 144 [4.85] [4.95] [4.105]

[4.110]

Context and Pretext in Conflict Resolution: Culture, Identity, Power and Practice.................................................................................... 144 Mediation...................................................................................... 145 What Does a Mediator Do?................................................................ 147

MODELS OF MEDIATION........................................................................................... 148 [4.115] A “Model” of Mediation.................................................................... 148 [4.125] Models used in Australia............................................................................. 149 [4.130] Stage Theory Models........................................................................ 150 [4.140] Stage Theory Models of Mediation....................................................... 151 [4.150] Component Pieces of a Mediation........................................................ 151 [4.160] Hallmarks of the Problem-​Solving Process.............................................. 154 [4.170] Procedural Models............................................................................ 154 [4.175] The facilitative model of mediation............................................................ 155 [4.180] Facilitative Mediation........................................................................ 155 [4.185] Evaluative mediation/​blended models........................................................ 156 [4.190] Expert Advisory Mediation.................................................................. 156 [4.200] NADRAC Definition: Evaluative Mediation............................................. 156 [4.205] Practice Standards Definition: Advisory or Evaluative Mediation.................. 157 [4.215] Commentary on Approval Standards.................................................... 157 [4.225] Blended Mediation........................................................................... 158 [4.235] Mediation Definitions and Strategies.................................................... 161 [4.245] Criticism of Expert Advisory Mediation.................................................. 165 [4.255] The Evaluative Threat to Mediation Practice........................................... 166 [4.265] Evaluative Mediation: In Search of Practice Competencies......................... 168 [4.270] Transformative mediation........................................................................... 169 [4.275] The Promise of Mediation.................................................................. 169 [4.282] Transformative Mediation: Illustrating a Relational View of Conflict Intervention.......................................................................... 170 [4.290] The Mediation Metamodel: Understanding Practice................................. 172 [4.300] Transformative Mediation: Implications for Practitioners........................... 173

[4.305]

Narrative mediation................................................................................... 174 Narrative Mediation of Family Conflict.................................................. 174 Practicing Narrative Mediation........................................................... 175 [4.325] The models in practice............................................................................... 176 COURT-​CONNECTED MEDIATION............................................................................. 176 [4.335] History of court-​connected mediation........................................................ 176 [4.310] [4.315]

[4.330]

 

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[4.340] [4.350]

Mediation in Courts and Tribunals....................................................... 176 Submission: Access to Justice Arrangements........................................... 177

[4.355]

Objectives of court-​connected mediation................................................... 179 Quality in Court Connected Mediation Programs..................................... 179 Perceptions of Procedural Justice and Legitimacy..................................... 180 [4.370] Challenges of court-​connected mediation.................................................. 181 [4.375] What Is Court-​connected Mediation for?............................................... 182 [4.380] Hybrid mediation processes in court-​connected context............................ 183 [4.385] QCAT’s Hybrid Hearing..................................................................... 183 [4.395] QCAT’s Hybrid Hearing..................................................................... 187 [4.400] Judicial mediation...................................................................................... 191 [4.405] Should Judges Be Mediators?.............................................................. 192 [4.415] Should Judges Be Mediators?.............................................................. 193 [4.425] Judicial Mediation............................................................................ 196 [4.430] Guide to Judicial Conduct.......................................................................... 198 [4.431] The Judge as a Mediator................................................................... 198 MANDATORY MEDIATION......................................................................................... 198 [4.440] Different forms of consent.......................................................................... 198 [4.445] Perspectives on Mandatory Mediation.................................................. 199 [4.455] Perspectives on Mandatory Mediation.................................................. 199 [4.465] Perspectives on Mandatory Mediation: The Australian Perspective.............. 200 [4.470] Is forcing parties to mediate effective?........................................................ 202 [4.475] Perspectives on Mandatory Mediation.................................................. 202 [4.485] Court Directed Compulsory Mediation.................................................. 203 [4.495] Mandatory Mediation and Neutral Evaluation........................................ 204 [4.505] Mandatory Mediation in Australia’s Civil Justice System............................ 207 [4.515] Mandatory Mediation in Australia’s Civil Justice System............................ 208 [4.525] Mandatory Mediation in Australia’s Civil Justice System............................ 210 [4.535] Mandatory Mediation in Australia’s Civil Justice System............................ 212 [4.545] A Step Forward –​Mandatory Mediations.............................................. 213 [4.555] Diagnostic Factors in Mandatory ADR Referrals....................................... 214 [4.565] Should there be a good faith requirement in mandatory mediation?.......... 216 [4.570] Obligation to Mediate in Good Faith.................................................... 217 [4.580] Duty to Participate in Good Faith........................................................ 218 APPROPRIATENESS OF MEDIATION............................................................................ 219 [4.360] [4.365]

[4.435]

[4.590]

[4.595] [4.605]

[4.610]

Power in mediation.................................................................................... 223 Staying with Conflict........................................................................ 224

[4.615] [4.625]

[4.630]

[4.700] [4.720]

132 

Mediation –​When Is It Not an Appropriate Dispute Resolution Process?........................................................................... 224

Power of the mediator............................................................................... 232 The Dynamics of Power in Mediation and Negotiation............................. 232 NEUTRALITY AND IMPARTIALITY IN MEDIATION........................................................ 235 [4.645] Implicit Bias.................................................................................... 235 [4.655] Ethical Guidelines for Mediators.......................................................... 239 [4.660] Ethical Guidelines for Mediators.......................................................... 240 [4.670] Neutrality, Impartiality and Independence............................................. 241 [4.680] Neutrality in Courts and Mediation...................................................... 242 [4.690] Abandoning Neutrality...................................................................... 243 THE LAWYER’S ROLE IN MEDIATION.......................................................................... 245 [4.705] Guidelines for Lawyers in Mediation..................................................... 245 [4.715] Mediation for Lawyers....................................................................... 248 THE FUTURE OF MEDIATION...................................................................................... 251 [4.725] Mediation Future............................................................................. 251 [4.735] How Mediation Has Fared in the US..................................................... 252 [4.635]

[4.640]

NADRAC Annual Report 2000/​1: Relevant Considerations for ADR...................................................................... 219 When Is Mediation Appropriate or Inappropriate?................................... 220

Mediation  Chapter  4

INTRODUCTION [4.05]  The topic of mediation is so complex that it could take up an entire book (or two!).

Accordingly, this chapter will introduce only some aspects of mediation, particularly as they relate to the Australian court system. The chapter begins with an overview of the history of mediation and its regulation in Australia. Then, a discussion about the difficulty in defining mediation follows. The role of the mediator is considered, as well as different models of mediation in use in Australia. Court-​connected mediation is then discussed, including some topical variations on that concept –​hybrid mediation processes in the court room and judicial mediation. The concept of mandatory mediation is then explored, a topic of particular relevance in Australian given the increasing requirement for parties to mediate before they can access the court system. Factors that impact on the appropriateness of mediation are also considered, particularly the issue of power and power imbalance. The fundamental but elusive characteristic of neutrality of the mediator is then explored followed by the role of the lawyer in mediation. The chapter also asks the question “does mediation work?” and considers the future of mediation.

HISTORY OF MEDIATION IN AUSTRALIA [4.10]  This section provides an overview of the historical forces that have impacted on medi-

ation in Australia (both in theory and in practice). In the extracts [4.15] to [4.40], the authors explain how mediation has gone from being a “cottage industry” to a “supernova” over a period of just four decades. The extracts also evidence a growing institutionalisation of mediation, leading to fears that the core values and principles of mediation are degenerating into a “numbers game”. In Boulle’s book, he reviews the four main stages of Australian Mediation: the first being the optimistic introduction of a new process, the second characterised by developing critique of the practice, the third a balancing of idealism and critique along with the mainstreaming of the practice and the fourth stage leading to the integration of mediation and the previously mentioned identity issues.

Stages of Australian Mediation [4.15]  L Boulle, Mediation: Principles, Process, Practice (3rd ed, LexisNexis Butterworths, Chatswood, 2011) pp 349-​351. [349] … The book’s first edition referred to three phases in Australian mediation’s development, typical of the establishment and growth of new occupational practices. During the first phase there is high optimism about the new pursuit, an idealised version of what it can provide, and enthusiastic convictions about [350] its capacities to deal with individual and societal issues better than existing systems. During the second phase there is reaction against uncritical enthusiasm and a sceptical and at times hostile critique develops, more exacting standards are demanded than those pertaining to pre-​existing allied practices, and there is some “fall from grace” for the newcomer. During the third phase there is a more balanced understanding of the newcomer’s strengths and shortcomings and how they compare with those of its “rivals”. The practice comes to be recognised and organised and takes its place as a mainstream pursuit alongside its associates and competitors. These phases do not operate in a neat sequential order and a new practice may display tendencies from all three phases at one time. The development of Australian mediation has displayed aspects of all three phases as it has evolved from “innocence” to “experience”.

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Stages of Australian Mediation cont. Mediation has arguably commenced a fourth phase of development in which, as shown below, it is losing its separate identity as it both cross-​fertilises other dispute resolution systems and at the same time becomes genetically modified by them. In the first phase of development from the mid-​1980s there were overstated claims for mediation and it was uncritically promoted by governments, agencies and individuals. In the 1990s investigations and inquiries were suspected of having reasoned towards pre-​ordained conclusions that mediation would be suitable or appropriate in the circumstances under discussion. The Commonwealth government’s 1994 Access to Justice Advisory Committee’s inquiry, for example, had terms of reference which assumed that mediation and arbitration were, generally speaking, preferable alternatives to litigation, an assumption still encountered currently despite more sophisticated contemporary understandings of the different systems’ virtues. In the second phase of Australian mediation there were reactions against “exaggerated claims” emanating from some quarters of the mediation movement, higher standards were demanded of mediation than of comparable practices, and some horror stories, whether real or fictional, circulated. While this did not develop into widespread disillusionment with mediation, there was a significant level of critical questioning and a degree of skepticism about the virtues of the practice. Innocence had been tainted by experience. Third phase features in Australian mediation witnessed more balanced applications of the system’s strengths and shortcomings. In its major report into civil justice in 2000 the ALRC accepted that mediation and ADR were permanent features of the civil litigation and legal systems. The recognition, acceptance and organisation of mediation have not only made it a permanent part of dispute resolution practice but have also led to a high degree of institutionalisation, as referred to throughout this chapter. [351] Between 2007 and 2010 a fourth phase has been evidence … This involves the extensive integration of mediation into litigation and arbitration systems and increasing inner dependence and inter-​connectedness among the various practices. In this phase courts have become increasingly diverse in their services, judges more active in case management and mediation, the distinction between public and private justice systems has become blurred, and some spheres of dispute resolution have become infused with problem-​solving approaches. Many of these developments have taken place alongside the mediation movement and in some respects have renewed faith and commitment to mediation but in a much more regulated, integrated and interdependent environment …

 [4.20]  In the next extract, Boulle expands on the fourth phase of mediation development in

Australia. He notes that mediation adapts over time, based on both internal dynamics and external factors. He introduces the concept of “the integrated model of dispute resolution” to explain the growing interconnectedness between mediation and other forms of dispute resolution in Australia. This integration has increased the impact of external factors on the development of mediation in Australia and has led to what Boulle calls the “identity paradox” for mediation.

Mediation Past and Present [4.25]  L Boulle, Mediation: Principles, Process, Practice (3rd ed, LexisNexis Butterworths, Chatswood, 2011) pp 3-​9. [3]‌As with all social practices mediation has a past, a present and a future and it is both responsive and adaptive over time according to the dynamics internal to the practice and environmental pressures external to its operation…

134 [4.20]

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Mediation Past and Present cont. Mediation past Mediation in Australia has ancient antecedents, modern traditions and a recent past, all of which have contributed in different ways to its present theory, policy and practice. In mediation’s recent past, there has been a major surge of development and innovation, and this has extended into other dispute resolution systems as well. The activity surge has been evident throughout Australia and it has analogous developments in other countries and jurisdictions. The developments have been extensive, diverse and not infrequently inconsistent with one another. Among the various changes, expansions and transformations of the recent past, the following rise to the surface as significant recent factors in Australia’s mediation practice, law and policy: • The development of a national system of uniform standards and accreditation requirements in mediation, the National Mediator Accreditation System (NMAS); • Extensive statutory regulation of mediation practice in the family arena with an accreditation and registration system for family mediators, now styled family dispute resolution practitioners (FDRPs); • [4]‌Changes in court systems involving new mission statements for courts, pre-​action mediation and ADR requirements, and the revival of the multi-​door court house concept; • Conduct standards for parties, advisers and other participants in mediation and related dispute resolution systems; • Embryonic forms of judicial mediation and judicial dispute resolution in courts and tribunals; • Significant government reports and policy documents on justice systems which portend ongoing future developments in the dispute resolution project; • New survey studies on mediation and ADR which provide challenges to mediator standards and ethical requirements and to established theory in the field; • Recent case law in various areas of mediation practice, and in particular in relation to the validity of mediated settlements and the confidentiality of the process; • The development of new facets to mediation and ADR practice in terms of hybrid dispute resolution systems, collaborative law and practice, and conflict coaching; • The intrusion of comparative and international mediation developments into Australian systems, and service-​providers’ increasing focus on their international attractiveness; • An expansion in the literature on mediation, with more extensive critical, comparative and analytical dimensions than found in early generation writings; • Australian engagement in international business, trade and investment disputes systems, for example in the World Trade Organisation in Geneva. Despite the diversity of these developments, they have operated synchronously in converging various systems, processes and policies within the comprehensive dispute resolution field. The developments of the recent past have produced what is referred to here, and throughout the book, as the integrated model of dispute resolution. The integrated model has involved both the ingress of mediation principles and processes into existing and emerging dispute resolution systems, and the increasing interconnection between other dispute resolution systems and mediation itself. This phenomenon has signalled identity problems for many stand-​alone mediation systems. The integrated model has become most conspicuous in litigation and other court and tribunal activities. Statutes regulating court procedures have postulated a single predominant system objective, namely to facilitate and encourage just, quick and cheap resolution of the real issues in proceedings, [5]‌and they have extended the objective to mediation and ADR connected to court systems. Parties and professional advisers in court processes have been induced to assist in furthering these objectives in both litigation and non-​litigious procedures. Governments and courts have embraced new dispute resolution paradigms which blur pre-​existing boundaries between courts and non-​court

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Mediation Past and Present cont. processes and between adversarial litigation and consensual resolution. Practical examples of these developments are found in several jurisdictions. They include the Victorian Attorney-​General’s 2008 Justice Statement which promoted the expansion of ADR and mediation both within the community and in State court systems. The Commonwealth government’s 2009 access to justice framework explicitly favoured resolution of disputes outside courts and contemplated support and incentives for persons accessing ADR services. The New South Wales ADR Blueprint stipulated that if litigation was necessary parties were required before commencing proceedings to take all reasonable steps to agree on the issues requiring court determination. The 2009 amendments to the Federal Court Act provided that the “overarching purpose” of the statute’s civil practice and procedure provisions was to “facilitate the just resolution of disputes”, while the 2010 Civil Dispute Resolution Bill (Cth), building on recommendations in a 2009 NADRAC report, further encouraged resolution of civil matters outside courts and required parties to take “genuine steps” to resolve disputes before instituting proceedings in federal jurisdictions. The omnipresent integrated model of dispute resolution had in fact been portended by the pre-​action “genuine effort” requirements in the FDR system which unfolded between 2006 and 2008, where they became a prominent feature of family law and dispute resolution. Within the new regimes mediation and other ADR processes could satisfy the pre-​action requirements but the latter were broad enough to be also satisfied by procedures other than traditional mediation and ADR and the systems invited innovation in system design. The developments of the recent past, unlike those referred to below, have been largely internal to the mediation and dispute resolution project and have been widely reflected in the literature and policy documents. All initiatives displayed the common theme of integrated and inter-​connected approaches to dispute resolution systems within which mediation reached new levels of [6]‌institutional prominence and maturity. However, the paradox of the recent past is that while the developments rendered mediation a more prominent feature of formal procedures and practices, in many instances mediation absorbed the values and cultures of its surroundings and surrendered some of its identifying characteristics, as shown in the following section. Mediation present The integrated model referred to in the previous section renders it more difficult to deal with mediation present in analytical isolation from other dispute resolution systems and practices; moreover, events of the present are sometimes less conspicuous than those of the past or future. While mediation never operates in complete isolation from other societal processes, it is more challenging in this than in previous editions of the work to describe and investigate mediation practices without also considering other forms of ADR, as well as the court, tribunal and industry dispute systems with which it is interconnected. While mediation is historically located and evaluated in the context of the alternative dispute resolution (ADR) system, it must now also be understood in the context of arbitration, litigation and changing court functions and responsibilities, as well as in relation to developments such as collaborative law, conflict coaching and dispute prevention. This broader field is sometimes referred to as the dispute resolution (DR) rather than the ADR field. Here one encounters the paradox of identity in mediation present. The identity paradox is a function of two contrasting realities. On one hand mediation has a wide scope of operation such that it is a key feature of many models, systems and forms of dispute resolution, conflict management and problem-​solving practice, including court-​based litigation. On the other hand, mediation’s positioning within broader dispute resolution and litigation arrangements undermines particular values and objectives of the system as it is infused with the standards and culture of its legal, industry and political environments. While mediation present is more ubiquitous in that it is difficult to consider court litigation, arbitration or industry regulation without acknowledging its role in the respective systems, it is simultaneously more diffuse, nebulous and less distinguishable, with “brand mediation” now including practices which do not comply with traditional approaches to the system or with new normative instruments such as the NMAS. Lawyers and legal culture, for 136 [4.25]

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Mediation Past and Present cont. example, are remodeling processes and practices under a generic mediation brand, shaping it in accordance with legalistic procedures, behaviours and attitudes. Commentators suggest that to differentiate the systems the new-​found mediation processes should have their own nomenclature, such as “settlement conferences”, but none has yet emerged. As indicated above the recent developments relating to mediation involve mainly internal forces and innovations in policy and practice, whereas mediation present is being influenced, albeit more remotely, by various external factors with which it is potentially interfaced. The four main interfaces are with the formal legal system, with social theory, with forces in the political [7]‌economy, and with comparative and international developments in mediation and ADR. Each is moulding and shaping mediation in varying ways: • The legal system –​mediation’s interface with the formal legal and justice system is a major factor in its current manifestations, with fewer and fewer areas of mediation practice currently immune from its firm grasp. This interface is directly affecting mediation processes and practices, including the areas of standards and quality assurance where regulatory regimes and court supervision are legalizing many aspects of the system. While in the integrated model mediation itself challenges some legal norms, its increasing regulation and judicial control is drawing it inexorably into the legal domain. This is a well-​established feature of contemporary mediation and is illustrated in many different forms and varieties in the pages that follow. • Social theory –​the interface with social theory is assuming more significance for mediation, influencing relevant literature and policy and having gradual implications for practice. Post-​modernist theory continues to challenge claimed attributes of mediation such as its neutrality, the objective nature of its regulation and the universality of mediator practice standards. Of emerging significance is the theory of complex systems, or complexity theory, which explains how societal systems comprise large networks of components with no necessary central control and whose basic rules of operation give rise to complex behavior, sophisticated information processing and adaptation via learning or evolution. In Australia different systems of mediation and dispute resolution are continuing to emerge from multiple sources without any necessary central direction and control, even NADRAC acknowledging at times that diversity and ambiguity make clear policy recommendations difficult to propose. Organised mediation is itself a “complex system” in that there are many local centres of operation adapting and shaping the process without a single dominant hegemony. As with other complex adaptive systems, small changes in input and chance events are producing large changes to mediation outputs and initial mediation systems and their justificatory theories are surviving despite not necessarily being the most effective or appropriate in nature. • [8]‌ The political economy –​the interface with political economies, both national and international, is another relevant factor in current mediation policy and practice. At times of financial, economic and social turmoil, and of changes in family life, communication patterns and social networking, increasing significance is being given to the influence of external national and global events on private and public mediation practice. These forces are introducing norms of competition, efficiency and cost-​benefit assessment to all social structures, including dispute resolution systems. For example, the theory of the “risk society” emphasizes the vulnerabilities and hazards for those whom dominant economic forces increasingly require to assume responsibilities in contemporary “decision-​making societies”. The new decision-​making spaces and the vulnerability of some individuals and institutions create tensions and conflicts, and these extend to lawyers, other experts and mediators who enable and constrain choices in risk situations, from entering franchise arrangements to acquiescing to settlement proposals. • Comparative and international developments –​this interface is a function of imperatives to replicate useful models operating abroad and to align and harmonise social practices across national borders; this occurs in many legal and economic areas, as well as in mediation and dispute resolution. Comparative developments in relevant dispute resolution systems, such as confidentially [4.25]  137

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Mediation Past and Present cont. regimes in European countries, and international developments in bodies such as the International Commission for Settlement of Investment Disputes and the International Mediation Institute, are having standard-​setting and harmonization influences of Australian thinking, policy and practice. However, while Australian mediation is influenced by these developments it is not only a passive recipient of international and comparative stimuli and its practices, policy and literature are themselves shaping developments beyond its borders. These factors of current political influence in mediation policy and practice tend to be relatively inarticulate considerations for the dispute resolution movement, its policy documents and accompanying literature, unless there is, for example, a change in government leading to reforms in industrial relations law and dispute resolution. They are nonetheless part of the ebbs and flows surrounding mediation present. For example, several of the interfaces are pressuring mediation to be a more efficient system –​within the vortex of current Australian mediation efficiency of practice is currently a priority demand of the system. Here pressures emanate from policy-​makers [9]‌and funders of dispute resolution services and from large consumers such as insurers and governments, all concerned about the costs and time involved in dealing with conflict. They also emanate from courts, tribunals and state agencies pursuing quicker and cheaper finalisation of disputes and closure of files. The efficiency pressures are demanding fewer resources for mediation and resulting in reductions in screening and intake, in pre-​mediation preparation, in the use of advisers, in time allocated to mediations and in the use of co-​mediators. Non-​settlement is increasingly being seen as an incongruent factor in dispute resolution practice and is producing operational changes designed to increase the likelihood of settlements. Mediators are being enjoined to go beyond facilitation and provide guidance, evaluation and various degrees of persuasion in order to achieve outcomes. Industry complaints schemes and dispute resolution clauses deploy default arrangements such as arbitration or adjudication to ensure mediation efforts will not be entirely futile. The efficiency pressures provide challenges to practice standards such as those in the NMAS, a dilemma to be resolved in mediation future.

 National Mediator Accreditation System and the Mediator Standards Board [4.30]  Boulle refers to the National Mediator Accreditation System (NMAS) (discussed in

detail in Chapter 15 ([15.05]) of this book), and the challenges to its practice standards in the future. The Mediator Standards Board (MSB), launched on 7  September 2010, is now the main body charged with this challenge. Professor Boulle was the inaugural Chair of the MSB. According to the MSB website (http://​www.msb.org.au) “[t]‌he MSB was established to support and promote high standards by mediators and to enhance the quality of mediation services in Australia. The MSB is responsible for the ongoing development and maintenance of the National Mediator Accreditation System”. The MSBs objectives are to:

a)

develop, maintain and amend the NMAS, which includes the Approval Standards and the Practice Standards (the Standards);



b)

oversee the application of the Standards with a view to achieving consistency, quality and public protection regarding mediation services and mediation training;



c)

support, complement and encourage members in their quest to meet their objectives in relation to the Standards;



d)

ensure that training and accreditation of mediators continue to develop;

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e)

require records to be maintained of mediators who are accredited under the Standards and facilitate access to mediators who have national accreditation.

DEFINITIONS OF MEDIATION [4.35]  As discussed by Boulle (at [4.15], [4.25]), mediation is suffering from an identity cri-

sis. This has been exacerbated by its more recent integration with other dispute resolution processes and institutions; however, the problem of defining mediation is not new. Various authors have commented on the slippery concept of “mediation”: • “Mediation is pluralistic and no one taxonomy can fully capture the variety of visions and practices that inform it” (Menkel-​Meadow, 1995); • “Mediation literature and practice abound with differences and inconsistencies in descriptive and prescriptive propositions” (Menkel-​Meadow, 1995); • There is an “increasingly complex and sophisticated array of practices that share the name ‘mediation’ ” (Alexander, 2008). Complicating the search for an appropriate definition of mediation is the fact that in Australia, there are many different definitions in a range of scholarly texts, practice documents and legislation. Magnus, below, reviews some of the definitions of mediation commonly used in Australia, including the NADRAC definition, the National Mediator Practice Standards definition and statutory definitions.

Mediation in Australia: Development and Problems [4.40] U Magnus, “Mediation in Australia: Development and Problems” in K Hopt and F Steffek (eds), Mediation: Principles and Regulation in Comparative Perspective (Oxford University Press, Oxford, 2013) Ch 17, pp 873-​875. In Australian legal literature, mediation is defined as follows: “Mediation is … a process whereby a third party, from a position of apparent neutrality, assists disputants towards an outcome agreed between them. While the role of the third party may vary considerably, it does not extend to the mediator deciding the outcome”. This corresponds to the standard definition recommended by the National Alternative Dispute Resolution Advisory Council (NADRAC): 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. A rather similar definition is contained in the (private) Australian National Mediator Practice Standards (2007): “A mediation process is a process in which the participants, with the support of a mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes. The mediator acts as a third party to assist the participants to reach their decision”. Using similar words, the Explanatory Memorandum to the Civil Dispute Resolution Bill 2010 defines mediation as follows: “Mediation: the participants identify the issues of dispute, develop options, consider alternatives, and endeavor to reach an agreement with the assistance of a mediator. The mediator has no determinative role, but may advise on the process of mediation”. However, there is still room for a generally accepted definition and the endless search for that definition has been

[4.40]  139

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Mediation in Australia: Development and Problems cont. termed “sterile”. There is even doubt as to whether it is possible to arrive at a conclusive definition of mediation. There are two distinctive features which separate traditional civil procedure from mediation. Firstly, the mediation process is much less formal than the usual civil procedure. Secondly, the mediator does not render a decision on the dispute; if mediation is successful, the dispute is ended by agreement between the parties. In contrast to court settlements, the agreement is not a settlement proposed or authorised by a third person, but negotiated and agreed upon by the parties themselves. The mediator helps the parties to find a solution but does not provide the solution. (a) Statutory Definition No Australian legislative act provides an express definition of “mediation”. The most recent federal legislation in this field, the Civil Dispute Resolution Act 2011, does not even mention the term mediation. This Act, which applies only to the Federal Court of Australia and the Federal Magistrates Court, uses the term “alternative dispute resolution process” but is evidently designed to comprise all kinds of extra-​judicial processes outside ordinary formal litigation in court. However, provisions in some acts give an indication of what mediation means but without giving a precise definition. For example, the Family Law Act 1975 does not use “mediation” but its definition of “family dispute resolution” in s 10F [of the] Family Law Act 1975 describes more or less what is generally understood by “mediation”: Family dispute resolution is a process (other than a judicial 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 the parties involved in the process. The Native Title Act 1993 also contains a number of provisions which explicitly use the term mediation. Although the Act does not define the term, it describes the purpose of mediation: “The purpose of mediation in a proceeding that does not involve a compensation application is to assist the parties to reach agreement”. Court rules also describe the elements of mediation. Rule 1176(1) of the Court Procedure Rule 2006 (ACT) defines mediation thus: “For this division, mediation is a structured negotiation process in which the mediator, as a neutral and independent party, assists the parties to a dispute to achieve their own resolution of the dispute”. Similarly, rule 7(1)(b) of the Ordinance 72 Federal Court Rules prescribes how a mediation conference has to be conducted. The provision thus gives an indirect definition of mediation, namely “… a structured process in which the mediator assists the parties by encouraging and facilitating discussion between the parties so that: (i) they may communicate effectively with each other about the dispute, …”. This description complies with the general understanding of mediation.



AUSTRALIAN MEDIATOR STANDARDS BOARD DEFINITIONS [4.45] According to the Australian Mediator Standards Board:  “Mediation is a process in

which the participants, with the support of the mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes. The mediator acts as a third party to support participants to reach their own decision”. Mediator Standards Board, “What is Mediation”, https://​msb.org.au/​about-​mediation. 140 [4.45]

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The MSB summarises the role of the mediator thus: “Mediators do not advise upon, evaluate or determine disputes. They assist in managing the process of dispute and conflict resolution whereby the participants agree upon the outcomes, when appropriate”. Although the MSB standards apply to mediators practicing in a variety of models, the MSB outlines the following broad description of mediation processes: Mediation processes are primarily facilitative processes. The mediator provides assistance in managing a process which supports the participants to make decisions about future actions and outcomes. Some mediators may also use a “blended process” that involves mediation and incorporates an advisory component or a process that involves the provision of expert information and advice. These processes are sometimes referred to as “evaluative mediation” or “conciliation”. Such processes may involve the provision of expert information and advice, provided it is given in a manner that enhances the principle of self-​determination and provided that the participants request that such advice be given. [4.50]  The Australian National Mediator Practice Standards also provide a description of the goals and possible outcomes of a mediation process.

Description of a Mediation Process [4.55] National Mediator Accreditation System (NMAS) (2015), Section 2 Practice Standards p 9, https://​msb.org.au/​about-​mediation. 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)

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.

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

 [4.60]  The definitions provided in the Practice Standards are based very much on the facili-

tative or problem-​solving model of mediation. However, there are limitations to the standard definition of mediation [4.55]. Different models of mediation are discussed in the following section, but before we move on to models, let us consider some definitions of mediation that differ from the standard negotiation/​facilitation paradigm. Bush and Folger, in their seminal text on transformative mediation, explain that there are four different “stories” of mediation, which are based in different ideologies and lead to very different definitions (and practices) of mediation. The first story, the “satisfaction” story, is closest to the negotiation/​facilitation definition referred to above. [4.60]  141

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The Promise of Mediation [4.65]  R Baruch Bush and J Folger, The Promise of Mediation: The Transformative Approach to Conflict (Wiley, San Francisco, 2005) pp 9-​16. The Satisfaction Story According to this story, “The mediation process is a powerful tool for satisfying human needs and reducing suffering for parties to individual disputes. Because of its flexibility, informality and consensuality, mediation can open up the full dimensions of the problem facing the parties. Not limited by legal categories or rules, it can help reframe a contentious dispute as a mutual problem. In addition, because of mediators’ skills in dealing with power imbalances [10] mediation can reduce strategic maneuvering and overreaching. As a result of these different features, mediation can facilitate collaborative, integrative problem solving rather than adversarial, distributive bargaining. It can thereby produce creative, ‘win-​win’ outcomes that reach beyond formal rights to solve problems and satisfy parties’ needs in a particular situation or, alternatively, remedy parties’ difficulties … [11]” The Social Justice Story According to this story, “Mediation offers an effective means of organizing individuals around common interests and thereby building stronger community ties and structures. This is important because unaffiliated individuals are especially subject to exploitation in this society and because more effective community organization can limit such exploration and create more social justice. Mediation can support community organization in several ways. [12] Because of its capacity for reframing issues and focusing on common interests, mediation can help individuals who think they are adversaries perceive a larger context in which they face a common enemy. As a result, mediation can strengthen the weak by helping establish alliances among them … [13]” The Transformation Story According to this story, “The unique promise of mediation lies in its capacity to transform the quality of the conflict interaction itself, so that conflicts can actually strengthen both the parties themselves and the society they are part of. Because of its informality and consensuality, mediation can allow parties to define problems and goals in their own terms, thus validating the importance of those problems and goals in the parties’ lives. Further, mediation can support the parties’ exercise of self-​ determination in deciding how, or even whether, to settle a dispute, and it can help the parties mobilize their own resources to address problems and achieve their goals. The mediation field has (at least to some extent) employed these aspects of the process to help disputing parties activate their inherent capacity for deliberation and decision making in adverse circumstances. Participants in mediation have, as a result, gained a greater sense of strength of self, including self-​respect, self-​reliance, and self-​confidence. This has been called the empowerment dimension of the mediation process”. In addition, the private, nonjudgmental character of mediation can provide disputants a nonthreatening opportunity to explain and humanize themselves to one another. In this setting, and with mediators who are skilled at enhancing interpersonal communication, [14] parties often discover that they can feel and express some degree of understanding and concern for one another despite their disagreement. The field has (again, to some extent) used this dimension of the process to help individuals activate their inherent capacity for understanding the problems of others. Mediation has thus engendered, even between parties who start out as fierce adversaries, acknowledgment and concern for each other as fellow human beings. This has been called the recognition dimension of the mediation process. … [15] The Oppression Story According to this story, “Even if the field began with the best of intentions, mediation has turned out to be a dangerous instrument for increasing the power of the state over the individual and the [16] power of the strong over the weak. Because of the informality and consensuality of the

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The Promise of Mediation cont. process, it can be used as an inexpensive and expedient adjunct to formal legal process, seeming to increase access to justice but actually operating to extend the control of the state into previously private domains of social conduct. Once having entered these domains, and given its lack of both procedural and substantive rules, mediation enlarges the discretion and power of state-​sponsored decision makers, and it can magnify power imbalances and open the door to coercion and manipulation by the stronger party. Meanwhile the posture of ‘neutrality’ excuses the mediator from preventing this. As a result, in comparison with formal legal processes, mediation has often produced outcomes that are unjust –​that is, disproportionately and unjustifiably favorable to the state and to stronger parties. Moreover, because of its privacy and informality, mediation gives mediators broad strategic power to control the discussion, giving free rein to mediators’ biases. These biases can affect the framing and selection of issues, consideration and ranking of settlement options, and many other elements that influence outcomes. Again, as a result, mediation has often produced unjust outcomes”. Finally, because mediation handles disputes without reference to other, similar cases and without reference to the public interest, it results in the disaggregation and privatization of class and public interest problems. That is, the use of mediation has helped the strong “divide and conquer”. Weaker parties are unable to make common cause and the public interest is ignored and undermined. In sum, the overall impact of the field has been to extend the state’s control of individuals’ lives; to neutralize social justice gains achieved by the civil rights, women’s and consumers’ movements, among others; and to reinforce the status quo and the privileged position of those who benefit from it.

 [4.70]  In the following extract, Wall and Dunne propose, rather than a mediation defini-

tion, a “mediation paradigm” incorporating different participants’ goals, outcomes and contexts.

Mediation Research: A Current Review [4.75]  J Wall and T Dunne, “Mediation Research: A Current Review” (2012) Negotiation Journal 217 at 218-​219. Mediation Paradigm Using systems theory, as well as field theory, we begin (Figure One) with the basic assumption that mediation operates in a context or environment, and the literature indicates that this context comprises four major segments: conflict type, country, culture, and mediation institutions. This context or environment affects the mediation process. Herein, there is a mediator and two or more disputants (in Figure One, one disputant is represented for simplicity of presentation) who interact to determine the current state of the mediation. Within this interaction, the mediator has goals (eg, agreement) and compares them with the current state (eg, non-​agreement). If there is a discrepancy, the mediator engages in certain behaviors –​which usually include interactions with one or both disputants –​to modify the current state. Each disputant follows a parallel pattern of behavior. He or she has goals (eg, high payment from the opponent) and compares them with the current state (eg, the opponent offers to make a low payment). Finding a [219] discrepancy, the disputant engages in behaviors to modify/​improve the current state (eg, threatens to leave the mediation if the mediator does not obtain a better offer from the opponent), and typically these behaviors entail an interaction with the mediator. This interactive mediation process has outcomes for the disputants, the mediator, and third parties who are not at the table but are affected by the outcome (eg, payments to children in a divorce mediation). [4.75]  143

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Mediation Research: A Current Review cont.

Figure One: The mediation paradigm Context/Environment

Conflict type

Culture

Country

Mediation institutions

Outcomes Mediation outcomes Third parties’ outcomes

Disputants’ outcomes

Mediators’ goals Discrepancy

Mediators’ behaviour

Discrepancy

Disputants’ behaviour

Current state

Disputants’ goals

Core mediation process



THE ROLE OF THE MEDIATOR [4.80]  In the following extract, Avruch suggests that in order to understand the various forms

and definitions of mediation, it is first necessary to understand the nature of the mediator, but points out that this role is more complicated than that of the facilitator of a negotiation between the parties.

Context and Pretext in Conflict Resolution: Culture, Identity, Power and Practice [4.85] K Avruch, Context and Pretext in Conflict Resolution: Culture, Identity, Power and Practice (Paradigm Publishers, Boulder, 2013) pp 101, 103. 144 [4.80]

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Context and Pretext in Conflict Resolution: Culture, Identity, Power and Practice cont. Mediation in Practice: A Multiplicity of Forms To begin to consider the multiplicity of forms that mediation can assume, take the nature of the mediator first. What does this sort of creature look like? How stable a role is it? Although the personal characteristics, skills, knowledge, and social backgrounds of mediators are expected to vary, the overall sense of what a mediator is seems to be taken for granted, an unexamined amalgam of the classic descriptions of the role and its tasks … Prototypically, the mediator is neutral and impartial, an outsider to the dispute and unrelated to the parties, lacking the power and authority to stipulate decisions or settlements (or, indeed, enforce compliance with them). The paradigmatic mediation is conceived as a one-​off session even if separated into two or more parts by some days. Functionally, the mediator mainly facilitates the process of negotiation between the parties, and any agreement arising from this negotiation must be one that the parties themselves own. For their part, the parties come to mediation voluntarily. There are other prototypical characteristics, but these will suffice for now. … [103] What, then, is a mediator? Certainly the semantic distance separating facilitator, manager, therapist, advocate, poet, and prophet would seem to undermine our confidence in a secure and stable prototype. Part of the problem with conceptualizing the mediator role has to do with our primary conceptualization of mediation. Bercovitch echoed many definitions of mediation when he wrote, “Mediation is, at least structurally, the continuation of negotiation by other means” … From the beginning, the idea that mediation was simply “facilitated negotiation” seemed less than fully sustainable … The more we mediate, and the more we study and analyze its practice, the more uncomfortable does the basic definition (and its prototype) appear. Instead, we have come to recognize that the addition of a third party –​any third party –​to a dispute or negotiation seems to transform some of its key parameters and dynamics …

 [4.90] Kovach, in the following extract, explores some different possibilities for mediator

roles and why mediators differ from one another in their practice.

Mediation [4.95]  K Kovach, “Mediation” in M Moffitt and R Bordone (eds), The Handbook of Dispute Resolution (Jossey Bass, San Francisco, 2005) Ch 19, pp 308-​310. A Mediator’s Role(s) While mediation might be summarized as facilitating parties’ negotiations, just what mediators do in terms of that assistance can be complex. A mediator’s job is not merely to oversee a rigid march through the stages just listed. A mediator often assumes a number of roles in seeking to help parties reach a mutually satisfactory resolution to a dispute. These various roles include organizing the parties and information, assessing negotiation strategies, interpreting or translating information, assisting in understanding, and serving as a referee, teacher, coach, coordinator, and conductor. Following are some of the most common roles a mediator may take on. Organizer. In some cases, a mediator can help disputants enormously simply by providing administrative assistance in organizing and managing the interactions between the disputants. When will the disputants meet? What kind of information should be exchanged in advance? Who should be in the room? These and many other matters are the kinds of premediation issues that have an important effect on the eventual success of the mediation effort, and a mediator is often best positioned to be helpful on these matters. Communication Director. During the course of a mediation, a mediator may structure how remarks are made and information is exchanged –​almost assuming the role of choreographer. Many disputes [4.95]  145

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Mediation cont. arise because people do not understand or appreciate what the other has said or the perspective the other holds. By shaping the exchange of information, mediators can help parties to understand each other better. This process often requires mediators to act almost as translators or interpreters, particularly when parties arrive at the dispute with different background experiences or frames of reference. Even when communication appears otherwise satisfactory, parties who take positions and defend them often fail to reach consensus. Mediators sometimes examine what each party says and search for underlying interests as part of the translation process. Intervenor and Guide. When disputants get stuck in stalemate or impasse, mediators can assist the parties by diagnosing the difficulties and obstacles in the parties’ direct negotiations. Often mediators are able to get the negotiations back on-​track. In doing so, mediators serve as teachers of negotiation and mediation. Another image of the mediator’s role may be that of a conductor of the [309] negotiation dance. The mediator may set the tone –​choose the music, so to speak. When parties differ, for example, on how quickly they will dance, a mediator may serve as a timekeeper, establishing the pace. Mediators may also serve as reality testers when individuals have unrealistic expectations about the final outcome. Encourager of Settlement. Some of the most challenging questions regarding mediators’ conduct relate to mediators’ stances with respect to settlement. What role should a mediator play in encouraging the parties to settle? Parties reasonably expect that the mediator will help the parties in finding a settlement –​if one is possible. At the same time, however, mediators’ persuasive efforts must not lapse into coercion. Listener. Perhaps the most important role of a mediator is that of listener. Many disputants want an opportunity to be heard. By listening intently, mediators learn more about the issues in dispute and the potential interests that may assist in resolution. Mediators who actively engage in listening also may serve as a model for the parties, potentially encouraging them to listen to each other. Why Mediators Differ One finds variation in virtually any field of practice. Doctors do not all make decisions in the same way. Lawyers are not all the same. Yet within mediation, one finds an extraordinary diversity of approaches. Why? Part of the answer lies in the varying conceptions mediators have of their purpose and of the best approaches for attaining those purposes. Different Views of the Purpose of Mediation. Although mediation is quite often defined as a process through which the mediator assists parties in reaching agreement or resolution to a matter, many experts differ when it comes to explicit fundamental goals or objectives of the process. Some see mediation as a process that has as its focus merely achieving a settlement of a lawsuit. In this view, mediators are primarily concerned with assisting the lawyers or parties in exchanging proposals of settlement. Others may use the process to save time and money, particularly when it is important to reach an expeditious resolution, such as during an ongoing construction project. In such a case, the mediator focuses on the immediate future, searching for ways to solve the problem promptly and efficiently. Others employ mediation as a way to find unique and creative solutions to problems. These mediators concentrate on the use of brainstorming methods to achieve innovative resolutions. Still other mediators see the process as a means of relationship repair, with mediators working with the parties to establish direct communication between them. Adherents of the so-​called “transformative” [310] model of mediation suggest that the proper focus of the mediation is not on the dispute at all, but rather on the search for opportunities for each party to be empowered by the process and to view the dispute as a symptom of impairment of the parties’ relationship. Different Views of Appropriate and Effective Behavior. A variety of factors may have an impact on the type, style, or approach of mediation employed. Mediators can be shaped by the combination of their basic personality and their initial training. Some people just lean towards one way of addressing problems. 146 [4.95]

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Mediation cont. Another key factor is the context in which the process is being adopted. Mediation appears in circumstances ranging from workplace matters, construction, civil lawsuits, family matters, and life-​and-​ death decision making to educational matters and criminal cases, just to name a few. Each context can affect how the parties and the mediator view the process and what may be achieved through its use. For example, in cases in which ongoing relationships exist, such as workplace disputes or family law matters, mediators will commonly use a process that focuses, at least in part, on relational concerns. Techniques employed will center on the facilitation of communication between the parties and, in some cases, party empowerment and recognition. In criminal matters, particularly when the primary issue is restitution, mediation is often used to find creative options. In many jurisdictions, the use of mediation in civil lawsuits has as its basis the settlement of the matter, and legal principles are considered. In short, mediators vary, in part, because they mediate different kinds of cases. Even in circumstances in which the disputes are relatively similar, one still finds variation in mediators’ practices because mediators simply approach their jobs differently. Len Riskin describes some of the variations in mediators’ orientations by suggesting, for example, that some mediators tend to define the problems before them in narrow terms (how much money is owed?), while others define the problem in broader terms (what is going on between these two former business partners?). Michael Moffitt suggests that some mediators conduct themselves transparently (sharing their observations, their purposes, and their decisions with the disputants), while others maintain less transparency (conducting the mediation without revealing the mediator’s inner thinking). A final –​and very prominent –​example of differences in mediators’ approaches has to do with the distinction between “facilitative” and “evaluative” practices. Should a mediator share with the parties her or his assessment of what a court would likely do with the dispute in question (evaluate)? Well-​educated, well-​meaning mediators vary in their responses to each of these possibilities –​and too many more not listed here. As a result, mediators’ practices wind up looking different from each other.

 [4.100]  National Alternative Dispute Resolution Advisory Council (NADRAC), in its pub-

lication Your Guide to Dispute Resolution, provides advice for people who are considering mediation as an intervention about what a mediator does and does not do.

What Does a Mediator Do? [4.105] NADRAC, Your Guide to Dispute Resolution (July 2012), https://​www.ag.gov.au/​LegalSystem/​ AlternateDisputeResolution/​Pages/​NADRACPublications-​A-​Z.aspx. What does a mediator do? Mediators: • help you decide whether mediation is suitable in your situation • use their specialist knowledge and may give you some information • bring the appropriate people together • explain the way the mediation process will work • provide a supportive environment and assist with venues and timing for meetings • set the guidelines or agreements for how the mediation is to occur • assist you and the other participants involved to understand the situation • keep you and the other participants involved focused on resolving the dispute • make sure you and the other participants know and understand what issues have been agreed • keep communication going [4.105]  147

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What Does a Mediator Do? cont. • manage interactions so that they are fair • assist you and the other participants to decide whether possible solutions are realistic • support you and the other participants to reach a final agreement, if you all agree it is appropriate • refer you to other helpful services There are some things that mediators do not do. • Mediators do not take sides, make decisions or suggest solutions • you and the other participants suggest solutions and make decisions • Mediators do not tell you what to agree to • you decide what to do including whether to stay at mediation • Mediators do not decide who is right or wrong • everyone is different; the focus is on finding a solution that everyone can live with • Mediators do not give legal, financial or other expert advice • your lawyer can give you legal advice before, during and after mediation if you choose • your financial adviser can give you financial advice before, during and after mediation if you choose • Mediators do not provide counselling • your psychiatrist or counsellor can give you support before, during and after mediation if you choose Sometimes the mediator can act as a “messenger”. They talk to you and the other participants separately and communicate ideas.



MODELS OF MEDIATION [4.110]  In the following extract, Taylor introduces the concept of a “model” of mediation,

and notes that most novice mediators learn a particular model in their training. In her book, Taylor later points out that some mediators who have completed their training may not know what model they learned. Many practicing mediators may also not be able to clearly identify which model they use or, more worryingly, will say that they use one model but demonstrate practicing another.

A “Model” of Mediation [4.115]  A Taylor, The Handbook of Family Dispute Resolution: Mediation Theory and Practice (Wiley, Hoboken, 2012) p 106. Models and approaches are not the same thing as styles, theory, training, skills and techniques, or methods of delivering interventions. Models are specific ways or methodologies for doing mediation that rest on two or even more basic elements: the practitioner’s central core beliefs and the practitioner’s theoretical base, that is, the theories the mediator has adopted about abstract concepts, such as truth, fairness, and justice, that provide meaning and consistency. Unlike theories, which can be proved or disproved, models are organized collections of thoughts that guide and inform and usually summarize the practitioner’s ideal or best practices. They explain how a practitioner should function. Each model is comprehensively organized in a definable way that makes it different from other models. Models tell us why, whereas methods, skills, and techniques tell us how to. 148 [4.110]

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A “Model” of Mediation cont. … Lang and Taylor (2000) have this to say about models: Models represent appropriate, aspirational, or best practices; they include guidelines for implementing them. Most novice mediators learn a particular model and approach to mediation that encompasses guidelines, rules, procedures, and ways of understanding mediation practice …

 [4.120]  Many authors and practitioners refer to different “models” of mediation, but there

are some questions about whether or not some are actually “models” or rather are “styles”, “approaches” or “contexts”. There are no clear boundaries between them, nor are they used consistently in practice. Some examples of “models” of mediation referred to in the literature include the following. • Evaluative • Settlement • Facilitative • Problem-​solving • Narrative • Transformative • Expert advisory • Therapeutic • Mindfulness • Insight

• Mandatory • Wise counsel • Community • Traditional • Court-​annexed • Co-​mediation • Victim-​offender • Child-​focused • Child-​inclusive • Child-​informed

Different authors have attempted to classify models/​types of mediation into categories. Some authors’ categories are set out below: Laurence Boulle: Paradigm Models • Therapeutic • Facilitative • Settlement • Harmony

Bush and Folger: Practice Models • Problem-​solving • Relational • Pragmatic • Socioemotional • Mixed

Menkel-​Meadow: Variations • Facilitative • Evaluative • Transformative • Bureaucratic • Open or closed • Activist/​accountable • Community • Pragmatic

Taylor: Categories of models • Stage theory models • Problem-​solving and negotiative approaches • Procedural models • Therapeutic models • Transformative approaches • Narrative approaches.

Picard: Patterns • Evaluative

 

Models used in Australia [4.125] Currently, in Australia, there are a number of models of mediation that are used

in a great diversity of contexts. It is impossible to say for certain how many mediators are using particular models, because, as mentioned earlier, many mediators are not able to clearly [4.125]  149

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identify which model they use, and even those who do name the model they use may have different ways of practicing under that “label”. In theory at least, the most commonly used mediation model in Australia is what is commonly known as the facilitative model, although in court-​connected contexts in particular, settlement, advisory and evaluative models are also common. To a lesser, but perhaps growing, extent are the transformative and narrative models of mediation, both of which have a group of dedicated practitioners who ascribe to them. The National Mediator Practice and Approval Standards describe a primarily facilitative model of mediation, although they allow for “blended” models to be used in practice by mediators with particular expertise (eg, lawyers are able to conduct advisory or evaluative mediations under the standards, in which they might provide assessments of each party’s legal case). In her book on family dispute resolution, Taylor describes how her different categories of mediation models might apply in a family mediation context. Her descriptions are equally applicable in other mediation contexts. In the following extract, she discusses the category of stage theory models and emphasises their step-​by-​step, process-​driven characteristics.

Stage Theory Models [4.130]  A Taylor, The Handbook of Family Dispute Resolution: Mediation Theory and Practice (Wiley, Hoboken, 2012) pp 107-​108. Stage Theory Models A label of stage theory model can be applied to types of mediation in which the mediation process is perceived as following a generalized flow from beginning to end. These theories posit that most family mediation sessions or events have a common or usual beginning, middle, and end and that each of these holds specific tasks and processes that need to be accomplished during that period of time, because they are sequential building blocks for future parts of the process. Like a road map that shows the embarkation and destination points with general descriptors between, these stage models help give beginning mediators a sense of what is expected and also how to achieve some standard preset goals that contribute to the overarching mediation effort. The following statement could articulate the basic belief system underneath all stage theories: If the family mediator leads the participants through all the stages, without missing any, and if all the stages are done completely and correctly, then the participants will be successful in mediating an outcome. If any stage is missed, is not done completely enough, or is handled poorly by the mediator or the participants, then the likelihood of a successful completion is diminished. These stages are somewhat universal, descriptive of, and intrinsic to the mediation process itself. By knowing which stage the case is in, the mediator can effectively figure out where to go in leading the participants toward resolution. The assumption is that the mediator is the facilitator of these stages and acts as a leader and guide to the participants, ensuring that all tasks are done. … [108] Most of the stage model writers see the stages they describe as necessary, successive, and integrated. Although some of the writers indicate that there can be a return to earlier stages in a looping mechanism, the stage concept projects a linear movement from beginning to end. They believe that the stages follow a predictable course and that each stage is necessary …

 [4.135]  Taylor provides some examples of stage theory models of mediation in the follow-

ing pages. A number are extracted below to offer readers an example of the range of models within this category. Note the differences in relation to the number of stages, the focus on 150 [4.130]

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stages before, during and/​or after the actual mediation session and the focus on practical, legal or broader issues in the stages.

Stage Theory Models of Mediation [4.140]  A Taylor, The Handbook of Family Dispute Resolution: Mediation Theory and Practice (Wiley, Hoboken, 2012) pp 108-​109. Folberg and Taylor (1984) posited a seven-​stage model of mediation: 1.

Introduction –​creating trust and structure

2.

Fact finding and isolation of issues

3.

Creation of options and alternatives

4.

Negotiation and decision-​making

5.

Clarification and writing a plan

6.

Legal review and processing

7.

Implementation, review and revision …

Moore (1996) articulated a twelve-​stage general process outline of how most mediation flows in terms of the tasks of the mediator and the movement of the case: 1. Establishing relationship with the disputing parties 2. Selecting a strategy to guide mediation 3. Collecting and analyzing background information 4. Designing a detailed plan for mediation 5. Building trust and cooperation 6. Beginning the mediation session 7. Defining issues and setting an agenda

  8. Uncovering hidden interests of the disputing parties [109]   9. Generating options for settlement 10. Assessing options for settlement 11. Final bargaining 12. Achieving formal settlement …

Karl Slaikeu (1996) has reduced the stages to five key events that relate to how to sequence and conduct the in-​person mediation event: 1.

First contact with the participants

2.

The opening meeting

3.

The use of caucuses during the mediation session

4.

The conduct of the joint/​shuttle mediation sessions

5.

Closure

 [4.145]  Along with a diversity of definitions, there are also diverse processes of mediation. In

the following extract, Kovach identifies some component pieces of a mediation, some standard and some optional. It is worth noting, however, that her description, while applicable to most facilitative, problem-​solving or negotiation-​based mediation models, is not applicable to some other models, such as transformative or narrative mediation.

Component Pieces of a Mediation [4.150]  K Kovach, “Mediation” in M Moffitt and R Bordone (eds), The Handbook of Dispute Resolution (Jossey Bass, San Francisco, 2005) Ch 19, pp 306-​308. [4.150]  151

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Component Pieces of a Mediation cont. What Happens in a Mediation? Every dispute is different, and every mediator is different. As a result, every mediation is at least somewhat different from every other mediation. Yet to say “it all depends” is unhelpful for those wishing to learn more about the process. The progression of a mediation, and the roles of mediators within that progression, are important topics for exploration. Component pieces of a mediation The flexibility of mediation is one of its strengths. Still, to appreciate the complexities of mediation, it is helpful to break the process into component pieces or elements. In the section that follows, I describe mediation as having nine distinct stages, with four additional optional components. Observers of mediation vary in the way they outline the mediation process, and non consensus exists on even the number of stages involved. In many cases, mediations stages overlap or fold into one another, evidencing the fluidity of the mediation process. Indeed, resolution of a dispute may be achieved without experiencing every stage. I break mediation into these stages not to suggest linearity, but rather to highlight some of the important things that happen in most mediations. The thirteen stages appear in [the] Figure [below]. Preliminary arrangements Mediator’s introduction Opening remarks /​Statements by parties Venting (optional) Information gathering Issue and interest identification Agenda setting (optional) Caucus (optional) Option generation Reality testing (optional) Bargaining and negotiation Agreement Closure

The preliminary-​arrangement stage encompasses everything that occurs prior to the actual mediation session. This includes referral to mediation, the selection of the mediator, determination of who is to attend the mediation, feels, [307] and issues regarding the allocation of settlement authority. In this initial stage, parties and the mediator often make important decisions about the parameters of the process. The mediator’s introduction may include some or all of the following: introduction of the participants, description of the mediation process, and discussion of ground rules and housekeeping matters. The mediator may also share his or her goals and objectives for the process as well as elicit the participants’ expectations. In addition, the mediator may outline legal issues relevant to the mediation, such as confidentiality and settlement authority. Following this, in the opening remarks, the parties or their representatives typically provide an uninterrupted presentation of their views of the case or dispute. These remarks provide an opportunity for the parties to express fully, in their own words, to the mediator and to each other how they view the dispute. Information gathering follows opening remarks. During this phase, the mediator and the parties often make inquiries of one another. At times parties may also use the period after the opening 152 [4.150]

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Component Pieces of a Mediation cont. remarks for a period of venting. Allowing time for the parties to address the emotions generated by the dispute is often a critical aspect of the process. As additional information is disclosed, the mediator attempts to identify exactly what issues are in dispute. This is the issue and interest identification stage. Mediators may reframe issues in language that is more neutral and acceptable for both parties as a means of enhancing parties’ understanding as well as their openness to options for resolution. At some point, the mediator may move the parties towards option generation, seeking to generate possible ideas for resolution. Mediators may facilitate the use of creative methods such as brainstorming and lateral thinking at this phase of the process. Often during these two stages (identifying issues and interests and option generation) the mediator meets privately with each party. This is termed a caucus or private session. Some mediators use private caucuses to gain additional information from each party. The mediator’s style of mediation, the mediator’s approach, local practice and custom, and applicable law shape how or whether a mediator will share information gathered in caucus with the other party. As options are suggested, some mediators also engage in “reality testing” with the parties. Through the use of questioning, mediators challenge assumptions the parties (and their lawyers) may hold about the options suggested and about potential outcomes should mediation not result in resolution. Once the potential options for settlement have been identified, the bargaining and negotiation stage often ensues. During this “give and take” part of mediation, the mediator assists the parties in achieving trade-​offs. If these negotiations result in an agreement, the mediator will outline it and often draft either the complete agreement or a memorandum of settlement. This is the agreement stage of the mediation. [308] If no agreement is reached, the mediator will often restate where the parties stand in terms of potential settlement. The final stage of most mediations is closure, although in some models there is subsequent action on the part of the mediator with regard to follow-​up and implementation of the agreement.

 [4.155] The facilitative model commonly used and taught in Australia is a staged model,

characterised by ordered process steps. Different organisations using a facilitative model have slightly different descriptions and numbers of steps in their facilitative mediation approach (often adapted to their particular context of practice). However, the most commonly taught model in Australia is based on a standardised process, usually including a selection of the following stages: 1. Intake and assessment/​screening 2. Mediator’s opening 3. Party individual statements 4. Reflection and summary 5. Agenda setting 6. Exploration and discussion

  7. Private sessions   8. Generation of options   9. Evaluation of options 10. Negotiation 11. Agreement/​closure 12. Mediator debriefing

Taylor’s second category of mediation models includes the problem-​solving/​negotiative approaches. Again, most of the facilitative mediation taught and practiced in Australia is based around a problem-​solving philosophy. In other words, the stages (discussed at [4.155]) are used for the purpose of problem-​solving or facilitating negotiation between the parties. [4.155]  153

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Hallmarks of the Problem-​Solving Process [4.160]  A Taylor, The Handbook of Family Dispute Resolution: Mediation Theory and Practice (Wiley, Hoboken, 2012) pp 114-​115. Hallmarks of the Problem-​solving Process … As opposed to the other typical responses to conflict (such as avoidance, accommodation, compromise, or competition), problem solving or collaboration was perceived as being a higher, more principled response to conflict, and [115] using a mediator was a way to help parties in dispute move to that more cooperative yet self-​assertive place. It was believed that if mediators could get all disputants to focus on solving their own preferred solution or compete and defeat the others, then the mediation effort would go well, agreements would be negotiated, and outcomes would be more durable.

 [4.165]  In some contexts, Australia mediation also has attributes of what Taylor calls “pro-

cedural models”, described below.

Procedural Models [4.170]  A Taylor, The Handbook of Family Dispute Resolution: Mediation Theory and Practice (Wiley, Hoboken, 2012) pp 117, 119. Procedural Models Procedural models are similar in basic outlook to problem-​solving and negotiative models, but add a dimension of following strict rules to create desired outcomes. These models propose that if the family mediator and the participants follow all the procedures, then the outcome will be positive. Like stage models and classic negotiation and problem-​solving approaches, procedural models emphasize the dispute content and the prescriptive mediation process rather than the dynamics of the people or the systemic issues of family conflict. Stage models give generalized statements that all mediation should follow and are sequenced in approach, and problem-​solving approaches focus on the analysis of the dispute and a rational, linear process for examining the problem and the possible solutions and options through education, brainstorming, and finally negotiation on options. Procedural models require practitioners to work in a highly specific, organized, and sequential way, dealing with each case exactly according to the procedure, with little variation from case to case. [119] [Hallmarks of procedural models include:] • The participants subscribe to a set of rules for mediation that will be fair in some external, objective sense and that follow a common format or process from case to case. • This format generally follows standard procedural processes used in judicial procedure, such as equal time, equal processes, and scrupulous balancing of each participant’s involvement. • All parties adhere to these rules. Violations of them are quickly apparent and dealt with. • By following these rules, the parties are operating in essential fairness and will accept the outcome as fair, thus reducing ongoing conflict. A mediator operating from a procedural model would research the laws and develop objective rules that incorporate society’s ideas of outcome fairness. That mediator would also develop rules of treatment during the session that require each person to follow the procedures to establish and maintain fairness during the session. There would be initial contracting by the participants, with the mediator requiring the participants to conform to these standards of fairness and rules and then a monitoring 154 [4.160]

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Procedural Models cont. of their compliance during the mediation session. It would be assumed that the outcome of this fair process would be fair and should be upheld by each participant.

 The facilitative model of mediation [4.175]  Nadja Alexander describes the facilitative model, its uses and criticisms, in the fol-

lowing extract.

Facilitative Mediation [4.180] N Alexander, “The Mediation Metamodel: Understanding Practice” (2008) 26(1) Conflict Resolution Quarterly 97 at 111-​112. Facilitative Mediation Facilitative mediation combines process intervention with an integrative approach to bargaining. Like settlement mediators, facilitative mediators are responsible for creating an optimal environment for negotiation and coaching the parties through a negotiation process. However, the focus of the facilitative mediator is on integrative interest-​based negotiation rather than on distributive, positional-​ based bargaining. This form of mediation is also known as interest-​based mediation. Facilitative mediation goals are party autonomy and self-​determination. Accordingly, facilitative mediators restrict themselves primarily to process interventions. Parties are encouraged to reveal their needs and interests in relation to the conflict and to acknowledge the dispute from the other party’s perspective. Facilitative mediators neither advise the parties on the problem –​that is, the merits of the dispute –​nor provide them with legal information. They tend to be selected for their process and communication skills and their lack of connection to the parties, rather than their subject matter expertise. When legal representatives are present they play a consultative rather than an advocacy role. In other words, the parties speak for themselves with the support of their legal representatives. Facilitative mediation may be useful in the following situations: • When the parties want to continue their relationship –​whether business, social or familial –​after the resolution of the dispute • When the parties have the capacity to negotiate on a level playing field, but have experienced difficulty starting the process or have reached an impasse in negotiations • When there are opportunities for creative and future-​focused solutions to address the needs and interests of the parties • In multiple-​issue disputes, especially where the issues comprise legal and nonlegal elements Facilitative mediation is criticized on the following grounds: • In the absence of a mediated settlement, there is a risk that information or an opinion shared at the mediation table may subsequently be used to the disadvantage of the party who revealed it. Although mediation is a confidential process, once the other party is aware of new information, the balance of power between the parties may change, and new information may be independently sourced and subsequently used in arbitration or adjudication proceedings. • Facilitative mediation may not be suitable in situations where one or more parties have inadequate negotiation ability –​for example, where one of the parties has language or literacy difficulties. • Facilitative mediation requires greater investment of time than positional bargaining approaches.

 [4.180]  155

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Evaluative mediation/​blended models [4.185]  The concept of evaluative mediation, or “expert advisory mediation”, is explained in

the following extract. However, as we will see, this model of mediation is controversial.

Expert Advisory Mediation [4.190] N Alexander, “The Mediation Metamodel: Understanding Practice” (2008) 26(1) Conflict Resolution Quarterly 97 at 107. Expert Advisory Mediation Expert advisory mediation involves a high level of mediator intervention in the problem and adopts a predominantly positional bargaining approach. The primary goals of this form of mediation are efficient delivery of settlements (service delivery) and access to justice. These goals support the pursuit of speedy and legally or technically oriented settlements, which in turn encourage a distributive negotiation discourse and advice giving by mediators. Expert advisory mediators are usually senior lawyers or other professionals selected on the basis of their expertise in the subject matter of the dispute and their seniority, rather than their process skills. As expert advisors, mediators can provide participants with technical or legal information and benchmarks, advice on the merits of the case, suitable settlement terms, and likely outcomes if the matter proceeds to a determinative proceeding such as arbitration or adjudication. In terms of the interaction basis, a distributive approach in the mediation keeps parties focused on positions and rights, thereby allowing the problem to be defined in a narrow and legalistic manner and excluding broader issues from the agenda. It is not uncommon for parties to be accompanied by legal representatives in expert advisory mediation. Mediated settlements usually fall within the range of outcomes that a court could have ordered. Expert advisory mediation may be useful in the following situations: • Where the parties themselves are not expert in the complex or technical matters of the dispute • Where the parties are not motivated to attend mediation –​for example, when mediation is mandatory • Where clients have unrealistic views of the (legal) merits of the case • Where the parties require the objective opinion of an experienced and specialized professional • Where the relational aspects of the dispute are not a priority • Where the parties are seeking a quick resolution of their dispute

 [4.195]  For some, the concept of “evaluative mediation” is an oxymoron, particularly where

the definition of mediation is premised on the process being a purely facilitative one. Others argue that evaluative mediation is actually no different from “conciliation”, and the different terminology is confusing and sometimes misleading. However, both NADRAC and the National Mediator Standards recognise evaluative mediation as a process validly used in Australia.

NADRAC Definition: Evaluative Mediation [4.200] NADRAC, Dispute Resolution Terms (AGPS, Canberra, September 2003) p 7, http://​ www.ag.gov.au/​LegalSystem/​AlternateDisputeResolution/​Documents/​NADRAC%20Publications/​ Dispute%20Resolution%20Terms.PDF. Evaluative mediation is a term used to describe processes where a mediator, as well as facilitating negotiations between the parties, also evaluates the merits of the dispute and provides suggestions as 156 [4.185]

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NADRAC Definition: Evaluative Mediation cont. to its resolution. (See also combined processes.) Note: evaluative mediation may be seen as a contradiction in terms since it is inconsistent with the definition of mediation provided in this glossary.



Practice Standards Definition: Advisory or Evaluative Mediation [4.205]  Australian National Mediator Standards, Practice Standards (2015), http://​www.msb.org.au. The standards largely describe a broadly facilitative model of mediation, however advisory models are acknowledges in section 10 of the Practice Standards which lay down the following requirements: 10.2 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, statutory employment or their equivalent; and



(iii)

are covered by current professional indemnity insurance or have statutory immunity

and (c)

ensure that the advice is provided in a manner that maintains and respects the principle of self-​determination.

 [4.210] These definitions are not without controversy throughout much of the mediation

community in Australia. This is demonstrated by the following extracts from submissions on the National Mediator Approval Standards.

Commentary on Approval Standards [4.215]  Australian National Mediator Standards, Commentary on Approval Standards (2007) pp 5-​6. Some organisations such as the Law Council of Australia considered as follows: The definition contains some recognition of the diversity of mediation processes with the inclusion of a reference to “blended” processes which involve the provision of advice. This recognition is essential for lawyer mediators who mediate in diverse areas of law, which may require the provision of advice, including some of the Family Dispute Resolution Programs provided by Legal Aid Commissions. …. However, a concern that was expressed in many submissions related to what was perceived as the inclusion of an advisory model. … LEADR noted that: LEADR is very aware of the diversity of mediation practice. So while LEADR would prefer the definition of mediation to be as a facilitative process only, we understand the current need for acknowledgement of advisory processes. LEADR believes that “conciliation” is an existing label for processes in which the third party neutral both facilitates and advises and would support efforts to have these two processes better distinguished. [4.215]  157

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Commentary on Approval Standards cont. For mediators, the inclusion of “advisory” processes may mean they are less rigorous in applying the discipline of facilitation. As well, those who are not qualified or are unwilling to offer advice may be perceived in the market as less suitable than their advising counterparts. For clients a lack of clarity in nomenclature may result in confusion and lack of clarity about what to expect. This may lead to lower satisfaction with the process, and frustration by both clients and mediators as they negotiate the type of process to be used on a particular occasion. … LEADR specifically recommended: That future development of the national mediator standard target drawing clearer distinctions between mediation and conciliation; that mediation be the word used to describe facilitative processes and that conciliation be the term used to describe the combination of facilitative and advisory processes. VADR took a stronger view. VADR noted 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.

 [4.220] In the following article, Peisley, an experienced mediator and expert determiner,

argues that when mediating commercial disputes, a blended (facilitative and evaluative) model is better than a wholly facilitative model.

Blended Mediation [4.225]  T Peisley, “Blended Mediation: Using Facilitative and Evaluative Approaches to Commercial Disputes” (2012) 23 Australasian Dispute Resolution Journal 26 at 26 and 30-​32. [26] Evaluative mediation is a process in which an independent third party, with the prior consent of the parties, assists to identify, clarify and narrow the issues in dispute and then evaluates one or all of the following: (i) the respective rights and obligations of the parties under their agreement or otherwise at law; (ii) the quality or value of work (goods provided or services rendered) according to industry standards; (iii) the strengths and weaknesses of each side’s case; (iv) the opinion of another professional or expert; (v) the quantum of damages; (vi) the possible outcome if the matter proceeds to arbitration or litigation; and (vii) proposes possible settlement scenarios to resolve the dispute. If parties reach agreement then the third party prepares the settlement agreement. … [30] Evaluative Mediation in Practice Mediators can inadvertently act as an evaluator. Some situations in which this occurs are if the mediator: • interprets or explains a principle of law, a term of a contract, or a reference to a piece of legislation; • is also qualified as an engineer and advises parties the solution being considered may not be viable from an engineering standpoint; 158 [4.220]

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Blended Mediation cont. • is an accountant and advises parties that certain business records are missing to support a claim and until those records are produced the claim is unsubstantiated; or • is a lawyer and advises parties that certain actions may constitute a breach of a particular clause of a contract or a section of an Act. Boulle commented that whilst facilitative mediation is promoted in the literature and mediator standards, the practice is towards settlement and evaluative forms of mediation, and several references are made to these models in the text. Much debate abounds as to which model is more appropriate. In the writer’s experience and observations, non-​lawyers tend to favour the facilitative approach to mediation and lawyers the evaluative approach. This is an important issue in mediation and, as Boulle said, some of the biggest disjunctures in mediation occur between the facilitative and evaluative approaches. Both sides of the debate need to recognise that there are aspects of each model which cannot be offered by the other. In commercial disputes, the blended approach in mediation is the preferred approach because it takes the best of each. It is time to accept there are different horses for different courses. In 2009, Professor Tania Sourdin prepared an extensive report on mediation in the Supreme and County Courts of Victoria. Sourdin sent out 151 mediator surveys on mediation processes and only 20 were completed; she analysed 553 cases, and found that 16.1% were resolved by mediation, 13.6% by negotiation, 9.9% by trial and 52.3% were dismissed/​discontinued (though Sourdin estimated up to [31] 30% of these were resolved by mediation). These findings suggest that in reality many “mediations” could more properly be characterised as conciliations, settlement conferences or evaluations. In 35% of mediations, mediators expressed their views to the parties regarding what they thought would be a likely litigated outcome. This approach differs from the “mediation description” adopted by NADRAC in which the mediator does not proffer any opinion or advice, as well as the NMS (although a blended process can be used with the express consent of the parties). In 47% of mediations, private sessions were held straight after the opening statements. Mediators were skipping the joint common ground, agenda setting and exploration processes as required by the Standards. The report commented that the mediation process is compromised if the mediator does not take control of the process when confronted with legal representatives who engage in bullying, silencing, excluding and intimidation towards others and mediators, because such behaviours are not indicative of good faith and do not encourage an environment of self-​determination. In 2009-​2010, Lynne Richards, of the Australian Commercial Disputes Centre (ACDC), conducted an online survey over a 12-​month period on mediation to identify areas of agreement and divergence between the NMS and participants. The survey received 226 responses and revealed the following: • the survey responses of mediators and parties showed significant divergence on this subject; • most mediators regarded the making of decisions about the outcome by the mediator as unimportant (only 3% said that it was important); this was in stark contrast to the parties, 60% of whom said that this was an important skill for a “good mediator”; • 100% of parties considered that “assisting the parties in making decisions about the future” was a desirable mediator behaviour compared with only 78.9% of mediators; and • some clients perceive mediators who adhere to the facilitative model, and who are reluctant to give advice or who are not qualified to do so, as less effective or desirable than those using blended or advisory models. This analysis suggests parties seek guidance as to what their relative strengths and weakness are in a dispute as well as possible outcomes if it proceeded to litigation. These are processes performed by a mediator in the evaluative model.

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Blended Mediation cont. Comparing the Advantages and Disadvantages of Facilitative and Evaluative Mediation The disadvantages of facilitative mediation compared to evaluative mediation are as follows: • The facilitative model accepts that “perception is everything”. It assumes people are honest when, in fact, people are selective with what information they share. People are swift to share information that is self-​serving but reluctant to disclose information contrary to their interests. • The facilitative model gives primacy to outcomes rather than establishing the extent to which a party has been wronged or degree of injustice that has occurred; it also encourages parties to reach a solution that they can live with. A concern here is whether the parties know what rights they may be giving up or compromising, and whether the parties are informed as to their legal rights and obligations. • Further, the facilitative model presents a greater risk of misrepresentation during mediation causing any settlement agreement to be set aside. The common law without prejudice privilege rule will not protect communications that are misleading and deceptive. The proposition is that the mediator probes issues more in an evaluative mediation, which will deter parties from making [32] misrepresentation. It also salutes legal issues in passing. When properly tested there may be no basis for the claims (for example, a supervening event, an undisclosed fact or a misunderstanding). On the other hand, the evaluative model has its own disadvantages. • Once a mediator gives his or her opinion, he or she loses neutrality and the process is diminished. Contrary to this are arguments that mediators should abandon claims to neutrality and instead focus on maximising party control in mediation. It is the writer’s opinion that the integrity of the mediator rests upon procedural fairness and that the mediator needs to be trained in the practice of affording procedural fairness to the parties. Neutrality is compromised if the mediator displays actual bias, not if he or she expresses an opinion per se, unless that opinion is erroneous. A judge does not lose neutrality, simply because he or she makes a binding judgment. • Parties can become polarised to their legal positions due to excessive focus on technical and legal issues as opposed to exploration of solutions, and a mediator’s opinion may be at odds with a party’s lawyer. • The integrity of the process and outcomes is more dependent on the skill of the mediator using the evaluative method; furthermore, advisory processes require additional safeguards to prevent mediators providing advice on areas in which they may not be qualified to advise upon. The advantages of evaluative mediation compared to facilitative mediation are as follows: • Parties are better informed about issues, which can reduce the element of surprise or the risk of ambush, and can create a level playing field. Parties can also probe issues that may be overlooked if a facilitative process was used. • It is especially useful where technical questions involved, such as engineering processes, building standards, or accounting standards. Parties can also debate evidentiary issues in dispute such as missing records and issues regarding the admissibility or weight that may be given to certain evidence. • Parties can informally debate questions of law in dispute, for example, in negligence matters, whether loss has been suffered, if there was contributory negligence, and whether steps have been taken to mitigate the loss. • The evaluative method can provide better reality testing such as determining whether the terms of settlement offend any statutory obligation that cannot be excluded. For example, s 18G of the Home Building Act 1989 (NSW) voids any agreement or other instrument which purports to restrict or remove any statutory warranty. • Parties gain the benefit of mediators’ experience and knowledge in identifying the issues and risks in dispute, getting a qualified opinion as to the possible outcome, and helping parties resolve the 160 [4.225]

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Blended Mediation cont. dispute. At the end of the day, parties self-​determine the outcome, they can walk away from the process if they wish, since no binding determination is made, although the legal proceedings will continue. Also, parties can revisit the process before the judgment or award is made. After considering the above advantages and disadvantages, a blended (facilitative and evaluative) process is the preferred mediation model …

 [4.230] While Peisley recommends a blended model, some researchers have suggested that

the definitional problems in the sector render stylistic advice moot, because of the diverse strategies that mediators adopt. In the following abstract, Charkoudian reviews three studies to highlight how different mediator strategies affect participant satisfaction. Charkoudian suggests that a lack of empirical research in the field means that the evaluation of mediation services proceeds on the basis that mediation processes are uniform, when in fact they can vary markedly even where mediators within a service claim to be using a particular model. As Charkoudian explains, this also has implications for participant self-​determination.

Mediation Definitions and Strategies [4.235]  L Charkoudian, “Just My Style: The Practical, Ethical, and Empirical Dangers of the Lack of Consensus about Definitions of Mediation Styles” (2012) 5(4) Negotiation and Conflict Management Research 367. [367] The research described in this article comes from three separate studies. The first was a survey of mediators practicing in a variety of settings throughout Maryland. The second involved observations of live mediations and coding the behaviors used by the [368] mediators, and the third reports the effectiveness of different mediation styles. This article begins with an overview of the reasons it is important to understand mediator style, continues with a summary of the three studies and their implications for research and practice, and concludes with responses to the editors’ vexing questions about mediator style research. The Importance of Understanding Mediator Style The Ethical Obligation Participant self-​determination is considered a core ethic of mediation across all approaches, styles, and venues. Self-​determination is the very first standard in the Model Standards of Conduct for Mediators developed and jointly adopted by the American Arbitration Association, American Bar Association, Association for Conflict Resolution (2005). The standard reads, “A mediator shall conduct a mediation based on the principle of party self-​determination. Self-​determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-​determination at any stage of mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes”. The standard is clear that self-​determination begins with the selection of the process and the mediator. If potential mediation participants do not understand what choices they have in terms of style and how one mediator may differ from another in terms of what they may actually do in the mediation session, then participants cannot exercise their self-​determination. Even those who are mandated to a particular mediator or program should be able to understand in advance what process to expect. Ideally, a potential participant could review findings from empirical research to understand advantages and disadvantages of each style and consider which is best for their conflict. The same should be true for roster managers or agencies interested in establishing mediation programs. Unfortunately, potential participants cannot find research identifying advantages and disadvantages of each style. [4.235]  161

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Mediation Definitions and Strategies cont. Even worse, they cannot even find a clear agreed-​upon definition of each style. The research discussed later highlights the lack of agreement among mediators about the very definitions of the style they practice. This means that participants thinking they understand facilitative mediation and seeking it out may find two mediators, both claiming to be facilitative mediators who provide radically different processes. Riskin (1994) highlighted the danger of ambiguity in the definition of mediation on participant selection of mediators and on mediator quality assurance. Almost 20 years later, little progress has been made to create clarity. This presents a significant ethical challenge to the field. The first priority for researchers of mediation style must be to assist practitioners to understand and articulate what actually occurs within each style. Quality Assurance Courts, agency-​based mediation programs, community mediation centers, and other roster-​based programs struggle with efficient and effective methods to promote quality [369] among their practitioners. Professional mediation associations also strive to develop ways to support quality practice. In this context, The Association for Conflict Resolution (2011) Model Standards of Conduct for Mediator Certification Programs highlights the importance of clarity about mediation style (the document uses the term framework). Standard 3, Section 3, Disclosure of Frameworks/​Settings/​Areas of Practice, states that a certification program needs to provide a clear statement of the style being assessed and provide assessors who are trained and experienced in that style. The standard also indicates that different instruments may be necessary to measure quality in different styles. This requires consensus on the philosophy and tactics or strategies appropriate within each style. Quality assurance systems (including training programs, certification, observation of mediators, and mentoring) require that the agency implementing the quality assurance system can articulate what styles are acceptable and what strategies are considered legitimate within those styles. Without agreement about what interventions are considered appropriate within a specified mediation style, agency oversight is seriously compromised, and mediation participants cannot identify if they are receiving appropriate mediation services. Consider the issue of reality testing. Many agencies, organizations, and rosters have indicated that facilitative mediation is the acceptable style. Most mediators who consider themselves facilitative would agree that they use reality-​testing strategies in their mediations. However, they may actually be referencing very different tactics and situations. For example, one divorce mediator might use the term reality testing to describe what they do once participants have reached a tentative agreement, and they want to consider contingencies: “To review, you have agreed that the children will spend Monday through Thursday with Erricka, and Friday through Sunday with Tracee. You’ve agreed that for birthdays, you will both take the children out to dinner together. And for holidays, you are going to alternate major holidays. As you think about this agreement, is there anything in here that might not work in some situations? Are there any contingency plans you want to consider?” Another divorce mediator might use the term reality testing to describe how he or she responds to ultimatums. Parent: “Take it or leave it, I want the kids Monday through Thursday. I’ll just go to court if you don’t want to negotiate in good faith here”. Mediator: “Now the truth is that everyone is worse off when you go to court, especially the kids. Are you sure you want to put your kids through all that?” Another divorce mediator may use the term reality testing to indicate what he or she does when they see something they consider a flaw in a proposal by one parent. Parent: “I know what we can do. We’ll just have the kids alternate days –​4 days at your house, 3 days at my house, and so on…” Mediator: “Actually, research shows that kids this age really need more stability than that”. An individual in the position of giving feedback, whether for certification, continuing education, a decision about a position on the roster, or in a mentoring relationship, would need to be clear about which of these very different strategies is acceptable, which is encouraged, which is discouraged, and which is forbidden. Otherwise, any attempt at feedback can be met with the explanation “this is just my style of mediation”, and the [370] conversation degenerates into a debate about the merits 162 [4.235]

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Mediation Definitions and Strategies cont. of different strategies. While debates about the merits of various strategies are appropriate in the context of professional conferences, they prevent an agency from effectively implementing objective certification or other standardized quality assurance mechanisms. This reality-​testing example is but one among many mediator tactics where mediators using the same term implement the process in very different ways. This highlights the need for detailed definitions and distinctions among mediation styles. Improving Outcome-​based Research Significant research has been conducted in an attempt to measure outcomes of the mediation process, especially in comparison with litigation. In most of these studies, mediation is considered a standard treatment variable with no recognition of the sometimes significant difference in the actual process mediation participants may be experiencing. In essence, the experimental design of these studies is flawed in that the treatment being measured is heterogeneous. As a result, the outcome-​ based research we have accepted as a field may be clouded by the lack of clear definitions and understanding about mediation styles. For example, a researcher may be looking at the effect of custody mediation on settlement rates and on the long-​term impact on the parents’ relationships, comparing mediated cases to nonmediated cases. There may be some mediators using a caucus and settlement-​based model that may result in higher settlement but does not improve the relationship. Others may be using a process that attends to the relationship and may have a lower settlement rate and significantly improves the relationship. If these are lumped together in an aggregate study, the impact of each may be masked, and it may appear that the mediation treatment does not have a significant effect on either dependent measure. Wissler (2006) points out that most studies do not sufficiently consider the fact that many of the components of the mediation process are interrelated and that multivariate analysis could allow researchers to tease out the effects of specific components and examine how some components interact. She goes on to criticize the black box approach, in which researchers do not examine the mediation process itself, but assume the process to be a standard variable. Wall, Dunne and Chan-​ Serafin (2011) also highlight the lack of research examining the effect of individual mediator strategies on outcomes. Implications for Research [381] The findings in the studies outlined previously suggest two possible directions for research. One option is to prioritize research on understanding and developing consensus on definitions of mediator styles. This would involve drilling down into mediator strategies, not assuming that labels uniformly mean the same thing, and taking self-​reported strategies with some skepticism. This could involve working with the practitioner community toward consensus on labeling various mediator approaches and will likely require developing more detailed divisions than the classic dichotomies of facilitative versus evaluative or problem-​solving versus transformative. This approach would certainly benefit the practitioner community, where there would be great value to having agreement on a series of labels to identify the various mediation styles. Another option is to ignore labels altogether, leaving that issue to the practitioner community, and focus on mediator behaviors. Ultimately, the practitioner community and the agencies that use mediation need to know the short-​and long-​term effects of mediator strategies (or combination of strategies). If researchers found that listening to, identifying, and discussing emotions in a mediation allow participants to have a stronger long-​term relationship, then it may be irrelevant (from a research perspective) what mediators call the style they use, as long as it includes focusing on these emotions. If mediators’ encouraging participants to consider their worst alternate to a negotiated agreement increases settlement, then that may be the important key research finding, regardless of what those who practice it call it. The practitioner community still needs to wrestle with the issue of labeling the types of mediation for training, quality assurance, and consumer education purposes. But an important contribution the research community can provide is an understanding of what mediators actually do and the impact of those actions. [4.235]  163

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Mediation Definitions and Strategies cont. Either of these approaches is best performed through a combination of behavior coding and surveys of mediators and participants. While most mediation research uses surveys, behavior coding is rarely used. Notable exceptions are Pruitt, Peirce, McGillicuddy, Welton and Castrianno (1993); Charkoudian et al. (2009); and Wall et al. (2011). This is probably because behavior coding is expensive, time intensive, and can be seen as intrusive, since it requires researchers to observe during the mediation process or it requires videotaping the mediation session. Implications for Mediation Practitioners Over time, research of the kinds sketched previously will inform consumers about mediation as well as inform program administrators and those responsible for mediator quality assurance. However, while waiting for the research and the consensus on style definitions, practitioners and program administrators have an ethical obligation to be especially careful around the issue of defining mediation. Practitioners and others who are explaining mediation to potential participants should be explicit about the mediation experience [382] participants may have. These descriptions need to go well beyond labels (e.g., facilitative, transformative, inclusive, evaluative) and include detailed descriptions of the kinds of things that a mediator might do and clearly identify what the mediator will not do. These explanations will honor participants’ self-​determination and give them an opportunity to make an informed choice about what process to use and how to engage in that process. Similarly, program administrators, roster managers, and others responsible for quality assurance systems will need to go beyond the traditional labels when telling mediators what is expected of them. This will require ongoing dialogue with mediators and feedback about real mediations. In these conversations, program administrators and roster managers must articulate in detailed terms the mediator strategies that they expect mediators to use and those they consider off limits in their program. Some Vexing Questions Where Does Style Research Rank in Importance? The findings reviewed previously should raise concerns for mediators, roster managers, program directors, judges, researchers, and potential users of mediation. They identify the fact that while there are patterns of mediator strategic/​stylistic behaviors, mediators appear to lack clarity and consensus about the labels they apply to their stylistic behaviors, and some resist labeling what they do at all. The findings also raise questions about whether mediators who claim to use an eclectic mix of all of the various mediator approaches really do so, at least within the same mediation. The findings from Study 3 also suggest that different mediator strategies may produce a qualitatively different experience for participants. All of these suggest that the topic of mediator style is a central one, but one much in need of conceptual and empirical clarification. At bottom, the priority for the research community should be to clearly understand the effects of various mediator behaviors on mediation outcomes. Such knowledge will support the development of best practices and ethical practices. Why Has So Little Progress Been Made? To date, little progress has been made on understanding the connection between specific mediator strategies and mediation outcomes because to do so effectively requires observation of real mediations. Studies involving mediator self-​reports are limited in their scope. However, observational research is time-​consuming and expensive. Convincing funders of the need for behavior coding research will be a challenge. Most agencies are willing to fund basic program evaluation. Those funders willing to support more may be interested in cost–​benefit analysis. Few funders understand that the danger of studying mediation as though it is a uniform treatment is that the outcomes of interest may be masked by the mixed nature of the intervention. Behavior coding also requires the cooperation of mediators and program administrators. If program administrators can be convinced of the value, those participating on a roster may be required to allow 164 [4.235]

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Mediation Definitions and Strategies cont. researchers to observe as a requirement to stay on the roster; however, those in private practice may see little benefit to participating in an activity they may see as intrusive. [383] Another challenge to behavior coding is identifying when the intervention is beginning. This is a relatively simple decision in a day of trial program, where participants do not become aware of the option to mediate until the mediation is about to begin. However, in other kinds of mediation, the mediator may do significant preparation work with both participants and their attorneys by phone or in person before the official mediation begins. Without capturing these interactions, researchers may be missing out on key mediator strategies that affect the outcomes of the mediation.

 [4.240]  One model of mediation that has received a broad range of criticisms is the evaluative

model, as we shall see in the following two extracts.

Criticism of Expert Advisory Mediation [4.245] N Alexander, “The Mediation Metamodel: Understanding Practice” (2008) 26(1) Conflict Resolution Quarterly 97 at 108-​109. Expert advisory mediation is criticized on the following grounds: • There is no clear distinction between expert advisory mediation, conciliation, case appraisal, and neutral evaluation. • Mediators in this model do not coach the parties in conflict resolution skills to help them help themselves. • The mediator assumes much responsibility on behalf of the parties. • Direct participation by the parties in the process is low, which may lead to party dissatisfaction with the result. • By focusing on rights and positions, the interests of the parties may be neglected. • Settlement proposals by mediators may not support the parties’ long-​term interests or the improvement of their relationship. • Knowing that mediators will provide an expert opinion may encourage parties to withhold information that they believe would not enhance their case. • Expert advisory mediation does not encourage parties to acknowledge the perspective of the other side; rather, it encourages the parties to focus on their case only. • Expert advisory mediators seem to focus on a limited number of solutions that have worked in the past, rather than addressing the multidimensional and unique facts of each case; opportunities for a suitable outcome can be lost as a result. • When mediators provide opinions, it can be difficult to maintain the perception of impartiality. Parties who find the expert opinion unacceptable may subsequently consider the mediator biased. • Mediators who intervene in the legal or technical aspects of the dispute expose themselves to a higher risk of legal claims brought against them for the advice-​giving aspect of their role. (In the United States, this is referred to as the unauthorized practice of law.)

 [4.250]  Lafin, an early contributor to the discussion, debated whether evaluative mediation is

a threat to mediation practice generally. [4.250]  165

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The Evaluative Threat to Mediation Practice [4.255]  M E Lafin, “Preserving the Integrity of Mediation through the Adoption of Ethical Rules for Lawyer-​Mediators” (2000) 14 Notre Dame Journal of Law, Ethics and Public Policy 479 at 483-​493. The Evaluative Threat to Mediation Practice A. The Evaluative/​Facilitative Debate The problem of lawyer-​mediators exerting too much control over the conduct and resolution of a mediation typically is presented as a debate over mediation styles –​facilitative versus evaluative. Historically, this debate has no precedent. Prior to its recent growth and expansion in law-​related cases, mediation was viewed as a wholly facilitative process separate and distinct from adjudication. Even today, many scholars and theoreticians continue to characterize mediation in this classical sense as a process whereby the mediator, who has no stake or power over the outcome, helps the parties identify and evaluate their interests and options as they proceed, ever independent of the mediator’s control, to design and craft their own agreement. The hallmark of [484] mediation in this sense is the self-​determination of the parties and the impartiality of the mediator. On this classical model, the role of the mediator has been said, quite rightly, to resemble that of a Sherpa guide. Yet as mediation has grown in popularity, and especially as the practice has become increasingly intertwined with the legal system, this theoretical model has begun to unravel. In practice, many mediators deviate from the Sherpa guide ideal. Today, mediators often provide legal information or advice. At times, they apply the law as they know it to the facts at issue and predict the likely outcome should the mediation dissolve and end up in court. As the giving of information, advice, and predictions has increased, mediation as a practice has moved further and further [485] from the facilitative ideal, looking at times no different from neutral case evaluation or settlement conferencing. … This transformation in the practice of mediation has become particularly acute with the dramatic increase in lawyers acting as mediators and in referring matters for mediation. Several factors have contributed to these changes in mediation practice brought about or at least accelerated by its increasing connection with the legal system. These factors include the close relationship between law and mediation, the growth of court-​connected mediation, the increase in mediations involving [486] complex legal questions, the greater subject-​matter expertise lawyers often bring to mediations, and the expertise parties expect them to have, especially compared to non-​lawyer mediators. Recent studies further reveal that lawyers referring cases to mediators prefer those who fit the more “evaluative” profile. … [487] Some scholars view this change in mediation matter-​ of-​factly, as a perhaps inevitable development in a practice that is undergoing such significant growth. Leonard Riskin, for example, defines mediation wholly empirically. Mediation is, on his account, whatever mediators do. Since mediators differ in their styles and approaches, ranging from those who are strictly facilitative in the classical sense to those who are highly, even aggressively, evaluative, Riskin claims that mediation must be understood as a continuum, a practice that spans the full spectrum. [488] To a great extent, Riskin’s all-​inclusive definition of mediation rests on the assumption that mediators conduct mediations (and, a fortiori, the nature of mediation evolves) according to how they perceive the wishes of the parties. He points out that a mediator’s need for subject-​matter expertise typically increases in direct proportion to the parties’ need for mediator evaluation. If it appears to the mediator that the parties want an active, evaluative mediation, Riskin maintains that “the mediator ought to evaluate and it is ethical”. … Others who agree with Riskin that mediation should be defined inclusively likewise turn for justification to the interests and desires of the parties. Donald Weckstein surmises that the [489] move toward evaluative methods in mediation is directly attributable to the wishes and expectations of the parties as well as their lawyers. This, he says, is good, for it is “consistent with disputant empowerment”. Lawrence Susskind argues even more forcefully that it is not merely a matter of preference, 166 [4.255]

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The Evaluative Threat to Mediation Practice cont. but a mediator’s duty to evaluate and take active responsibility for reaching a sound agreement. By his account, the mediator is obligated to enlighten the parties with ideas and potential solutions drawn from the mediator’s knowledge, experience, and expertise. To Susskind, good mediators are “activists” who do not simply facilitate but work as “advocates of a good solution”. Kimberlee Kovach and Lela Love, among others, have directly challenged the inclusive approach, arguing that evaluative mediators are not really mediating cases. To both Kovach [490] and Love, mediation must be understood not as a grand ADR practice, encompassing the wide spectrum of divergent techniques outlined by Riskin in his grid, but as one among several forms of ADR. Mediation, that is, should be understood in terms of its place on the ADR spectrum, not as forming a spectrum unto itself. Kovach and Love each characterize the role of the mediator as strictly limited to facilitation. Echoing the classical definition, Kovach and Love maintain that the province of mediation is to assist parties in evaluating their own situations and developing their own solutions. Mediators may facilitate communication between the parties, help focus their understanding of their own and others’ interests, assist in creative problem solving, and otherwise help the parties devise their own agreement. Yet, they argue, if the assistance a mediator offers becomes directive, such as providing legal advice or offering an evaluative assessment of each party’s position, then the mediator is no longer mediating. Neither Kovach nor Love seeks to prohibit what Riskin and others call “evaluative” mediation. They do not object to evaluation outright; indeed, they acknowledge that at times an activist, [491] evaluative dispute resolution approach is appropriate. They simply say that to be responsible toward the profession and entirely candid with the parties, third-​party neutrals must name and label the ADR processes they use. Activist, evaluative ADR, where the third-​party neutral advises the parties how to proceed or takes control of the outcome is, on their account, not mediation but something more akin to neutral evaluation. Moreover, if a mediator engages in a “mixed” ADR process –​part mediation in the classical facilitative sense and part neutral evaluation –​then he or she should name each process. According to Love, mediators who are asked to evaluate can do so, “as long as the process of evaluating [is] recognized as a whole set of different activities than mediation”. B. The Mistaken Notion that All Evaluation Forms a Part of Mediation The evaluative/​facilitative debate has thus resulted in opposing camps each striving to influence the way mediation is conceived as a form of ADR. Riskin and others advocate an inclusive definition where mediation is regarded as whatever mediators do. For some like Riskin, directive, overtly evaluative dispute resolution techniques are not necessarily desirable, but they must be treated as part of mediation practice since they occur within [492] the context of mediations. Others, like Weckstein and Susskind find the activist, directive techniques to be not merely part of mediation as a matter of fact, but in many situations compelled by the ethical obligations mediators owe the parties. To those in the other camp, such as Kovach and Love, such talk dissolves the distinction between mediation and the evaluative ADR processes. And turns it into an amorphous, catch-​all. Kovach and Love prefer a brighter line definition of mediation that sets it apart according to its historically singular function as a facilitative method only. While I sympathize with Kovach and Love in their desire to hold fast to the classical definition of mediation, the bright-​line approach they recommend is unworkable. Few words or concepts lend themselves to such definitional precision. Most terms, and certainly those representing practice-​ bound concepts such as mediation, permit only hazy definitional boundaries. Kovach and Love may well be correct in suggesting that mediation is better understood by identifying its place on the ADR spectrum than by viewing it as an isolated continuum or “grid” of its own. The ADR spectrum, however, must not be conceived as a number line where each form of ADR occupies a clearly marked independent position. Rather, it forms a spectrum along the lines of a color spectrum, such that every ADR method can be understood only in relation to the others into which it blends and fades.

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The Evaluative Threat to Mediation Practice cont. Mediation, in other words, is a form of ADR separate and distinct from other ADR methods, though at the outer boundaries [493] of its practice it becomes difficult to differentiate from other methods such as neutral evaluation. At its core, “mediation” has been defined as “a voluntary process in which a neutral third party, who lacks authority to impose a solution, helps the participants reach their own agreement for resolving a dispute or planning a transaction”. By contrast, “neutral evaluation” amounts to “a process in which the parties present their dispute before a neutral expert and receive an unprejudiced assessment of their case”. Yet where mediation ends and neutral evaluation begins, there is no bright line. Advocates of an all-​inclusive definition of mediation stress this point, noting that in the midst of the evaluative/​facilitative debate there remains a lack of agreement about what truly constitutes evaluation.

 [4.260]  Della Noce, best known as a transformative mediator and thus not surprisingly an

evaluative mediator sceptic, considered, in the context of developing standards for mediators, what standards might be appropriate for evaluative mediation. After proposing such a set of standards (extracted in Chapter 15, [15.275] of this book), she highlights the stark contrast (at least in theory) between many evaluative practices and what she calls the other “big two” models of mediation: facilitative and transformative.

Evaluative Mediation: In Search of Practice Competencies [4.265] D Della Noce, “Evaluative Mediation: In Search of Practice Competencies” (2009) 27(2) Conflict Resolution Quarterly 193 at 209-​211. If this set of practices does indeed represent good evaluative mediation practice, then on the basis of available empirical evidence it is fair to ask what that means for the practice of evaluative mediation and its relationship to the rest of the field. Good evaluative mediation practice is clearly distinct from, and even directly contrary to, good mediation practice as conceptualized in the other two members of the big three. It does not foster party empowerment or interparty recognition, hallmarks of the transformative approach (Bush and Folger, 1994, 2005; see, for instance, Della Noce, Antes, Bush, and Saul, 2008; Della Noce, Antes, and Saul, 2004). It does not foster interparty communication or interest-​based bargaining, hallmarks of the facilitative approach (Mayer, 2004; see Family Mediation Canada, 2003). … [210] It may be time for the mediation field to reflect on its roots and values. Mediation has long honored the principles of party autonomy and self-​determination, the idea that people make better-​ quality decisions when they make their own decisions freely, voluntarily, and without coercion or undue influence. In service of party autonomy, the field has also long honored the principle of mediator neutrality. Yet evaluative mediation appears to embrace behaviors that are contradictory to both of these fundamental principles (Alfini, 2008; Levin, 2001). The policy implications are significant. It is difficult to construct an ethical code for mediators that simultaneously embraces the coercive influence tactics of evaluative practice and honors the fundamental principle of party autonomy and self-​determination. (In fact, the ethical standards displayed on the JAMS Web site make no mention of party autonomy or self-​determination.) Perhaps the results of this analysis suggest that evaluative mediation shares so slight a family resemblance with other forms of mediation, if indeed one can be detected at all, that evaluative mediation [211] may belong to another family altogether. I recognize that this is a potentially inflammatory subject to raise, even if I am not the first to raise it. But just as one cannot construct a meaningful performance-​based test if any and all behaviors are acceptable, it may be time to question whether a meaningful field of practice can be defined absent some common core of values, principles, and practices.

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Transformative mediation [4.270] The transformative model of mediation is closely related to (and some would say

is a form of) therapeutic mediation. The seminal text on transformative mediation is by R A  Baruch Bush and J Folger, The Promise of Mediation:  Responding to Conflict Through Empowerment and Recognition. The following extracts from that text explain the emphasis of transformative mediation on party empowerment and recognition, and discuss some of the values underlying the transformative approach to mediation.

The Promise of Mediation [4.275] R A Baruch Bush and J Folger, The Promise of Mediation: Responding to Conflict through Empowerment and Recognition (Revised ed, Jossey-​Bass, San Francisco, 2005) pp 22-​23, 41, 53, 65-​66. The Value of Conflict Transformation: An Initial View The mediation process contains within it a unique potential for transforming conflict interaction and, as a result, changing the mindset of people who are involved in the process. The transformative potential stems from mediation’s capacity to generate two important dynamic effects: empowerment and recognition. In simplest terms, empowerment means the restoration to individuals of a sense of their value and strength and their own capacity to make decisions and handle life’s problems. Recognition means the evocation in individuals of acknowledgement, understanding, or empathy for the situation and the views of the other. When both of these processes are held central in the practice of mediation, parties are helped to [23] transform their conflict interaction –​from destructive to constructive –​and to experience the personal effects of such transformation. Discovering the Potential for Empowerment and Recognition When the use of mediation first expanded to new arenas of practice, few fully grasped either the special capacity of mediation for fostering empowerment and recognition or the immense importance of the phenomenon of conflict transformation. Nevertheless many had strong intuitions on both counts. So even though the emphasis was on mediation’s capacity to help resolve disputes and effectuate settlements, there was an awareness that mediation had other important though somewhat less tangible impacts. It was as though a researcher had discovered a substance, very useful for one purpose, that she realized was capable of other valuable effects; but she had not yet determined what those other effects were or how they could be generated. Gradually, practitioners and scholars have gained a clearer picture of the valuable effects and benefits of mediation. Increasingly, attention is being paid to the special capacities of the process to transform conflict interaction by supporting empowerment and recognition. Some have even come to realize that working with empowerment and recognition usually results in reaching settlements that the parties build, whereas focusing on settlement usually results in ignoring empowerment and recognition. So even though these different dimensions of mediation are not necessarily inconsistent, the relative emphasis given to them makes a crucial difference in what happens during a mediation session and what comes to be defined as valuable or needed. A Transformative View of Conflict and Mediation [41] A mediator is someone who intervenes to help when people are in the middle of conflict. Therefore anyone interested in serving as a mediator needs to reflect on two basic and related questions. The first one is this: What kind of help do these parties want and need from me? The second is this: What indeed is this phenomenon of conflict –​with which I am supposedly going to help these parties –​all about? A mediator who starts to intervene without clear and coherent answers to these questions could easily do a disservice to the parties, and to him-​or herself…

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The Promise of Mediation cont. The Theory of Mediation as Conflict Transformation [53] Clarifying the transformative theory of mediation, and especially its view of the mediator’s role, requires further discussion of the model of conflict interaction introduced in the previous section. However, to anticipate the endpoint of that discussion, transformative mediation can best be understood as a process of conflict transformation –​that is, changing the quality of conflict interaction. In the transformative mediation process, parties can recapture their sense of competence and connection, reverse the negative conflict cycle, reestablish a constructive (or at least neutral) interaction, and move forward on a positive footing, with the mediator’s help… [65] The previous discussion brings us to the definition of mediation itself, and the mediator’s role, in the transformative model. Both of these definitions differ markedly from the normal definitions found in training materials and practice literature –​in which mediation is usually defined as a process in which a neutral third party helps the parties to reach a mutually acceptable resolution of some or all of the issues in dispute, and the mediator’s role is defined as establishing ground rules, defining issues, establishing an agenda, generating options, and ultimately persuading the parties to accept terms of agreement… By contrast, in the transformative model: • Mediation is defined as a process in which a third party works with parties in conflict to help them change the quality of their [66] conflict interaction from negative and destructive to positive and constructive, as they explore and discuss issues and possibilities for resolution. • The mediator’s role is to help the parties make positive interactional shifts (empowerment and recognition shifts) by supporting the exercise of their capacities for strength and responsiveness, through their deliberation, decision making, communication, perspective taking, and other party activities. • The mediator’s primary goals are (1) to support empowerment shifts, but supporting –​but never supplanting –​each party’s deliberation and decision making, at every point in the session where choices arise (regarding either process or outcome) and (2) to support recognition shifts, but encouraging and supporting –​but never forcing –​each party’s freely chosen efforts to achieve new understandings of the other’s perspective.

 [4.280]  In a more recent article, Folger and Simon articulated what they considered to be the

core principles of transformative models of mediation:

Transformative Mediation: Illustrating a Relational View of Conflict Intervention [4.282]  J Folger and D Simon, “Transformative Mediation: Illustrating a Relational View of Conflict Intervention” in A Georgakopoulos (ed), The Mediation Handbook: Research, Theory and Practice (Routledge, 2017) Ch 8, pp 73-​86. [75] The principles that guide transformative methods are captured by a set of axioms that are included in basic training in transformative mediation. These axioms are not the methods of intervention. They are the guiding principles that mediators rely on as they make decisions about when and how to intervene. Be comfortable with conflict interaction, including strong emotion and negative patterns of communication among the parties. Parties typically do not need mediators when they are clear and confident about themselves and each other. Consequently, transformative mediators expect that parties’ conflict interaction will be negative and, to some extent, unproductive or destructive because people enter mediation without 170 [4.280]

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Transformative Mediation: Illustrating a Relational View of Conflict Intervention cont. the personal strength and connection they normally have in their day-​to-​day lives. This requires that mediators are comfortable with parties’ difficult conflict interaction and are prepared to work with it, rather than control it or shut it down. Support parties’ choices, including choices about participation in mediation. Supporting parties’ empowerment means being willing at all points to accept the decisions parties make about their issues as well as how they want to participate, if at all, in the mediation process. In transformative practice, parties are supported in addressing issues about the way they communicate as well as the more substantive issues that have arisen between them (Pope, 2001). Be comfortable with a limited understanding of the parties’ conflict. Transformative mediators do not diagnose the conflict or determine what “the problem” or “real issue” is for the parties. Instead, the mediator’s focus remains on what the parties are saying and how to support clarity, understanding, and deliberation. A commitment to party empowerment means accepting that parties may make choices that are based on information, personal fears, or self-​ perceptions about their own capability to which the mediator does not have access. Respect the parties –​their behavior, choices, and challenges. Respect for the parties means that mediators are willing to accept (and not evaluate or judge) the way parties express themselves, how they choose to respond to each other, and the choices they make. “The parties’ choices about topic, approach, tone, timing and everything else receive constant support from the transformative mediator” (Simon, 2010, p. 267). One litmus test for a transformative mediator’s commitment to party empowerment is whether he or she is willing to accept decisions the parties make, which he or she feels the parties may regret later. This characteristic of transformative practice stands in contrast to prevailing models that rely upon a strong advisory role for the mediator (Baitar et al., 2013). [76] Be patient with the parties and the process of their interaction. Transformative mediators sustain a belief that no matter how weak and self-​absorbed parties may be, they are still capable of making shifts toward greater strength and responsiveness. Being weak and self-​absorbed is an unstable and uncomfortable state. This fact supports the work of the mediator and actually sustains the mediator’s optimism about the possibility of the parties making constructive shifts. The relational “values encourage mediators to assume that if conflict interaction is supported, parties can find a balance of personal strength and interpersonal connection that may have been lost as they attempted to address a conflict on their own” (Folger & Bush, 2010, p. 456). In some instances, parties may not make significant shifts, but the mediator does not lose the focus on supporting the possibility of such shifts at any point. Focus on the moment-​to-​moment events in the parties’ interaction. Transformative mediators focus on the parties’ interaction as it unfolds, intervening to shine a light on what is being said, fostering parties’ clarity about issues, understanding of themselves and each other, and thoughtful deliberation and decision making based on any clarity the parties achieve. Focusing on the unfolding conversation means that the mediator does not analyze the past, diagnose issues, or focus the parties solely on the future. The mediator holds on to the belief that clarity often emerges out of confusion (Folger & Bush, 1996). Attend to opportunities for empowerment and recognition and choose interventions that support empowerment and recognition shifts. Conflict interaction becomes more constructive and productive for the parties when the mediator supports shifts that create both party empowerment and inter-​party recognition. The mediator listens for signs of unclarity, uncertainty, confusion, self-​doubt, self-​absorption, and misunderstanding and then responds with skills that foster greater clarity about self and other, deeper understanding and supporting more measured deliberation and decision making (Moen et al., 2001; Antes et al., 2001). [4.282]  171

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Transformative Mediation: Illustrating a Relational View of Conflict Intervention cont. Relinquish problem solving and control of the process. Transformative mediators assume that process and content are intertwined during mediation (Folger, 2001). Decisions about process affect the way the content of a conflict unfolds in the parties’ interaction. Therefore, parties are encouraged not only to define and address their own issues but also to determine how they want to address their issues. The mediator is constantly attentive to the parties’ decisions about how they want to have their conversation and how they want to resolve differences about any process issues that arise, including how they speak to each other, who can be present in the session, whether they talk about past events, etc.

 [4.285] In the following extract, Alexander summarises circumstances where transforma-

tive mediation is useful, and some criticisms of it. While Alexander’s summary accurately represents the general perception of the transformative model, it is worth noting that most proponents of transformative mediation would say that its uses go far beyond the examples listed, and that the criticisms of the transformative model are based in a fundamental misunderstanding of the philosophy and the practice.

The Mediation Metamodel: Understanding Practice [4.290] N Alexander, “The Mediation Metamodel: Understanding Practice” (2008) 26(1) Conflict Resolution Quarterly 97 at 115-​117. Transformative forms of mediation may be useful in the following situations: • Where the dispute is a (recurring) symptom of an underlying conflict, and the parties are prepared to address it before making decisions about the dispute itself • Conflicts about the parties’ relationship, whether of a personal, professional, or business nature • Where significant emotional or behavioral issues, or both, are at stake • Where parties are arguing on the basis of values and principles • Where the parties may benefit from opportunities for personal development Transformative mediation is criticized on the following grounds: • Transformative forms of mediation demand a greater time investment than other mediation models. • There are few protective mechanisms in transformative models of mediation for less empowered and weaker parties. • If not conducted well, transformative forms of mediation can waste a lot of time and potentially take parties into areas where neither they nor the mediator is sufficiently skilled to deal with the underlying issues and anxieties that may arise. • The use of transformative forms of mediation can make the dispute (as distinct from the underlying conflict) more difficult to settle, because extraneous issues are put on the mediation table.

 [4.295]  An Australian critique of transformative mediation is found in the next extract. In

this passage, a founder of mediation in Australia, Micheline Dewdney, urges caution in considering the claims of transformative mediation.

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Transformative Mediation: Implications for Practitioners [4.300] M Dewdney, “Transformative Mediation: Implications for Practitioners” (2001) 12 Australasian Dispute Resolution Journal 20 at 23-​25. Some Criticisms of the Concept of Transformative Mediation Some American writers have criticized the concept of transformative mediation. Keltner maintains that TM is an attempt to downplay mediation and the way it has developed. He says the concept implies that problem resolution is less valuable than being transformed, whereas the focus of mediation in the real world is about reaching agreement, not transforming [24] people. Keltner asserts that mediation should not move into the dominion of interpersonal dynamics; although interpersonal dynamics might affect mediation, it should not form the essence of the mediation process. The transformative thrust is neither functional nor practical for mediators. Dispute resolvers or problem solvers should not be replaced by people who want to do more than mediation. Those people who wish to facilitate life transformations should be other than mediators. One writer, Sterling Newberry, asserts that transformative mediation may be no more than putting a new title on time-​tested techniques. Melamed, another commentator, maintains that if transformation is the goal, then parties should be provided with the opportunity of making an informed decision about the goal of the process into which they may be about to enter. Schwerin states that the core empowerment concept of TM ideology remains fuzzy and vague in the context of successful community mediation programs in Hawaii which expose the values of volunteerism and empowerment. Further, a general social theory of empowerment should be developed to improve and refine practice as well as facilitate better research and empirical analysis of existing practice. Some experienced mediation practitioners and trainers in the United States have described TM as the “Great Transformative Training Robbery”, which seems to confirm the view that TM may merely be putting a new title on time-​tested techniques. A speaker at a mediation conference in the United States in the 1990s stated: You are not a “social movement” after all. You are a group of people with some useful skills for which there is an interested market of potential users. My advice to you is: go ahead and figure out how to market your services more effectively, and forget about changing society. It is submitted that this statement would find support among many busy Australian practitioners. Concluding Remarks Bush and Folger claim that empowerment and recognition will probably produce a desired settlement. Therefore mediation can attain both solutions and transformation by focusing on the transformative approach only, rather than on settlement. Although the goals of TM in terms of parties’ potential for moral growth and being transformed are not widely espoused, there are many similarities in mediation methodology between TM and Australian mediation practice since the 1980s. However, although we may use similar methodology, we do so for different reasons without claiming either the objectives or the effects of transformation. The mediation methods recommended by Bush and Folger are really not new to Australian mediation in some dispute areas and, according to current United States critiques, they are not new to American practitioners either. For example, most training and texts emphasise that mediators should: [25] • look for openings where one party can consider the other’s situation from that other party’s perspective (role reversal); and

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Transformative Mediation: Implications for Practitioners cont. • be aware and make the parties aware that even when no agreement is reached, there may be secondary benefits as the ground has been laid for further progress by the parties themselves after the mediation ends. Bush and Folger claim that, although success is not assured in each case, TM provides an opportunity for approaching disputes in ways that no formal dispute resolution process affords in that it creates the potential for disputants to integrate strength of self and compassion towards others, a goal which, they claim, neither problem-​solving mediation nor other institutionalized forms of dispute resolution even seek. However, there is a dearth of empirical evidence in support of such claims and this lack of research is conceded by the authors themselves which might explain why their book is entitled The Promise of Mediation … It is interesting to note that much of their recommended methodology has been, and continues to be, applied in mediation generally, but not usually to deliver transformation. Furthermore, there is little, if any, evidence that parties can be “transformed” after a few hours of mediation. Common sense would suggest otherwise. However, there is evidence to suggest that even where agreement has not been reached, parties have expressed a high level of satisfaction with the process.

 Narrative mediation [4.305]  Narrative mediation developed from narrative therapy, and is premised on a post-

modernist view that conflict exists primarily in the stories parties tell themselves and others about the situation. From a narrative mediation perspective, resolving the conflict is about re-​writing the conflict story into one with a more positive and constructive ending. The mediator’s role in a narrative process is not neutral (in stark contrast with a more or less fundamental principle of the other models discussed). Rather, the mediator works directly and explicitly with the parties and is actively involved in the content and the discussions. In the following extract, John Winslade, an internationally renowned expert on narrative mediation, explains the key goal of the narrative approach. This is followed by a brief extract in which Winslade and Monk describe some of the hallmarks of narrative practice.

Narrative Mediation of Family Conflict [4.310]  J Winslade, “Narrative Mediation of Family Conflict” in A Georgakopoulos (ed), The Mediation Handbook: Research, Theory and Practice (2017) Ch 9, pp 87-​96. [88] Goal of narrative mediation Mediation can be defined as assisting two or more people to negotiate the relational conditions for going forward in a relationship. What narrative mediation aims for is to help people create a small degree of separation from the discourses that have created the conflict and from [89] the narrative performances enacted upon it. Separating momentarily from it allows a small gap within which to consider the possibility of something different. Narrative mediation, therefore, privileges stories, and the meanings within stories, over facts and causes. Most people who seek help from a mediator find it painful to be caught up in a runaway conflict narrative and are not happy about it. They would prefer things to be in a different place (or, we might say, they would prefer to be living out a different narrative). The goal of narrative mediation is to help people dis-​identify with, and separate from, the conflict narrative they experience as problematic, and to step into a different story of relationship, which accords better with what they would prefer.

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Narrative Mediation of Family Conflict cont. We refer to this different story as a counter story (Nelson, 2001), because it runs counter to what the problem story has been working to create. It would not be predicted from within the narrow confines of the conflict-​saturated story. Rather than escalating conflict, such a narrative might implicate the parties in a story with themes like cooperation, understanding, respect, justice, or whatever else may fit. A counter story should be, as Sara Cobb (2013) argued, a well-​formed story. Importantly, however, we do not aim to resolve the conflict story in order to reach greater understanding. Instead, we assume the existence of multiple stories about any relationship. Mediation is about shifting from a story that is not working to another one that might work better. How does a counter story develop? The key assumption is that there are always pieces of a possible story lying waiting to be noticed. Family relationships are complex enough that we have to select from among available plot elements which to include in the narrative that governs our understanding. There are always bits and pieces that do not make the cut. Something is always left out, usually because it does not fit the story being told. Making a different selection and thus constructing a different narrative is always possible. Identifying the gaps in a story, finding the exceptions that are not consistent with it, listening for expressions of resistance to the logic of the conflict, soliciting the intention to do better, or asking about parties’ hopes for something to change –​all can open a counter story and give it a chance to flourish ...



Practicing Narrative Mediation [4.315] J Winslade and G Monk, Practicing Narrative Mediation: Loosening the Group of Conflict (Jossey-​Bass, San Francisco, 2008) pp 1, 3. Taking stories seriously, to us, means treating them as having the power to shape experiences, influence mind-​sets, and construct relationships. It also means seeing them as having something of a life of their own, as embarking on a mission that sometimes seems to drag people along behind. It means inquiring into the work being done by such stories in conflict situations, particularly into whether the protagonists in a conflict are happy with the direction that a story is taking them and whether they would prefer to go somewhere else … [3]‌Here then are nine hallmarks of narrative practice in mediation … 1.

Assume that people live their lives through stories.

2.

Avoid essentialist assumptions.

3.

Engage in double listening.

4.

Build an externalizing conversation.

5.

View the problem story as a restraint.

6.

Listen for discursive positioning.

7.

Identify openings to an alternative story.

8.

Re-​author the relationship story.

9.

Document progress.

 [4.320] Narrative mediation has been criticised for abandoning one of the commonly

revered principles of mediation practice –​mediator neutrality (see, for example, discussion

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in K Douglas and R Field, “Looking for Answers to Mediation’s Neutrality Dilemma in Therapeutic Jurisprudence” (2006) 2 Murdoch e-​ Law Journal, https://​eprints.qut.edu.au/​ 6288/​(accessed 9 October 2018). Other criticisms include its one-​dimensional perception of needs, and the time it takes given that it is premised on a number of sessions being conducted over a period of weeks or months. (See further, R Zamir, “The Disempowering Relationship Between Mediator Neutrality and Judicial Impartiality:  Toward a New Mediation Ethic” (2001) 11(3) Pepperdine Dispute Resolution Law Journal 467 at 510-​514.) The models in practice [4.325] The big question for practitioners and clients is how we decide which “model” is

suitable for the particular conflict. Most mediators tend to favour one particular model (or their own adaptation of it) and use this in their practice. Some mediators are trained in more than one model and may offer clients a choice of which sort of mediation they would like to use. However, generally speaking, in Australia mediation clients do not realise there are different forms of mediation and are not aware that they should ask what kind of mediation their mediator might offer them. See further Charkoudian at [4.235].

COURT-​CONNECTED MEDIATION [4.330]  Mediation can be “connected” with the court system in a number of ways:

• it may be recommended or required before parties are permitted to file proceedings; • it may be recommended or required before a matter is listed for trial or appeal; • parties may be referred to external mediators (of their choice or from a prescribed list) by court officials; • parties may be referred to mediation conducted by court officials (registrars, employed mediators or perhaps judges/​judicial members); • judges can conduct mediation in the hearing room (hybrid processes, eg, QCAT). History of court-​connected mediation [4.335]  In the following extract, Boulle introduces the concept of court-​connected mediation

and its variations. He also raises some questions about the “alternative” nature of mediation when it is conducted in a court setting, and whether or not this kind of mediation undermines the judicial system or vice-​versa.

Mediation in Courts and Tribunals [4.340]  L Boulle, “Mediation in Courts and Tribunals in Mediation: Principles, Process, Practice” (3rd ed, LexisNexis Butterworths, Chatswood, 2011) Ch 14, pp 560-​561. This category of mediation is referred to variously as “court-​connected”, “court-​related”, “court-​ based” or “court-​annexed” mediation. The different terms, used interchangeably here, have their own nuances for situations in which parties within relevant courts’ jurisdictions are encouraged, ordered, or voluntarily referred to mediation by court or tribunal personnel before their case proceeds to hearing and determination. During the late 1990s and early 2000s mediation, conciliation, and other forms of ADR such as arbitration, case appraisal and settlement conferences, were introduced into the procedures of most courts and tribunals, a manifestation of the institutionalisation of mediation 176 [4.325]

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Mediation in Courts and Tribunals cont. referred to [earlier] … In this context mediation has developed a distinctively legal character: mediators are barristers, solicitors, court registrars and more recently associate judges, parties are usually legally represented, and a deep shadow of law overhangs the relevant ADR processes. Similar developments have taken place in other jurisdictions around the world. The notion of mediation becoming “connected” or “annexed” to courts is, however, becoming anachronistic as mediation and ADR enter the central core of litigation procedures. The erstwhile “alternative” processes are now built into pre-​action settlement requirements, into post-​filing, pre-​hearing and intra-​hearing procedures, and into post-​hearing and pre-​appellate situations. As the 2008 Justice Statement of the Victorian Attorney-​General indicated, ADR is, as a matter of government policy, expanding not only outside the courts but also within them. In the bigger picture it may be the case that pre-​action ADR and judicial dispute resolution together relegate court referrals to external mediation to secondary significance over time but it is as yet an extensive practice in many courts and tribunals. 14.2 The pervasive incidence of mediation in the litigation context raises significant policy questions. Those who regard mediation as an alternative to court-​based litigation argue that within the court’s domain there can never be genuine mediation and that judges and court officials pervert the system so that it becomes an alternative way of litigating rather than an alternative to litigation. Conversely, it is argued that attaching mediation to courts undermines judicial systems by confusing the role and identity of judges in the perceptions of users who expect them to provide binding determinations according to their legal rights and duties and not to sponsor settlement procedures. There are constitutional concerns about denying citizen’s rights [561] to have disputes adjudicated by the courts of the land and about the emerging roles of judges as dispute resolvers as opposed to adjudicators. Finally, there are concerns about the quality and standards of mandatory court mediation and pragmatic concerns that if mediations do not succeed they could be more costly and time-​consuming for parties than had matters proceeded directly to hearing.

 [4.345]  Recent statistics from Australian courts and tribunals evidences the growing use of

mediation in the court context. However the same statistics also show that there is an opportunity for more referrals to be made.

Submission: Access to Justice Arrangements [4.350]  Attorney-​General’s Department, Submission to Productivity Commission Inquiry into Access to Justice Arrangements (November 2013) p 24. ADR in the Federal Courts and Tribunals ADR is commonly “annexed” to tribunal and court processes as a standard case management component. Evidence compiled in the Federal Court Annual Report 2012-​2013 demonstrates a positive trend toward referral to ADR processes and subsequent resolution of disputes without further judicial intervention. Courts can refer disputes to various forms of ADR including mediation, arbitration, early neutral evaluation, experts’ conferences, court appointed experts, case management conferences and referral to a referee. Of these, the vast majority of cases are referred to mediation (602 out of a total of 613 matters referred to ADR in 2012-​13). The number of matters referred to ADR has almost doubled over the last 9 years (326 in 2003-​04 rising to 613 in 2012-​13). The percentage of matters referred by judges to ADR as a proportion of total filings has also increased (5% in 2003-​04 to 10% in 2012-​13). However there is the opportunity for more internal and external referrals. The 613 referrals made to internal ADR represented just 26% of applicable filings. [4.350]  177

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Submission: Access to Justice Arrangements cont.

30

600

25

500

20

400

15

300

10

200

Referrals

2012–13

2011–12

2010–11

2009–10

2008–09

2007–08

0 2006–07

0 2005–06

5

2004–05

100

Referrals to ADR as a percentage of total filings

700

2003–04

Number of referrals to ADR

Federal Court –​matters referred to ADR

Percentage of total filings

The overall percentage of matters referred to mediation that were resolved either in full or in part was 61% in 2012-​13. There has been a consistent rate of resolution: 58% in 2007-​08, 57% in 2008-​09 and 2009-​10, 59% in 2010-​11, 61% in 2011-​12. Data on resolution for prior years is not available. Even where matters are not resolved, ADR may assist to narrow the issues in dispute and shorten hearing times. The increase in the number of matters being referred to ADR may have contributed to the rate of finalisations keeping up with the increase in filings in the last 3 years in the Federal Court, and the decreasing number of pending matters. [355] Mediation in the NSW Supreme Court Statistics from courts around Australia demonstrate that referrals to court-​annexed mediation is ubiquitous. However as the following extract from the 2016 Annual Review of the NSW Supreme Court demonstrates, pre-​trial processes such as court annexed early settlement conferences may serve to reduce the number of referrals to mediation over time. [360] 2016 Annual Review, Supreme Court of New South Wales 2016 Annual Review, Supreme Court of New South Wales, http://​www.supremecourt.justice.nsw.gov. au/​Documents/​Publications/​Annual%20Reviews%20+%20Stats/​AnnualReview2016.pdf. Use of alternative dispute resolution [31] The Supreme Court supports mediation as a method of alternative dispute resolution for Supreme Court civil proceedings. Litigants in any contested civil case (including appeals) can consider using mediation. Mediation is generally inapplicable for cases where no defendant contests the claim and in applications for an uncontested grant of probate, for adoption of children, to wind up companies, for recovery of proceeds of crime and for the miscellaneous applications where only administrative processing is required. For other civil cases mediation is considered generally applicable, although individual cases may have circumstances that make mediation inadvisable or inappropriate. Since 2014, in addition to its long-​standing court-​annexed mediation program, informal settlement conferences have been used in family provision cases where the estate is valued at less than $500,000. These conferences are conducted by Justice Hallen and are timed to occur at an early stage of case management with a view to achieving settlement as soon as possible so as to minimise litigation costs. 178 [4.350]

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Submission: Access to Justice Arrangements cont. The informal settlement conferences have reduced the number of cases going to the court-​annexed mediation program, and need to be taken into account when interpreting statistics concerning the court’s use of mediation, both court-​annexed and overall. During 2016 the registry recorded a total number of 806 referrals to mediation (court-​annexed or private), which was a 25 per cent decrease from the 2015 total of 1,070 referrals. The number of court-​annexed mediation listings (which are conducted by the Court’s registrars) increased from 518 in 2015 to 615 in 2016, so the decrease in the total referrals must arise from a much reduced number of referrals to private mediators. It is possible that the use of private mediation could have decreased significantly over 2016; however, it is also possible that the total number of referrals for 2016 does not include fully the use of private mediation because it is not essential for litigants to obtain a formal referral to private mediation, or even (in many circumstances) to disclose to the Court that private mediation has been used. During 2016, approximately 4,654 civil cases were filed that were of types for which mediation was considered generally applicable, not appreciably changed from the number of such cases during 2015 (approximately 4,640). The “mediation referral index” is the total number of cases referred for mediation in a given year, expressed as a percentage of the total number of cases commenced (in that year) that are of types where mediation is considered to be generally applicable. For 2016 the mediation referral index was 17.3 per cent, a significant decrease from the result of 23.1 per cent in 2015. The introduction, in 2014, of informal settlement conferences has reduced the proportion of family provision cases that proceed to mediation, causing an appreciable reduction in the mediation referral index. The reduction in the index this year is also related to the low number of referrals recorded for private mediation, as discussed above. There were 615 cases listed for court-​annexed mediation in 2016 (19 per cent more than in 2015), and 601 court-​annexed mediation sessions were held. These mediations are conducted by those Supreme Court registrars who are additionally qualified as mediators. The court-​annexed mediation program continued to achieve a good settlement rate –​51 per cent during 2016. The Court has a stringent convention for recording cases as “settled at mediation”: the parties must have agreed to finalising orders by the close of the mediation procedure or have drafted heads of agreement. An additional 26 per cent of cases were recorded as “still negotiating” at the close of the mediation session, and many of those cases are likely to have settled subsequently. If parties agree to settle their dispute at any time after the close of the mediation session, those settlements are not recorded as “settled at mediation” even though the mediation procedure may have been fundamental to the parties eventually reaching settlement. The statistics for the court-​annexed mediation program are collated independently of the JusticeLink system, where the data is not sufficiently reliable for this purpose. There are no statistics on settlement rates for cases referred to private mediators.

 Objectives of court-​connected mediation [4.355]  In the following extracts, Astor and Howieson consider the range of possible objec-

tives for a court-​connected dispute resolution scheme.

Quality in Court Connected Mediation Programs [4.360]  H Astor, Quality in Court Connected Mediation Programs –​An Issues Paper (Australian Institute of Judicial Administration, 2001) pp 5-​6. Objectives of court connected dispute resolution schemes could be to provide a method/​methods of dispute resolution that [4.360]  179

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Quality in Court Connected Mediation Programs cont. • Reduce delay, clear lists, reduce the backlog of court/​tribunal • Assist in management of cases (which implies a question about the objectives of case management) • Reduce cost (to parties; court; government; taxpayer) • Are appropriate to the needs of the case/​parties • Are responsive to personal as well as business needs • Produce fair, equitable outcomes in all the circumstances • Achieve party satisfaction • Produce enduring agreements • Preserve ongoing relationships between the disputants • Protect the interests of vulnerable third parties • Preserve and, if possible, increase party respect for and confidence in the justice system • Encourage the parties to use alternative methods in the future • Encourage parties to use ADR earlier, including pre-​filing • Achieve moral education/​transformation • Educate/​encourage/​respond to needs of legal profession • Change the legal culture. [6]‌It is important to be aware that mediation may be but one method in a range of different dispute resolution options available at a court or tribunal and the objectives may refer to a number of different ADR mechanisms. Accordingly it will be inappropriate to consider the objectives of mediation alone without locating them in relation to other dispute resolution options, where they are available.



Perceptions of Procedural Justice and Legitimacy [4.365]  J Howieson, “Perceptions of Procedural Justice and Legitimacy in Local Court Mediation” (2002) 9(2) Murdoch University Electronic Journal of Law, paras 17-​23. III. Objectives for Court Mediation: Justice, Satisfaction and Legitimacy [17] Although there are a myriad of issues surrounding court connected mediation, one issue is fundamental. Civil courts need to be very clear about their objectives for mediation. In her recent issues paper on court connected mediation in Australia, Hilary Astor identifies that the objectives of producing fair and just outcomes and procedures, achieving party satisfaction and “preserv[ing] … party respect for and confidence in the justice system” are significant for any court connected mediation program. Astor then suggests that there is need for theoretical development in this area and for empirical research aimed at evaluating these objectives. Justice and Fairness [18] Interestingly, socio-​legal theorists have made great advances into the theory associated with what determines the fairness and justice of dispute resolution procedures, disputants’ satisfaction with dispute resolution procedures, and the public’s perceptions of the legitimacy of the justice system. Social psychologists, who are interested in how people arrive at their evaluations of fairness, have found that in dispute resolution procedures, what disputants consider to be fair and just depends on their subjective (individual and personal) perceptions of the procedure and outcome, not on any objective benefits such as time or cost savings. In turn, they have found that if disputants’ subjective evaluations of justice are not met, this leads to feelings of dissatisfaction with the legal dispute resolution experience and with the justice system in general. 180 [4.365]

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Perceptions of Procedural Justice and Legitimacy cont. [19] Further, they have identified that it is procedural justice (the perception that the procedure is fair) that is the most important factor in shaping people’s overall perceptions of fairness, and in determining disputants’ satisfaction with legal dispute resolution procedures (including mediation). The psycho-​social theorists also believe that procedural justice is the primary factor associated with the public’s perceptions of the legitimacy of the justice system. Legal theorists also agree that procedural justice is a necessary component of any legal system, and is the cornerstone for the legitimacy of legal systems. However, for legal theorists the focus is on procedural fairness or objective procedural justice, defined as “the capacity of a procedure to conform to normative standards of justice”. [20] Thus whilst the psycho-​social theorists are interested in peoples’ personal thoughts and evaluations of what is a fair procedure, the legal theorists are interested in what the external objective norms and standards for a fair and just procedure are. Procedural Fairness [21] Procedural fairness is the legal notion that if the primary legal procedural safeguards are in place then the procedure must be fair, regardless of whether one actually thinks it is fair. These objective safeguards are the right to be given a hearing, the opportunity to present one’s case, the right to have a decision made by a disinterested decision maker and the right to have that decision based on logically probative evidence. [22] Procedural fairness also requires a correct application of the law to the facts, namely an adherence to the principle of precedent, and an opportunity to have the case reviewed if this does not occur. Moreover, procedural fairness requires the protection of “the worth and dignity of persons whose legal entitlement and obligations are subject to determination by the state”. Legal theorists argue that it is this type of objective procedural structure (and objective distributive justice, or substantive justice –​namely an apportionment of outcomes based on objective standards) that is necessary to the fair and legitimate functioning of legal authority. For instance Weber argues that the law must hold to these types of “objective” standards or “disciplining rules” in order to secure justice and legitimacy. That is, if one is given a hearing conducted according to disciplining rules such as the rules of evidence and of civil procedure then legally and objectively this constitutes a “fair” procedure and in turn secures the legitimacy of the justice system enacting the procedure. However, legal theory is fraught with the difficulty of trying to establish recognizable and objective universal standards of fairness. Even so, the legal theories of procedural fairness still only emphasize the objective aspects of the fairness of procedures; they do not encompass procedural justice, or the degree to which disputants perceive that the procedure is fair. [23] It may be that clues to universal objective standards of justice may be found in peoples’ subjective perceptions of procedural justice rather than in any objective criteria. More importantly, procedural justice is more salient in mediation, where there is no hearing, no decision-​maker and no application of the law to the facts. In mediation, therefore, it is likely to be procedural justice that will determine if the mediation is fair, satisfying and legitimate to disputants.

 Challenges of court-​connected mediation [4.370]  Rundle conducted research into lawyers who participated in court-​connected medi-

ations in the Supreme Court of Tasmania. She found that lawyers tended to emphasise settlement in accordance with the law as the main purpose of a court-​connected mediation. In the extract below, she discusses some of the challenges for mediation when it is connected with a court system, particularly in relation to what is an appropriate outcome of a court-​connected mediation. [4.370]  181

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What Is Court-​connected Mediation for? [4.375] O Rundle, “Lawyers’ Perspectives on ‘What Is Court-​connected Mediation for?’ ” (2013) 20(1) International Journal of the Legal Profession 33 at 35-​37. The tensions that arise when mediation occurs in connection with the formal civil justice system have been referred to as the “dilemma of court-​connection” (Della Noce et al, 2002-​2003). Essentially, the role of courts in relation to civil disputes is to resolve disputes and apply the law. Courts usually rely on procedural fairness, consistency of outcomes and results that accord with legal principles to fulfil this role (Senft & Savage, 2003-​2004). Court-​connected mediation raises some questions, including whether courts should require that mediated outcomes comply [36] with those that would be likely to be awarded by a court. The tension here is between the formal legal system’s obligation to apply the rule of law and doctrine of precedent and the reality that in negotiations (within or outside of the courts), disputants are free to depart from legal norms (Eisenberg, 1976). Court-​connected mediation falls between the two extremes of formal, court-​monitored courtroom processes and informal negotiation, which occurs often between lawyers and outside the court’s gaze. It is therefore unclear what degree of scrutiny the courts ought to impose on court-​sanctioned but private processes such as court-​connected mediation. The dilemma of court-​connection is demonstrated by some questions. If parties are forced to participate in mediation and then agree to outcomes that depart from legal norms, has the civil justice system failed to apply the law to their dispute? Are parties obliged to consent to outcomes that a court would have been able or likely to award in their case? How should the rule of law and court-​connected mediation interact (Sternlight, 2006-​2007; Alberstein, 2011)? A party may agree to an outcome with or without reference to the legal view of an “appropriate” outcome, under undue pressure or because the settlement was acceptable to them (Menkel-​Meadow, 1996). This makes it extremely difficult for accurate assessment to be made of the appropriateness of an outcome to a disputant … All disputants should have knowledge of the legal assessment of their dispute prior to settlement in order for their agreement to be truly consensual (Nolan-​Haley, 1996). Provided that disputants have a legal assessment of their case and are therefore informed of the legal rules, remedies, rights and responsibilities that apply to it, it may be concluded that the courts’ obligations to apply the law have been met. This is one way to resolve the tension of a consensual process being connected to the formal justice system. If disputants reach decisions with an understanding of their legal case, they may agree to terms that accord with their individual preferences. This solution might be seen to balance the preservation of features such as consensuality, responsiveness and privacy in mediation and the proper role of legal standards in court-​sponsored processes. This solution relies upon the playing of an important role by lawyers –​the legal experts who are hired to advise their clients about their legal rights and responsibilities. Effectively, the provision of sound legal advice might be viewed in the court-​connected mediation context as not only part of the lawyers’ duty to the client but also part of the lawyers’ duties as an officer of the [37] court –​to ensure that litigants are appraised of the law that applies to their case and the legal view of their problem, prior to its consensual resolution. Where parties are represented by a lawyer, there may be no need for a legal analysis of the dispute to be undertaken within the mediation process itself because a legal appraisal is an expected part of the lawyer–​client interaction. This leaves the possible goals and style of mediation within the litigation context relatively unfettered. Despite the institutional preoccupation with efficiency and an opportunity to reach an agreed outcome, and provided that the parties understand the legal assessment of their case, other goals of mediation could be pursued within a court-​connected programme. Perhaps the only restriction is that settlement (as distinct from healing or transformation) is always present as a goal in a litigated dispute, whether on its own or in combination with other goals. Despite the tensions that may arise in the court-​connected setting, in the absence of legislative or programme-​specific requirements, there is no reason why court-​connected mediation could not embrace any or a combination of the multiple goals of mediation. However, court-​connected mediation tends to have a limited, legal focus on the resolution of the dispute as defined in the litigation process, rather than broader aims being pursued (Relis, 2009; Riskin & Welsh, 2008; Welsh & Coleman, 2002).

 182 [4.375]

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Hybrid mediation processes in court-​connected context [4.380]  Mediation, in many court-​connected contexts, has been combined with other dispute

resolution processes to create a kind of hybrid process. The most common hybrid process is a combination of mediation and arbitration. This hybrid form can vary according to which process is used first, and whether the same independent third party can facilitate both processes in the same case. These different models and some of the challenges associated with them, are discussed in the following extract.

QCAT’s Hybrid Hearing [4.385]  B Wolski, “QCAT’s Hybrid Hearing: The Best of Both Worlds or Compromised Mediation?” (2013) 22 Journal of Judicial Administration 154 at 158-​163. Hybrid Dispute Resolution Processes: Lessons Learned Med-​arb  models There is nothing new about the creation of hybrid dispute resolution processes. Almost 30 years ago, commentators such as Goldberg, Green and Sander were writing about “primary” processes (such as unassisted negotiation, mediation and adjudication) and “hybrid” processes which are created by combining some of their elements. In theory, hybridisation allows one to create a process which amalgamates the best elements of a number of primary processes while overcoming some of their shortcomings when used in isolation. Used alone, each dispute resolution process has potential weaknesses as well as potential strengths. Mediation (and unassisted negotiation) offers the parties an opportunity to create solutions which advance shared interests and creatively reconcile divergent ones. It leaves maximum control over the outcome in the hands of the parties. The outcomes of mediation are thought to be more psychologically binding on the parties than those which are imposed on them, and thus more likely to be complied with. This is a good thing since mediated settlement outcomes are rarely automatically binding and enforceable. They may be enforced as a contract where the agreement reached involves the formation of legal rights and obligations and complies in all respects with the relevant law of contract (and any additional requirements imposed with respect to particular categories of contract). In some circumstances, the agreement may be made the subject of a court consent order or decree (in which case the decree has the effect of a court decision and is enforceable as any other order or decree of the court within which it is registered). In some jurisdictions this option is only available where litigation has already been commenced. But first and foremost, the most obvious disadvantage of mediation is that there is no guarantee that the parties will reach an agreement. While the parties might be compelled to attend mediation, they cannot be compelled to reach an agreement and they are free to walk away with their other dispute resolution options intact. For this reason, mediation alone can be inefficient. If one or both of the parties wants to pursue the dispute, fresh proceedings are required. Many tasks (and the supporting infrastructure) are duplicated at additional costs to the parties and to society. Arbitration and litigation have the benefit of producing a determinative outcome every time, but they are usually binary win/​lose outcomes which do not address the parties’ underlying needs or interests. The costs associated with these processes can be substantially higher than those of [159] interests-​based processes such as mediation (where costs are measured in terms of transaction costs, parties’ satisfaction with the procedures and outcomes, long-​term effect on the parties’ relationship and recurrence of disputes). In practice, it is rare for the parties to a dispute to resort to a single resolution process. Even in the days before courts and tribunals institutionalised ADR, parties commonly used at least two processes either simultaneously or sequentially with the negotiation-​litigation-​negotiation combination being so common that Galanter coined the phrase “litigotiation” to describe it. However, the ad hoc use of a combination of processes does not harness the strengths (and overcome the weaknesses) of particular [4.385]  183

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QCAT’s Hybrid Hearing cont. processes. In 1988, Ury, Brett and Goldberg popularised the practice of dispute systems design in which a set or series of processes is systematically and proactively used for dispute resolution. A system provides a series of safety nets –​if one process fails to resolve a dispute, another one is waiting. Ury, Brett and Goldberg reasoned that the costs of dispute resolution could be reduced through the design and implementation of interests-​oriented systems, ie systems which focused on interests-​based processes such as mediation but which also provided low-​cost ways of resolving disputes should interests-​based procedures fail. One of the most common systems comprises mediation, followed by arbitration. When the two processes are connected, rather than being left to operate independently, the hybrid known as “med-​arb” is formed. Med-​arb is one of the more common hybrids discussed in the literature. It is formed by combining elements of mediation and arbitration. The parties first attempt to resolve their dispute by agreement in mediation. If they are unable to reach an agreement, the third party makes a decision in relation to any outstanding issues. Med-​arb gives the parties an opportunity to fashion their own mutually acceptable solutions which address their needs or interests, with arbitration serving as a rights-​based backup which guarantees a decision on any unresolved issues. Most systems are implemented by use of contractual dispute resolution clauses or agreements. The parties can agree ahead of time that the third parties’ determination is binding on them and that it comprises any agreements reached in mediation and decisions from the arbitration. One of the strategic benefits sometimes cited for use of med-​arb is that the parties cannot “unilaterally or jointly terminate the mediation. If they do so the process will revert to arbitration”. The med-​arb combination has predominated because it emphasises the potentially non-​adversarial and more cost-​effective interests-​oriented mediation process while giving arbitrators the flexibility to deal with only those issues which the parties could not settle themselves, ie it “keeps the determination of rights to a minimum”. Two different models of med-​arb have emerged over time. In what has become known as “med-​ arb (same)”, the same third party first acts as a mediator and then, if agreement on all issues is not reached, makes a decision on outstanding issues. The mediator/​arbitrator is usually given the [160] authority to determine when the transition from mediation to arbitration will occur. However, as will be discussed in more detail later, a variant on this model is now emerging wherein the parties are given the opportunity to decide whether or not they want to commence (or resume) arbitration with the mediator acting as the arbitrator, ie using the same third party. This is the model adopted by QCAT in its ADR-​hearing pathway. The problems inherent in med-​arb (same) are well catalogued in the literature. They are sometimes categorised as behavioural problems and due process (or natural justice) concerns. When the same third party performs the roles of mediator and arbitrator, the following behavioural problems may be encountered: • If the mediator holds separate sessions with the parties, they might hold back information which could be useful in fashioning an integrative negotiated outcome. They might be reluctant to disclose information for fear that it will harm them in a subsequent arbitration. • Alternatively, the parties may waste the opportunities provided by separate sessions by treating the session as an early trial run of the hearing –​putting their “spin” on events to the would-​be arbitrator, rather than discussing previously undisclosed interests and exploring options for settlement. • Parties may feel unduly pressured to settle and to accept particular terms suggested by the mediator (such suggestions might foreshadow, or at least be perceived to foreshadow, the outcome of an arbitration). As a consequence, any agreement reached might feel more like an imposed outcome. Med-​arb (same) might also involve breach of those precepts of procedural fairness or natural justice which require that decision-​makers are unbiased and that the parties know and have an opportunity to respond to the case against them. The additional risks of med-​arb (same) are that: • A party might reveal information in a separate session which has some bearing on the arbitration. Information which is revealed in a separate session is usually confidential. The other party may not know that the information was revealed and consequently, will not respond to it in the arbitration. 184 [4.385]

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QCAT’s Hybrid Hearing cont. • The parties might divulge information in separate sessions which should have no bearing on the arbitrator’s decision but which, nonetheless, the would-​be arbitrator may find difficult to ignore and which may cause him or her to become biased or, at least, to be perceived as biased. Some commentators claim that the very fact of holding separate sessions creates an appearance of bias. It is difficult to avoid at least the perception of arbitrator bias in med-​arb (same). There is a risk that anything said by a mediator will give the “impression of bias in a subsequent arbitration”. [161] The problems with med-​arb (same) might be addressed by: 1.

Not holding separate meetings. The trade-​off is that the absence of separate meetings may “compromise the mediation process”. Bartel observes that the elimination of separate sessions or caucuses during the mediation phase “may do more harm than good. The private caucus is often an important aspect of the mediation process because it allows the third-​party neutral to explore options with each party separately and to provide a reality check for parties with unrealistic expectations”.

2.

Having a different third party, one who has no access to the information gathered during the mediation, undertake the arbitration function. This variation has given rise to the process known as “med-​arb (diff)”. The obvious disadvantage of this approach is that there is a need to educate two parties where the matter does not settle in mediation. It is more costly and less efficient than med-​arb (same).

3.

Requiring the parties to give explicit consent, once the mediation has been concluded, to the mediator becoming the arbitrator. However, consent is meaningless unless the parties are fully informed. Unless the mediator discloses everything said in separate sessions (a move which would itself destroy much of the benefit to be gained from separate sessions), it is difficult to see how the parties can be in a position to give fully informed consent.

4.

Reversing the sequence from med-​arb to arb-​med. Arb-​med developed at least in part to address the concerns associated with med-​arb (same).

Arb-​med (and arb-​med-​arb) A process of arb-​med begins as arbitration but at some point, usually after the tribunal has been convened, the parties attempt to settle the dispute through mediation. The arbitration and mediation phases may be undertaken by two persons. Alternatively, one person may perform both functions. As with med-​arb, it is more efficient to use the same third party who is given the opportunity to have the fullest possible knowledge of relevant issues in dispute and of the parties. Recently there has been a surge of interest in arb-​med, which cannot be fully explained by the desire to avoid the pitfalls of med-​arb. Arb-​med brings with it, its own set of problems. It runs counter to the most fundamental tenet of dispute systems design, which is to use interests-​based procedures (such as mediation) first, with low-​cost ways of determining rights (such as arbitration) serving as a back-​up should interests-​based procedures fail. There are at least two reasons for the increasing interest in arb-​med. First, arb-​med is popular in some domestic legal systems, such as that of Mainland China, where it is culturally accepted and expected that the arbitrator will actively encourage settlement during the course of the arbitration. The position in Australia is examined in more detail shortly. Second, in a growing number of jurisdictions, by virtue of legislative intervention and institutional rules, an agreement produced as a result of arb-​med can be recorded as a consent arbitral award. It can then be enforced as any other [162] arbitral award. There is a comprehensive framework of multilateral and bilateral conventions and treaties that guarantee the recognition and enforcement of arbitral awards, regardless of their place of origin, in most of the major trading nations of the world. Arb-​med has a relatively long history in Australia in that provision is made for it in s 27 of the Uniform Commercial Arbitration Acts. Where this legislation is still in force (eg in Queensland), this section allows parties to an arbitration agreement to authorise the arbitrator to act in a mediator capacity with a view to settling a dispute whether before or after proceeding to arbitration. With [4.385]  185

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QCAT’s Hybrid Hearing cont. the consent of the parties, the arbitrator/​mediator can hold separate sessions (in essence, parties are allowed to contract out of natural justice requirements). Apparently the provision has been little used. New legislation dealing with commercial arbitration has recently been introduced in most jurisdictions in Australia in an effort to bring domestic and international arbitration legislation in line with the UNCITRAL Model Law on International Commercial Arbitration. Although it is not in the Model Law, s 27 has been retained from the previous legislation albeit in amended form. The first jurisdiction to pass new arbitration legislation was New South Wales with the Commercial Arbitration Act 2010 (NSW). The relevant section (s 27D) provides that the parties must consent at the outset in their arbitration agreement to the arbitrator acting as a mediator. They must also give written consent again, after the mediation has terminated, to the mediator-​arbitrator proceeding to arbitrate. Additionally, before taking any further steps in the proceeding, the arbitrator must disclose to the parties any confidential information learned during the mediation which the arbitrator considers material to the arbitration. This gives the parties the opportunity to opt out of the arrangement if they have concerns about the same person serving as arbitrator after a failed mediation. The reason for these elaborate consent and opt-​out provisions is this: although this process begins as an arbitration (the parties have to agree to submit their dispute to arbitration in order to access the system), if mediation takes place before the arbitration hearing has been completed (or even commenced), the process essentially reverts to med-​arb or, to be very precise, it becomes arb-​med-​ arb and all of the behavioural problems and due process concerns attached to med-​arb (same) re-​surface. Arguably, these concerns are not addressed by the consent provisions of s 27D. These provisions have already drawn criticism. Aside from the fact that it puts the mediator-​arbitrator into the difficult position of having to determine whether or not something said in mediation is “material” to the arbitration, it may make substantial inroads into the confidentiality of things said in separate sessions. These problems might be overcome if the mediation was deferred until after the arbitration hearing was completed. But there still needs to be a connection between the two processes. It has been [163] suggested that the arbitrator might make an award following the arbitration hearing, seal it and keep it confidential pending mediation. If the parties are unable to reach agreement on all issues in mediation, the envelope can be opened and the decision revealed and made binding. This process is also, of course, coercive in some measure. There is a certain amount of fear of the alternative (a win/​lose outcome) sitting close at hand (in an envelope). Bartel succinctly captured the essence of this process and its coercive factor in noting that mediation is performed after the arbitration hearing but before the announcement of the award “when the parties are still under the ‘gentle threat to settle produced by the [as yet] unknown award’ ”. Aside from the coercive nature of the process, the following are potential problems with this model of arb-​med, ie where mediation is held very late in the process: • Substantial costs may already have been incurred. (This model does little to reduce costs if the arbitration has been protracted and complicated but it might hold potential when the issues in dispute are “simple” and/​or the amount involved is not substantial and the hearing can be expedited and simplified.) • The parties’ positions and views may become fixed and polarised as a result of the arbitration hearing. • The opportunity to change the nature of information exchanged, from rights-​based arguments about past events in arbitration, to a discussion about interests and creative solutions in mediation, might be lost or reduced. Although the first phase in QCAT’s hybrid hearing is litigation, not arbitration, it is essentially a replica of this model of arb-​med. It is discussed in more detail next.

 186 [4.385]

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[4.390] Wolski goes on to explain and critique the new hybrid hearing process in the

Queensland Civil and Administrative Tribunal (QCAT) in the following extract. The process is particularly interesting as mediation follows the hearing, rather than precedes it (the opposite of the more commonly used form of med-​arb).

QCAT’s Hybrid Hearing [4.395]  B Wolski, “QCAT’s Hybrid Hearing: The Best of Both Worlds or Compromised Mediation?” (2013) 22 Journal of Judicial Administration 154 at 155-​167. The ADR-​hearing Pathway Until recently, QCAT referred almost all of its proceedings to mediation or to a compulsory conference. A referral (or in the case of a conference, a direction) can be made with or without the consent of the parties. The two processes are explored in more detail below. Mediation According to the legislation which established QCAT, the purpose of mediation is to promote the settlement of the dispute the subject of the proceeding. Mediators are free to conduct mediation as they see fit (as long as they do so in a way which complies with the rules). Significantly, since mediation is not a judicial proceeding, mediators are at liberty to see the parties separately. If an agreement is reached at mediation, the mediator may make orders necessary to give effect to it where the mediator is a member, an adjudicator or the principal registrar; or, in other cases, the mediator may have the parties sign written terms of agreement which are filed with the registry so that the tribunal can make the necessary orders. If a dispute is not resolved at mediation, the mediator [156] “must help the parties to identify any issues about which they agree and disagree”. With the agreement of the parties, the mediator may prepare and file an agreed list of issues in dispute as well as an agreed list of issues not in dispute. These lists can be admitted into evidence and used to expedite the subsequent hearing. If an agreement is not reached during mediation, the matter is listed for hearing on a later date. Where mediation has been conducted by a member or an adjudicator, that person cannot constitute the tribunal “unless all the parties to the proceedings agree otherwise”. This provision has been designed to circumvent a number of due process concerns and behavioural problems which arise when a mediator who has seen the parties separately later becomes the adjudicator. Compulsory conferences Compulsory conferences serve a range of purposes including: promotion of settlement of the dispute; and, if settlement is not reached, identification and clarification of the issues in dispute. A conference is not to be confused with mediation –​while the person conducting the conference is entitled to do so in a way that he or she decides (providing it complies with the Queensland Civil and Administrative Tribunal Act 2009 (Qld), any enabling Act and the rules), a conference is treated in many respects as though it was a proceeding before the tribunal. The person presiding over the conference must “observe the rules of natural justice” and is bound by the practices and procedures applying to courts of record to the same extent as the tribunal. If settlement is reached at the conference, the person presiding over it may record the terms of settlement and make the orders necessary to give effect to the agreement. If the proceeding is not settled at a conference, orders and directions are made for the further conduct of the proceeding. The usual practice is for the proceeding to be listed for hearing on a later date. With the agreement of the parties, the person presiding at the compulsory conference may complete and file with the tribunal, an agreed list of issues in dispute as well as an agreed list of issues not in dispute, which documents will be admitted into evidence and used for the purpose of the hearing. The tribunal may be constituted by the same person who conducted the conference although the parties can object (if an objection is made, that person must not constitute the tribunal) or the conference person may disqualify himself or herself whether or not an objection is filed. [157] [4.395]  187

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QCAT’s Hybrid Hearing cont. The Hybrid Hearing Pathway According to QCAT, “in some proceedings when parties do not reach an agreement during ADR, it is not practical or efficient to list the proceeding for hearing on a later date”. To address this problem, QCAT has developed a process described as a hybrid hearing. The steps involved in the process are as follows: 1.

The parties attend a hearing, followed by mediation, on the same day. In fact, a period of some four hours is available to conduct the combined process.

2.

The hearing proceeds in the normal manner except that the Member reserves his or her decision at the end of the hearing and adjourns the matter.

3.

The Member then retires and, in private, writes a proposed decision and brief reasons for it. The proposed decision and the reasons are placed in an envelope and sealed. The parties are not to be informed of the decision or the reasons for it.

4.

The Member then proceeds to mediate the matter. He or she is not permitted to hold separate sessions with the parties.

5.

If the parties are able to reach an agreement in mediation, the Member records the terms of settlement and makes orders necessary to give it effect. The sealed envelope is destroyed and the parties are none the wiser for what was in it.

6.

If the parties are unable to reach agreement in mediation, the envelope is opened and a decision is made by reading the proposed decision and reasons into the record. The document containing the proposed decision and reasons is destroyed. Orders are then made to give effect to the decision.

The critical features of this process (apart from the obvious fact that mediation follows the hearing, rather than precedes it) are that: both the adjudicative and mediatory functions are performed by the same person; the adjudicator/​mediator cannot see the parties separately; and mediation is timed to take place when the hearing has been completed but before a decision is handed down or made known to the parties. QCAT has given examples of the types of matters destined for determination by way of a hybrid hearing. They include (but are not limited to): “ ‘one issue’ disputes, animal management cases or where parties have travelled a long distance to attend QCAT”. QCAT has not referred to the process as “hearing-​med”, but rather as a “hybrid hearing”, perhaps to give the impression that the hearing has been enriched at no cost to the mediation. The process is essentially one of “arb-​med” except that litigation is inserted in place of arbitration and the agreement of the parties is not required. As the discussion below illustrates, the process chosen by QCAT is not novel. A number of hybrids which combine elements of mediation and adjudication have been identified and discussed in the literature. ... [163] Evaluation of QCAT’s Hybrid Hearing The rationale for its creation Many of the arb-​med systems in operation today were created to open mediation windows in arbitration proceedings and to allow a mediated settlement agreement to be enforced as a consent arbitral award. QCAT has not created its hybrid hearing for either of these reasons. It was not necessary to open a mediation window –​one already exists. Nor was it necessary to take measures to overcome problems with recognition and enforcement of settlement agreements. Agreements reached in mediation and in compulsory conferences in QCAT proceedings can be formalised and enforced as orders of the tribunal. Nor was the hybrid hearing created to overcome the behavioural and procedural fairness concerns usually associated with med-​arb (same) for, in QCAT proceedings, a mediator cannot constitute the tribunal “unless all the parties to the proceedings agree otherwise” and the parties can object to the same person conducting both the conference and the hearing in the case of a compulsory conference. 188 [4.395]

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QCAT’s Hybrid Hearing cont. QCAT has explained why it introduced the hybrid hearing but the reasons given are less than compelling; in fact, the reasoning appears to be flawed. As a preliminary point, it must be said that the criteria for selecting cases for a hybrid hearing are fairly blunt. The relevant Practice Direction applies if QCAT or the Principal Registrar decides that it is appropriate that a proceeding be listed for a hybrid hearing. It is not envisaged that this process will be suitable for all cases. The intent is to use this process where “it is not practical or efficient to list the proceeding for hearing on a later date” following unsuccessful ADR. The Practice Direction [164] gives examples of proceedings where this might be the case. As mentioned earlier, they include (but are not limited to): “ ‘one issue’ disputes, animal management cases or where parties have travelled a long distance to attend QCAT”. A cynic might point out that mediation is often considered to be more appropriate and effective when there are multiple interactive issues and the parties have differing priorities on which they can trade or compromise. Single issue disputes do not often lend themselves to integrative solutions. A cynic would also query whether the hybrid hearing has been established for the convenience of the parties or for that of QCAT. From the Practice Direction, it appears that the hybrid hearing has been introduced, at least in part, to save those parties who have to travel a long distance from having to attend at QCAT on two separate occasions (once for mediation or a compulsory conference and again, at a later date, for a hearing). This is puzzling. A hybrid hearing is not needed to save the parties this inconvenience. The more efficient option is to conduct the mediation (or the conference) first entirely by telephone so that the parties do not have to attend QCAT at all unless the matter proceeds to hearing. Telephone mediations and conferences are not new to QCAT. QCAT Practice Direction No 4 of 2011 allows for mediation to be conducted in person or by phone or by a combination. This same Practice Direction already allows the tribunal to order that mediation and any subsequent hearing take place on same day. One can see here the problem from QCAT’s perspective: it is not possible to know ahead of time whether a matter will actually proceed to hearing so it will generally be impractical to order both events on the same day. Pre-​hearing telephone mediations seem the best option. Potential benefits of QCAT’s hybrid hearing QCAT’s hybrid hearing is efficient in that the same third party is performing both adjudicative and mediatory functions and has full access to information concerning the matter and some knowledge of the parties. There is no need to bring a second party up to speed. It is also efficient in that, one way or the other, a decision will be made. Also on the plus side, the hearing is not expected to be lengthy or complex. The parties will usually be unrepresented. QCAT might be hoping that by participating in a hearing, the parties will be better able to perceive the strengths and weaknesses of their respective cases and will see mediation as an opportunity to avoid a complete loss, perhaps save face, and possibly even preserve their relationship with the other party. This means that the hybrid hearing is more effective than mediation alone. But is it more effective than mediation (or a compulsory conference) first, followed by a hearing if necessary, which is what the parties to a hybrid hearing must forego? [165] Potential disadvantages of QCAT’s hybrid hearing All of the cases listed for a hybrid hearing will go straight to a hearing without the benefits of ADR first. Had these matters been mediated prior to a hearing, presumably a certain percentage of them would have settled without the need for a hearing. The development of the hybrid hearing seems fundamentally at odds with the object of helping parties to settle disputes without the need for a hearing. Parties to a hybrid hearing are still provided with the opportunity to settle their dispute in mediation but a post-​hearing mediation is a different kind of mediation than they otherwise would have participated in. When mediation takes place before a hearing, mediators are able to hold separate sessions with the parties. This process option is not available to Members who conduct mediation in the hybrid hearing. Arguably these mediators have been “stripped” of “an important tool in the mediation stage”, possibly the most powerful “tool” in the mediator’s “toolbox”. [4.395]  189

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QCAT’s Hybrid Hearing cont. Separate meetings can be used to: control the expression of emotions; redress inappropriate behaviour; acquire a range of information that the parties will not share in joint sessions; provide a safety zone for a party to consider proposals and to offer proposals without fear of commitment or loss of face; and to encourage parties to consider the consequences of particular options, including the consequences of failing to reach agreement. There are other opportunities lost to parties who are sent down the hybrid hearing path (there are a number of reasons why Ury, Brett and Goldberg suggested that interests-​based procedures should be used before resorting to rights-​based processes). The parties lose the opportunity to: 1.

Identify and agree upon disputed and undisputed issues prior to the hearing. It has long been recognised that even an “unsuccessful” mediation might provide some benefits, in particular, by identifying and clarifying the issues in dispute. QCAT makes use of this function of mediation in the ADR-​hearing pathway. The tribunal in a hybrid hearing will not have this preliminary work done for it.

2.

Find some common ground and build upon it. An unsuccessful pre-​hearing mediation might help the parties to identify common ground and begin the process of building trust and empathy between them. The dynamic is reversed with a hybrid hearing. If the parties were not polarized before the hearing, they likely will be after the hearing.

3.

Change the nature of the conversation between them. Mediation offers parties the opportunity to talk about their non-​legal interests and future concerns. In a hearing, the information is funneled (rather than expanded) and the conversation turns to facts, past events, and rights-​ based arguments. Once funnelled, it is less likely that the information will be expanded and the nature of the conversation changed in a subsequent mediation.

The short timeframe between the hearing and mediation presents a problem in itself. The hearing and mediation take place virtually back-​to-​back (in a period of about four hours). It will be difficult for all concerned, parties and adjudicator-​mediator to change their mindsets and conversations. Conclusion: Unanswered Questions QCAT’s hybrid hearing may well meet the objectives of quick and economical dispute processing. It remains to be seen whether it will also meet the objectives of “fair” and “just” dispute resolution. The terms “fair” and “just” are used in the sense envisaged in the literature on procedural justice. This literature indicates that parties perceive as fair and just, those processes which offer them “a [166] meaningful opportunity for voice and consideration and assure even-​handed, dignified treatment”. Ultimately, enquiries such as this require more research. Any such research must compare the experiences of parties in the “ADR-​hearing pathway” with those of parties whose matter is dealt with in a hybrid hearing. At the moment, it can fairly be said that QCAT has put the need for practicality and efficiency ahead of the quest to produce outcomes which are more satisfactory to the parties through consensual processes. It is inevitable that fewer disputes will be resolved without the need for a hearing. Parties who are sent down the hybrid hearing path will lose a number of opportunities. They will lose the opportunity to participate in mediation first (and through mediation, to identify issues in dispute, to identify and build on areas of common ground, and to talk about interests instead of, or in addition to, rights). Whether or not these opportunities will still exist in post-​hearing mediation remains to be determined, but the chances that they will have been reduced. The parties will also lose the opportunities which can arise from the use of separate meetings, thought by some commentators to be an indispensable tool in the mediator’s toolbox. These opportunities cannot be recovered in post-​hearing mediation. Thus, the mediation experience for these parties appears to have been compromised. There are some issues concerning the hybrid hearing which have perhaps not yet been considered by QCAT. For example: • What if a party says or does something in mediation which alerts everyone to the existence of a document which was not, but should have been, discovered for the hearing? 190 [4.395]

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QCAT’s Hybrid Hearing cont. • What if information is disclosed during mediation which, had it come to light at the hearing, would have altered the “proposed” decision made by the adjudicator? • What if the parties reach agreement on some issues in the post-​hearing mediation, but not on others? There does not appear to be a provision which allows consolidation of issues agreed at mediation with the tribunal’s decision in relation to other issues. • What if the parties raise issues in mediation which were not raised at the hearing and with regard to which they are unable to agree? How will these issues be dealt with? • Is there any possibility of reopening the hearing in any of these instances (the tribunal has only adjourned the hearing for the mediation to take place)? Can the decision be reconsidered? In some circumstances, a party may apply to have a decision renewed but the relevant sections do not appear to contemplate the circumstances raised here. • What implications might these occurrences have on the confidentiality of mediation? Although this model of arb-​med is not novel, the present author has found nothing in the literature dealing with the question of whether or not separate meetings can take place in the mediation phase after a decision has been made and sealed. Could QCAT have allowed “mediators” in the hybrid hearing to conduct separate sessions with the parties? I think not. Whenever separate sessions are held in the mediation phase of a hybrid process and the same third party undertakes all functions, there is the possibility that one party will believe that the mediator/​arbitrator has learned “some special falsehood in private caucus with the other party” and issues pertaining to natural justice and confidentiality will arise. It is intriguing as to why the proposed decision and reasons in QCAT’s hybrid hearing have to be destroyed, regardless of whether or not an agreement is reached. If an agreement is reached by the [167] parties, then production of the proposed decision and the reasons might be counterproductive and there is, in any event, no need for it. The reason for its destruction when no agreement is reached is not apparent to the present author. Even without separate sessions, might not a party who participates in an unsuccessful mediation wonder if the decision that is read out is exactly the same as the one which was recorded in the sealed envelope? Some commentators suggest that hybrid dispute resolution processes offer a way of “getting the best of both worlds”. These same commentators point out that great care should be taken in selecting and matching disputes and processes. The QCAT hybrid hearing has not captured the best of adjudication and mediation and it appears, on paper at least, that not much care will go into selecting cases. The Practice Direction which introduced the hybrid hearing leads one to assume that all disputes which fall within certain kinds of categories (eg single issue disputes, and those in which the parties may have to attend QCAT on two separate occasions) will be diverted to a hybrid hearing. Hopefully, over time, as experience with the process grows, QCAT will develop a more sophisticated set of criteria for selecting cases which go down this path, for some trade-​offs have been made for the sake of practicality and efficiency. In the meantime, as the push for the development of super-​tribunals continues around Australia, hopefully other jurisdictions can learn from the experiments underway in Queensland.

 Judicial mediation [4.400] Another recent development in court-​connected mediation is the concept of judi-

cial mediation. As courts are embracing different forms of dispute resolution to the standard litigation process, they are also asking judges to take different approaches to case management and intervention. In the extract below ([4.405]), the Honourable Chief Justice Marilyn Warren asks whether the role of judges and courts are changing, and in particular, whether [4.400]  191

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judges should be mediators. She first reviews the early experiments with mediation in the court system and its recent successes in diverting matters from litigation.

Should Judges Be Mediators? [4.405]  Hon M Warren, “Should Judges Be Mediators?” (2010) 21 Australasian Dispute Resolution Journal 77 at 77-​78. In the Victorian County Court, the Building Cases List experimented with the novel idea of sending parties to mediation. Later, Justice Tim Smith, a County Court judge appointed to the Victorian Supreme Court, was put in charge of the Supreme Court Building Cases List. Nothing too threatening or revolutionary there; it took off and expanded exponentially. A critical event in the promotion of mediation in Victoria was the Supreme Court’s “Spring Offensive” in the 1990s. A large number of civil cases were listed in a docket before individual judges. Cases were sent to mediation. The Victorian Bar and the profession proffered services as mediators, mostly free of charge. The settlement rate was dramatic. Mediation became an accepted part of the civil litigation process. Similar experiences occurred in other jurisdictions, mostly a little later. Court rules were introduced and mediation courses were promoted for prospective mediators. The Federal Courts, and some Supreme Courts, proceeded to offer court-​based or court-​annexed mediation services to litigants through registrars, prothonotaries, associate judges, and even judges. This occurred to provide a service, to encourage disinclined litigants to the mediation water trough and to overcome impecunious litigants’ incapacity to pay for mediation. Fast forward to 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. This success has come in spite of some rare complaints from the private sector, of “pressuring”, “over-​ bearance”, “misunderstanding” and general regret at terms of settlement, one of which, in Victoria, resulted in litigation. In this sense, mediation is a bit like hedging; the risks are weighed up and a calculated gamble is taken ... [78] In the Supreme Court, the court-​annexed mediations have been extremely successful. Between 2005 and 2008, masters/​associate judges mediated 205 cases; of these, 145 settled. Evidence of the success of court-​annexed mediation may be found in most of the higher courts of Australia. In 2008, in the Federal Court, 57% of cases referred to mediation were resolved. In the New South Wales Supreme Court in the same year, 59% of cases referred to court-​annexed mediation were resolved. In the Supreme Court of Western Australia, in the year 2007-​2008, there was a settlement rate of 61% (a total of 1,009 trial days saved). Evidence of the ubiquity of court-​annexed ADR may also be found across the Tasman; New Zealand has been running judicial settlement conferences for over 10 years. The courts’ efforts and successes have not gone unnoticed by governments. By 2009, mediation was seen as only one element of the ADR list. Mediation fell away as a descriptor and ADR, sometimes now called “appropriate dispute resolution”, became the catch-​cry of Attorneys-​General. Courts, we were told, would look at doing things differently. There had to be another way. By the time governments made these calls, the courts themselves, through mediation as well as case and judicial management, were left to determine about 3%-​4% of all proceedings initiated. It was this hard rump that Attorneys-​General wanted to tackle; the rest was being dealt with anyway.

 [4.410]  Chief Justice Warren proceeds to explore the pressures on judges to take on a differ-

ent role, a more active one, including case management and judicial mediation. She summarises some of the arguments for and against judicial mediation, and expresses an opinion on how (in a limited manner) judicial mediation might work. 192 [4.405]

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Should Judges Be Mediators? [4.415]  Hon M Warren, “Should Judges Be Mediators?” (2010) 21 Australasian Dispute Resolution Journal 77 at 80-​84. As an inherent component of this [non-​adversarial] type of justice, the role of judges is viewed as active rather than passive: judicial supervision of orders; judicial activity in court; judicial engagement with the community; judicial case management; and judicial mediation. In a joint judicial and academic position, Madame Justice Otis (when a Justice of the Quebec Court of Appeal), together with Dr Eric H Reiter of Concordia University, have strongly supported judicial mediation. They argue that there is a basis for a different approach to the judicial role because there is a “crisis in the authoritative judicial order, as the classical system is proving to be less ideal for, or even ill-​suited to, a growing percentage of disputes brought before it”. They see an opportunity to combine the “legal and moral gravitas” of the judicial role with the “flexibility and adaptability of ADR”. Justice Otis and Dr Reiter regard the consent of the parties and their control of the process, as well as adequate training for mediator judges, as pivotal. They conclude: As the judicial mediation model takes hold and creates a new way of approaching dispute resolution within the formal institutions of justice, new challenges will arise … [they] will require new ways of thinking that go beyond the assumption that adjudication is normative, while other forms of conflict resolution are alternative or exceptional. The goal remains the same: resolution of legal conflicts in a just, complete, and efficient way. Judicial mediation provides another way to achieve this, one that is fully integrated within the formal legal system, but that tempers –​in suitable cases –​its rigidity and formalism. … [81] So, as judges, should we mediate? Justice Debelle has argued in very pragmatic terms that we should. His position can be summarised thus: 1.

Fears as to impartiality at a post-​mediation trial by the same judge are resolved by the judge recusing himself or herself.

2.

Fears as to a negative impact on the integrity and authority of the courts are addressed by the comprehending and understanding that mediation is different from adjudication “and that caucusing is an exception to the rules of natural justice”.

3.

Fears as to the weakening and dilution of the judicial system by branching out to different forms of the judge role fail to recognise that the time has “been reached when judges’ skills should include the capacity to resolve disputes by other means in addition to adversarial litigation as we know it”. [82]

4.

If courts do not “equip themselves with techniques to resolve disputes by means in addition to litigation … there is a risk that courts, not external mediators, will be seen as alternative dispute resolvers”.

5.

Any suggestion that judges involved in mediation are placed at risk of a complaint of coercion is misconceived. The risk is no greater than applies to non-​judge mediators, including retired judges who act as mediators.

6.

Judicial mediation is an appropriate utilisation of scarce judicial resources: “judges are resolvers of disputes and the rule of law is maintained if they arm themselves with techniques to resolve disputes by means other than litigation”.

7.

Judicial mediation saves court time.

8.

Judges will not lack the skills for mediation if they are appropriately trained. In addition, judges are highly skilled at identifying issues.

9.

Judicial mediation has been very successful as demonstrated by the experience of the Federal Court and the Supreme Court of South Australia. [4.415]  193

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Should Judges Be Mediators? cont. In a very significant document, the National Alternative Dispute Resolution Advisory Council (NADRAC), following close and extensive national consultation with interested and affected courts and parties, came down against judicial mediation. NADRAC noted that there is uncertainty as to what actually constitutes judge-​led mediations. They noted the concept may be a judge conducted pre-​settlement conference or a judge conducted mediation. NADRAC raised the following concerns: 1.

Judicial mediation (involving private sessions or caucusing with parties) may be incompatible with the constitutional role of judges exercising federal jurisdiction.

2.

A judge might express an opinion on the likely outcome, possibly inconsistent with the principles of mediation and the role of a judge.

3.

Mediation, reliant upon the imprimatur of a judge, is an inappropriate application of judicial authority:

• The mediation may only succeed because of the judicial imprimatur. • The agreement reached based on the judicial imprimatur may leave a party dissatisfied. • Public confidence in the integrity and impartiality of the court and the judge may be threatened. • Unless specifically trained, the acknowledged judicial skills are less relevant. • Judges risk confusing their roles as judge and mediator. • Judges are likely to need extensive training. • Judges might need to be recused from increasing numbers of hearings. • There are numerous mediation services available in any event from other sources. [83] • Judicial time is expensive and mediation is more cost effectively left to private ADR providers. 4.

Dissatisfaction with judicial conduct of a mediation may reflect negatively upon the judiciary as a whole.

Significantly, NADRAC did not receive any submissions supportive of judicial mediation where the judge responsible for the case also assumed the role of mediator. Chief Justice French, in his submission to NADRAC, whilst acknowledging the benefits of judicial mediation, noted the potential confusion of the role of the judge. The Chief Justice concluded that with the availability of experienced court officers and private mediators, the need for judicial mediation was questionable. The Victorian Bar put its position to NADRAC very directly: Judges are appointed to judge, and not to negotiate or take part in commercial negotiations between commercial parties. Judges are appointed not for their mediation skills, but for their judicial abilities. Ultimately, NADRAC adopted the analysis of Justice Hayne as to the purpose of courts in our democratic system. NADRAC also agreed with the statement of Chief Justice French when considering the concept of the multi-​door courthouse: [I]‌t is in the public interest that the constitutional function of the judiciary is not compromised in fact or [as] a matter of perception by blurring its boundaries with non-​judicial services. NADRAC recommended in its report that, save for exceptional circumstances, judges should not mediate and, if they do so, they should not hear the case. Any judge who mediates should be accredited. Essentially, NADRAC’s position was based on four reasons: first, the fundamental function of courts is to resolve disputes according to the law; secondly, the constitutional uncertainty of judicial mediation; thirdly, the incompatibility of judicial involvement in the private sessions which are a hallmark of mediation; and, fourthly, reservations as to the purported success of judicial mediation elsewhere. 194 [4.415]

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Should Judges Be Mediators? cont. However, NADRAC supported judicial mediation where it involved a facilitative role through active case management. Drawing back to reflect upon the primary arguments in favour of judges mediating, they appear to consist of three points. First, the gravitas of a judge heightens the likelihood of settlement in difficult proceedings. Insofar as we are talking about 3%-​4% of the proceedings initiated, they need a special element to facilitate settlement should settlement be possible. In the Victorian Supreme Court, by the time proceedings fall within the category of the remaining 3%-​4% of matters, they will have been the subject of at least one round of (usually private) mediation, through the Bar or the profession, and ongoing docket management at varying levels either by an associate judge or a judge. Generally, this experience is consistent across most jurisdictions. This argument contemplates that until parties sit opposite the individual who carries the mantle of judicial office, and the judicial scalpel is applied to the individual’s case, settlement is unlikely to occur. Secondly, from a political and pragmatic perspective, if judges do not heed the catchcries of governments and fail to engage sufficiently in ADR, including mediations, courts risk being marginalised and essentially becoming appellate and supervisory institutions insofar as civil litigation is concerned. Supreme Courts may find themselves predominantly hearing criminal trials and appeals. Governments will legislate to limit citizens’ ability to take their disputes to courts in favour of tribunal systems at the lower level of justice. [84] Thirdly, mediations provide an opportunity to expand and develop the judicial role to the mutual benefit of judges and the community. For some, acceptance of judicial appointment provides an opportunity to perform the pure judicial role of deciding cases. For some, it may even involve an escape from mediations. For these judges, the last function they wish to perform is that of mediator once again; it would not feel very different from what they had previously been doing at the Bar or in practice. On the other hand, hearing and determining cases –​in particular writing judgments –​is constant and wearing. The opportunity to use ADR skills, in particular mediation skills, at least some of the time, would provide variety in the judicial life. Whilst there are a range of reasons proffered why judges should mediate, these three seem to lie at the heart of the discussion. The primary arguments against judges acting as mediators are also three-​fold. First, mediation involves an abuse of the judicial function. Judges should judge and avoid engaging in political and administrative pragmatism. Fundamentally, the judicial role is a pure one; it should not be diluted. Furthermore, there is no shortage of highly skilled mediators at the Bars, in practice, and, not to be overlooked, amongst the senior retired judiciary, a group who have been extraordinarily successful in settling some of the most difficult and contentious civil litigation in the country. Secondly, it is improper for judges to engage in closed and private justice by participating in mediations. Judges are intended to conduct their work publicly. They are required to be transparent in what they do and to account for their decisions through their statements in court and their reasons for judgment. If judges participate in mediations behind closed doors, justice is closed and the community is ignorant of judicial activities. Thirdly, participating in mediation involves relocating a precious judicial resource –​judges –​away from trials and appeals. In all jurisdictions there is too much work to do. However, that is not to say judges do not perform quasi ADR tasks repeatedly. When we go onto the Bench in trials and appeals, we persistently scrutinise what is said in court, the documents provided, what is happening and ask the question urged by Justice Hayne: “Why?” Of itself, these are part of the modern judicial technique. Judicial case conferencing (the facilitative form of judicial mediation) provides the proper model. Whilst the law, courts and judges must necessarily be adaptive and evolve, they must do so within the constraints of the common law and statute, as well as legal and constitutional principles. I suggest a better approach to the question posed at the start of this article is the pursuit of direct judicial involvement in ADR other than mediation. For example, judicial case or settlement [4.415]  195

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Should Judges Be Mediators? cont. conferences, judicial early neutral evaluations and summary trials. If judges are to mediate, then great care needs to be taken with the management of the judicial presence. It would be prudent for judges to conduct mediations only with a court officer such as a registrar and a judge’s associate present. It would also be wise to record the proceedings in the mediation. That said, it would be essential in my view for judges only to meet with parties in a mediation whilst their lawyers are present. There are always things judges can do and techniques that may be applied. We should not forget the effectiveness of the pre-​action protocols being rolled out across the country. Ultimately, one thing judges can do is increase the barriers to achieving a trial or appeal hearing, that is, ensure that parties exhaust every possible alternative to a court hearing before they have time before the judge.

 [4.420]  Field expands on the arguments for and against judicial mediation in the following

article.

Judicial Mediation [4.425]  I Field, “Judicial Mediation, the Judicial Process and Ch III of the Constitution” (2011) 22 Australasian Dispute Resolution Journal 72 at 72-​74. At its simplest, judicial mediation refers to a prehearing process in which appointed judges are “assigned the task of mediating as opposed to adjudicating cases before the court”. Judicial mediation does not refer, as may be the case in other jurisdictions, to mediation services provided by former judges in their private capacity. In recent years, various court registries throughout Australia have trialled or implemented judicial mediation, including the Supreme Court of Western Australia, the Supreme Court of South Australia, the District Court of New South Wales and the Federal Court. Judges in the District Court of Western Australia have the capacity to mediate, but do not appear to have done so. Despite the fact that judicial mediation has and does take place in Australia, questions remain as to whether it is an appropriate or constitutionally permissible function for judges to engage in. In 1991, Sir Laurence Street warned that a “court that makes available a judge or a registrar to conduct a true mediation is forsaking a fundamental concept upon which public confidence in the integrity and impartiality of the court system is founded”. Sir Laurence was particularly concerned that private meetings between judges and disputants (a practice which he stated lies at the heart of mediation process) would undermine basic principles of fairness. In a later article, Sir Laurence contended, in more general terms, that mediation: [73] is not an exercise in the administration of justice. It is not subject to any appellate or supervisory authority of the court system. One expects the procedures to be operated fairly, but the principles of natural justice simply have no relevance in a mediation. The process does not involve any decision affecting the rights or interests of any of the disputants. In 2000, Tucker argued that judicial mediation would also be prohibited by Ch III of the Constitution (an argument alluded to, but not expressed, by Sir Laurence). Tucker’s thesis was founded on the proposition that mediation is so fundamentally at odds with the judicial process that it cannot be considered an exercise of judicial power. In particular, and in addition to the difficulties raised by private meetings, Tucker argued that mediation techniques such as “doubt creation” and “reality testing” would be contrary to “acknowledged essential elements of adjudication, notably the requirements of procedural fairness”. On this basis, Tucker concluded, the only way in which a judge could theoretically mediate would be in his or her private capacity; a possibility that would be excluded in any event by the third (public confidence) limb of the incompatibility test set out in Grollo v Palmer. 196 [4.420]

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Judicial Mediation cont. Some of the concerns expressed by Sir Laurence and Tucker have been reaffirmed in a recent report by the National Alternative Dispute Resolution Council (NADRAC), and, more recently still, in an article published in this Journal by Chief Justice Warren. Others, however, including the Council of Chief Justices of Australia and New Zealand, have disputed the view that judicial mediation would undermine public confidence in (or the integrity of) the judiciary, or that mediation is necessarily at odds with the judicial process. Justice Moore, for example, has argued that: At the heart of the judicial function is the resolution of disputes or controversies … That courts function to decide controversies, points, at the most fundamental level, to compatibility rather than incompatibility between the judicial function and other functions or procedures, such as mediation, directed to a similar end. Whether the mediation process can be rationalised with the judicial process is a question considered later in this article. In order to properly frame this question from a constitutional perspective, however, the rules pertaining to the separation of judicial power in Australia must first be clarified. This article builds upon Justice Moore’s suggestion that Ch III courts may exercise certain mediation functions, and demonstrates that non-​judicial functions, such as mediation, may be vested in Ch III courts as functions “incidental to” the exercise of judicial power. In this respect, it is argued, judicial mediation is comparable with other prehearing processes which represent discrete steps, or “incidents”, in the litigation process. While incidental functions are often historically associated with the judicial process, this does not mean that novel functions cannot also be vested in courts. What matters in such instances is whether the function in question is capable of being carried out in [74] accordance with the judicial process and without undermining the institutional integrity of the court(s) in question. The institutional integrity of a court is unlikely to be undermined provided the judicial process is applied. Thus, provided judicial mediation is compatible with the judicial process, it is unlikely to be constitutionally prohibited. The second part of the article demonstrates that, by and large, the essential features of the judicial process apply only during the final hearing, and are therefore unlikely to impede the provision of mediation by judges during prehearing. While it is acknowledged that judicial mediation may, in certain limited scenarios, result in apprehended bias, it is shown that simple strategies can be (and commonly are) employed to minimise this danger. In any event, it is argued, a constitutional challenge to judicial mediation is unlikely to succeed because the provisions implementing judicial mediation do not ordinarily prescribe how judges should, in practice, “mediate”. Before developing these propositions in more depth, two important points should be noted. First, many of the arguments expressed in the existing literature, both for and against judicial mediation, go beyond the strict requirements of Ch III. Even if judicial mediation is broadly compatible with the Constitution, important policy questions remain as to whether –​and if so, to what extent –​judges should in fact mediate. For example, do judges make good mediators? If not, might judicial mediation impact negatively upon the uptake of private mediation services, or alternative dispute resolution (ADR) generally? Even if public confidence is not a measure of constitutional validity, might judicial mediation damage the reputation of the judiciary? Will judicial mediation actually improve qualitative and/​or quantitative justice? While these (and other) questions are not directly addressed in this article, they remain important qualifications to the conclusions reached. Secondly, the constitutional principles of relevance to the development of judicial mediation have been clarified over time. These principles are expounded upon more fully below, but it should be noted from the outset that at least some of the limitations drawn from Ch III will now apply, to some extent, to all Australian courts “capable of exercising the judicial power of the Commonwealth”. Precisely which limitations will apply to which courts remains uncertain, but the key question in all instances will be whether the court in question exhibits “the defining characteristics which mark a court apart from other decision-​making bodies”. It is likely that compliance with these defining characteristics will be enforced more stringently in respect of federal courts than State or Territory courts,

[4.425]  197

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Judicial Mediation cont. but provided judicial mediation is compatible with these defining characteristics, it will not be prohibited by Ch III in any Australian court.

 Guide to Judicial Conduct [4.430]  The 2017 edition of the Guide to Judicial Conduct canvassed some of the arguments

against the practice of judges acting as mediators, but ultimately expressed few reservations over the role.

The Judge as a Mediator [4.431]  The Australasian Institute of Judicial Administration Incorporated, Guide to Judicial Conduct (2017), Chapter  4, 22, https://​aija.org.au/​wp-​content/​uploads/​2017/​12/​GUIDE-​TO-​JUDICIAL-​ CONDUCT-​3rd-​Edition.pdf. The Judge as a Mediator [22] Some judges consider that the role of a mediator is so different from that of a judge that it is undesirable for a serving judge to act as a mediator. The difference lies in the interaction of a mediator with counsel and parties, often in private ie in the absence of opposing counsel or parties, which is seen to be incompatible with the way in which judicial duties should be performed, with the risk that public confidence in the judiciary may thereby be impaired. In some courts precedent or established practice are contrary to a serving judge acting as mediator. Views as to the permissibility of a judge of a federal court, subject to Chapter III of the Constitution, acting as a mediator, are divided. It should also be acknowledged that mediation can take differing forms. In some courts, the Rules of Court with respect to mediation specifically recognise the appointment of a serving judge as a mediator. The success of judicial mediation in those jurisdictions may justify the practice. The statutory obligation of confidentiality binding upon a mediator, and the withdrawal of the judge from the trial or an appeal, if the mediation fails, should enable a qualified judge to act as a mediator without detriment to public expectations of the judiciary.



MANDATORY MEDIATION [4.435]  As demonstrated by the discussion above, many court-​connected mediation programs

are mandatory, in the sense that disputants are required to attend mediation before they can access the court system. This compulsory participation in mediation contradicts what has been seen as a fundamental value of mediation –​the fact that it is a consensual or voluntary process. On this basis, some have argued that the term “mandatory mediation” is an oxymoron. Different forms of consent [4.440]  Mediation can be voluntary in the sense that the parties choose whether or not to

participate in the process, and it can also be voluntary in the sense that parties can choose how they participate during the process, and in particular, whether they choose to make an agreement and on what terms. Hanks reviews the different forms of consent in relation to mediation in the following extract. 198 [4.430]

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Perspectives on Mandatory Mediation [4.445]  M Hanks, “Perspectives on Mandatory Mediation” (2012) 35(3) UNSW Law Journal 929 at 949-​952. As previously noted, mediation is usually referred to as a voluntary process. Thus, the growth of mandatory mediation raises questions about the nature of consent. Jacqueline Nolan-​Haley maintains that there are two forms of consent in mediation: “front-​end participation consent” and “back-​end outcome consent”. A similar distinction is made by Dorcas Quek with regard to coercion “into” and “within” a mediation. Both types of consent have problematic aspects. With respect to “participation consent”, it is arguable that compelling entry into mediation curtails the voluntary nature of the process. On the other hand, Nolan-​Haley suggests that parties who agree voluntarily to mediate often do not have enough information about the process to make an informed decision thus rendering their willingness nugatory. She questions whether the rhetoric of self-​determination and autonomy, which are integral to mediation discourse, are based on a misunderstood notion of consent. It is evident that, particularly in Australia, the legislature and courts are less concerned about revoking participation consent by requiring parties to attend mediation. On the contrary, it is integral to uphold voluntariness within the process by ensuring that settlements are consensual. As such, there is no obligation on mediators to reach an agreement and the parties or mediator are entitled to end the process at any time. In order to avoid any intrusion into the voluntary nature of the mediation process, it seem preferable that mandatory schemes only operate to remove the aspect of voluntariness into the process and that parties retain their freedom within the process.

 [4.450] Where a mediation process is seen as “mandatory” in the sense that parties do not

have complete voluntary choice about whether or not to participate, there are different degrees of compulsion. “Mandatoriness” can in fact be expressed on a continuum between gentle persuasion at one end and mandated referral of all cases, irrespective of circumstance, at the other. Hanks identifies three main types of mandatory mediation: categorical (in which parties are automatically and compulsorily referred to mediation); discretionary (in which judges may refer parties to mediation on a case-​by-​case basis) and quasi-​compulsory (in which parties have a choice not to attend but there may be sanctions if this refusal is unreasonable).

Perspectives on Mandatory Mediation [4.455]  M Hanks, “Perspectives on Mandatory Mediation” (2012) 35(3) UNSW Law Journal 929 at 930-​932. It is also important to delineate what is meant by “mandatory mediation”. Such initiatives can generally be broken into three categories. First, some mandatory mediation schemes provide for the automatic and compulsory referral of certain matters to mediation. Such schemes are generally legislative and often require parties to undertake mediation as a prerequisite to commencing proceedings. The New South Wales farm debt recovery mediation scheme is an example, as is the recently introduced compulsory mediation scheme in Italy. [931] This paper will adopt the terminology used by Professor Frank Sander and refer to this approach as “categorical”. Sander warns against a categorical approach, suggesting that such legislation should always contain an opt-​out provision, allowing parties to argue a case for exemption. Opt out schemes are a variant of the categorical approach but allow parties to opt out either because certain criteria are not met or one or more parties do not consent to mediation. Examples include the family law mediation scheme in Australia and the recently introduced pilot scheme in the English Court of Appeal. A second type of mandatory mediation is often referred to as court-​referred mediation and described by Sander as “discretionary”. It gives judges the power to refer parties to mediation [4.455]  199

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Perspectives on Mandatory Mediation cont. with or without the parties’ consent on a case-​by-​case basis. Such an approach is widely available to courts in Australia. However, it has been slower to take hold in Europe. Third, some mandatory mediation schemes can be described as “quasi-​compulsory”. In these schemes, although alternative dispute resolution (“ADR”) is not mandated, it is effectively compelled through the potential for adverse costs orders if not undertaken prior to commencing proceedings. The English APR and the recently enacted Civil Dispute [932] [932] Resolution Act 2011 (Cth) are examples of such schemes. Both permit costs sanctions against parties who do not reasonably attempt to settle the dispute. Although mediation in such cases is not categorically mandated, the possibility of adverse costs orders is a strong factor in favour of attempting ADR …

 [4.460]  Later in her article, Hanks considers the existence of each of these categories of man-

datory mediation schemes in Australia.

Perspectives on Mandatory Mediation: The Australian Perspective [4.465]  M Hanks, “Perspectives on Mandatory Mediation” (2012) 35(3) UNSW Law Journal 929 at 944-​948. IV The Australian Perspective Australia has had a different experience to England with regard to the introduction of mandatory mediation schemes, notwithstanding their shared legal tradition. For one, Australia is less constrained by external factors. However, the federal system means that the various legislative and court initiatives vary greatly from state to state. Secondly, Australia already has experience of a number of successful mandatory mediation schemes which provides some foundation for further work in this area and is indicative of wider support among the legal [945] profession and judiciary than exists in the European jurisdictions discussed above. As early as 1980, Community Justice Centres were established in NSW as a pilot program to provide voluntary mediation services for certain disputes. The scheme was made permanent in 1983 after a 1982 report indicated promising results. Since that time, the number of organisations offering mediation services has dramatically increased and Australia has been at the forefront of the establishment of mandatory mediation schemes. These range from far-​reaching court powers permitting discretionary referral to meditation to categorical legislative schemes which require mediation as a prerequisite to bringing a court action. Examples of categorical schemes in NSW include the Farm Debt Mediation Act 1994 (NSW), Retail Leases Act 1994 (NSW), Legal Profession Act 2004 (NSW) and Strata Schemes Management Act 1996 (NSW). Victoria has a similar legislative scheme applying to retail tenancy disputes. In Queensland, the Motor Accident Insurance Amendment Act 2000 (Qld) and the Personal Injury Proceedings Amendment Act 2002 (Qld) provide for the categorical referral to mediation of personal injury claims. At a federal level, legislation mandates mediation in family law proceedings except where there are certain factors making mediation unsuitable, in which case parties are permitted to opt out. Courts in Australia have wide discretionary powers to order mediation without the parties’ consent. Legislative provisions empowering the Supreme Court of NSW to order mandatory mediation first appeared in 2000. Supreme Court Practice Notes have reinforced these powers of judges to order unwilling parties to mediate. There has been open judicial support for this initiative, often in the form of court-​annexed mediation where the process is carried out by [946] a court officer and in some cases, a judge. In 2010, former Chief Justice of the Supreme Court of NSW James Spigelman acknowledged that [p]‌eople are reluctant to admit that they might have some weakness in their case and therefore don’t offer to settle or mediate … Whereas if they are forced into it, experience is that reluctant starters often become active participants. 200 [4.460]

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Perspectives on Mandatory Mediation: The Australian Perspective cont. These remarks echo Justice Einstein’s judgment in Idoport Pty Ltd v National Australia Bank Ltd (No 21) and Justice Hamilton’s comments in Remuneration Planning Corporation Pty Ltd v Fitton. Similarly, Bryson J in Browning v Crowley listed a number of reasons why the judiciary should favour mediation including its comparatively low cost, the importance of the relationship between the parties and the “public interest in relatively peaceable resolution of conflicts”. There has also been support for discretionary compulsory referral to ADR by the National Alternative Dispute Resolution Advisory Council (“NADRAC”). In its report, The Resolve to Resolve, NADRAC stated that it supports “a mandatory pre-​action requirement to attempt ADR” in appropriate cases. It encouraged courts to have powers to order mandatory ADR both at the pre-​filing and post-​filing stages but warned against a categorical approach, stressing that the court should retain its discretion in referring a case to ADR. This is because courts are “well placed to identify those types of matters where a pre-​action requirement to use a specific ADR process or processes may be desirable”. It is evident that there are a number of strong public policy factors [947] in favour of discretionary mandatory mediation, particularly if it can reduce the caseload of courts while simultaneously increasing party satisfaction at the outcome of the process. While the courts play an integral role in the resolution of complex disputes and the creation and interpretation of legal precedent, for less complex matters, compelling parties to attempt mediation has the potential of reducing costs, allowing for a wider range of solutions, and maintaining the relationships between the parties. More recently, quasi-​compulsory mediation has been implemented in Australia. In 2009, NADRAC recommended introducing a quasi-​compulsory system at a federal level similar to the CPR in England, allowing costs orders against parties that do not take appropriate steps to resolve their dispute before trial. Notably, it warned against imposing costs orders against a party based on conduct during the ADR process. The ADR Blueprint released by the NSW Attorney General’s Department in the same year expressed similar ideas to NADRAC. It recommended an increased use of ADR by government bodies by including an ADR clause in all appropriate government contracts as has been done in England. It also made recommendations relating to pre-​action protocols including extending s 56 of the Civil Procedure Act 2005 (NSW) to cover pre-​action conduct, developing pre-​action protocols for appropriate types of disputes, and requiring parties to advise the court if they have attempted, or are willing to attempt ADR. The recommendation of pre-​action protocols by both reports has recently come to light with the introduction of legislation in New South Wales and at the federal level. The Commonwealth legislation, which applies to proceedings in the Federal and Federal Magistrates Courts, commenced operation on 1 August [948] 2011. It requires parties to take “genuine steps to resolve a dispute” prior to filing civil proceedings. Genuine steps include “considering whether the dispute could be resolved by a process facilitated by another person, including an alternative dispute resolution process”. The NSW legislation has been postponed pending the outcome of the federal scheme as a result of issues raised by some stakeholders. As enacted, it requires the parties to take “reasonable steps” to resolve the dispute or narrow the issues in dispute. These legislative regimes permit the court to consider the pre-​litigation conduct of parties when making costs orders. While their impact is yet to be seen, it is clear that there remain concerns about pre-​litigation protocols such as the front-​loading of costs and the potential increase of satellite litigation relating to the pre-​filing conduct of parties. Such concerns were raised by NADRAC in The Resolve to Resolve suggesting that there was “still some resistance to ADR amongst members of the legal profession”. This casts doubt on whether there is enough support among the profession to render pre-​filing requirements effective. There will necessarily be a transition period while courts develop principles on what constitutes “genuine” or “reasonable” steps and practitioners adapt to these practices. If embraced, this author is of the view that pre-​action requirements have the potential to reduce the overall rates of civil litigation and at the least, the length and cost of proceedings. Even where a matter is not settled, they encourage parties to clarify the key issues in dispute and make necessary concessions prior to trial. On the other hand, although the prospect of adverse costs orders may encourage parties to mediate, it is hoped that courts will be hesitant in applying these too strictly against litigants, especially [4.465]  201

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Perspectives on Mandatory Mediation: The Australian Perspective cont. unrepresented litigants. It seems more important that courts develop clear guidelines regarding what constitutes “genuine steps” to allow parties to make informed decisions as to the appropriateness of ADR to their case. Despite these concerns, it is evident that there is a greater level of support for mediation in Australia by the judiciary, legislature and legal profession and regardless of whether mandatory schemes are permanent or only temporary expedients, they are a positive step in encouraging more efficient access to civil justice.

 Is forcing parties to mediate effective? [4.470]  Hanks notes that mandatory mediation has been criticised for curtailing voluntar-

iness (as discussed at [4.445]). She also identifies an issue about the effectiveness of forcing parties to mediate.

Perspectives on Mandatory Mediation [4.475]  M Hanks, “Perspectives on Mandatory Mediation” (2012) 35(3) UNSW Law Journal 929 at 950-​951. A second issue surrounding mandatory mediation regards the effectiveness of compelling parties to mediate. Arguments against mandatory mediation often maintain that parties who are forced to mediate are unlikely to approach the process with a positive attitude. For example, the EC’s Green Paper questions “the usefulness of conferring a binding character on [ADR] clauses because it might serve no purpose to oblige someone to participate in an ADR procedure against his will …” On the other hand, there is evidence indicating that parties who are forced to mediate usually participate effectively. In 2000, Spigelman CJ suggested that: There is … a substantial body of opinion –​albeit not unanimous –​that some persons who do not agree to mediation, or who express a reluctance to do so, nevertheless participate in the process often leading to a successful resolution of the dispute. Further, studies demonstrate that where parties are compelled to mediate, there are still comparatively high rates of settlement and the parties benefit from the process. It has also been shown that, if given the choice, disputants will normally choose to opt out of mediation however there are high rates of settlement for both voluntary and mandatory mediation when it is engaged in early on in the process. Some jurisdictions have attempted to address these concerns by regulating the parties’ conduct during mediation. For example, s 27 of the Civil Procedure Act 2005 (NSW) requires parties to participate in court-​ referred mediation in “good faith”. The good faith standard also exists in various North American jurisdictions however it has been criticised for being ambiguous and inappropriate in the mediation context. In Queensland, the Uniform Civil Procedure Rules 1999 (Qld) require the parties to “act reasonably [951] and genuinely” in the mediation. In England, the courts have made adverse costs orders against parties who have “unreasonably” refused to mediate. The English courts have also made it clear that where a party takes an unreasonable position or conducts themselves unreasonably during mediation, they may be liable for costs. While such costs sanctions may be an effective monitoring tool, it nonetheless seems that, in practice, participants get “swept along” by the process, even where entry into it has been compelled.

 [4.480] The last point Hanks makes about good faith or reasonable participation require-

ments in mandatory mediation is discussed in more detail later in this chapter (see [4.565] and following). 202 [4.470]

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Venus, in the following extract, considers some judicial comments about the effectiveness of mediation when participation is compulsory.

Court Directed Compulsory Mediation [4.485]  P Venus, “Court Directed Compulsory Mediation –​Attendance or Participation?” (2004) 15 Australasian Dispute Resolution Journal 29 at 32-​33. Unwilling Parties to a Mediation The court’s power to mandate mediation need not necessarily always lead to willing participants. However, it is now rare that a court will not order mediation in a matter, even in the face of opposition from a party. When making orders for mandatory mediation, the Supreme Court of New South Wales has made a number of comments concerning the effectiveness of mediation, even when the parties are unwilling. These comments suggest the inherent benefits of the mediation process and that once parties are forced to mediate, that participation is more likely than attendance. The views of judges of the Supreme Court of New South Wales about the usefulness of mandatory mediation have changed dramatically in recent years. In Morrow v Chinadotcom Corp [2001] NSWSC 209, Barrett J refused to order a reluctant party to engage in mediation. He did so because he held that if mediation were not engaged upon willingly, the process would be pointless and likely to be a waste of money. Contrast the case later that year of Idoport Pty Limited v National Australia Bank Limited [2001] NSWSC 427. In that case, Einstein J made orders for mediation over opposition. Similarly in Remuneration Planning Corporation Pty Limited v Fitton [2001] NSWSC 1208 in which the court remarked at paragraph 3: A short time ago there was general acceptance of the view … that there was no point in a mediation engaged in by a reluctant party. … However, since the power was conferred upon the Court, there have been a number of instances in which mediations have succeeded, which have been ordered over opposition, or consented to by the parties only where it is plain that the Court will order the mediation in the absence of consent. In Higgins v Higgins [2002] NSWSC 455, Austin J also ordered parties to mediation over opposition. More recently, in Yoseph v Mammo [2002] NSWSC 585 Barrett J ordered a mediation despite the opposition of a party. In doing so, he noted that a significant factor in his decision in Chinadotcom had been that the parties there had been sophisticated commercial parties, unlike those in Yoseph. A party may be unwilling to mediate due to concern about the intentions of the other party. An example can be seen in the case of Singh v Singh [2002] NSWSC 852. In that case, the solicitor for the plaintiff set out the plaintiff’s reasons for opposing mediation including that all facts were disputed by all parties, the plaintiff felt strongly that he wanted an opportunity to cross-​examine the first and second defendants and believed the defendants wanted a mediation to avoid being cross-​examined and to reduce the plaintiff’s limited resources to run the litigation. Despite these reasons, the court ordered mediation, but before a registrar of the court. This was thought to be a less expensive option. In doing so, the court placed emphasis on the cost and time savings that might be possible if the matter were to settle at mediation. Contrast, however, the cases of Angela Therese Harvey (nee Alecci) v Eileen Therese Alecci [2002] NSWSC 898 and George Harrison v Delcie Schipp [2002] NSWCA 27, both decisions in New South Wales in 2002 in which mediation was not ordered. Angela Therese Harvey (nee Alecci) v Eileen Therese Alecci [2002] NSWSC 898 was a decision of the Supreme Court of New South Wales and George Harrison v Delcie Schipp [2002] NSWCA 27 was a decision of the New South Wales Court of Appeal. [33] In Angela Therese Harvey (nee Alecci) v Eileen Therese Alecci, a case concerning the division of an estate of a deceased, affidavit evidence demonstrated that the family in dispute was in a state of “internal enmity”. The court therefore held that this state of affairs would make very doubtful the prospects of a successful mediation and refused to make an order that compulsory mediation occur. [4.485]  203

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Court Directed Compulsory Mediation cont. In George Harrison v Delcie Schipp the Court of Appeal considered an application for an order for mediation and refused to make such an order. The mediation was sought on the basis, in effect, that it was the last chance of all parties to avoid a financial disaster. There had been an earlier attempt at mediation several years before the first instance trial. At para 8, the court remarked “it is relevant to the matters yet to be addressed that the costs of the earlier litigation are horrendous sums”. The court then went onto to hold that: Because this is an end game situation I think that the parties … are very well able to assess the ultimate consequences of the two gunfighters pulling the trigger. I think that if there is a good prospect of settlement, I do not know that mediation is going in this particular case to be the decisive factor. For the court, costs were, at that stage of the “gunfight”, the most significant factor and as such it declined to order mediation.

 [4.490]  In an early article on the topic, Spencer considers some other arguments against and

in favour of mandatory mediation. Notably, he points out that court-​connected mandatory mediation tends to be conducted in a legalistic manner in which parties did not have a great deal of control over the process or the outcome. In contrast, he explains that mandatory mediation had potential to achieve good results despite its compulsory nature, and that as people become more familiar with it, the level of voluntary uptake likely increases.

Mandatory Mediation and Neutral Evaluation [4.495]  D Spencer, “Mandatory Mediation and Neutral Evaluation: A Reality in New South Wales” (2000) 11 Australasian Dispute Resolution Journal 237 at 242-​248. The Case against Mandatory Dispute Resolution Barrister and critic of mandatory mediation, T F M Naughton QC, has criticised mandatory mediation in the court-​annexed scheme operating in the Land and Environment Court of New South Wales in the following terms: Compulsory mediation is a contradiction in terms and likely to lead to increased, rather than reduced, cost and delay. Mediation is a voluntary process of negotiation facilitated by an independent third person chosen, or approved of, by the parties themselves. As Hilary Astor and Christine Chinkin say in their recent [sic] book Dispute Resolution in Australia: “Any sort of compulsion or encouragement to attend mediation from a person in authority, however it may be subverted, compromises its consensual character”, and “The reality of consensuality is most likely to be compromised by some form of close connection with courts”. Ingleby has given an account of his observations in the Victorian Small Claims Tribunal, the Family Court and Federal Court regarding the case against mandatory mediation. His findings revealed three basic arguments. The first argument was that mediation lost its defining characteristics if it was mandatory as opposed to voluntary. In this respect, Ingleby made three central observations on the voluntary nature of mediation and how they were applied in court-​annexed programs. (1)

Ingleby noted that in the pre-​hearing conferences or processes described as mediation, third party neutrals tended to be settlement-​focused and critical of the litigation process. Settlement was seen as desirable over an imposed decision and good will was stated as an ingredient despite the apparent obligation to attend.

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Mandatory Mediation and Neutral Evaluation cont. (2)

Ingleby stated that comments and suggested settlements were made by third party neutrals without a close examination of the merits of each case. Such comments, by a person constituted with authority, were described by Ingleby as quasi-​adjudicative and compromised the dispute resolution process.

(3)

Ingleby noted the lack of party autonomy over the control and structure of the negotiations. He stated: “Once it is accepted that the description of an activity as ‘controlling the process’ can mask the extent to which it relates to the substance, the boundary between mediation and adjudication is blurred”.

Drawing all of these three features together, Ingleby came to the conclusion that third party neutrals in the three court-​annexed programs observed were exercising quasi-​judicial powers as opposed to classical third party neutral stances. Ingleby’s second argument was that the perceived advantages of mandatory mediation are based on inaccurate or incorrect data about voluntary mediation. [243] For example, the notion that mediation allowed for informal processes, as a way to settle disputes, was not experienced by Ingleby in his observations. In this respect, the flexibility of the processes alleged by ADR purists was not present and this in itself privileged one party over the other. Ingleby’s third argument was that mandatory mediation challenges the rule of law. His argument is that court-​annexed dispute resolution: creates rules against litigation, to replace the habit of settlement in “professionalised justice” with a rule in favour of settlement in “incorporated justice” … The danger in compulsory mediation is that this particular “interplay or even interpenetration of law and discipline” will lead to “disciplinary power” being exercised without judicial restraint. It is said that mandatory ADR removes the “willingness” element of the process and does not give the parties the appropriate motivation to settle. Not only does this factor affect the rate of settlements but also, some would say more importantly, the rates of effectiveness of settlements, that is, whether settlements last until implementation and finalisation. [245] The Case for Mandatory Dispute Resolution David quoted the National Standards for Court-​connected Mediation Programs of the United States Institute of Judicial Administration that suggested that mandatory mediation should be imposed if it was more likely to serve the interests of the parties, the justice system and the public than would voluntary attendance. Perhaps this is the sort of guidance the New South Wales Supreme Court will need to follow when interpreting s 110K of the Act that allows the court to refer proceedings to mediation or neutral evaluation, “if it considers the circumstances appropriate”. Further, mandatory mediation should be publicly funded; ensure there is no pressure exerted on the parties to settle; ensure high-​quality programs; be easy to access; permit party participation; allow legal representation if desired; and provide clear and complete information about the process and procedures to be followed. David highlighted the Law and Policy Committee of the Society of Professionals in Dispute Resolution in the United States report on mandatory mediation that listed the positive effects of mandatory mediation as being that parties frequently respond positively to face-​to-​face meetings and that mandatory programs improved the low rates of voluntary usage. Dawson listed the advantages of mandatory ADR as follows: (a)

The parties frequently respond favourably to mandated dispute resolutions. Some are glad to have the court control the procedures.

(b)

Because parties or their lawyers may be more accustomed to the litigation process, rates of voluntary usage are often low. Mandating the use of such processes may increase substantially the total number of cases settled through their use. [4.495]  205

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Mandatory Mediation and Neutral Evaluation cont. (c)

Effective dispute resolution programs require adequate administrative support. By increasing the caseload, mandated participation allows the administration to be provided on a cost-​ effective basis.

(d)

The expanded use of these processes as a result of mandating participation will serve to educate parties and their lawyers, resulting in an increased bond for use of dispute resolution programs outside the court processes …

(e)

The many general advantages of ADR are becoming institutionalised.

(f)

The timing and type of ADR can be controlled in order to save court and litigants’ expenses, for example, enforcing ADR at a stage immediately before a significant expense is about to be undertaken.

(g)

Lawyers and participants are becoming educated to consider settlement even before litigation.

(h)

Corporations are being forced to make decisions or involve themselves in ADR. Litigation is often the path of least resistance particularly when corporations are involved. Junior executives can explain bad results by blaming it on the court. The result of an ADR process is much more confrontational and, therefore, avoidable unless compulsory.

A common theme running through the above arguments in favour of mandatory ADR is that it might do the parties some good despite their original reticence. Speaking in 1996, and foreshadowing recommendations that resulted in amendments to s 53A of the Federal Court of Australia Act 1976 (Cth) changing participation in ADR from consensual to mandatory, the Hon Justice Black, Chief Justice of the Federal Court of Australia, stated his view on the advantages of mandatory participation in court-​annexed mediation: The proposal that there should be power to direct mediation even when the parties do not consent recognises that there may be some cases in which, despite the initial opposition of one or more parties, mediation can be valuable. This is not to say, of course, that if the power was available, it should be exercised frequently; clearly, the desirability of ordering mediation will depend upon all circumstances of a particular case. As in all cases, but especially in the context of a compulsory referral to mediation, care should be taken to guard against a party being disadvantaged by the mediation process. Once again, we see some guidance on the use of the power of a court to order participation in an ADR process. In short, such power should be used in consideration of the impact such a process will have on the parties involved. Continuing on the theme of ADR being “good for” the parties, Justice Rogers, at the time Chief Judge of the Commercial Division of the Supreme Court of New South Wales, when criticising the decision in Allco Steel (Qld) Pty Ltd v Torres Strait Gold Pty Ltd (Unreported, Supreme Court of Queensland, 12 March 1990, Master Horton), stated: [T]‌he question is whether there is any utility in requiring parties, who are clearly bent on being difficult, to submit to conciliation processes. In my view there is. An independent third party can bring a different perspective into such procedures and can bring about a settlement even between parties who are evidently bent on litigation. Whether the statements made by Rogers CJ (Comm D) can be reconciled with claims that ADR is more expensive and increases the time taken for a matter to reach finalisation is a matter for debate. Like the very nature of litigation, submission of a dispute to an ADR process is uncertain in terms of time, cost and outcome.

 [4.500]  In an article that calls into question Spencer’s positive view of mandatory mediation,

Vickie Waye argues that mandatory mediation in Australia has not led to the cultural revolution towards less adversarialism that it seemed to promise. She writes that many court-​connected 206 [4.500]

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mediations are more like a quick “banging together of heads” and that in cases of significant power disparities, diversion to mediation may be problematic, In this first extract, Waye outlines the rationale for introducing widespread mandatory mediation schemes to the Australian courts.

Mandatory Mediation in Australia’s Civil Justice System [4.505]  V Waye, “Mandatory Mediation in Australia’s Civil Justice System” (2016) 45(2-​3) Common Law World Review 214 [215] The rationale underpinning the widespread implementation of mandatory mediation in Australia is twofold: (1) to broaden access to justice and (2) to improve the efficient delivery of justice. Both of these threads are closely linked to [216] perceived shortcomings in the capacity of a civil justice system comprised solely of formal legal institutions and processes to fairly and cost-​efficiently deliver universal justice (Hanks, 2012: 947; Mahoney, 2014: 120–​121). They are also linked with the objective of advancing cultural change away from an expensive, overly formalized and adversarial approach to justice, to an approach that offers an array of appropriately targeted mechanisms incorporating more informal, transformative, interest-​based problem solving as well as a system where people are empowered to resolve their own disputes (Genn, 2008: 83; Gormly, 2013). Policy makers want to redefine justice from something supplied exclusively by the courts to something that encompasses an integrated system which (1) informs people about the law and their legal rights, (2) prevents legal problems from occurring and escalating, (3) directs matters to the most appropriate form of dispute resolution and (4) provides pathways to fair and equitable outcomes (Australian Government Attorney-​General’s Department, 2009: 9–​10). As a result of its low cost, high settlement rates and generally high levels of satisfaction among stakeholders, within that integrated system, Australian policy makers have recommended that mediation should be elevated to the default dispute resolution mechanism (Australian Government Productivity Commission, 2014: 294). Without making mediation the default resolution mechanism for most disputes, it is feared that parties will not freely choose it as an alternative to litigation, and that Australia’s formal legal institutions will be unable to cope with the delay and high costs that are likely to ensue. Even so, Australia’s utilization of mandatory and quasi-​mandatory mediation appears to have been implemented by courts and policy makers devoid of the systematic investigation undertaken by bodies such as the European Parliament’s Directorate-​General for Internal Policies (2014) or Ontario’s Civil Rules Committee (Hann et al., 2001). Rather major reports recommending the adoption of mandatory mediation have largely been based on submissions from interested parties and anecdotal evidence. Nonetheless, post implementation the [217] evidence base regarding mandatory mediation is building, suggesting that in some cases, it has been effective in delivering timely, cost-​effective and fair dispute settlement (Sourdin, 2012b: ch 3). Insofar as the efficient administration of justice is concerned, all Australian jurisdictions authorize their courts to refer proceedings to mediation without the parties’ consent10 and some also encourage the parties to engage in informal dispute resolution prior to the initiation of proceedings.11 Tribunals responsible for the oversight of administrative decision making and the regulation of particular industries or professions may likewise employ mandatory and quasi-​mandatory mediation.12 Mandatory mediation is also used as a tool for ensuring social and economic fairness in sectors where power imbalances would otherwise provide limited pathways to justice. Australian examples include: • retail and commercial tenancies; • franchises; • farm debt; • workplace injuries; and • strata title management. [4.505]  207

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Mandatory Mediation in Australia’s Civil Justice System cont. [217] However, whether the adoption of mandatory mediation has been a panacea to address power imbalances and prevent unfair commercial conduct in these fields remains an open ended question. An in-​depth study of the Victorian Retail Lease Mediation Scheme found high settlement rates accompanied by high levels of satisfaction among participants and their legal advisers as to the mediation process and the fairness of its outcomes (Sourdin, 2012b). By contrast, as the commentary below elaborates, mediation in the franchising sector has been far less well received. Equally, early reviews of farm debt mediation indicate that it has done little to level the playing field between farmers and banks,18 and has principally served the interests of banks by enabling them to restructure farm debt or exit poor-​performing farmers in a confidential setting without risking public opprobrium. Outside of commercial settings, mandatory mediation has also been implemented for largely paternalistic reasons in the areas of: • family provision; and • family disputes regarding children and financial matters.

 [4.510]  Clearly Waye has some criticisms of mandatory mediation. In the next extract, she

outlines the experience of mandatory mediation in NSW arguing that following its introduction as an efficiency measure, questions remain about the utility of coercive referrals given the comparatively low settlement rates.

Mandatory Mediation in Australia’s Civil Justice System [4.515]  V Waye, “Mandatory Mediation in Australia’s Civil Justice System” (2016) 45(2-​3) Common Law World Review 214. Mandatory referral to mediation in New South Wales Supreme Court. [219] New South Wales has abandoned incorporating mediation within pre-​action protocols. However, the New South Wales Supreme Court has discretionary power to mandate mediation once proceedings have been initiated in cases it deems appropriate. The power to refer the parties to mediation without their consent was introduced by the Supreme Court Amendment [220] (Referral of Proceedings) Act 2000 (NSW). According to Hansard, and consistent with the institutionalization of mediation elsewhere (for an account of the United States’ experience, see Mosten, 2004), the introduction of court-​directed mediation was supply-​driven at the instigation of the Chief Justice with support from the New South Wales Law Society. At that time, New South Wales’ superior courts were experiencing significant increases in litigation rates and substantial delay in the finalization of proceedings (Callinan, 2002), and so the major purpose of the amendment was to reduce cost and delay.44 The other potential demand-​driven benefits of mediation such as the attainment of enduring, interest-​based outcomes and a less adversarial culture were not highlighted objectives. Nonetheless, since its introduction mediation has become integral to the court’s processes (Spigelman, 2001) and well embedded into New South Wales’ legal ethos (Bergin, 2012). When first introduced there was a degree of uncertainty regarding the impact mandatory mediation might have on access to the courts and the rule of law (Walker and Bell, 2000). Consequently, the New South Wales judiciary were very careful to distinguish between compelling participation in mediation versus coercion within mediation (see Sander, 2000: 8). To illustrate, in an early decision, Einstein J stated the following: 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 208 [4.510]

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Mandatory Mediation in Australia’s Civil Justice System cont. whilst parties may be compelled to attend mediation sessions, they are not forced to settle and may continue with litigation without penalty. Others have argued that the distinction is casuistic (Boettger, 2004: 8–​12; Hedeen, 2005: 279–​285), especially when coupled with a statutory duty to participate in good faith. Even so, the New South Wales judiciary continue to reiterate that participating in good faith does not require that either party must enter an agreement or that they must demonstrate a willingness to substantially shift position or make concessions. While decisions from other Australian jurisdictions and contexts place considerably more meat on the bone of “good faith participation”, good faith in New South Wales court-​ directed mediation requires no more than that the parties remain open-​minded and be willing to put forward or consider options for resolution. On the other hand, if a party obstructs the mediation process, resulting in the unnecessary prolonging of subsequent litigation, an adverse costs order may be imposed. Studies from non-​Australian jurisdictions demonstrate that participants are generally satisfied with both the process and outcomes of mandatory mediation (Quek, 2010: 483). Nonetheless, concerns have been raised that many of the benefits of voluntary mediation, such as party empowerment and the mutually beneficial quality of mediated settlements, are lost when mediation is transposed to a mandatory court-​annexed environment (for example, Thompson, 2004: 516–​517; Ward, 2007: 84–​ 89; Welsh, 2001). A study by Sourdin, which examined court-​annexed mediation in the Supreme and County Courts of Victoria, made similar findings, noting high levels of satisfaction, high settlement rates, cost savings and enduring outcomes (Sourdin, 2009: 162–​163). However, Sourdin also found that in many instances court-​annexed mediations followed a settlement rather than interest-​based, problem solving or transformative model. Court-​annexed mediations were generally of short duration (often less than 2 hours); the parties themselves did not fully participate; competitive shuttle style negotiations were a feature; and settlements yielded a compromise between the parties’ opening positions rather than creative mutually beneficial outcomes (Sourdin, 2009: iii, 163, [221] 167–​168). Sourdin therefore recommended that court-​ annexed mediation should be systematically evaluated, monitored and reviewed for alignment against clear process models developed by the courts and against national mediator standards. However, Sourdin’s calls have so far remain unanswered. Nevertheless, the New South Wales Law Reform Commission is currently attempting to formulate a New South Wales Dispute Resolution Framework that will incorporate a consistent model for ADR including mandatory court-​annexed mediation (New South Wales Law Reform Commission, 2014). Prior to ordering mediation, the court is required to assess its merits. As a result of the lack of empirical evidence indicating which types of dispute are more likely to settle if mediated (Edwards, 2013: 321–​326; Menkel-​Meadow, 2010), case law on the categories and timing of court-​directed mediation follows an intuitive approach contingent on the facts of each individual case. Thus, by contrast with the approach taken by the English Court of Appeal in PGF II SA v OMFS Company 1 Ltd, there are few guiding factors that judges may consider when ordering mediation over party objections. For example, it has been suggested that mediation should not be ordered until the parties are able to evaluate the respective strength of their cases. However, in Zeccola v Fairfax Media Publications Pty Ltd (No 2), McCallum J referred the matter to mediation conducted by a private mediator, notwithstanding that pleadings had not closed, on the basis that the parties’ respective positions were sufficiently known and to wait for the pleadings to be finalized would impose undue delay. A similar approach was taken in Oasis Fund Management v ABN Amro. Conversely, mediation is unlikely to be ordered if it appears that a party’s case is particularly strong or well advanced. That the parties’ relationship is very acrimonious or that their positions diverge to a large degree is not necessarily determinative. Nor is the size or complexity of the dispute an inhibiting factor for court referred mediation. During 2014, the Supreme Court recorded 839 referrals or approximately 19% of its case load to mediation, of which 58% were referrals to court-​annexed mediation conducted by the Court’s Registrars (Supreme Court of New South Wales, 2015: 54). Although a dip in the referral rate was experienced in 2014 due to the introduction of informal settlement conferences for family provisions [4.515]  209

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Mandatory Mediation in Australia’s Civil Justice System cont. matters, the referral rate has otherwise remained steady for the previous five years at around 23%, and constitutes a significant increase upon levels when compulsory mediation was first implemented. Reinforcing the lower settlement rates for court-​ directed mediation versus voluntary mediation recorded in other jurisdictions,58 cases referred to the Court’s Registrars settle at a rate of 50–​55%.59 By the time a matter is referred to mediation by the court the parties have already entrenched their positions and expended considerable resources to advance them. The relatively lower settlement rates for mandatory mediation are concerning. If a case fails to resolve, the total cost of pursuing or defending the case can be higher than where no mediation has been ordered. A United Kingdom study that examined automatic referral to mediation from the Central London County Court found that unsettled mediation increased legal costs by between £1,000 and £2,000 (Genn et al., 2007: 98 and 110). The study also found that mediated cases experienced the same amount of delay to resolution as non-​mediated cases (Genn et al., 2007: 67–​69). Arguably, the additional costs imposed by mandatory mediation may not be justified if the settlement rates for mandatory mediation and delay to resolution are no better than what might occur between the parties without such intervention. The UK study’s findings contradict an earlier evaluation conducted in Ontario which found that mandatory mediation reduced time to disposition, and also found substantial net savings from the totality of settled and unsettled mediation cases (Hann et al., 2001: 5, 9–​10). Nonetheless, the impact of mandatory mediation on settlement rates was not high (Mucalov, 2003, estimating an increase of 15% in settled cases as a result of mandatory mediation) and others have suggested that the implementation of mandatory mediation led to significant falls in voluntary attempts to negotiate settlements outside of the mandatory scheme, hence undermining any cost savings created by early disposition (Mucalov, 2003). Of course it is difficult to apply studies that mandate mediation in a broad swathe of cases to the practice of compelling mediation on a discretionary basis where the court undertakes a degree of gatekeeping, albeit on intuitive rather than evidence based grounds. However, the studies provide pause for thought and suggest that in the future, given the considerable fiscal constraints applicable to courts throughout the common law world, including those of New South Wales (Foster, 2013: 5), much more work needs to be done to justify the use of coercion as a cost-​saving measure. After 15 years, the use of mandatory mediation as a vehicle to engender cultural change (Alexander, 2009: 157; Quek, 2010: 483–​484) is no longer compelling.

 [4.520]  In the next extract, Waye turns her attention to franchising disputes and examines

the reasons why mandatory mediation may not have met its promised potential in resolving commercial disputes of this kind.

Mandatory Mediation in Australia’s Civil Justice System [4.525]  V Waye, “Mandatory Mediation in Australia’s Civil Justice System” (2016) 45(2-​3) Common Law World Review 214. Franchising [224] Australia has almost 1,160 franchise systems involving 79,000 businesses and employing over 460,000 people (Frazer et al., 2014: 15–​17). Approximately 1.5% of franchisees become involved in substantial disputes with their franchisors (Frazer et al., 2014: 19). Consequently, the likelihood that the franchise sector is problematic in terms of disputation has been described as “moderate to low” (Australian Government, Treasury, 2014: 8). The main areas of dispute are system compliance, franchise fees, territorial scope, misleading and deceptive conduct, and [225] profitability (Frazer et al., 2014: 56). Despite a mandatory code of conduct promoting mediation, mediation and litigation rates 210 [4.520]

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Mandatory Mediation in Australia’s Civil Justice System cont. related to franchise disputes have been volatile over the past 10 years. In 2006 mediation was pursued in 29% of disputes (Frazer et al., 2006); whereas in 2012 mediation rates had fallen to 10% and litigation rates had risen to 24% (Frazer et al., 2012). Statistics from 2014 show a mediation rate of 24% of disputes, with 12% of disputes being litigated (Frazer et al., 2014: 56). It has been suggested that the revival in mediation rates in 2014 was due to amendments to the behavioural requirements for mediation introduced in 2010 (Frazer et al., 2014: 56). These are discussed further below. As noted above, franchising in Australia is subject to a mandatory code of conduct73 regulated by the Australian Competition and Consumer Commission (ACCC). Originally implemented in 1998 pursuant to section 51AD of the then Trade Practices Act 1974 (Cth), the Franchising Code of Conduct was Australia’s first mandatory industry code. Its objectives were to: • address the imbalance of power between franchisors and franchisees; • raise the standards of conduct in the franchising sector without endangering the vitality and growth of franchising; • reduce the cost of resolving disputes in the sector; and • reduce the risk and generate growth in the sector by increasing the level of certainty for all participants. If a dispute arises under a franchise agreement which the parties themselves are unable to resolve, either party may refer the matter to mediation. Otherwise the parties’ rights to initiate legal proceedings are unaffected. However, once a mediator is appointed, the parties must attend the mediation and must attempt to resolve their dispute. Guidance regarding what constitutes an attempt to resolve the dispute is outlined in Clause 36, Code. Clause 36 provides that the parties are to approach the mediation in a reconciliatory manner including attending and participating at meetings at all reasonable times; not taking any action during the dispute which might damage the reputation of the franchise system such as providing inferior goods or services or refusing to supply goods or services, making what is sought to be achieved during the mediation clear and observing confidentiality. Failure to attend mediation with authority to settle can incur penalties of up to $51,000. In addition, the ACCC may issue infringement notices,76 seek court enforceable undertakings or negotiate administrative resolutions (including compensation) for breach. The ACCC initiates investigation of breaches of the Code upon the receipt of a complaint and also undertakes random compliance audits (Schaper, 2014). Most of the breaches actioned by the ACCC to date have involved misleading representations and unconscionable conduct rather than failure to engage in mediation (ACCC, 2015). To assist the parties, in 1998 the Australian government established the Office of the Franchising Mediation Adviser (OFMA). The OFMA offers an early intervention process as well as mediation. The early intervention process is advisory and provides an explanation to the parties of their obligations under the Code, the steps that should be followed to resolve their dispute, the options available in response to their grievances, the role of the mediator and the nature of the mediation process, effective communication strategies and the availability of advocacy and other assistance. The OFMA undertakes the majority of franchising mediations (Frazer et al., 2012: 58), completing approximately 120 franchising mediations per year yielding an average settlement [226] rate of 75% (OFMA, 2015). Although the actual cost varies according to the complexity and amount in dispute, the OFMA estimates that the average costs of mediation for each party are $1,200. Small business commissioners in a number of Australian States are also increasingly undertaking franchise mediations with similar settlement rates (Wein, 2013: 114). Despite the OMFA’s low costs and high success rates, the low rate of mediation suggests that the Code has not been successful in meeting its aspirations. An Australian Parliamentary Committee review undertaken in 2008 (Parliamentary Joint Committee on Corporations and Financial Services, 2008) prior to the introduction in 2010 of the behavioural guidelines currently encapsulated within Clause 36 of the Code, found widespread scepticism regarding the efficacy of mediation, particularly among franchisees. Franchisees felt that franchisors could easily sabotage the process by failing to engage in meaningful [4.525]  211

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Mandatory Mediation in Australia’s Civil Justice System cont. discussions or by engaging in delaying tactics to put pressure on them to accede to demands knowing that they could ill afford to initiate litigation. A strong view was expressed that settlements in franchising mediation were coercive and given the imbalance in bargaining power, mostly unfair. Many franchisees believed that the threat of litigation was likely to be more effective in achieving an appropriate outcome. As a result, the OFMA’s high settlement rate was regarded as potentially misleading. A later review conducted in 2013 (Wein, 2013: ch 7), noted the continued refusal of many franchisees and franchisors to initiate mediation based on the perception that when forced to undertake it engagement was perfunctory and compliance-​focused. The behavioural guidelines referred to above were not seen as effective in preventing stonewalling or unfair outcomes. The review proposed that implementing a good faith obligation might improve the conduct and outcome of franchising mediations. Otherwise, the review rejected any structural changes to the dispute resolution procedures set out in the Code, noting that since pre-​action protocols incorporating ADR had been implemented for federal civil matters there was now more incentive for parties to undertake mediation. Subsequently when the Code was revised in 2014, a mandatory good faith obligation was incorporated which extended to all parts of the parties’ agreement plus their code compliance including compliance with the requirement to try to resolve their disputes. It remains to be seen whether the combination of a good faith obligation and the introduction of pre-​action protocols in federal courts will improve the uptake of mediation in the franchising sector. As one commentator notes, “financial power is ultimately a significant determinant of outcomes in franchising relationships and franchisors, who have the greater influence on legislative and industry policy decisions, are the inevitable beneficiaries of the current mediation system” (Boulle, 2011: 438; see further Spencer, 2008: 119–​120).

 [4.530]  Waye concludes her article by arguing that mandatory mediation in the Australian

civil justice system has not only failed to live up to its promise but may disadvantage vulnerable parties, arguments that are taken up further in Chapter 9 of this text.

Mandatory Mediation in Australia’s Civil Justice System [4.535]  V Waye, “Mandatory Mediation in Australia’s Civil Justice System” (2016) 45(2-​3) Common Law World Review 214. [235] Despite its wide utilization, mandatory mediation in Australia remains contentious. On the one hand, judges and governments extol its virtues, especially as a means of diverting cases from the courts, forcing the parties to employ quick and cheap forms of dispute resolution. According to a former Chief Justice of the New South Wales Supreme Court (Merritt, 2010): People are reluctant to admit that they might have some weakness in their case and therefore don’t offer to settle or mediate. Whereas if they are forced into it, experience is that reluctant starters often become active participants. So although it is counter-​intuitive, ordering someone to mediate actually works. Most of these pronouncements lack empirical validity. Clearly more work needs to be done to ensure that mandatory mediation produces net savings. Others accept that mandatory mediation has a useful role to perform provided it is well targeted and not used as a wholesale hurdle that must be overcome to gain access to the courts in all cases. From their perspective the minimalist approach of the Civil Dispute Resolution Act 2011 (Cth) is preferable. Use of mandatory mediation in situations of power imbalance such as the franchising relationship or in violent family relationships is regarded with particular scepticism. Franchisors and franchisees

212 [4.530]

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Mandatory Mediation in Australia’s Civil Justice System cont. appear to have voted with their feet. Measures have been taken to better address violence and abuse in the family dispute resolution setting where mandatory mediation otherwise operates as a strict hurdle to access to justice. However, the government has eschewed investment in intensive collaborative forms of dispute resolution that might be better suited to the complexity that family violence and abuse create in family breakdown.

 [4.540] There are limitations and benefits to mandatory mediation, as summarised by

Magdalena McIntosh in the following extract.

A Step Forward –​Mandatory Mediations [4.545] M McIntosh, “A Step Forward –​Mandatory Mediations” (2003) 14 Australasian Dispute Resolution Journal 280 at 286-​288. The Balancing Act –​Limitations and Benefits There are, of course, limitations to mandatory mediation. However, these limitations are equally balanced with benefits. Limitations

Benefits

To compel mediation is a contradiction in terms. Mediation of its very nature is a voluntary process. It loses its definitional character if parties are forced to participate.

Too much emphasis is placed on the coercive attributes of mandatory mediation. The parties although coerced to participate in the mediation, have a right to disregard any solution that emerges. The mediator is in no position to force settlement on the parties. It is clearly within the parties [sic] control whether or not to settle.

Parties are better able to resolve their disputes through a consensual process.

Although parties haven’t voluntarily decided to attend the mediation, the mediation process is more consensual than the adversarial process. The purpose of mediation is not to convince parties to settle but to identify and explore the interest and needs of the disputing parties and search for integrative solutions to accommodate them.

In order for a settlement to be reached, the parties must turn their minds to cooperating with the other party and engaging in meaningful participation. Should the parties be unable to do this, the mediation process will be frustrated.

It may be the case that the parties haven’t turned their minds to mediation. However, even if they had and rejected the idea, by being compelled to mediate the parties may decide to make the most of the opportunity, if not [sic] resolve the matter, but to define the issues.

Some cases may not be suited to mediation. Mandatory mediation would therefore result in unsuitable cases being mediated which in turn increases cost and delay.

No dispute can be said to be unsuited to mediation. Mediators are skilled persons, trained extensively in managing disputes. Mediators are experienced at enhancing communication and participation. They are involved in the process simply to encourage parties to cooperate in solving their dispute.

A party may not attend the mediation. For whatever reason for the non-​attendance, the attending party has received no benefit for acting in good faith and may be discouraged to make future attempts at ADR.

A system which mandates mediation generally has a system of enforcement so as to uphold integrity of the process. Enforcement predominantly comes in the form of the imposition of costs orders. In the case of Heileman Brewing Co v Joseph Oats Corp 871 F 2d 648 the court held that it is important to “punish parties who frustrate the process by failing to act cooperatively. Frustration of the process should include, but not be limited to failure of lawyers and principals to attend the proceedings”

[4.545]  213

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A Step Forward –​Mandatory Mediations cont. Limitations

Benefits

The ideals comprehended by the rule of law are threatened by compulsory mediation. The argument here is that if parties are compelled to attend mediation, the system is promoting parties to settle for what is on offer rather than looking for justice. The question then asked is why have courts at all?

Mandatory mediation doesn’t seek to abolish the court system. It should be viewed as an integral part of that system. Rather than being an alternative, Justice Olsson suggests mandated mediation be viewed as complementary. Her Honour argues that the court system is obliged to provide parties with various dispute resolution options and that these options should be provided uniformly to all litigants in the same jurisdiction.

There is no empirical evidence that suggests mandatory mediation is more successful than the voluntary submission to ADR.

The use of mandatory mediation has grown at an alarming rate. It is recognised that mandated mediation is a more efficient use of resources that resolution of disputes by trial. There is much concern about the overflowing case lists, the time and cost involved in litigating and the fact that matters were settling far too late in the proceeding, usually on the court’s door step.

Parties compelled to mediate feel that their access to litigation is blocked. As a consequence, they will be conscious of their compulsion and will be less likely to reach settlement as they would prefer to return to litigation.

Parties unwilling to participate fully in mediation are leaving themselves with no option but to continue to trial. At trial, a decision is imposed by a judge who knows little about the parties’ needs. The judge is primarily concerned with arriving at the right legal answer. In contrast, at mediation parties take over the decision making role. Obviously, this is more favourable as the parties are best placed to decide what is in their own interests. Further, the uncertainties of litigation combined with its traumatic processes such as cross examination make the experience of trial a lot more stressful than participation at a mediation. Long gone are the days where people desire to have their day in court.

Mandated mediation is simply a management strategy for the courts. It is no more than a “product of administrative expediency”. It promotes the evolution of cheap, but inferior quality justice, so as to reduce the number of matters proceeding to full adjudication. These factors would generate far more discontent than the problems associated with litigation.

Although it is correct to say that mandatory mediation evolved as a consequence of the escalating costs and long delays in the adversarial system, it is simplistic to view this as its role. The mandatory mediation process should not be criticised for being able to facilitate the efficient disposal of disputes.

 [4.550]  The issue of diagnostic factors in mandatory referrals is an important one, and this is

explored further in the next article.

Diagnostic Factors in Mandatory ADR Referrals [4.555]  L Boulle, “Diagnostic Factors in Mandatory ADR Referrals” (2001) ADR Bulletin 31 at 31-​33. Barrett v Queensland Newspapers Pty Ltd v Queensland Newspapers and others [1999] QDC 150 (19 July 1999) raises an important and topical issue in the practice of ADR: on what basis will courts exercise their discretion to make mandatory referrals to one or other ADR process? For the defendants it was argued in support of their application that, given the complexity of the dispute, the fact of a jury trial and various other features of the case, a hearing time of 10 days would be required. It was submitted that preparation for a complicated trial of this length would be “quite expensive” and that the defendants were desirable of reaching a reasonable compromise before incurring the extensive costs involved in preparation. It was submitted on behalf of the defendants that a mediation, by contrast, would only take a single day and result in extensive costs savings. 214 [4.550]

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Diagnostic Factors in Mandatory ADR Referrals cont. The plaintiff opposed the application for referral, submitting, inter alia, that as a defamation matter it was not suitable for mediation. In particular it was argued that the defendant was not likely to accept liability, that more than one day’s mediation would be required to deal with the case’s complexities, that issues of credit would not be resolved at mediation, that the pursuit of exemplary damages made it problematic and that “defamation trials rarely settle at mediation”. The judge was thus faced with an increasingly common phenomenon where ADR is connected to the courts and referrals can be made in the discretion of the court and over the objections of one or more parties. This is the diagnostic question, namely what factors will judges take into account in exercising their discretions. Before indicating what factors it considered relevant to the exercise of the discretion, the court referred to two related matters of significance: • The extent to [32] which the interests of litigants other than the parties to the present dispute could be considered, particularly in relation to a circuit court which was available for a limited duration on an irregular basis. The defamation trial would dominate the two week circuit sitting, requiring other matters to wait considerable time periods before being heard. Not only did Samios DCJ regard this as a relevant consideration but he went on to endorse the merits of routine mediation of all matters so that those capable of mediated resolution would not stand in the way of those requiring adjudication. This upholds the view that judicial services can be rationed and there is no automatic entitlement to court time for all litigants, an approach which is referred to again later in this note. • The extent to which the discretion maker could take account of the prospects of success (or more accurately lack of success) at mediation, as argued by the plaintiff in opposing the application. Here Samios DCJ held that this might be inappropriate on the basis that even where one party was strongly opposed to it and there were grounds for being dubious about success, mediation still provided the best opportunity for dispute resolution, better than settlement on the steps of the court. This evidenced a strong judicial endorsement of the mediation process and the contributions which a skilled mediator could make. In effect the court is suggesting that arguments that mediation will not be successful will not carry much weight on their own. Returning to the factors relevant to the exercise of the discretion, Samios DCJ held that in the circumstances of the present case the following were relevant: (1)

The fact that he could not conclude that mediation would not be successful.

(2)

That the trial might take longer than 10 days and detract from court time available to other litigants.

(3)

That three of the four parties were supportive of mediation.

(4)

That the second defendant, without admitting liability, had agreed to pay the plaintiff’s share of the mediator’s fee and venue costs.

(5)

That the application was made early in the action when substantial costs would be saved by all parties.

(6)

That there were risks in litigation, even for the party opposing the referral order.

(7)

That a skilled mediator might be able to assist the parties, despite the difficulties inherent in the case.

What is important about this list is that it involves the judge articulating the criteria where there might otherwise be inarticulate premises, intuition and unreasoned conclusions. This is an important contribution to the development of criteria for dealing with the diagnostic question. However there are three factors of the Barrett case which will undoubtedly receive comment in the literature and be argued again in various courts: • The relevance of the interests of litigants other than those in the litigation under consideration. It is undoubtedly a reality of the times that court resources are finite and no individual has an infinite claim on them –​case management practices give effect to this reality of court economics on a [4.555]  215

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Diagnostic Factors in Mandatory ADR Referrals cont. daily basis. However there is also little doubt that it will be argued in due course that this approach involves showing a preference for one party’s “constitutional right” to access the formal justice system over that of another. There is indeed some irony in court-​connected mediation, which was a product of the Australian “access to justice” movement in the early 1990s, becoming responsible for a denial of access to formal court justice for some litigants. • The basis for the strong endorsement of the mediation process and the skills of the mediator. This is not the first time that Queensland courts have expressed strong faith in mediation and in the contribution which can be made by skilled mediators. However there may also be concerns about judges asserting, for example, that “one knows from experience that often a [33] party will say a matter will not settle unless their ‘position’ is met and yet the matter does settle because a different ‘position’ is met … at the court door”, or “one could point to disputes that have not been resolved because of the ‘people’ involved in those disputes … there could be as many disputes that have, despite the so-​called stature of the people involved or the personalities of those people … been resolved at a mediation …”. While these comments show a refreshing insight into the realities of the litigation process (and even into some ADR jargon), they have little basis in survey studies or other “scientific” resources. It is true that the diagnostic question will never be answered with complete objectivity but it may in the future be necessary for judges to refer more to the literature, survey studies and other sources of information on the issue and less to anecdote and experience. • The suggestion that the court might be a better judge of the interests of a litigant than the actual litigant. In this case the plaintiff objecting to the referral application was both a lawyer and legally-​ advised and was someone whom one might expect to be only too conversant with the vicissitudes of litigation. There is some irony in this approach, given the current prevalence of a “deregulation” philosophy in many areas of social decision-​making. Mediation began its life, in part, as a private, voluntary alternative to the formalism of adversarial litigation which allowed individuals to make their own risk assessment, both about whether to enter the ADR world and about how to behave once in it. Now it could become part of a “regulated” environment in which part of the risk assessment is undertaken by the court, potentially in disregard of a litigant’s own wishes, as it becomes the sponsor of private settlement. This case provides a useful starting point in developing diagnostic checklists for the difficult discretion of making mandatory ADR referrals. However it goes without saying that in the exercise of any discretion it is not only the list of relevant factors but the weight which is attributed to each of them which is important and there will no doubt be many future cases in which the weighting game can be played out. My own view is that where a plaintiff is seeking aggravated and exemplary damages in a matter which would proceed to jury trial then this factor, virtually on its own, renders mediation inappropriate. However this view is based only on (a single) experience and has no claim to scientific objectivity or precedent status.

 [4.560]  Boulle makes some very relevant observations which demonstrate the public interest

that in fact lurks behind a debate concerning the appropriateness of mandatory mediation. The public interest is in ensuring that scant court resources are managed appropriately, even if the effect of implementing such a policy is that the so-​called right to access justice is hindered. Should there be a good faith requirement in mandatory mediation? [4.565]  As Venus points out, there is a clear distinction between the requirement to attend a

mediation and a requirement to participate with good faith. In the following extract he summarises various judicial comments on the concept of good faith in mediation. 216 [4.560]

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Obligation to Mediate in Good Faith [4.570]  P Venus, “Court Directed Compulsory Mediation –​Attendance or Participation?” (2004) 15 Australasian Dispute Resolution Journal 29 at 34-​35. Obligation to Mediate in Good Faith As discussed above, it is the duty of each party to proceedings, the subject of a referral under s 110K of the Supreme Court Act 1970, to participate in good faith in the mediation. There is no definition of what constitutes participation in good faith and this is an issue which has received relatively little judicial consideration. Some judges have attempted to define the concept of “good faith” in the context of a mediation by examining under what circumstances its absence may have consequences for the parties. In Capolingua v Phylum Pty Ltd (as Trustee for the Gennoe Family Trust) (1991) 5 WAR 137 at 140, a decision of the Supreme Court of Western Australia, Ipp J held that: Where, at a mediation conference, a party … adopts an obstructive or unco-​operative attitude in regard to attempts to narrow the issues, and where it is subsequently shown that, but for such conduct the issues would probably have been reduced, the extent to which the trial is extended is a relevant factor when deciding upon an appropriate award of costs. Ipp J therefore saw participation in good faith as requiring parties to adopt a non-​obstructive and cooperative attitude. It has also been suggested by some commentators that strict insistence upon legal rights may amount to a lack of good faith in the mediation process. However, it is doubtful that a party must do little more than this. It is unlikely that a party would lack good faith if they were willing to entertain even the smallest compromise. What is important is the willingness to entertain some disadvantage, however minor, in order to compromise a dispute. In the Supreme Court of New South Wales decision of State Bank v Freeman; Freeman v NSW Rural Assistance Authority (unreported, Supreme Court of NSW, 31 January 1996, CL No 12670 of 1995/​AL No 30101 of 1995), Badgery-​Parker J held that: An undertaking to mediate in good faith no doubt connotes a willingness on the part of the party to consider such options for resolution of the dispute as are propounded by the mediator or the opposing party; but it does not appear to me that an inference of lack of good faith can be drawn from the adoption of a strong position at the outset and a reluctance to move very far in the direction of compromise without more. Again, in the Supreme Court of New South Wales decision in Aiton v Transfield [1999] NSWSC 996, Einstein J held that: The good faith concept acquires substance from the particular events that take place and to which it is applied. As such, the standard must be fact-​intensive and is best determined on a case-​by-​case basis using the broad discretion of the trial court. Einstein J went on to hold at paragraph 156 that: 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. [4.570]  217

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Obligation to Mediate in Good Faith cont. Subject only to these undertakings, the obligations of a party who contracts to negotiate or mediate in good faith, do not oblige nor require the party:

(a)

to act for or on behalf of or in the interests of the other party;



(b)

to act otherwise than by having regard to self-​interest.

 [4.575]  Other commentators, such as Wolski, argue against a good-​faith requirement in man-

datory mediation. Wolski argues that the professional conduct rules do not impose any obligation to participate in mediation in good faith, but that there is an increasing emphasis on good faith in legislation and the common law.

Duty to Participate in Good Faith [4.580]  B Wolski, “On Mediation, Legal Representatives and Advocates” (2015) 38(1) UNSW Law Journal 5. Duty to Participate in Good Faith [21] The professional conduct rules do not impose on legal representatives an explicit obligation to participate in mediation in “good faith”. However, lawyers are still bound by their general duties to refrain from conduct that is likely to bring the legal profession into disrepute. Additionally, practitioners might be subject to an express duty to act in good faith or with “genuine effort” if the mediation takes place as a result of court or legislative directive. There has been a proliferation of legislation containing good faith provisions in Australia (and elsewhere). Dispute resolution clauses and agreements to mediate also commonly include a good faith provision. While these provisions have had a shaky beginning in Australia, there has been strong judicial support for them in recent years. [22] Terms such as “good faith” and “genuine effort” are usually not defined by relevant legislation or contractual provisions. Nonetheless, it is possible to discern some common threads of what the phrases mean from relevant cases and commentaries. There appears to be wide agreement that good faith includes some preparation, attendance at the mediation by someone with authority to settle, and some elements of participation such as “not summarily and without consideration” immediately rejecting what the other party has to say. Some guidance on behaviour which is not inconsistent with good faith in mediation is also available from cases and commentaries from Australia and overseas. Good faith does not require a party to act against self-​interest and it does not require a party to take “any step to advance the interests of the other party”. It does not preclude a party from taking a strong position at the outset and from being reluctant to make concessions. Good faith does not require the parties to engage in total disclosure. There is no requirement to reveal all of one’s interests, negotiation goals and bottom lines. A lawyer cannot, however, mislead the mediator or his or her opponent about a material fact for it is [23] recognised that such action (or inaction, where a false statement needs to be corrected) constitutes bad faith. (d) Duty to Cooperate Legal representatives are not required under the professional conduct rules to cooperate with their opponents. However, such a duty might be imposed by specific legislation1 or by contract. (Arguably whenever mediation takes place as part of the litigation process, practitioners must maintain some degree of cooperation and collegiality with each other and with the mediator as an aspect of their duty to make responsible use of court process.) The terms such as “cooperation” and “genuine steps” are generally not defined, although some legislation provides examples of steps “that could be taken by a person as part of taking genuine steps to resolve a dispute”. Nonetheless, commentators believe 218 [4.575]

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Duty to Participate in Good Faith cont. that the validity of these clauses is likely to be upheld given the “strong” judicial support for the enforceability of clauses containing obligations of good faith. Regardless of the source of the duty, an obligation to cooperate with one’s opponent does not extend to assisting him or her. For instance, there is no duty to point out weaknesses in the opponent’s case so that he or she might be better prepared for mediation. Such an action would be in clear breach of the lawyer’s obligation to his or her client. As discussed shortly, the various duties owed by [24] lawyers may sometimes conflict. When there is a conflict between one’s duty to an opponent and one’s duty to a client, the latter will prevail.

 [4.585] The debate about how mandatory referrals to mediation undermine consensuality

continues. Much of the literature continues to focus on the pragmatics rather than the principle. Of concern is that Astor’s angst in relation to the long-​term impact of lack of consent remains unresolved. The principle is subsumed to the pragmatic. Only more research will lead to a principled answer.

APPROPRIATENESS OF MEDIATION [4.590] The appropriateness of mediation is one of the fundamental issues relating to its

usage. It is also one of the most complex and, indeed, this issue permeates the whole field of alternative dispute resolution (ADR). It is also a dynamic, not a static, issue. Even over the last decade in Australia there has been manifest movement in opinion about what types of disputes are, and are not, suitable for mediation. The question is not as simple as stating that a particular type of dispute, for example a claim arising out of a sexual abuse, is not suitable for mediation. Nor, equally, is it as simple as saying that certain types of disputes, for example small civil claims, are suitable. Both inclusive and exclusive criteria simply do not work. Rather, it seems, the real question is, having regard to the circumstances of the present dispute, whether mediation is appropriate. In its 2000/​2001 Annual Report, NADRAC provided a list of factors which are relevant considerations in determining the suitability or otherwise of ADR.

NADRAC Annual Report 2000/​1: Relevant Considerations for ADR [4.595] NADRAC Annual Report 2000/​2 001, p 13, http://​w ww.ag.gov.au/​L egalSystem/​ AlternateDisputeResolution/​Documents/​NADRAC%20Publications/​2000-​2001%20Annual%20Report.pdf. The list of factors identified were: • Current fear or high risk of violence by or to a party • Allegations of child abuse • An unmanaged mental illness or intellectual disability without appropriate advocacy • A clear statement by one party that they will not participate in ADR or that they “want their day in court” • A statement by the parties that they want to resolve their conflict in a nonadversarial forum • Bad faith bargaining, or clear likelihood of this • The intention of one party to use the process to harass the other • Over riding public interest [4.595]  219

Dispute Resolution in Australia: Cases, Commentary and Materials

NADRAC Annual Report 2000/​1: Relevant Considerations for ADR cont. • A matter which is primarily a dispute of fact • Parties who have major, non-​negotiable value differences • The ability of the parties to make an informed choice to attend • The capacity of the parties to negotiate safely on their own behalf • The extent to which any power imbalance can be redressed • Lack of commitment by one or more of the parties to resolve the dispute • Any relevant court orders which make ADR difficult (eg: a restraining order) • Cultural factors and considerations • Legal representation of the parties • The likelihood that the costs of ADR outweigh its benefits.

 [4.600] A comprehensive discussion of appropriateness is found in one of the leading

Australian texts on mediation.

When Is Mediation Appropriate or Inappropriate? [4.605]  L Boulle, Mediation: Principles, Process, Practice (3rd ed, LexisNexis Butterworths, Chatswood, 2011) pp 314-​332. When is mediation appropriate or inappropriate? 9.2 A major issue in modern dispute resolution concerns the appropriateness or inappropriateness of mediation and other processes, including litigation. A dispute resolution system will be appropriate when its procedures, objectives and values suit the requirements of the parties in dispute, the nature of the dispute, societal interests and other relevant needs such as those of funding agencies … The prevalence of mandatory mediation, in which parties are required to engage in the process despite one or both being unwilling to do so, does not indicate the irrelevance of questions over appropriateness. Despite parties’ reluctance or opposition mediation may still be appropriate in light of other factors referred to below. There are also situations in which a relatively free choice remains in place and the appropriateness issue is germane to them. However, there are invariably multiple indicators of appropriateness or inappropriateness and some factors can conflict with others. It then becomes a question of weighting and prioritising the various factors in making balanced assessments. While urban mythology abounds in this area, there is little in the way of scientific precision. The following concepts are pertinent to this topic. Matching refers to the process of assessing various aspects of dispute situations and correlating them affirmatively with specific dispute resolution options. Screening entails [315] the assessment of dispute situations for factors which correlate negatively with a specific process such as mediation to avoid inappropriate use of the system. The term streaming refers to a procedure in which disputes are allocated to different systems as a result of matching and screening activities. The term diagnosis is an umbrella concept which refers to matching, screening, streaming and otherwise selecting mediation or other processes for particular disputes. Finally, the term gatekeepers refers to those, such as lawyers, dispute resolution advisers or court officials, who make diagnostic choices on dispute resolution options. Practical relevance of diagnostic functions 9.3 The functions of diagnosis, matching and screening are relevant to dispute resolution practices in the following circumstances: 220 [4.600]

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When Is Mediation Appropriate or Inappropriate? cont. • When conflicting parties have to make decisions on appropriate courses of action, for example spouses in dispute over parenting decisions need to consider what system they will use to deal with it; • When professional advisers are required to advise clients on their options and recommend a course of action, for example a worker who has suffered an industrial action consults a union official; • When officials in courts, tribunals and industry bodies make decisions in regard to dispute resolution options, for example on whether to refer particular matters out for either mediation or case appraisal; • When service-​providers are approached by parties, advisers or referring agencies and need to decide whether to provide their services, for example a private mediator is approached about a workplace dispute in which she previously conducted an investigation; • When legislative policy has to be developed for a statutory tribunal dealing with consumer complaints. While these circumstances can be significantly different, they give rise to common issues. In all situations those make choices require information on relevant factual circumstances, on the range of available dispute resolution processes, and on the attributes of the processes within the range. It is also preferable for them to have guidelines on suitable options for different situations so decisions are informed and consistent over time. However, not only is this an inexact science, but in reality there can only be limited formal guidance in these situations. Legislation, rules and codes of conduct have not [316] been of great assistance in providing support on diagnostic questions, and case law on the subject is neither consistent nor precise enough to provide practical direction. There is also a significant divergence between theory and practice on this question. The theoretical literature, on one hand, is somewhat esoteric in applying a cautionary principle in relation to the use of mediation whenever there are considerations of power, fairness and equity at stake. Mediation practitioners and service-​providers, on the other hand, are overwhelmingly pragmatic and seldom refuse to provide mediation services, other than in exceptional circumstances. 9.4 One area in which there have always been attempts to make principle inform practice is in family mediation, the current regulations providing indicators of when mediation, and by implication other processes, would be suitable or unsuitable. Here the positive indicator of suitability is the capacity of parties to negotiate freely, and the main indicators of unsuitability are a history of family violence, a lack of safety for the former partners, the risks of child abuse and an inequality of bargaining power between parties. Some codes of conduct also define circumstances in which it would be inappropriate to commence mediation, or in which a mediation once commenced should be terminated. Mediation services have screening procedures which operate extensively in the family area and sparingly in commercial matters. However, there are many situations in which judges, registrars and other gatekeepers are required to screen, match and stream without any criteria or principles guiding the exercise of their discretion. 9.5 Mediation practitioners have themselves made attempts to develop criteria for making decisions about mediation, and by implication other processes. This involves establishing screening procedures with a checklist of exclusionary factors, that is those features of a dispute situation which might render mediation inappropriate. The problem with such lists is that there is always ambiguity in individual factors once they are assessed in the totality of a situation. The fact, for example, that parties are not willing to participate is undermined by the reality that much mediation conducted without parties’ initial consent is effective and satisfying in terms of various measurements of success. Thus, context and circumstances are required to determine if a single factor indicates suitability or not. Furthermore, there are usually multiple factors in any dispute situation and these require the [317] weighting and prioritisation of one factor against another. In these contexts the important consideration relates to who makes the decision on mediation’s appropriateness, and despite the self-​ determination principle operating within mediation the same does not pertain in decisions about the system’s use where parties are often denied the effective choice. [4.605]  221

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When Is Mediation Appropriate or Inappropriate? cont. Checklists are of utility in indicating factors which are potentially relevant in the diagnostic function but they provide limited practical guidance for the exercise of discretion by clients, advisers and gatekeepers. It is not possible to specify the sufficient conditions of mediation, that is circumstances which would ensure its effectiveness. Nor can one postulate the necessary conditions for its use, in the sense that it would be ineffective in the absence of these factors. For example, some commentators suggest mediation would be inappropriate where there is a significant power imbalance between parties, where there is only a single disputed issue, and where there is no continuing relationship between disputants. However, claims for damages by injured individuals against indemnity insurers have all these characteristics and in Australia are referred to mediation extensively, though the characteristics themselves may mould these mediations in the evaluative and settlement likenesses and not in the facilitative style. The appropriateness issue is a function of many different factors and of competing goals and objectives and a simple reductionism is attractive, but not helpful. … [318] Conventional approaches 9.8 A conventional approach to the diagnostic question is to provide checklists of factors for particular situations, some indicating that mediation is appropriate and some that it is inappropriate. Checklists include mainly factors internal to disputes, such as the fate of prior dispute resolution attempts or the subject-​matter of the conflict. However, as all dispute resolution in part [319] of broader social and political contexts external factors, such as local judicial attitudes to economic competition in trade practice disputes, are also potentially relevant. The following categories of factors are found in checklists, some of which are considered in more detail later in the chapter: • Factors relating to the parties –​here there are subjective factors such as parties’ willingness to undertake mediation, and objective factors such as whether they have legal capacity to make binding agreements or are professionally represented. • Factors relating to the nature of disputes –​such as the “private” nature of a commercial dispute between two businesses, or “public” matters involving discrimination or civil penalties being imposed on a trading corporation. • The cause of the dispute –​for example, poor communication, differences of principle or legal variances over the meanings of contractual terms or statutory provisions. • Policy issues –​such as the appropriate purpose of relevant legislation or the need to “ration” publicly-​funded dispute resolution services, including court resources. • Fairness and equity issues –​such as the ability of citizens to negotiate on equal terms with governments or transnational corporations. • The public interest –​for example, the need to have some disputes resolved openly to protect and inform third party consumers of a service, or the broader community. • Other relevant circumstances beyond the immediate confines of a dispute –​such as the influence of external parties or failed past patterns of attempting to reach negotiated settlements. • The question of timing … The main problem with checklists is that there is invariably a mix of individual listed factors, some of them potentially conflicting, and these need to be weighed one against the other. For instance, in a sexual abuse claim against a church there will be factors indicating both the appropriateness and inappropriateness of mediation, and these require prioritisation to be helpful. Moreover, as between the internal and external categories of factors policy choices are also required, for example between the internal budgetary pressures on courts and tribunals. In the literature the emphasis is usually on the internal categories of factors but where governments and courts make diagnostic decisions the external categories can assume greater significance. … [324] 222 [4.605]

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When Is Mediation Appropriate or Inappropriate? cont. Factors based on principle 9.11 The following factors are referred to in the literature and policy documents as reasons of principle as to why mediation should or should not be used, but there is no evidence to support them: 1.

Parties’ capacity to participate effectively and safely in mediation … [325]

2.

Current fear of violence by one party …

3.

The existence of significant power imbalances between parties which is difficult to redress in the mediation process …

4.

The relative costs of other dispute resolution systems in comparison with mediation…

5.

Cultural factors, where these inhibit authentic participation in the mediation models discussed in this work, with their assumptions of individualism and low-​context communication styles …

6.

The need for flexible outcomes, which courts are less able to provide than mediation in its responsiveness to parties’ interests and future needs … [326]

7.

There are public interest considerations affecting groups or society as a whole, or other policy reasons for not pursuing mediated settlements rather than authoritative public decisions from courts or tribunals …

Factors on which empirical research is inconclusive 9.12 Mack’s second category comprises factors in respect of which empirical research is inconclusive or contradictory in relation to whether mediation is indicated or contra-​indicated. Even though there is some survey evidence relating to these factors it is unconvincing, with only “popular wisdom” to support them: 1.

Type of case … [327]

2.

Disputes of fact or factual complexity, including situations involving matters of credibility …

3.

Amount in issue …

4.

Multiple issues in dispute

5.

Social characteristics …

Evidence-​based factors 9.13 This category involves factors which empirical research reveals to be indicative of likely effectiveness or ineffectiveness of mediation: 1.

Authority to settle or be bound by outcomes …

2.

There are significant differences of value or principle which are not amenable to negotiation, unlike differences over tangible interests … [328]

3.

The conflict is intense …

4.

Concern for children …

5.

Legal representation …

6.

Mediator skill …

 Power in mediation [4.610] One factor that may make a dispute inappropriate for mediation is a significant

imbalance of power between the parties. In the following extract, Mayer considers the different sorts of power that parties may have in a mediation setting. [4.610]  223

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Staying with Conflict [4.615]  B Mayer, Staying with Conflict: A Strategic Approach to Ongoing Disputes (John Wiley & Sons, San Francisco, 2009) pp 154-​156. • Formal and informal. Formal power derives from a legal right, a contractual prerogative, or an organizational role that gives an individual or group the authority to take action and make decisions. Informal power derives from custom, social status, personal characteristics, or group affiliation … • Structural and personal. Structural power derives from the nature of a situation, the resources available to people, people’s formal authority, and their genuine alternatives. Personal power derives from a person’s personal conviction, motivation, intelligence, emotional resources, or other personal attributes … • Integrative and distributive. Integrative power can be thought of as power with, distributive power as power against. Integrative power comes from one’s ability to add to the overall power of all the parties to the conflict. Distributive power is the ability to pursue one’s goals in the face of resistance from others … [155] • Reward and sanction. Reward power is the power to provide a benefit or a positive incentive, whereas sanction power is the power to impose a punishment or a negative consequence … • Individual and social. Sometimes power resides primarily within an individual but it is usually dependent on association with others. Groups, communities, peers and the general public have power that is largely social in nature. The power of leaders, arbiters or executives is more individually based … • Legitimate or illegitimate. Some times of power, such as persuasion and judicial authority, are considered legitimate. Other types, such as violence, and extortion, are not … • Time limited and ongoing. Sometimes power is dependent on a short-​term set of circumstances where other types of power are more enduring … [156] • Implied and applied. Implied power is the power that people have and that others are aware they have but that is not overtly brought to bear. Applied power is power that people directly, overtly and intentionally use …

 [4.620]  Clarke and Davies consider the different types of power and how they may impact

upon the appropriateness of mediation in the following extract.

Mediation –​When Is It Not an Appropriate Dispute Resolution Process? [4.625] G Clarke and I Davies, “Mediation –​When Is It Not an Appropriate Dispute Resolution Process?” (1992) 3 Australasian Dispute Resolution Journal 70 at 70-​81. Introduction The recognised advantages of mediation included time and cost saving, privacy and confidentiality, self-​empowerment, reduction of court backlogs, and preservation of future relationships. Thus, it would appear that a discussion of the negative side of mediation would be a short one. However, while acknowledging these advantages there are certain situations where the propriety of mediation is challenged. The major focus will be where there are severe power imbalances between the disputants. These inequalities can occur at inter-​personal levels or between individuals and corporations or organisations. But power imbalances take many forms and exist at different levels of degree. Not all such situations will preclude the use of the mediation process.

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Mediation – When Is It Not an Appropriate Dispute Resolution Process? cont. Power Imbalances It must be acknowledged that every time a mediator attempts to assist two parties resolve a dispute the issue of a potential power imbalance emerges. Indeed there will always be some inequality between disputants. The impact on this unequal bargaining power on the mediation process has led to an enormous amount of discussion and controversy amongst commentators, ranging from those who imply mediation is simply not an appropriate dispute resolution process in these situations to those who believe that, even in severe cases of inequality, for example, where domestic violence is involved in a family dispute, mediation is still a preferable resolution process to adjudication. It is submitted that the best approach lies somewhere between these two extreme positions. It cannot be said that mediation is never appropriate where a power imbalance exists, because the result of that thesis would be simply that mediation should never be used as a dispute resolution process. There will always be some degree of inequality of power between disputants, but the writers also acknowledge, in agreement with many commentators, that in cases of severe imbalance of power demonstrated, for example, in cases involving domestic violence or child abuse, that mediation is simply not the appropriate process and court adjudication of the dispute is preferable. It may be in these extreme cases that counselling should be ordered in addition to the court process, but counselling is a different process from mediation. The distinction has been described as follows: Mediation is a process in which a third party helps people to negotiate between themselves a clear cut and specific agreement about how they will resolve a specific problem or series of problems … Counselling is mainly to do with personal emotional growth, handling interpersonal relations and, if necessary, changing emotional reactions to external problems. It is submitted, therefore, that in these examples of intolerable power imbalance it is simply not appropriate for the weaker party, the victim, to be part of any mediated agreement with the perpetrator. These issues will be dealt with in more detail later in this paper. What is Power? [71] Power in relationships takes many forms, and power is a relative thing. Broken Hill Proprietary Co Ltd may in size and configuration dwarf a single individual. Therefore it would seem that if a dispute arose between these two entities mediation would never be an appropriate resolution process. But it may be that the individual holds the power. The large corporation has a well publicised reputation to protect, as “the quiet achiever” in the case of BHP Co Ltd. The individual can aggrandise what appears to be a pitiful power base by marshalling the power of the press. An appearance on “A Current Affair” or the “Hinch” programme can be the facilitator. See, for example, the disastrous effect on a large company like Thiess Bros of the media exposure generated by a disgruntled former employee. It was really the individual who wielded the power. Therefore it will not always be an easy task for a mediator to determine where the power imbalance lies, but the example above demonstrates that it is not appropriate to dismiss mediation as a dispute resolution process after a superficial analysis of the disputants’ relative “size”. Furthermore, many feminist writers argue that there is a power imbalance per se between males and females, always in the man’s favour. The authors do not agree with that extreme position. Even in a marital relationship it may be difficult for a mediator to determine where the power lies, as the dominant party can often be the one who on the surface appears the weaker participant. This is illustrated by a case experience of the Canadian mediator John Haynes. He recalls: the man was physically and emotionally powerful, but was reduced to tears by the thought that his wife might deprive him of access to his children.

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Mediation – When Is It Not an Appropriate Dispute Resolution Process? cont. Who really has the power here? Therefore, it is suggested that the mediators should not make assumptions about existing relationships, and it is agreed that: except in extreme and obvious cases, the mediator should suspend judgement on the power imbalance issue until there has been an opportunity to explore the matter during the mediation sessions. Particularly in inter-​personal disputes, power can be based on financial superiority and/​or emotional and psychological factors, that is, on an ability to control others, or the parties may have different levels of “intelligence, articulation and ingenuity”. Financial Power It is submitted that in the case of financial imbalance it is incorrect to follow the reasoning of some commentators who assert that court adjudication of the dispute is always preferable. Owen Fiss, for example, asserts that underlying all ADR processes, including mediation, is an assumption of rough equality between the contending parties, and that as a result, it is the rich who can afford first class justice via court adjudication of a dispute, and the poor who cannot finance litigation settle for second best –​that includes mediation. He sees that the thrust of mediation is towards a surrender of legal rights which results in unfairness and is therefore inappropriate. Fiss asserts: I do not believe that settlement as a generic practice is preferable to judgement … justice may not be done … settlement is a capitulation to the conditions of mass society and should be neither encouraged nor praised. However, it is submitted that this theory is fallacious for a number of reasons. First, the question of fairness in the outcome of a dispute should be asked equally of all [72] forms of dispute resolution including litigation. Many disputes that are resolved outside mediation are also the result of unequal bargaining power, including unequal resources to bear the cost of litigation. The issue of financial inequality raises the question of access to court adjudication. In theory, justice is accessible to all, however, arguably in Australia, it is only available to the very poor via Legal Aid or the very rich. Those of us in the so-​called “middle class” –​and there are a lot of us there –​miss out. There is a real danger that disputants in the court process can only get the justice they can afford. If one’s wallet can only accommodate an inexperienced junior barrister and one’s opponent can afford an experienced senior, then arguably experience will win on the day, not justice. Pincus J of the Federal Court has commented on the role of wealth in the litigation process. It is my opinion that nothing can be reasonably done to eliminate whatever advantage can be obtained by the richer litigant’s access to the more expensive and therefore presumably more expert legal assistance. His Honour then pointed out how expedition and lessening the cost of dispute resolution could in fact lessen the inequality which results from wealth disparity: If however, concerted effort is made to augment the possibility of disputes being resolved more cheaply in court or out, the wealthier litigant’s edge is of less importance. In most civil cases under the present system, where the issue is of any complexity, the party whose pocket is deep enough to last the course must be expected to be able in many cases to force an unequal settlement. Therefore the writers agree with the proposition that if one accepts that mediation is cheaper and quicker than litigation, then arguably, where a wealth disparity exists between the disputants it is actually mediation which may be the fairer and therefore more appropriated way of resolving the dispute, not litigation.

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Mediation – When Is It Not an Appropriate Dispute Resolution Process? cont. Power Imbalance –​Different Levels of Intelligence On the issue of power imbalance based on different levels of “intelligence, articulation and ingenuity” between the disputants, it has been said that here the theoretical legal system is a far more appropriate, and indeed safer path for a disputant than mediation. However, the writers disagree. There is an enormous difference between theoretical justice and applied justice. In practice, litigation often falls short of the ideal. The reality of the situation is normally: different levels of sophistication in choosing the best attorneys, and just plain luck as to which judge is assigned to make a decision. Moreover, in Australia rarely does the disputant have the right to choose his or her own barrister, and is indeed precluded from making a direct approach. Solicitors brief barristers for a number of reasons which may be quite unrelated to the talent of the barrister or the client’s welfare. The choice is often based on friendship, old school or university allegiances or belonging to the same club. Everyone in the legal profession is aware of these practices. Indeed they all participate in them. Thus the litigation process as practised falls far short of the theoretical ideal and “may not protect disputants any better or even as well as mediation”. Therefore, one cannot say that mediation is always inappropriate in this particular example of power imbalance. It will be a question of degree in each case. If issues of equity are of concern to a disputant then he or she may withdraw from the mediation process. It will be ultimately up to the disputant to weigh up the benefits of the mediation process, namely, probable gains in financial costs, speed of resolution, self-​determination, flexibility and informality, privacy and avoidance of stress with what the person sees as the inadequacies of mediation. How to Address Power Imbalances in Mediation [73] There are a number of safeguards and techniques, some of which are inherent in the mediation process itself and others which can be specifically employed by a skilled mediator, to address the issue of power imbalance between disputants in the mediation process. (1)

The first and most basic is the presence of a skilled, knowledgeable and reasonable mediator:



The role of the mediator is to empower each participant to roughly an equal level so that relatively fair mediation can occur.



One of the primary functions of a mediator is to REALITY TEST, that is, although he or she is impartial towards the disputants, the latter are encouraged to reconsider suggested solutions and options; and this is often done by reference to social norms and the results which could flow from an adjudicated decision. This function should be employed in every mediation session. Much of the work can be done in caucuses with brainstorming techniques, the “what ifs”, and the stressing of consequences. For example:



In divorce, separation and custody mediation, where the stakes are high and the patterns of power imbalance are often deep, the mediator must be meticulous about seeing that all the necessary information has been surfaced and that any negotiation weakness has been compensated for.



This process should, in most cases, prevent the less powerful or less informed disputant being railroaded by a dominant opponent into an uninformed agreement.

(2)

A second check on the equity of a mediation agreement is legal review and processing. Lawyers may be excluded from the actual mediation session in most instances, but it is wrong to say they are excluded from the mediation process. Indeed mediators should encourage the disputants to seek independent legal review of a proposed mediation agreement before the parties sign it. Also where the mediator perceives an obvious power imbalance the weaker party should be encouraged to seek legal advice before and during the mediation sessions. Folberg and Taylor point out that:

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Mediation – When Is It Not an Appropriate Dispute Resolution Process? cont.

Independent legal review is a necessity in divorce settlements, labour contracts, environmental issues, and other legally oriented and complex disputes.



The reviewing solicitor can ensure the parties have considered all the relevant issues which may be appropriate to the dispute; that any proposed agreement accurately states their understanding of what the agreement really is; whether there are other alternatives which may be more appropriate and whether or not their client is being treated fairly. Agreements should not come at the expense of fairness.

(3)

The mediator should exploit mediation’s innate capacity to address power imbalances, as it is in essence an empowering process.



It is empowering because the disputants have voluntarily agreed to be participants and to agree to the ground rules which include respect for human dignity and the right to speak without interruption, and without abuse or criticism from the other party. It is part of the mediation process that the parties agree to be bound by these rules before the meditation begins. The mere presence of a neutral third party should at least temper outbursts from overbearing disputants.



The confidentiality of the process gives parties a safer haven in which to express emotions and their true interests, which demonstrably make people better able to see one another’s perspectives. The true reasons and issues behind a dispute often do not emerge in court adjudication.



[74] There is encouragement for the parties to treat each other as equals by the impartiality of the process. The mediator should continuously enforce the message that he or she sees the disputants as equals; and this can be achieved in a practical manner by the mediator being conscious of the way disputants are greeted, addressed, seated, listened and responded to. Even body language should be controlled. The mediator’s skills will be tested in balancing the need to empower the weaker party with maintaining impartiality and neutrality; but overall the message should be that information and knowledge are to be shared.

(4)

As entry into the mediation process is voluntary then the parties must want to settle their dispute without recourse to court adjudication. This should be able to be manipulated by the mediator and if one party tries to dominate or engage in power play, that party can be informed, in the privacy of a caucus if necessary, that the behaviour is counter-​productive to the desired aim.

(5)

A mediator must always be alert to see that one party does not settle out of fear of violence or threats of retaliation. It is suggested that in cases involving domestic violence mediation is simply not an appropriate process. Court adjudication is preferable. This issue will be dealt with in detail later in the article.

(6)

The mediator should not try to rush a settlement through. It is easy for a mediator to set a track record for success, that is, and agreement should be reached in no more than x sessions of y hours each. The problem with this approach is that the third party can unwittingly try to pressure parties to finish the mediation quickly. The writers recall one demonstration video where this methodology was constructively employed in a separation/​divorce dispute, by the Canadian mediator, John Haynes. But that was a case of two highly-​educated disputants of equal power balance. It is suggested that the technique should be used with caution, as it can cause the mediator to ignore power imbalance in the pursuit of keeping up the success rate.

(7)

Mediation should also be conducted in an environment that offers support and information to both parties. Folberg and Taylor suggest that



inequalities of power brought about by lack of information can be countered by the educational function of the mediator.



Thus a mediator is a resource expander and should be able to direct disputants to resources and support services that may be useful to them. This will include legal advice or perhaps counselling, mental health or medical services may be helpful to the parties. The mediator,

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Mediation – When Is It Not an Appropriate Dispute Resolution Process? cont. John Haynes gives the following example in a divorce mediation.

Resistance to the fee or to the process indicate that one or more persons is not ready for mediation. If the couple needs a therapist(s) rather than a mediator, it is important to either change to that role or refer the couple elsewhere.

(8)

The writer, Isolina Ricci (1985), suggests a number of specific interventions which could be applied in divorce mediation. Initially she discusses the distinction between “entitlements” and “empowerments” in balancing power. The former refer to the belief in a legal or natural claim to something, either by law or custom. Empowerment is simply the ability to exercise those claims. She believes the mediator must use power balancing interventions to both strengthen the weaker position and mitigate overbearing postures. Therefore the mediator should:



(i)

identify each person’s entitlements and help them negotiate for their own best interests;



(ii)

objectively describe the pattern of interaction;



(iii)

identify where and when to intervene.



[75] Ricci identifies two potentially self-​defeating patterns that women in separation/​divorce display in the mediation process; namely, they may base their entitlements on their perceived role as the yielding, self-​sacrificing peace-​maker of the family –​looking for peace at any price; and women in a divorce who feel betrayed and victimised, and therefore “entitled”, may seek rights more appropriate to the old fault divorce system.



Ricci believes the mediator should begin the process by asking the divorcing couple to identify their greatest fears about mediation and to build assurances to reduce the fears and rebuild trust between the parties. She focuses on the use of educational interventions directed at restructuring the wife’s empowerment, particularly the traded assurance intervention. These traded assurances help reduce fears of power plays and manipulation, for example, the wife may work towards financial independence to confront her inherent insecurity: the traded assurance is that the husband will pay the majority of the cost for the planning and implementation of that independence.

(9)

Ricci suggests if the wife still cannot empower herself sufficiently for negotiating in her own self interest, then the mediator may need to employ additional intervention techniques, such as the appointment of an outside coach, counsellor or even a proxy.



In extreme cases a proxy may be agreed upon, who will negotiate in place of the weaker party. The alternative is only used in those unusual circumstances where mediation, despite the circumstances, is still considered the preferred mode of dispute resolution over more traditional means.



Many power imbalances can be addressed simply by the mediator spending more time with the parties, together or even more effectively in separate caucuses. However, most commentators including Ricci would agree that if, after employing the intervention strategies described the imbalance still exists, then mediation will not serve the weaker party’s best interests. In this situation the mediator should terminate the mediation or at least suspend proceedings until the person has received legal advice. Where there is an intolerable power imbalance it is agreed that the scrutiny, rigor and safeguards of legal due process might by more appropriate.

Discrimination There is some merit to the argument that disputes involving the powerless, discriminated against and disadvantaged require airing in the pubic arena via court adjudication, because without public scrutiny and awareness there will be no attempt to reform, legislatively or socially, entrenched discrimination or power imbalance. It is agreed that there are some cases in this area where a private settlement of the dispute is not appropriate, because the interests of the community override those [4.625]  229

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Mediation – When Is It Not an Appropriate Dispute Resolution Process? cont. of the individual disputant. This argument is particularly strong on behalf of disadvantaged minority groups, which in some contexts will include women. For these groups publicity is a powerful weapon against discrimination and other wrongs to which they are subject. An example in point was the dispute between Deborah Wardley and Ansett Airlines, where Miss Wardley was refused a position as a pilot with the airline solely on the basis of her sex. If a private mediated agreement had been reached in this case the public would not have been made aware of the deliberate job discrimination to which women were subjected. There would have been no community outrage and resultant education. Members of the public at that time were aware that there were no women airline pilots, but it had never been revealed in the press that this was the result of a deliberate discriminatory attitude held and practised by the airline executives. No [76] doubt it was simply assumed there were no women suitably qualified. Had the case not been made public via hearing in the Equal Opportunity Tribunal in Victoria and the High Court of Australia, no doubt there would still not be any women airline pilots. Some cases are simply not suited to the private nature of the mediation process. However, with respect to the public nature of court adjudication it would seem that the “weak” American plaintiff is in a better position that his or her Australian counterpart. In the United States many actions by the weak against the strong can be pursued by way of class actions (for example, individuals against corporations, particularly in the product liability area, or against governments or institutions). This allows an individual plaintiff to maintain a high degree of anonymity, because it is the class that gets the publicity, usually not its individual members. Examples here in the product liability area include the Dalkin Shield and Agent Orange cases. However, in Australia at present this facility is not available, so the individual must stand alone, often in a blaze of unwanted publicity. It has been observed that: Whistle blowers, “stirrers”, and the like are not loved by the powerful in Australia and this sort of individual exposure can be permanently damaging in career and social terms. Therefore, in some situations, even for the disadvantaged the confidentiality of the mediation process could be an important protection. But it is suggested that where the dispute is based on discrimination, be it sexual or racial, mediation is not the correct resolution process. Public display and recognition is required here before any social or legislative reform will occur. There is no point saying that “individual exposure can be permanently damaging in career and social terms” (as above) because no doubt the individual disputant has no career, or has no social standing anyway due to the discrimination. Domestic Violence and Mediation The question of whether or not cases involving domestic violence are suitable for mediation is one which evokes strong reactions –​some in favour, some against. It is the writers’ view that mediation is not the appropriate resolution process for these types of cases; and that the perpetrators need to be confronted with the reality of their behaviour via court adjudication. The offender must be sanctioned. “Simply reconciling the people is not an appropriate solution”. Research and surveys done on the issue of domestic violence have revealed some startling outcomes. A survey conducted by the Federal Government in 1989 revealed that approximately one in five of those questioned believed domestic violence was acceptable. Although none of those surveyed would condone physical assault of a stranger, bashing one’s wife or de facto was a different matter. It was private. This is also a feeling that the victim (a woman in 98 per cent of cases) contributed to her own victimisation. Indeed, after years of abuse and intimidation many battered wives begin to feel that indeed they must have brought it on themselves. There is an enormous risk therefore that the female victim simply does not have the power or resources to resolve a dispute in the mediation process which would even address the issue of violence. That is, “they fail to address the issue of violence, or treat the violence as caused at least in part by the victim”.

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Mediation – When Is It Not an Appropriate Dispute Resolution Process? cont. Dr Hilary Astor refers to data from a scheme in Massachusetts USA mediating domestic violence cases, where the issue of violence was only covered in 25 out of 48 cases, and in these sessions by an agreement “to get along”. Surely any agreement which fails [77] to deal with the issue of domestic violence is likely to break down anyway and does not confront the fact that domestic violence is a crime. One proposition put forward is that mediation of domestic violence cases is acceptable provided the mediators have had special training in domestic violence and are familiar with the literature in the area and provided the mediation is part of a deferred prosecution programme, that is, that criminal charges are laid against the perpetrator, but prosecution of them is deferred pending compliance with a mediate disagreement which is monitored. However, although this recommendation may have some merit in jurisdictions where criminal charges are the main recourse for battered women, it is not appropriate where the main recourse is a protection order. This is the case in Queensland with protection orders under the Domestic Violence (Family Protection) Act 1989, where the actual order is a civil one at first instance. There is only a criminal sanction if the initial order is breached by the perpetrator. It seems clear that the instigators of domestic violence need to be confronted by the police and the court system before they will confront the reality of their behaviour. Shock tactics are required and the goals and approach of mediation, namely, reaching agreement and reconciling the parties, are simply incompatible with this. Mediation is inappropriate because of: the lack of accountability, the failure to account for the parties’ vastly unequal bargaining power, and the use of mediation to bar abused women from access to courts for enforceable protection from future violence or punishment of the abuser for past violence. Violence is more effectively deterred by arrest than by mediation. Therefore as has already been suggested the best approach where there are disputes involving domestic violence is to combine court adjudication with counselling of the abuser. This is the only way to break the cycle of violence. To conclude it is agreed that: Mediation is not a desirable remedy for abuse cases, even in an overburdened law enforcement system. Cases not Suited for Mediation –​When should the Mediation Process be Terminated? The examples illustrated of intolerable power imbalances, are the main illustration of when mediation is not appropriate and where court adjudication is the preferred option. One of the roles of the mediator is to assess the suitability of parties for mediation at all stages; and even if the parties are willing the mediator should decline to proceed in certain circumstances. A more definitive list of situations where mediation should be terminated is as follows: • where a party is unwilling to honour mediation’s basic guidelines (for example, continuous attempts to intimidate the other party during the mediation process); • where one of the disputants is so seriously deficient in information that any ensuing agreement would not be based on informed consent; • where domestic violence or fear of violence is suspected, or where a party indicates agreement, not out of a free will, but out of fear of the other party; • cases involving child abuse or sexual abuse; • where there is “a serious personal pathology”; • where the parties are hoping to gain some tactical or strategic advantage which is not related to the subject-​matter of the dispute, for example, as a “fishing expedition” to gain information, or as an attempt to delay proceedings;

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Mediation –​When Is It Not an Appropriate Dispute Resolution Process? cont. • [78] where the parties are so bitter and conflict-​ridden that they are unable to separate their own emotions and feelings from the actual dispute, that is, the “all of nothing” dispute. Perhaps if counselling or therapy occurred as a preliminary measure the parties may then be suitable for mediation, but not otherwise; • if the parties reach an agreement which the mediator believes is: illegal, for example, a resolution which involved tax evasion or a breach of health and safety issues; a “sweetheart deal” in which an unsuspecting third party or the community in general is disadvantaged; grossly inequitable to one of the parties; or the result of bad faith bargaining, then the mediation should be terminated. Conclusion As a dispute resolution process mediation has enormous potential. It empowers people to find their own solutions to particular problems, without handing responsibility over to the State and the court system. The process is particularly suited to family and neighbourhood disputes where mediation, unlike court adjudication allow some preservation of the future relationship between the parties; and the ambit of its application is almost unlimited. It can also be utilised for environmental, labour and commercial disputes. Yet despite these acknowledged advantages, mediation is not a cure-​all. It will not eliminate the need for court adjudication of some disputes. There are a number of situations outlined in this article where it has been suggested that mediation is not the appropriate dispute resolution process. However, if one major deficiency in the process can be extracted it is where a severe power imbalance exists between the disputants. Certainly this imbalance can be addressed –​ by procedures inherent in all mediations and also by special intervention techniques which can be applied by a skilled mediator. But if at the end of the day the power imbalance remains intolerable the mediator should terminate the process and let the court system prevail. Agreement should never be reached at the expense of fairness.

 Power of the mediator [4.630]  In the following extract, Mayer reminds us that it is not just the parties who might

have power in a mediation –​the mediator also has power.

The Dynamics of Power in Mediation and Negotiation [4.635] B Mayer, “The Dynamics of Power in Mediation and Negotiation” (1987) 16 Mediation Quarterly 75 at 79-​83. Mediators and Power Although parties to a conflict may turn to mediation for other reasons, the mediator’s central objective is normally to handle problems caused by the application of power to the negotiation process. They may engage in problem-​solving processes or allow parties to express their emotions safely, but these tactics are often intended to bring about a more constructive application of power. For mediators to achieve this objective, they need to understand [80] them to influence power dynamics. They must also come to terms with the ethical dilemmas involved in exercising their power. Sources and Limits of Mediator Power. In most settings, mediators derive their power from the parties with whom they are working. These parties have agreed to participate in a process that is managed by the mediator and to accept his or her procedural expertise. When the parties are no longer willing to grant the mediator this power, then his or her influence is normally at an end. There are several other elements that contribute to the mediator’s influence. The mediator usually has personal

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The Dynamics of Power in Mediation and Negotiation cont. power in the ability to articulate the issues and interests of concern to the parties and in the rapport established. Frequently, the mediator becomes important to the parties as the one person who has a reasonably decent relationship with the various factions. People often turn to mediators because of their presumed expertise in the substantive areas involved. This is an important potential source of power, but a dangerous one. Mediators who use their substantive expertise risk losing some of their other sources of influence, particularly the parties’ perception of their impartiality. When mediators can use their substantive expertise in an impartial way, they can be effective in helping move parties through the decision-​making process. An important source of mediator power lies in the intervenor’s alternative to a negotiated solution. Mediators lose nothing but a little prestige when no settlement is reached. To be able to say to parties that “I will do what I can to help, but in the end the results are up to you” gives the mediator a great deal of power. It is very likely that experienced mediators benefit from being able to dissociate themselves from the results of a given case because their professional pride and reputation is built on a larger foundation than one or two negotiations. This source of power is used by mediators repeatedly to get parties to act in a mature and responsible way. The credibility of the mediation process itself is another major source of the mediator’s power. This is a fragile commodity that can easily be damaged if mediators abandon the principles of impartiality and confidentiality. The mediator’s power is limited by his or her role, the nature of the mediation contract, the constraints facing the parties, the social structure within which mediation occurs, and self-​imposed ethical restrictions. The role of the mediator is to focus on the process of negotiation and to provide the parties with the structure for arriving at the best possible solution. This limits the mediator’s ability to influence the substantive outcome directly, quite apart from ethical considerations. The mediation contract generally requires the mediator to remain impartial as to the conflicting goals of the parties and to maintain a clear standard of confidentiality [81] If the mediator deviates too much from his or her role or the terms of the contract, the parties may well withdraw their support from the process. Finally, a mediator’s power does not normally encompass the ability to come up with solutions that were not in principle obtainable through independent negotiations. The mediator may help parties discover new settlement options, but he or she does not create them. Mediator’s Exercise of Power. Given the mediator’s potential sources of power and the constraints on its exercise, what is the appropriate role of mediator power in the mediation process? The mediator’s commitment is to empower the parties by strengthening the process itself. This means exerting influence by advocating the procedures that encourage the development of sound, integrative decisions. These procedures include: 1.

Gaining access for all parties to relevant data and information.

2.

Ensuring the opportunity for each party to be heard.

3.

Helping parties to separate and articulate feelings, values, perceptions, and interests and to identify all relevant interests including those of unrepresented parties.

4.

Helping to develop a creative set of options that maximize the parties’ individual and collective interests.

5.

Helping parties evaluate the options that have been identified and their alternatives to a negotiated agreement.

6.

Designing and assisting in the selection of the options that maximize the satisfaction of the parties.

7.

Formulating the selected solution in a manner that increases its chances of being mutually acceptable and anticipates to the greatest extent possible the potential for future misinterpretations or manipulations.

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The Dynamics of Power in Mediation and Negotiation cont. 8.

Assisting in the design of an implementation procedure that promotes compliance and follow through.

It is in the service of the above procedural objectives that mediators are most likely to exert influence within the framework of their role. There remains the question of what role the mediator has in changing the power relations of the parties and how to address problems in the application of power to the negotiation process. Is it the mediator’s role to balance power when a significant imbalance exists? Davis and Salem (1984) suggest that mediation is ideally suited to address power imbalances in negotiations. From their perspective, handling the imbalances means ensuring that each party’s point of view gets a fair hearing and that no party is coerced into agreeing to something that is not in his or her interests. They also point out, however, that a proposed settlement, although unequal, may really be the best option for the weaker party. Thus, the underlying power relations may dictate an unequal result. Mediation, in other words, can provide procedural equality but cannot usually alter the [82] division of resources or the structural conditions that determine the basic power relations between the parties. Despite the reality of basic power differences between the parties, the mediation process can and should address power imbalances and power dynamics that may hinder productive negotiations. Mediation should promote the exercise of the kinds of power that are congruent with the mediation process, which promote collaborative negotiations, and which are appropriate to the issues and people involved. Generally this means encouraging the use of persuasion, information, appeals to principle (the sources of power related to a normative orientation), and rewards (the utilitarian basis) and interfering with the use of threats, intimidation, and sanctions (the sources related to a coercive orientation). One way in which mediation accomplishes these goals is by helping parties distinguish between their immediate needs and long-​term interests. This involves enhancing what Axelrod (1984) has called the “shadow of the future”. It is often not in a party’s long-​term interest to press a perceived immediate advantage or to resort to coercive tactics if this strategy will damage future relations. By helping parties examine their interests in more depth than they might otherwise, the mediator can help them understand the drawbacks of applying their immediate power advantages. Although there are many potential problems with pressing a power advantage, two seem to occur repeatedly in negotiations. Sometimes the only perceived source of power that a weaker party has is to refuse to agree to anything. The perception of being weak and vulnerable is one of the greatest sources of rigidity in negotiations. In addition, agreement forced on a party primarily because of a power differential and not through the satisfaction of the party’s interests is likely to be less durable over time and may create unintended future consequences. The mediation process can often make these potential consequences clear to all negotiators and thereby change their approach to bargaining. There are numerous tactics a mediator can use to change the power dynamics of the parties. Moore (1986) has outlined twelve ways in which mediators use their power to try to promote a satisfactory outcome. These range from guiding the communication and information exchange to managing the doubt the parties may have about their own power and alternatives. Almost anything a mediator does, from inviting one party to speak first to establishing eye contact at a certain point, is an application of their influence in the negotiation. The difficulty is being conscious and intentional in the application of a mediator’s power in the negotiation process. It may be helpful for mediators to consider the following principles about the use of their power in mediation: 1.

It is better to be conscious about the use of power than to deny its reality in the name of neutrality.

2.

Mediators can more effectively give advice, make suggestions, [83] and get parties to think about things they would prefer to avoid by asking the right questions and reframing statements that have been made by others than by stating an opinion or making assertions.

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The Dynamics of Power in Mediation and Negotiation cont. 3.

It is safer to exert influence in support of the process or the parties’ mutual interests than in support of one party. When it is necessary to support one party, it is better to do so by empowering that party, providing an opportunity to be heard, helping to gain access to expert advice or necessary information, and so forth, than it is to support a party by trying to diminish someone else’s power or by advocating substantive proposals that support the weaker party’s interests.

4.

When a mediator decides it is necessary to exert direct influence in support of a substantive outcome, it is best to do so by providing information rather than by stating opinions or putting pressure on the parties.

5.

For mediators to be successful, they must trust the process. This means enabling the parties to use the process to discover acceptable results for themselves rather than placing too much emphasis on the mediator’s own insights about potential settlements.

6.

Exerting influence and maintaining neutrality are not necessarily a contradiction. The mediator loses impartiality only when he or she exerts influence in favor of one party at the expense of the other.



NEUTRALITY AND IMPARTIALITY IN MEDIATION [4.640]  The concept of neutrality has frequently been called a fundamental principle of media-

tion, although its precise definition and implementation in practice are certainly not clear. Recent literature and standards tend to avoid using the term “neutrality” at all, referring instead to “impartiality” or focusing on some sub-​principles, such as having no conflict of interest or bias. In the following extract, Izumi considers various definitions of neutrality, its importance in legitimising mediation and the mediator’s role. She also explores some of the difficulties in identifying what actually constitutes neutrality. She proposes that the concept of neutrality comprises of four essential elements: no conflict of interest; process equality; outcome neutrality and lack of bias, prejudice or favouritism.

Implicit Bias [4.645]  C Izumi, “Implicit Bias and the Illusion of Mediator Neutrality” (2010) 24 Journal of Law and Policy 71 at 74-​85. I. The Essentialities of Neutrality Mediator neutrality is universally understood to be a vital attribute of the mediation process. The traditional definition of mediation from the 2005 revised Model Standards of Conduct for Mediations (“Model Standards”), originally approved in 1994 by the American Arbitration Association, the American Bar Association Section of Dispute Resolution, and the Association for Conflict Resolution, states, “Mediation” is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute. Textbook definitions of the mediation process invariably use language about the involvement of a “neutral” or “impartial” third party. A sample of dispute resolution casebooks reveals similar descriptions of mediation as: [75] • “[A]‌n informal process in which an impartial third party helps others resolve a dispute or plan a transaction but does not impose a solution”. • “[A]‌process of assisted negotiation in which a neutral person helps people reach agreement”. [4.645]  235

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Implicit Bias cont. • “[A]‌process in which a disinterested third party (or neutral) assists the disputants in reaching a voluntary settlement of their differences through an agreement that defines their future behavior”. • “[A]‌process in which an impartial third party acts as a catalyst to help others constructively address and perhaps resolve a dispute, plan a transaction, or define the contours of a relationship”. • “[A]‌process in which a neutral intervener assists two or more negotiating parties to identify matters of concern, develop a better understanding of their situation, and, based upon that improved understanding, develop mutually acceptable proposals to resolve those concerns”. Neutrality is a core concept of mediation. Within the profession, there is widespread consensus about the vital importance of neutrality. Neutrality, along with consensuality, gives the mediation process legitimacy. “The essential ingredients of classical mediation [76] are: (1) its voluntariness-​a party can reject the process or its outcomes without repercussions; and (2) the mediator’s neutrality, or total lack of interest in the outcome. As a principle ‘central to the theory and practice of mediation’, neutrality serves ‘as the antidote against bias, … [which] functions to preserve a communication context in which grievances can be voiced, claims to justice made, and agreements mutually constructed’ ”. Mediator neutrality is foundational to the mediation process. Other essential values, such as confidentiality and party self-​determination, rest upon the parties’ perception of the mediator as an unaligned participant. Mediator neutrality legitimizes the mediation process because the parties, rather than the mediator, are in control of decision-​making. To encourage the parties to share information freely and candidly with the mediator, the mediator promises not to take sides with the other party or use the information to advance the opponent’s interests. Mediator neutrality makes it possible for parties to discuss issues of their choosing, negotiate with opponents, and design their own agreements. Moreover, the parties’ expectation of mediator neutrality is the basis upon which a relationship of trust is built. Trust is attained and maintained when the mediator is perceived by the disputants as an individual who understands and cares about the parties and their disputes, has the skills to guide them to a negotiated settlement, treats them impartially, is honest, will protect each party from being hurt during mediation by the other’s aggressiveness or their own perceived [77] inadequacies, and has no interests that conflict with helping to bring about a resolution which is in the parties’ best interest. Only when trust has been established can the parties be expected to be candid with the mediator, disclose their real interests and value the mediator’s reactions …. Neutrality is critical to the role of the mediator. Mediators must meticulously avoid even the appearance of partiality or prejudice throughout the mediation process. One mediation scholar has cautioned: Whether there is such a thing as pure neutrality or not, we know, and our clients know, that when we commit to being neutral, we are committing to not intentionally promoting one party’s interests at the expense of another. When we choose to play that role, we must truly honor it, and the fact that we have a choice and decision to make about whether to put ourselves forward as a third-​party neutral should only emphasize how important that commitment is. While the importance of mediator neutrality is undisputed, what actually constitutes neutrality is less clear. Neutrality is discussed, practiced, and researched rhetorically, but there are no empirical studies demonstrating exactly what neutrality means. The mediator’s function is nebulous due to the difficulty in defining neutrality. Despite its importance, mediation literature offers slim guidance on how to achieve neutrality. “Neutrality is a hard concept to nail down. It has different meanings in different cultural contexts. In some contexts, the term neutral is associated with being inactive, [78] ineffective, or even cowardly. In others, it is viewed as a sine qua non for third parties to establish respect”. Comprehension of mediator neutrality is complicated by the lack of consistency in definitions. The dispute resolution lexicon is imprecise. “One reason that the theoretical concepts seem divorced from practice is that we do not yet have a shared vocabulary in our field. Although neutrality has aspects 236 [4.645]

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Implicit Bias cont. similar to fairness, justice, and appropriateness, as well as impartiality and lack of bias, it is not the same as those concepts”. There is no consensus within the dispute resolution community that neutrality and impartiality are terms of art or synonyms in the vernacular. Commentators and guidelines employ neutrality and impartiality circularly, asserting, for example, that “mediators shall at all times remain impartial”, or “a mediator needs to remain impartial to be able to fulfill her role”. Neutrality and impartiality are often used synonymously when discussing a mediator’s ethical duty. One reason for this is because distinctions between the terms may appear synthetic or arbitrary. In their studies, Sara Cobb and Janet Rifkin found that fourteen out of fifteen mediators defined neutrality by using the word “impartiality”. Other commentators and guidelines apply “neutrality” to the outcome or the elements of any resolution and “impartiality” to engagement with the parties. Douglas Frenkel and James Stark propose: [79] “Impartiality”, as we define the term, means that the mediator does not favor anyone party in a mediation over any other party. Favoritism might be caused by a prior relationship or alliance with a mediation participant or by a personal bias for or against a participant based on that person’s background, position, personality or bargaining style. Impartiality thus means a freedom from bias regarding the mediation participants. They define neutrality as meaning “that the mediator has no personal preference that the dispute be resolved in one way rather than another. The mediator is there to help the parties identify solutions that they find acceptable, not to direct or steer the parties toward results he favors”. Stated another way, neutrality is “a mediator’s ability to be objective while facilitating communication among negotiating parties”, and impartiality is “freedom from favoritism and bias in word, action and appearance”. Despite this lack of clarity in the field, four key elements of neutrality are discernible: no conflict of interest; process equality; outcome-​neutrality; and lack of bias, prejudice, or favoritism toward any party. At a minimum, mediator neutrality is understood to mean [80] that the mediator has no pecuniary interest in the subject matter, no undisclosed relationship to the parties, and no possibility of personal gain. Avoiding any actual or apparent conflict of interest is subsumed in the concept of neutrality. The Uniform Mediation Act states that: [B]‌ efore accepting a mediation, an individual who is requested to serve as a mediator shall: (1) make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a mediation party or foreseeable participant in the mediation; and (2) disclose any such known fact to the mediation parties as soon as is practical before accepting a mediation. The Model Standards contain a similar prescription on conflicts: [A]‌mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality. [81] The source of the mediator’s fees may compromise neutrality. A mediator must disclose any “monetary, psychological, emotional, associational, or authoritative affiliations” with any of the parties that might arguably cause a conflict of interest. This aspect of neutrality has special consequences for attorney-​mediators: One major issue for lawyers who alternate between the roles of advocate and neutral is the potential for conflicts of interest –​the possibility that a party in a mediated case will be a past or future legal client of the mediator-​lawyer. This is a particular concern in large law firms, [4.645]  237

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Implicit Bias cont. where a lawyer-​neutral’s partners may be concerned that a single modestly compensated mediation will disqualify the entire firm from representing the party in a much more lucrative matter. Standards for neutrals call for disclosure in such situations. A second facet of neutrality is process-​based or procedural, requiring that the mediator conduct the mediation process in a manner that is even-​handed. The Model Standards require a mediator to conduct a mediation in a manner that promotes party participation and procedural fairness. “The mediator’s task is to control the process of the mediation, providing a procedural framework within which the parties can decide what their dispute is about and how they wish to resolve it”. Process symmetry may be manifested by maneuvers such as ensuring an equal number of caucuses with the disputants or spending roughly the same amount of time with each party. It also means enforcing stated guidelines in a [82] fair manner. For example, if the mediator sets a deadline for the submission of written statements or enforces behavioral guidelines, the parties expect enforcement to be equal. “One feature of procedural impartiality is that the rules constitutive of some decision-​making process must, at a minimum, favour neither party to the dispute-​cum-​competition or favour or inhibit both equally”. Expectations of mediator neutrality encompass both procedural and outcome impartiality. Neutrality in mediation is widely understood to mean that the mediator does not influence the content or outcome of the mediation. The mediator’s ethical duty to be impartial throughout the process applies to her interaction with the parties and to the substance of the dispute. Content-​neutrality is closely linked to consensual decision-​making by the disputants; it constrains mediators from usurping party control over choices and judgments. Outcome neutrality requires the mediator to refrain from promoting either party’s interests. This component of neutrality also means the mediator should not press the parties to reach a resolution at all. “Some would draw a line at content-​neutrality, however, when the result would be unfair to one of the parties or have detrimental effects on individuals with interests that are not represented at the table”. A mediator’s ethical duty and ability to be outcome-​neutral have inspired significant debate within the profession. For years, scholars [83] and practitioners have questioned whether a mediator should be a mere facilitator of party-​initiated outcomes or should assertively prevent agreements that are unfair or favor more powerful parties. From one perspective, neutral mediators are viewed as being interested solely in ensuring a fair process, leaving the disputants to determine any mutually agreeable resolution. An alternative philosophy is that mediators may or must interact with the parties unequally to account for differences such as resources, power, educational level, and financial sophistication. This debate is less about how we define neutrality and more about how neutrality meshes with equally valued notions of fairness and justice, process legitimacy and quality, and party self-​determination. While it is important for mediators to engage in that colloquy, it is not the focus of this Article. The final element of neutrality, and the one I want to emphasize, is the mediator’s duty to “avoid bias or the appearance of bias”. “Impartiality between the parties and neutrality regarding the outcome are only two forms of bias. The sum total of the life experience of the mediator, the subjective self, enters into each mediation and impacts the process and outcome”. The Model Standards capture this in Standard II, which states in pertinent part: [84] A.

A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice.

B.

A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.



1.

A mediator should not act with partiality or prejudice based on any participant’s personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason. As of 2007, over a dozen states have implemented standards in which neutrality is defined as “freedom from favoritism or bias either by word or action, and a commitment to serve all parties as 238 [4.645]

Mediation  Chapter  4

Implicit Bias cont. opposed to a single party”. Favoritism might be caused by a personal bias for or against a participant based on that person’s background, position, personality or bargaining style; as such, impartiality means a freedom from bias towards the mediation participants. For the disputants in mediation, a paramount concern is that the mediator has no prejudice against them on any level. To maintain neutrality, mediators must be aware of their assumptions, biases, and judgments about the participants in the process, particularly in cases where they have strong reactions to one of the parties. Achieving impartiality requires mediators to have “insight into their own perspectives and experiences and (to understand] the impact that these have on their relationship with the parties in mediation”. “There remains the concern that the mediator’s ideas and approaches to a problem will intrude and affect [85] the direction of the process of mediation and its outcomes, as well as the difficulty of monitoring unconscious bias”. This Article highlights the impartiality dimension of mediator neutrality in order to examine the imposing challenge presented by one form of bias, ie, implicit or unconscious bias. The next Part begins with a condensed review of the science of implicit social cognition and the phenomenon of implicit bias. It introduces the work of “behavioral realists” who import scientific research into legal analysis, and concludes with the application of these concepts to the mediation process.

 [4.650]  Izumi refers to a number of American standards and guidelines; however similar

provisions exist in the Australian equivalents. For example, s 7 of the Australian National Mediator Practice Standards refers to procedural fairness, impartiality and conflicts of interest, as do the Law Council of Australia’s Ethical Guidelines for Mediators, both extracted below.

Ethical Guidelines for Mediators [4.655] Law Council of Australia Expert Standing Committee on Alternative Dispute Resolution, Ethical Guidelines for Mediators (2011) Law Council of Australia, http://​learnedfriends.com.au/​getmedia/​b72ee6c5-​cbf4-​4c8f-​b170-​cd7bc66fd5cf/​Walker_​Ethical-​Guidelines.aspx. 5 Impartial and ethical practice A mediator must conduct the dispute resolution process in an impartial manner and adhere to ethical standards of practice. 1.

Impartiality means freedom from favouritism or bias either in word or action, or the omission of word or action, that might give the appearance of such favouritism or bias. A mediator will disclose actual and potential grounds of bias and conflicts of interest. The participants shall be free to retain the mediator by an informed waiver of the conflict of interest. However, if in the view of the mediator, a bias or conflict of interest impairs their impartiality, the mediator will withdraw regardless of the express agreement of the participants.

2.

A mediator should identify and disclose any potential grounds of bias or conflict of interest that emerge at any time in the process. Clearly, such disclosures are best made before the start of a process and in time to allow the participants to select an alternative mediator. Mediators should take reasonable steps to minimise the chances of being in a position of potential bias or conflict of interest before the process commences.

3.

A mediator 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. Where possible, the mediator should provide several alternatives if recommending referrals to other practitioners and services. [4.655]  239

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Ethical Guidelines for Mediators cont. 4.

A mediator will not use information about participants obtained in mediation for personal gain or advantage.

5.

The perception by one or both of the participants that the mediator is partial does not in itself require the mediator to withdraw. In such circumstances, however, the mediator must remind all parties of a right to terminate the mediation process.

6.

A mediator should not become involved in relationships with parties that might impair the practitioner’s professional judgment or in any way increase the risk of exploiting clients. Except where culturally required, practitioners will not facilitate disputes involving close friends, relatives, colleagues/​supervisors or students. …



Ethical Guidelines for Mediators [4.660] Law Council of Australia Expert Standing Committee on Alternative Dispute Resolution, Ethical Guidelines for Mediators (2011) Law Council of Australia, http://​learnedfriends.com.au/​getmedia/​b72ee6c5-​cbf4-​4c8f-​b170-​cd7bc66fd5cf/​Walker_​Ethical-​Guidelines.aspx. 1. Process Mediation is a process in which an impartial person –​a mediator –​facilitates the resolution of a dispute by promoting uncoerced agreement by the parties to the dispute … 2. Impartiality A mediator may mediate only those matters in which the mediator can remain impartial and even handed. If at any time the mediator is unable to conduct the process in an impartial manner the mediator should withdraw. Accordingly, a mediator must avoid: (i)

partiality or prejudice; and

(ii)

conduct that gives any appearance of partiality or prejudice.

Comment (a)

Whatever their own views and standards mediators should not only not be partial or prejudiced but should avoid the appearance of partiality or prejudice by reason of such matters as the parties’ personal characteristics, background, values and beliefs or conduct at the mediation.

(b)

Mediators should be conscious of behaviour which, however innocent, may be interpreted as indicating partiality or prejudice, such as spending more time with one party than another without good reason, socialising with a party and adopting different modes of address.

(c)

Even if all the disputants agree that they would like the mediator to express an opinion on the merits, there is a substantial risk in giving such an opinion that the mediator may no longer appear to be impartial. As a result the mediator may be obliged to withdraw.

(d)

Should the disputants agree to terminate the mediation and enter an alternative process, using the mediator, the mediator must consider the suitability of continuing as the appointed resolver and may need to withdraw altogether notwithstanding the parties’ wishes.

3. Conflicts of Interest Before the mediation begins, the mediator must disclose all actual and potential conflicts of interest known to the mediator. The mediator should: 240 [4.660]

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Ethical Guidelines for Mediators cont. (i)

discuss any circumstances that may, or may be seen to, affect the mediator’s independence or impartiality; and

(ii)

at all times be transparent about the mediator’s relations with the parties in the mediation process.

Disclosure must also be made if conflicts arise during the mediation. After making disclosure the mediator may proceed with the mediation if all parties agree and the mediator is satisfied that the conflict or perception of conflict will not preclude the proper discharge of the mediator’s duties. The mediator must be certain of: (i)

the parties’ agreement; and

(ii)

the mediator’s ability to undertake the mediation with independence and neutrality so as to ensure impartiality.

After the mediation a mediator must not act in such a manner as to raise legitimate questions about the integrity of the mediation process.

 [4.665]  Boulle, at [4.670], notes that the concepts of neutrality, impartiality and the inde-

pendence of mediators has been the subject of extensive debate. He explains that the concept of neutrality is multidimensional, and not all factors will always be relevant or practised in all situations.

Neutrality, Impartiality and Independence [4.670] L Boulle, Neutrality, Impartiality and Independence in Mediation: Principles, Process, Practice (3rd ed, LexisNexis Butterworths, Chatswood, 2011) pp 71-​73. Neutrality, Impartiality and Independence 3.25 Few aspects of mediation have attracted more recent attention in the literature and conference discussions than these three related issues. An extensive debate has advanced understandings of the concepts and refined some previous generalities. It has also introduced blandishments, contradictions and semantic battles of its own. To anticipate the following discussion: the most prevalent view advanced in the contemporary literature is that concepts such as neutrality, impartiality and independence have no absolute qualities but are dependent on context, relationships and other subjective factors. It is only marketers and some mediator practitioners who maintain relatively straightforward views on the matter, divorced from the complex and nuanced views in the literature. … [72] Shades of neutrality 3.27 As regards the concept itself, “neutrality” has several shades of meaning in relation to mediators’ status, roles and responsibilities. They include the following potential factors: [73] • Mediators do not allow personal views about or opinions on disputes to affect their roles; • Mediators are disinterested actors in that they have no personal or commercial interest in dispute resolution outcomes; • Mediators have no prior knowledge or association with particular disputes; • Mediators do not know disputing parties, nor have had prior associations with them; • Mediators have no commitment to parties or interests outside the mediation, such as government or human resource managers; • Mediators will not, directly or indirectly, sit in judgment of parties or the merits of disputes; [4.670]  241

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Neutrality, Impartiality and Independence cont. • Mediators will not use their expertise in a dispute’s subject-​matter to influence outcomes; and • Mediator will conduct the process even-​handedly, fairly and without bias towards either side. Not all mediators will be neutral in all these senses in all contexts, yet the multiple dimensions of neutrality are sometimes overlooked in references to mediators as neutral facilitators of the process.

 [4.675]  In the next extract Boulle compares the notion of the neutrality of judges in courts

with that of mediators in mediation, and notes that the institutionalisation of mediation (discussed earlier in this chapter at [4.340]) has put additional pressures on the notion of neutrality.

Neutrality in Courts and Mediation [4.680] L Boulle, Neutrality, Impartiality and Independence in Mediation: Principles, Process, Practice (3rd ed, LexisNexis Butterworths, Chatswood, 2011) pp 74-​76. Neutrality in Courts and Mediation 3.30 Adjudicators in courts, tribunals and arbitrations are required to be neutral in all senses of the term. Thus, judges are obligated to recuse themselves when they have a close personal association with a litigation or a financial interest in the outcome of a case and therefore lack independence or disinterestedness. Judges have personal views, prejudices and preferences which may affect their conduct of litigation, but these are normal [75] human attributes which do not give rise to conflict of interest situations. Judges are also required to conduct proceedings impartially and to adhere to rules of procedural fairness, involving equality of treatment for all parties and the objective application of legal rules and principles. Thus, neutrality in all its dimensions is foundational to the integrity of court and tribunal decision-​making. In the case of mediation, however, these attributes have different levels of significance. Impartiality is normally regarded as a defining feature of mediation and as an ethical requirement, though its significance in practice is sometimes complex, as discussed further below. Independence and distinerestedness, however, are less absolute requirements and will always be qualified attributes, depending on context and circumstances. Mediators share with judges an obligation to disclose any conflicts of interest, for example those arising out of prior professional or personal relationships with the parties. However, informed parties might still choose a mediator with this “non-​independent” status. They may also deliberately select someone who is interested, as opposed to disinterested, in the outcome of a dispute. This is not uncommon in the mediation of international disputes where mediators from major powers advance their country’s interests at the same time as assisting conflicting states reach settlements, and might be using threats of sanctions and promises of rewards to do so. Individual or corporate parties might select mediators who will use their expertise and some persuasion to “shepherd” them to objectively appropriate outcomes. In these situations parties directly or indirectly waive the respective aspect of neutrality. Where mediation takes place within organisational structures, managers or human resources officers acting as mediators have direct interests in outcomes but here parties might not have opportunities to waive this qualification of neutrality. Aspects of the mediation process itself afford mediators opportunities for imposing values or interests, in particular where extensive use is made of separate meetings and shuttle mediation, and there is evidence they are more inclined to violate different aspects of the neutrality principle during these phases of the process. At a more remote level mediators have their own interests in achieving settlements: public success rates, professional reputation, return custom and personal satisfaction. However, all [76] mediators bring their own beliefs and interests to practice and, as with judges, these are not regarded per se as involving violations of neutrality. 242 [4.675]

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Neutrality in Courts and Mediation cont. 3.31 The institutionalisation of mediation also exposes the vulnerability of neutrality as a defining feature. In many statutory settings of conciliation or mediation legislative guidelines impact on neutrality in the sense of disinterestedness, in that practitioners are obligated to uphold legislatively enshrined policies and standards. They cannot be neutrally indifferent to the nature of mediated outcomes. This has long been encountered in legislation dealing with workers compensation, anti-​ discrimination and native title mediations. Studies of workplace mediation and ADR have disclosed structural arrangements which entailed that mediators were not neutral, independent or free from conflicts of interest, but were in fact pursuing management objectives. In other situations mediators have to form evaluative judgments of party behaviour, such as their good faith participation, and report to outside authorities or terminate mediation in accordance with agreement or conduct code requirements. David Bryson has observed that when mediation occurs within a “closed” system, such as a village in traditional societies or the Victorian WorkCover scheme, interveners are not disinterested and have influence and persuasive powers –​“they can reward or punish, and bring their own interests and interpretation of the values of the system to bear on a problem”. There are also concerns over neutrality as independence where mediators are repeatedly used by the same organisations, such as indemnity insurers in personal injury cases. It is now conventional wisdom that mediators do influence the substantive content of mediated negotiations and settlement outcomes. All mediator interventions are based on mediators’ perceptions and judgments which are never fully independent and disinterested in any absolute sense. Mediators have power, their own standpoints and some degree of interest in outcomes. These are realities of clinical practice as opposed to abstract theory. However, it makes little sense to jettison all aspects of neutrality in respect of mediators as it does in respect of judges or sports umpires; as long as the limitations of the concept are understood its use is not problematic …

 [4.685]  In the final extract on neutrality, Neha Sharma argues that mediation models prem-

ised on neutrality are unsuitable for Australian Indigenous Communities. Sharma writes of the need for a mediation model that can offer empowerment to an Indigenous community and advocates for abandoning neutrality in favour of an elder co-​mediation model.

Abandoning Neutrality [4.690] N Sharma, “Mirror, Mirror on the Wall, Is There No R(e)ality in Neutrality After All? Re-​ thinking ADR Practices for Indigenous Australians” (2014) 25 ADRJ 231. Is There Reality in Neutrality? [233] Mediator neutrality is seen as the theoretical cornerstone for the legitimacy of mediation. Whilst significantly important as a source of credibility, the practical risks associated with trying to achieve an unattainable construct limits its desirability20 and reduces its importance to a statement of intention, not of behaviour. This is because human beings are inherently biased persons. They not only readily misrepresent people and events but also participate in a conscious thought exercise where they use their biases to make inferences and construct explanations for human behaviour. In Australia, an understanding of neutrality (and impartiality) falls under the ethical requirements for mediator competence under cl 7 of the National Practice Standards. Under cl 4, mediators are also required to recognise and correct power imbalances among the parties. The ability of mediators to fulfil their ethical requirement of maintaining neutrality and impartiality, whilst at the same time recognising and counteracting power imbalances between the parties, is questionable. This is because the mere responsibility of the task of identifying power imbalance necessarily departs from the concept of maintaining neutrality. The problem is one of competing principles, between party autonomy and empowerment, and third-​party intervention. [4.690]  243

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Abandoning Neutrality cont. [234] Even if the importance of neutrality in mediation is accepted, a neutral mediator is seen as unable to offer “sufficient opportunities for voice, justice, vindication, validation or impact”. These factors are important considerations to an Indigenous community that not only values empowerment and self-​determination but also seeks connectedness within a community. Without any consideration of ethics, however, mediation starts losing its legitimacy. Here, the concept of impartiality becomes paramount as it offers an achievable idea of procedural fairness that can build bridges between the two competing principles. Often used interchangeably in the field of ADR, the fine distinction between neutrality and impartiality is repeatedly glossed over. When defined in basic terms, neutrality means, “absence of decided views, expression, or strong feeling”. Impartiality, on the other hand, is defined as “treating all rivals or disputants equally”. The difference between the two is perhaps best explained using a practical example. When mediating a debate over economic policy, a neutral person may be driven by the motive to prevent any display of personal inclination towards the economic theories of socialism versus capitalism (that is, the person is role driven). An impartial person may be driven with a motivation to ensure that both parties are presented with an equal opportunity to present their views (that is, the person is process driven). Although mediators accept neutrality as being tenuous, its deletion from the process altogether is not favoured. This is because neutrality has become the defining element of the western model of mediation and has (arguably) helped the mediation industry develop into an independent profession. Even then, maintaining the illusion of neutrality in the field as a core element is self-​destructive because, despite neutrality’s attractiveness, the humanising aspect of mediation (party empowerment) is compromised when parties detract from the issues at hand and are swayed by feelings of suspicion towards questioning the integrity and sometimes even the role of the neutral professional. Abandoning neutrality in the Indigenous context –​moving forward towards an elder co-​mediation model For Indigenous people, mediator neutrality is not as important as the mediator’s knowledge and wisdom. Surrounded by prejudice, it is not surprising that Indigenous people are more suspicious of the neutral professional. Instead, they consider impartiality as an important element in mediation. An Indigenous mediation model not only requires flexibility to reflect specific community needs but should also include some form of communal element. In an Indigenous community, an elder holds a significant position of respect, influence and power. Having gained recognition as custodians of knowledge and lore, elders play a fundamental role in [235] facilitating communication not only within the Indigenous community, but also with non-​ Indigenous communities. Indigenous elders are also highly valued and respected for their ability to remain impartial. Whilst describing the difference between neutrality and impartiality on the construct of fairness, one elder said: “I have taken sides all my life … I am a fair person but most certainly have never shied away from speaking my mind … and why should I? … silence never helps”. Elders are also viewed as reinforcers of traditional values and help maintain and heal the web of relationships that are characteristic of Indigenous communities.38 Most Indigenous people prefer a co-​mediation model, where a respected elder from their community is paired with a professionally trained mediator (whether Aboriginal or not). A co-​mediation model not only has the capacity to provide the flexibility and the intimacy element that is valued by Indigenous communities, but is also an instrument through which sociological and psychological context can be attained.

 [4.695]  In a sign that the mediation field has largely abandoned requirements of neutrality,

the revised NMSA Practice Standards instead emphasise the importance of impartiality. Clause 7 of the Standards requires that mediators provide Procedural fairness and impartiality, and clause 10(c) which outlines the required Ethical Principles has replaced an understanding of 244 [4.695]

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Abandoning Neutrality cont.

“neutrality and impartiality” (as expressed in the 2012 standards) with the requirement of “impartiality including the avoidance of conflicts of interest”: see 10(c)(vi). National Mediator Accreditation System, Part III Practice Standards (2015), https://​msb. org.au/​themes/​msb/​assets/​documents/​national-​mediator-​accrediation-​system.pdf (accessed 13 May 2018).

THE LAWYER’S ROLE IN MEDIATION [4.700]  When lawyers’ clients choose to engage in mediation, lawyers have a range of choices

about how (and whether) they participate in the mediation process. Many lawyers simply choose to participate as if they were representing the client in litigation: acting as the client’s spokesperson and advocate. However, there are other options, and different considerations for lawyers acting in a mediation setting, as discussed in the following sections.

Guidelines for Lawyers in Mediation [4.705]  The Law Council of Australia, Guidelines for Lawyers in Mediation, 2007. 1. Role A lawyer’s role in mediation is to assist clients, provide practical and legal advice on the process and on issues raised and offers made, and to assist in drafting terms and conditions of settlement as agreed. A lawyer’s role will vary greatly depending on the nature of the dispute and the mediation process. It may range from merely advising the client before the mediation, to representing the client during the mediation and undertaking all communications on behalf of the client. 2. Ethical Issues 2.1 Confidentiality As with all dealings with clients, anything that is said or done in a mediation is strictly confidential. In addition, subject to the requirements of the law and any relevant Rules of Court, a lawyer must maintain the confidentiality required by the parties and by any mediation agreement. Comment (a)

A lawyer must not disclose any information disclosed during the mediation unless all parties to the mediation agree, or if required to by law.

(b)

Without prior permission of the mediator and the other parties a lawyer must not reveal any information disclosed by the mediator during private sessions to the other parties or their legal representatives.

(c)

All information and documents disclosed during the mediation, including any settlement or draft offers/​counteroffers, are confidential and privileged between parties to the mediation and their legal representatives.

(d)

A lawyer should consider rules about confidentiality (which may vary from jurisdiction to jurisdiction) before attending a pre-​mediation conference so that they may be established by the parties and the mediator at the premediation conference.

2.2 Good faith Lawyers and clients should act, at all times, in good faith to attempt to achieve settlement of the dispute. [4.705]  245

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Guidelines for Lawyers in Mediation cont. Comment (a)

A lawyer should advise clients about what it means to act in good faith. A lawyer should not continue to represent clients who act in bad faith or give instructions which are inconsistent with good faith.

(b)

Likewise, if a lawyer suspects the other parties to the mediation are acting in bad faith this should be raised privately at first with the mediator.

3. When to Mediate Timing is an important factor in establishing a framework conducive to settlement. There is no conclusive rule as to whether, or when, a case is suitable for mediation. Various factors should be considered, including the nature of the dispute and the mindsets of the parties. Comment (a)

Most cases are suitable for mediation at some point in time. Costs of litigation are a persuasive factor in favour of mediation.

(b)

Mediation may be undertaken at any time and should be considered:

(i) before proceedings are commenced; (ii) after pleadings have closed, but before the costs of discovery are incurred; (iii) before an action is set down for trial and trial costs are incurred; and (iv) after a trial and before judgment. 4. Selecting the Mediator Choosing the right mediator will enhance clients’ settlement prospects in the mediation. Comment When selecting a mediator: (a)

first look to a mediator’s skill and experience as a mediator, and then to any additional qualifications that may be helpful, such as expertise in the subject matter of the dispute or law;

(b)

consider the role of the mediator and whether a particular style of mediation may be better suited to the dispute.

5. Preparing for the Mediation Preparation for a mediation is as important as preparing for trial. A lawyer should look beyond the legal issues and consider the dispute in a broader, practical and commercial context. Comment (a)

Litigation defines the issues by pleadings. Before a mediation, a lawyer should, as well as assessing the legal merits of the case, consider the dispute in commercial terms and in the light of the client’s business, personal and commercial needs, generate possible practical options for resolution.

5.1 Preparing your client A lawyer’s primary task is to help prepare clients for a mediation by: (i)

undertaking a risk analysis and linking risks to the client’s interests;

(ii)

explaining the nature of mediation;

(iii)

identifying interests; and

(iv)

developing strategies to achieve final outcomes.

246 [4.705]

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Guidelines for Lawyers in Mediation cont. Comment (a)

Assist clients to complete a risk analysis. A draft risk analysis may be discussed with clients and then reviewed with the legal team. A risk analysis will assist in determining a range of options for settlement.

(b)

Discuss and explain the mediation process and role of the mediator to clients. In particular, discuss issues such as confidentiality and the nature of “without prejudice” negotiations.

(c)

Help clients identify positions and interests and the best ways to achieve outcomes. It is useful to consider the interests of other parties and ways to overcome any tactics or objections likely to arise.

(d)

Decide who will do the talking in the mediation. Often, with appropriate preparation, clients will be in the best position to convey facts and other non-​legal issues. If so, a lawyer may need to assist clients with preparation for their involvement.

5.2 Conference with the mediator Pre-​mediation conferences convened by the mediator are a good opportunity to establish a relationship with the mediator and arrange any practical matters relevant to convening the mediation. Comment (a)

The first mediation conference is usually between the lawyers and the mediator and covers details of the mediation such as the date, time, place, fees, persons attending, the mediation agreement and documents to be exchanged or brought to the mediation.



Rules about confidentiality must be established and documented. One option is to agree that confidentiality commences at the time of the preliminary conference and relates to the entirety of the mediation process from that time, including correspondence and post-​mediation reporting requirements.

(b)

A second preliminary conference can take place immediately before the mediation at which the mediator can meet individually with the parties and their lawyers. This conference enables the mediator to establish a relationship with clients, explain the process, format and structure of the mediation, and answer any questions before the mediation commences.

6. At the Mediation Mediation is not an adversarial process to determine who is right and who is wrong. Mediation should be approached as a problem-​solving exercise. A lawyer’s role is to help clients to best present their case and assist clients and the mediator by giving practical and legal advice and support. 6.1 Skills The skills required for a successful mediation are different to those desirable in advocacy. It is not the other lawyer or mediator that needs to be convinced; it is the client on the other side of the table. A lawyer who adopts a persuasive rather than adversarial or aggressive approach, and acknowledges the concerns of the other side, is more likely to contribute to a better result. Comment (a)

Arguments should be presented in appropriate terms and language that is appealing to the other party. Legal arguments or language are not always necessary.

(b)

Listening carefully, even to material which may be irrelevant to litigation, is conducive to setting an atmosphere for settlement. It is helpful to summarise arguments made against clients to show that the other party’s position has been heard and understood.

6.2 Offers and settlement A primary aspect of a lawyer’s role is to help formulate offers, assess the practicality/​reasonableness of offers made by other parties and assist in drafting settlement terms and conditions. [4.705]  247

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Guidelines for Lawyers in Mediation cont. Comment (a)

Never mislead and be careful of puffing.

(b)

Be cautious about making a “final offer” or delivering ultimatums which can limit future options and damage credibility for future negotiations.

(c)

If possible, bring a draft settlement agreement to the mediation, or at least have a draft available on-​line.

(d)

If it appears that the mediation will not produce a full settlement, try to obtain a written agreement on as many issues as possible. This may advance future negotiations or shorten a trial and leaves parties feeling like they have at least achieved something useful. It is also useful for future purposes to draft a list of issues on which agreement has not been reached.

7. Post-​mediation Generally, lawyers should report on mediations in writing to clients. Lawyers may also need to address with clients (before the mediation) any reporting obligations the mediator may have to courts, government departments or other organisations. Comment (a)

A lawyer should be aware of any post-​mediation reporting obligations (which may vary from jurisdiction to jurisdiction) before attending a pre-​mediation conference.

(b)

A lawyer should address, with the mediator and with the other parties, any objections clients may have to the scope of what is reported by the mediator.

 [4.710]  In the following extract, Hardy and Rundle consider the different roles a lawyer may

play in relation to a client’s mediation.

Mediation for Lawyers [4.715]  S Hardy and O Rundle, Mediation for Lawyers (CCH, Sydney, 2010) pp 143-​150. 5.3.2 A Range of Roles for Lawyers There is a spectrum of roles that lawyers might play in the mediation, ranging from lawyers who do not attend the mediation session, to those who are participants, supporters or advocates. The contributions to be made by the lawyer increase in number and complexity along the spectrum. We have identified five different types of roles that lawyers might adopt. These are: “absent advisor”, “advisor observer”, “expert contributor”, “supportive professional participant” and “spokesperson”. A diagram representing where these roles fit on the spectrum is illustrated below. Absent advisor

Advisor observer

Less involvement

Expert contributor

Supportive professional participant

Spokesperson

More involvement

[144] Some advantages and disadvantages of each role are considered below. 248 [4.710]

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Mediation for Lawyers cont. 5.3.2.1 “Absent advisor” The absent advisor assists the client to prepare for the mediation but does not attend the mediation session itself. The absent advisor’s role is to support the client to participate effectively in the process. The absent advisor model of mediation representation limits the relationships that need to be managed during the mediation process. These are restricted to the relationships between the mediator and each party. The following diagram illustrates these dynamics. Mediator

Party 1

Party 2

… [146] 5.3.2.2 “Advisor observer” The advisor observer role describes a style of involvement where the lawyer’s role is restricted to that of legal advisor, but the lawyer attends the mediation. The lawyer observes but does not contribute directly to the joint mediation sessions or private sessions with the mediator. The advisor observer does not interact directly with the mediator, other party or other lawyer. The mediation process may be suspended at various stages to enable the lawyer to have private sessions with their client. During those sessions legal advice may be updated or expanded upon. The relationships between the participants in mediation when the advisor observer model is adopted can be illustrated as follows.

Mediator

Party 1

Lawyer 1

Party 2

Lawyer 2

… [148] 5.3.2.3 “Expert contributor” The final advisor only role for lawyers in mediation is that of the expert contributor. Here, the lawyer’s role is restricted to that of expert in the law and that expertise is used for the benefit of all participants. The legal practitioners participate directly in the mediation process, but in a limited way. The purpose of lawyer attendance includes providing legal advice to the client, but the legal opinions are shared by the lawyers with other participants during the mediation. The purpose of the exchange of legal opinion between the lawyers includes exposing the parties to the contrasting advice that may be being given, as a means of narrowing the issues and pursuing settlement. [4.715]  249

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Mediation for Lawyers cont. In this role, the lawyers do not negotiate on behalf of their client nor do they define the agenda. The spectrum of issues is determined by the parties themselves. The relationships between the participants in mediation become more complex when the expert contributor role is adopted. The web of relationships can be illustrated in the illustration below. Here, the lawyers engage in direct communication between one another, the mediator and their own client. The relationship between the lawyer and the other client is not two-​way, as it is restricted to the lawyer imparting a legal opinion to the other client. No communication from that client to the lawyer occurs. The relationships between participants are illustrated below. Mediator

Party 1

Party 2

Lawyer 1

Lawyer 2

… [150] 5.3.2.4 “Supportive professional participant” The supportive professional participant offers more than advice to the client. This role maximises the advantages of lawyer involvement in mediation. The supportive professional participant works with the client to prepare for the mediation and supports the client through the mediation process, by working collaboratively towards an acceptable outcome. The lawyer and client work as a team, maximising the strengths that each of them brings to the process. Unlike the previous kinds of lawyer involvement, there is no clear partitioning of the roles of lawyer and client. The relationships between the participants in a mediation where the supportive professional participant role is adopted are illustrated below. Each participant may interact directly with all other participants. Mediator

250 [4.715]

Party 1

Party 2

Lawyer 1

Lawyer 2

Mediation  Chapter  4

Mediation for Lawyers cont. … [152] 5.3.2.5 “Spokesperson” The lawyer “spokesperson” speaks on behalf of her or his client throughout the mediation. The client has a very limited role in the process apart from providing instructions to the lawyer as required. Client participation may be orchestrated by the lawyer. The spokesperson role is the most interventionist of the lawyer roles in mediation. The relationships between participants in mediation where the spokesperson role is adopted can be illustrated as follows. Here, the lawyers and mediator are the main participants. The parties merely observe rather than participate directly and obtain legal advice from and provide instructions to their lawyer outside the joint mediation sessions. [153]

Mediator

Party 1

Lawyer 1

Lawyer 2

Party 2



THE FUTURE OF MEDIATION [4.720] Recent commentators are suggesting that the increasing institutionalisation and

bureaucratisation of mediation is resulting in the degeneration of mediation’s core values and principles. Boulle discussed mediation future in Australia in the following extract.

Mediation Future [4.725]  L Boulle, Mediation: Principles, Process, Practice (3rd ed, LexisNexis Butterworths, Chatswood, 2011) pp 9-​10. Mediation Future 1.7 Evolution developments always appear predictable after the event despite not having been foreseen before they occurred –​this applies as much to global financial crises as it does to dispute resolution developments. Mediation future will be partly a predictable extrapolation of its recent past and a product of the systems with which it is currently interfacing. In conventional terms it can be said that mediation in the future will become increasingly, institutionalised, specialised, professionalised, legalised and regulated. Innovation will follow a largely evolutionary path and private entrepreneurialism will extend mediation even further into conflict prevention, complaints handling, disputes management and problem-​solving. New technologies and social networking systems will change its mode of dialogue and discourse and it will become both cross-​cultural in its consciousness and borderless in its operations. [4.725]  251

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Mediation Future cont. The neo-​profession of mediation will itself promote increased self-​regulation, the enforcement of standards, accreditation and ethics and other forms of quality assurance, building on the foundations of the recent past. The academy will pursue greater scientific understanding of mediation through cross-​disciplinary and empirical research, and practitioners and academics will both explore new avenues for mediator expertise and proficiency. State policy will attempt to ensure that whatever the entrepreneurial or academic impetus for innovation and change, mediation practice retains at least partially a system maintenance function, as this is the way societies organise themselves. 1.8 There will also be one or more “black swan” occurrences in mediation’s future development, seemingly random events or improbable discoveries that revise orthodox thinking and practice but are nearly impossible to predict [10] in advance. The uncertain and improbable developments will emerge from another set of environmental factors operating on mediation, the impacts of which are difficult to gauge with foresight as they are themselves erratic factors. They include: • Economic globalisation and its impacts on the competitiveness, viability and survival of state systems, corporations and individuals; • International financial instability, and sporadic volatility, and its pervasive debt repercussions for corporations and nation states; • Climate change and its consequences for environmental sustainability, food security and water availability; • Changing power relations in global politics and their impacts on Australia’s international and regional authority and status; • Modifications in the role of the state in society and market systems, and the impacts of these changes on responsibilities for delivery and funding of justice systems; • Unexpected discoveries in neuro-​science, cognitive psychology or other disciplines which provide new insights into human decision-​making. The contradictory and unpredictable nature of the forces operating on mediation will entail that its usage will advance in some quarters, particularly in the legal domain, and retreat in others, for example towards unfacilitated negotiation and in pre-​action procedures. The overall implications of these forces and influences will be an increasing pluralism in mediation models and practices in Australian dispute resolution and the proliferation of cross-​fertilised, hybridised, cloned and genetically modified adaptations. Pluralism resulting from centrifugal factors will be resisted by the centripetal forces of NADRAC policy and the operation of the NMAS, both favouring consistency and uniformity in mediation’s application. As regards the broader implications of system pluralism it has been suggested that changes in dispute resolution have occurred so rapidly that Australia could be said to be entering a “post ADR” period where all methods of dispute resolution will be accepted as normal, standard or conventional approaches. However, there will always be “alternatives” breaking the forces of gravity of the status quo and creating at the community, workplace or organisational levels “alternatives to the alternatives” in new cycles of innovation, conformity, complacency and reform.

 [4.730]  In the following extract Peter Adler reports on his interviews with experienced medi-

ators in the United States and Canada.

How Mediation Has Fared in the US [4.735] P Adler, Expectation and Regret: A Look Back at How Mediation has fared in the US, Paper presented at the 7th National Conference, Civil Mediation Council (London, 2 May 2013) pp 4-​10. 252 [4.730]

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How Mediation Has Fared in the US cont. Story #1 –​The Decline and Decay of True Mediation [5]‌With a few exceptions, most of the people I interviewed talked about a loss of first principles and an erosion of the fundamentals articulated three decades ago. “Mediation no longer looks like what we imagined”, one person said. “People see it as a numbers game”, said another. “It’s been a race to the bottom line, said a third, separate meetings, damages and remedies, just move the case”. As it has become institutionalized, legitimated and respectable, mediation looks and feels different both in the way it is described and the way it is applied. Some of the core values and premises that shaped our approaches at the beginning –​voluntarism in coming to the table, a shift away from other experts telling you what to do, the repairing of fractured relationships, the idea that people can be the architects of their own negotiated solutions –​seems to have eroded. The essence of the story is this: mediation has changed in response to bureaucratic imperatives and the workings of the marketplace. It isn’t all bad but most of those I spoke to think it has degenerated and gotten worse and some fear it is following the Eric Hoffer trajectory. Hoffer was an American social critic and moral philosopher, a committed iconoclast, a perennial cynic, and a general all-​purpose fly in everyone’s ointment. He said: “Every great cause begins as a movement, becomes a business, and eventually degenerates into a racket”. Story #2 –​The Pull of the Courts … The collective story from the interviewees is one of yin and yang, light and shadow, blessing and curse. Judiciaries have been a powerful source of mediation diffusion and [6]‌popularization. Once they started exerting serious gravitational pull, however, mediation changed. We all understand this. Courts and other bureaucracies adopt mediation for their own reasons, largely as administrative strategies for docket management, saving money, or reducing time to trial. High volume programs that handle sometimes tens of thousands of cases have created a variety of practices. Some have in-​court “speediation” for certain small cases. Others require everything to go to mediation. Some do a wholesale outsourcing to volunteer community programs for most civil and family matters. Other courts handle their own cases internally with court mediators. A few simply push litigants out the door to find their own mediators. The mixed blessing of the courts theme repeated itself in a majority of interviews. “Mediation is part of the culture of the courts now”, said one of the interviewees but “parties who are forced into mediation often get poorly trained mediators” with insufficient triage, little case screening, too few opt-​out provisions, and not very much evaluation, support or training.2 On the other side of the equation, a thriving private marketplace for some elite mediators would not have occurred without the courts normalizing it. The essence of this story is this: the courts have given a strong and important imprimatur to mediation but not without unintended and, for some at least, corrosive consequences. Story #3 –​The Domination of Lawyers If “ownership” can be defined as a combination of “dominion and domain”, lawyers increasingly own mediation. With that comes the marriage of adversarial skills into the practices of negotiation, settlement, and resolution, perhaps a natural fit in many ways, but not quite the exact paradigm Fisher and Ury seemed to suggest in Getting To Yes (1981) and not quite the theory of mediation repeatedly described in 25 years of subsequent and often repetitious books … [7]‌  … In my interviews, most mentioned one and sometimes two problematic aspects of the lawyer love affair with mediation. The first is simple: hegemony, a takeover of mediation work and a slow but steady disenfranchisement of non-​lawyers … The second matter is attorneys “gaming” the process. This takes a variety of forms. One is using mediation as free or low-​cost discovery, a little peek at the other side’s case, with no real intention of using the process to negotiate resolution. Another is insisting that clients never meet face-​to-​face and [4.735]  253

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How Mediation Has Fared in the US cont. consigning the mediator’s role to shuttling offers and demands between them with no joint sessions. A third is having all communication go through the attorneys rather than talking with clients. A fourth is a hard focus on money. All of this results, in the words one of those I interviewed, as “the loss of the emotional work I used to do with clients in mediation” and the de-​emphasis on relationships that seemed to be a hallmark of mediation in the early days. Story #4 –​The Profession that Isn’t Major professions like medicine, law and engineering, and even with what are sometimes called the more “minor” derivative professions like planning, policy analysis or counseling, have certain things in common. They have a reasonably developed body of specialized knowledge. They have evidence-​ based diagnostic tools. They have codified intervention procedures, a code of ethics, a career path for new entrants, and some level of public oversight or reassuring self-​regulation with consequences for people who cheat or fail. Fields that have most or all of these tend to have higher levels of occupational legitimacy. [8]‌ When it comes to the development of a real profession, the people I interviewed hold contradictory notions. A few believe the early “social movement” themes of building communities and transforming the American notion and practice of justice were, and still are, antithetical to formal profession development. One said “there was a misguided notion in the early days that mediation was some kind of counter-​culture. That did a disservice to the maturing of the field”. The larger majority of those I interviewed feel that mediators missed the boat and the moment to create a profession has passed .… The overall story here is about what is missing: a professional platform that can legitimately unify many diverse styles, applications and practices together in a common affiliation. Story #5 –​The Search for Identity [9]‌“Identity” –​psychological, social, professional, national –​glues us together. It makes us definable and recognizable. It represents uniqueness, both “kindred-​ness” and differentiation. Beyond the semantics of “dispute resolution”, “conflict management”, “ADR”, or “peacemaking”, mediators don’t have a unified identity. We don’t have a way of saying to the world who is kindred and who is not. What this leaves us with is a yearning for something that would distinguish the “us” from people who are not “us”, not in a pejorative way, but in a way that is somehow more factually and verifiably grounded. In the US, we mediators are victims of our own short history and perhaps the hubris of our original missionary zeal. We have seen tensions, fissures, and tectonic fault lines, not just between competing organizations, but between lawyers and non-​lawyers, volunteers and professionals, generalists and specialists, and the high priests of the “schools” of mediation we call facilitative, evaluative, narrative or transformative. In the US, and even within the ambit of the courts, the practice of mediation is diverse and contextual. There are labor mediators, family mediators, business mediators, construction mediators, community mediators, insurance mediators, school mediators, Native People’s mediators, and so on, all of them with stylistic differences. Truth is that we know very little about our actual practices, what is similar, what is different, what works in one context and doesn’t in another, and even more precariously, between what might constitute weak practice, strong practice, good practice and bad practice. The researchers haven’t helped us much in ways that are practical and usable, not because they aren’t smart, but because they don’t have good grist to work with. Mediation is actually “invisible”, said one of the people I interviewed. We don’t really know what others who call themselves mediators do. Without some sense of clarity and definition, how can we possibly arrive at workable standards and certifications or any of the other rudiments of a field or profession? How do we do meaningful research, diagnostics, and theory building? Mediators seem hungry for this kind of definition and at the same time are repelled by the boundary setting and exclusion that may be needed to achieve 254 [4.735]

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How Mediation Has Fared in the US cont. rigor. “There are pluses and [10] minuses to defining ‘mediator’, said one of the interviewees; ‘it would help some of us, but not all’ ”.

 [4.740] QUESTIONS

1.

Boulle describes mediation in Australia as suffering from an “identity paradox”. What does he mean by this, and what does he say has contributed to this problem?

2.

What are some of the criticisms of the evaluative model of mediation?

3.

Of the four mediation models most used in Australia (facilitative, evaluative, transformative and narrative), which would you prefer to use if you were involved in a conflict and why?

4.

Why is it important that mediators be able to describe accurately which model of mediation they use?

5.

What are some of the benefits and problems of court-​connected mediation? Should judges ever mediate?

6.

In the literature about mandatory mediation, some authors have distinguished between two different forms of consent: consent to participate in the mediation and consent to any outcomes of the mediation. What are the main differences, and in what way are the two forms of consent inherently related?

7.

What is meant by the term “good faith” in respect of mediation participation?

8.

What duties do lawyers owe their clients in a mediation? Do lawyers owe any particular duties to their opponent in a mediation?

9.

What are some factors that must be considered in any particular case in determining whether mediation is an appropriate form of dispute resolution?

10. Is mediator neutrality possible? Why/​why not? 11. What are some different roles a lawyer can take in a mediation? What are the benefits and disadvantages of each role?   

[4.740]  255

CHAPTER 5

Other Dispute Resolution Processes [5.05] [5.10] [5.10]

INTRODUCTION........................................................................................................ 258 DISPUTE BOARDS....................................................................................................... 259 What Is a Dispute Board?............................................................................................ 259 [5.20] Means Commonly Adopted to Avoid Disputes in the Construction Industry....  259 [5.30] [5.40]

[5.50]

[5.85] [5.95]

An Analysis of Dispute Review Boards and Settlement Mediation as Used in the Australian Construction Industry..................................................  262 Dispute Review Boards in Australia.......................................................  262

PARTNERING.............................................................................................................. 264 [5.55] Partnering and alliances............................................................................. 265 [5.60] Conceptual Model of Partnering and Alliancing.......................................  266 [5.70] The Charter................................................................................................ 266 [5.80] Distinction between dispute review boards and partnering........................ 266 Dispute resolution advisers......................................................................................... 267 CONCILIATION.......................................................................................................... 268 [5.95] Defining conciliation.................................................................................. 268 [5.105] The history of conciliation.......................................................................... 269 [5.110] One Hundred Years of the Conciliation and Arbitration Power.....................  269 [5.120] A Brief Discourse on Conciliation, Fairness and Illumination........................  272 [5.130] Models of conciliation................................................................................ 273 [5.135] Facilitating Systemic Outcomes Through Anti-​discrimination Conciliation......  274 [5.145] The Practice of Mediation and Conciliation in Family Dispute Resolution in Australia......................................................................................  276 [5.155] Private Conciliation in Family Law........................................................  277 [5.165] A Conciliation Model for Workplace Disputes...........................................  280 [5.175] A Conciliation Model for Workplace Disputes...........................................  281 [5.185] Pathways to Learning: Conciliator Core Competencies...............................  282

[5.190]

NEUTRAL EVALUATION, EXPERT DETERMINATION AND CASE APPRAISALS................ 283 [5.195] Neutral evaluation...................................................................................... 284 [5.200] Administrative Appeals Neutral Evaluation Process Model..........................  284 [5.210] Expert determination or appraisal............................................................... 287 [5.215] Binding and Non-​Binding Expert Appraisal.............................................  287 [5.225] Advantages and disadvantages associated with expert determination........ 289 [5.230] Federal, State and Territory neutral evaluation and case appraisal schemes... 290 [5.235] Impugning expert determinations.............................................................. 290 [5.240] With Great Power There Must Also Come Great Responsibility: Reining in Unbridled Expert Determinations..........................................................  292

[5.250]

REFERENCING OUT.................................................................................................... 293 [5.260] The Supreme Court Reference Out System..............................................  295 [5.275] The Future Role of the Judge –​Umpire, Manager, Mediator or Service Provider................................................................................  298

[5.280]

CONFLICT COACHING.............................................................................................. 300 [5.285] Uses for conflict coaching........................................................................... 300 [5.290] How conflict coaching developed.............................................................. 301 [5.295] Conflict Coaching.............................................................................  301 [5.300] DIFFERENT APPROACHES TO CONFLICT COACHING................................ 303 [5.305] Conflict Coaching.............................................................................  303 [5.315] Problem Solving for One “PS1”............................................................  304 [5.325] Conflict Education Resource Team “CERT”..............................................  305  

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[5.335] CINERGY...................................................................................   306 [5.345] Comprehensive Conflict Coaching “CCC”...............................................  307 [5.355] REAL Conflict Coaching™ System.........................................................  308

[5.360]

CONFLICT COACHING PRINCIPLES........................................................... 309 [5.365] Conflict Coaching.............................................................................  309

[5.370]

COMPETENCIES FOR CONFLICT COACHES............................................... 313 [5.375] ICF Core Competencies.......................................................................  313 [5.385] State of Knowledge: Conflict Coaching Theory, Application, and Research......  317 [5.395] Conflict Coaching in Indigenous Australian Settings..................................  320

INTRODUCTION [5.05]  Dispute resolution processes are essential in any society but processes for prevent-

ing disputes are equally important. There has been a paradigm shift, since the institutionalisation of dispute resolution, in the way people and organisations deal with disputation. Instead of just having systems in place to resolve disputes when they arise, the thinking has moved toward having systems in place to identify and reconcile differences before escalation. Differences may arise between parties seeking to collaborate on a project or engage in a transaction. In other words, people and organisations are not just thinking of what to do after a dispute arises; rather, they are thinking about what to do to prevent disputes arising and how to manage differences to the point of avoiding a full-​blown dispute and dispute resolution. In this respect, dispute resolution processes described in this chapter seek to avoid or manage points of disagreement before escalation to a dispute requiring formal dispute resolution processes. These methods often go by acronym DAP, standing for dispute avoidance processes. There are, however, processes which may serve the purpose of dispute prevention as well as dispute resolution. Examples include the system of neutral evaluation; expert determination; case appraisal; and referencing out. More traditional processes such as mediation may also be modified to address differences and how to deal with them to avoid future disputes. These processes can be conducted privately but also in the public sphere. They seek to have a third-​ party neutral who will work with parties to address issues raised. While dispute avoidance seeks to prevent a dispute from arising, dispute resolution processes including adjudicative processes seek to resolve a dispute once it has arisen. Increasingly hybrid dispute processes are emerging and having a continuum of dispute processes now appears commonplace. An example of a continuum of dispute processes includes the process of “referencing” which has a long history, particularly in England. Referencing takes place as a preliminary dispute process for example, the Judicature Act 1873 (UK) provided for reports to be tendered to courts by referees. In such processes the court allows questions arising from a dispute before it to be answered by a third-​party expert referred to as the referee. The court will consider the report and decide to reject, vary or adopt it. This process is most commonly used to answer technical issues arising out of a dispute. Another example of a continuum of a dispute process are dispute boards which are generally established to avoid disputes arising on specific projects for which they are constituted. However, dispute boards can, depending on how they are constituted, have features of avoidance and resolution within the same process. This allows differences to be managed before escalating into a dispute and where a dispute arises, for that dispute to be resolved through a dispute resolution process including mediation. This hybridisation of dispute processes are 258 [5.05]

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one of the distinct qualities of dispute boards and should be encouraged as disputants seek to develop dispute avoidance and resolution procedures that suit their own needs or the needs of their organisations.

DISPUTE BOARDS What Is a Dispute Board? [5.10]  C Chern, Chern on Dispute Boards: Practice and Procedure (3rd ed, Informa Law from Routledge, Abingdon, Oxon, 2015) pp 4-​5. The term “dispute board” is a generic term that includes (a) the dispute review board, which is a device that originated in the USA (and continues to be used most often there) and which provides non-​binding recommendations; (b) the dispute adjudication board which emerged from the earlier USA model, provides a decision that has interim-​binding force and is used most everywhere else in the world except the USA; and (c) the combined dispute board (CDB), which is a hybrid of dispute review boards and dispute adjudication boards and was created by the ICC in 2004. Various other terms have been used, such as dispute settlement panel, dispute mediation board, dispute avoidance panel, dispute resolution board, and dispute conciliation panel.

 [5.15]  Whatever they are called, they are all very similar dispute processes aimed more at

avoidance than resolution. Dispute boards are most commonly found in the construction industry where projects usually involve many people, such as builders, engineers, architects and others associated with the design and construction of buildings. The simple idea is to keep the lines of communication open and to head off any potential problems that could lead to disputation. If the project stakeholders meet regularly and communicate freely with each other, decisions can be made that will help avoid any problems developing into full-​scale disputes. While construction and building matters are eminently suitable for dispute boards given the number of stakeholders involved in such projects and the potential for miscommunication or a lack of proper communication, other types of projects are also suitable for dispute boards. Gerber and Ong in their article extracted at [5.40] provide the following definition of dispute boards: [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 DB’s 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 (at 181).

Dispute boards are best used for dispute avoidance by virtue of their ability to monitor the relationships between the parties and to identify, at an early stage, any potential areas of difference between the parties, to address those areas of difference and resolve them in a consensual manner. As indicated above, a dispute review board (DRB) is a variant of the dispute board. [5.15]  259

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Means Commonly Adopted to Avoid Disputes in the Construction Industry [5.20] D Jones, “A Critical Analysis of the Means Commonly Adopted to Avoid Disputes in the Construction Industry” (1998) 14 Building & Construction Law Journal 31 at 37-​39. A DRB is a panel of experts, existing from the outset of a construction project, which meets together at regular intervals throughout the course of the project so as to develop a familiarity with it, and which hears and resolves disputes as they arise on site. The defining characteristics of a DRB are: • that it meets and remains up-​to-​date with project progress regardless of the existence of any actual disputes; and • that it employs a quick and cheap procedure designed to facilitate the early disposal of disputes with minimum diversion of resources away from the ongoing construction process. Apart from these essential common elements, it is suggested, the mechanics of individual DRB’s can vary almost endlessly. A key consideration is whether or not the DRB’s decisions should be binding. Broadly speaking there are three options here: • The DRB’s decisions are entirely non-​binding, and merely advisory. In this event they are usually “with prejudice”, in the sense that the decision is admissible in formal dispute processes. • The DRB’s decisions can be binding on an interim basis, subject to being reviewed or even replaced by an arbitral tribunal or court. Often such review would only be available where the party wishing to pursue the dispute complies with some requirement to notify the other party of this intention within a certain time limit. • The DRB’s decisions are final and binding and not subject to review. It is suggested that the second of these approaches is the most desirable. It provides certainty, enabling the parties to order their affairs in a predictable framework. It ends (or at least postpones) wrangling over the financial relations of the parties, enabling them to direct their energies to the construction process itself. It is also likely to produce a more equitable result in that the owner is not able simply to withhold all disputed amounts thus holding the contractor to ransom. Even the proponents of the first approach may be found, on a closer reading, to be advocating the second. On the other hand, persuasive arguments can be made in favour of the first approach. It has been suggested that “not placing the burden of a binding [38] decision may encourage it to render bolder, more incisive decisions”. Furthermore, making the DRB’s decision non-​binding avoids the resentment that may be generated by a win-​lose situation. In any event, experience has shown that such decisions tend to be observed by the parties, due to the respect they have for the DRB process, and the strong risk of an adverse costs order where arbitration or litigation is unsuccessfully pursued in the face of three respectable expert opinions. Agreements to the effect that the DRB’s decision is final and binding are very rare. Because a DRB is a tribunal of three, and because it often hears submissions, it is reasonable to suppose that it is more thorough than most other administrative dispute mechanisms. This is helpful because it increases the likelihood that that DRB will get it right the first time, thus avoiding an expensive post-​completion arbitration. On the other hand the cost of retaining a DRB is more significant than that of most other dispute mechanisms, especially where the project is not a large one. According to one US source, DRB costs have ranged from 0.04% to 0.51% of total contract costs. One approach for a small project is to have a DRB of one person, who would then act similarly to the independent expert adjudicator. Another important issue to consider is whether it should be staffed by technical or legal personnel. Setting up a tribunal of three permits the luxury of having at least one of each. Although most of the issues dealt with by the DRB will be technical, the presence of a lawyer on the board adds to the credibility of its decisions when they come to be considered in court, either as admissible evidence (in 260 [5.20]

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Means Commonly Adopted to Avoid Disputes in the Construction Industry cont. the event that the DRB’s decision was not binding), or in a challenge to the decision (in the event that the contract purported to make it final and binding). The parties also must consider the extent to which the DRB process should be judicial in nature. Decisions have to be made as to: • Discovery rights –​although extensive discovery has the potential to generate delays, it must be realised that “without discovery, the contractor enjoys a considerable informational advantage over the owner”. • Cross-​examination –​like discovery, this is an expensive and time-​consuming process, but without it, there is a risk that unreliable evidence will be relied on by the DRB. • Role of lawyers –​commonly, lawyers are excluded from the task of making presentations to the DRB due to a perception that they may hinder the process. However, lawyers are trained to identify relevant issues and to organise them into cogent arguments. They are also more likely to remain dispassionate about matters which may generate a lot of emotion on the part of those directly involved in the dispute. Examples of other issues which arise in setting up a DRB process could be multiplied. All judicial procedures are open to the criticism that they provide scope for a reluctant party to hinder the process; prescriptive procedural rules may be difficult to give effect to if short time limits are placed on the steps to be taken in the DRB process. The point is, however, that all judicial procedures exist for a reason, and disadvantages result from excluding them. In the end the parties need to weigh up the costs and benefits of each procedure and decide whether they want it. Another approach is for the parties to bestow on the DRB a wide discretion as to the procedure to be used, and for the DRB to decide during the dispute resolution process what is needed to generate a fair result. But this may render the cost of the DRB unpredictable. It must be borne in mind that the DRB is designed to operate during the course of the construction process. Experience has shown that if reasonable decisions are made as to how to structure the process, capricious results are rare. Like the independent certifier and the expert adjudicator, the DRB mechanism overcomes the problem [39] of the independence of the dispute resolver. The DRB must be jointly appointed.

 [5.25]  The cost of setting up and running a dispute board is a very attractive element of the

process, particularly for large-​scale projects. Even a cost approaching 0.5% of the total value of the contract is reasonable to avoid and resolve disputes that could cause delays in completion of the contract and result in losses to many stakeholders. Further, the flexibility as to the binding nature of the dispute review board’s decision is an attractive feature for parties wishing to deal promptly with disputes as they arise instead of preventing the contract from progressing because of pending litigation. Over the past 20-​30 years, the dispute board mechanism has gained wide international acceptance and its use is growing exponentially. Funding institutions such as the World Bank and the Multilateral Development Banks advocate the use of dispute boards and institutions such as the Fédération Internationale des Ingénieurs-​Conseils (FIDIC), the International Chamber of Commerce (ICC), and the Institution of Civil Engineers (ICE) now include contract forms which provide either mandatory or consensual procedures for the use and operation of dispute boards. Dispute boards have been credited with a very high success rate and are now recognised as a regular and necessary adjunct to many construction projects. Duffy and Duffy, in the extract below, identify five criteria for assessing suitability of dispute boards for construction disputes. [5.25]  261

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An Analysis of Dispute Review Boards and Settlement Mediation as Used in the Australian Construction Industry [5.30]  S Duffy and J Duffy, “An Analysis of Dispute Review Boards and Settlement Mediation as Used in the Australian Construction Industry” (2014) 3 Building and Construction Law Journal, 30 at 166-​167. For the purposes of this article, there are five criteria which will be applied to consider the suitability of DRBs and mediation as dispute resolution mechanisms for construction disputes. (1)

Cost-​effectiveness, in the sense of proportionality of cost to the matters in dispute and the degree to which the process may contribute to tangible and intangible cost benefits to the parties. This criterion is important in the resolution of construction disputes given the traditionally low profit margins enjoyed by construction industry participants and increasingly higher holding costs experienced by principals.

(2)

Timing of the process. Prompt resolution is particularly important where: (a) the resolution is required to ensure the completion of the works; (b) the dispute impacts third parties (such as endusers or other contracted parties); and (c) the dispute impacts the ability of either party to continue to perform their contractual obligations.

(3)

Flexibility of process. As the full range of disputes which may arise on a project cannot be foreseen at the commencement of a project, a dispute resolution mechanism ought to allow flexibility of process to enable adaptation of the process to meet the needs of the parties in the resolution of the dispute.

(4)

The role and expertise of the dispute resolution practitioner. As there is high potential for complex technical, factual and legal issues to be involved in a construction dispute, the resolution may be assisted by the dispute resolution practitioner possessing relevant expertise and having the ability to utilise that expertise to assist the conduct of the process.

(5)

Certainty and enforceability of outcome, which is often an important commercial consideration for the disputing parties.

 [5.35] DRBs are mostly used for construction disputes in Australia. In the extract below,

Gerber and Ong trace the origins and growth of DRBs in Australia.

Dispute Review Boards in Australia [5.40] P Gerber and B J Ong, “21 Today! Dispute Review Boards in Australia: Past, Present and Future” (2011) 3 Australasian Dispute Resolution Journal 180 at 180-​184. It is well known that construction projects are fertile ground for costly and drawn-​out disputes. Complex technical issues, a multitude of parties and voluminous documents lead to many projects ending up in expensive and time consuming litigation and arbitration. Indeed, one judge has noted that: except in the middle of a battlefield, nowhere must men coordinate the movement of other men and all materials in the midst of such chaos and with such limited certainty of present facts and future occurrences as in a huge construction project … Even the most painstaking planning frequently turns out to be mere conjecture and accommodation to changes must necessarily be of the rough, quick and ad hoc sort, analogous to ever-​changing commands on the battlefield. These complex, interpersonal and stringent requirements make construction a process in which disputes are virtually assured. Such is the disputatious state of the construction industry, that it has been estimated that the direct costs of resolving construction disputes in Australia amount to between

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Dispute Review Boards in Australia cont. AU$560-​$840 million per year. When this is added to the avoidable costs of disputes (such as delay and opportunity costs), total waste exceeds AU$7 billion annually. It follows that if a large percentage of these disputes can be avoided, construction projects will become more profitable for all involved … [181] Unresolved conflicts that are left to fester severely strain working relationships on a construction project and entrenched positions make it difficult for the contracting parties to resolve current or future disputes. As such, the DRB’s ability to address issues as they arise, as opposed to waiting until the project is complete, is one of its distinguishing features. It not only ensures that conflicts are resolved before they escalate into disputes, but also that hostilities between the contracting parties are kept to an absolute minimum, and a good working relationship between the parties is preserved … [182] DRBs in Australia The first recorded use of a DRB in Australia was in 1987 on the Sydney ocean outfall tunnels and ocean risers project. The concept was introduced by an American contractor, who recommended it to the Sydney Water Sewerage and Drainage Board (SWSDB). The SWSDB used a DRB again the following year on the Warragamba Dam Project. Both of these projects reached completion with no unresolved issues. Thus, two Australian projects adopted DRBs in quick succession, and both experienced positive outcomes. Around the world, there were only 11 projects that had used a DRB prior to 1987. Australia was the fourth country to try DRBs, behind the United States, Honduras and France … [183] The Sydney Desalination Plant Project is a useful case study to examine the various aspects of a DRB in operation, since it highlights the key operating procedures that enable the DRB to help the parties avoid potential disputes … This project involved the construction of a desalination plant, valued at $1.3 billion, in the Kurnell Peninsula in Sydney. The contract was between Sydney Water (the principal) and Blue Water Joint Venture (contractor), with a contract price in excess of $1 billion. [184] Graeme Peck, an experienced consulting engineer for large infrastructure projects who is active in the leadership of the Dispute Resolution Board Australasia (DRBA), successfully approached Sydney Water to encourage the organisation to use a DRB on the Desalination Plant Project. Peck, Ronald Finlay (a lawyer and consultant on infrastructure and construction projects) and George Golvan QC (a member of the Victorian bar with expertise in construction law and ADR) were appointed as the DRB members. The key features and achievements of the Sydney Desalination Plant DRB can be summarised as: • All three board members were required to be independent of the contracting parties. A somewhat unusual feature was that the DRB agreement required that the Chairman of the DRB be a Queen’s Counsel or Senior Counsel of the New South Wales or Victorian Bar. The inclusion of a lawyer as a member of a DRB is in itself controversial, let alone mandating that a lawyer be the chairman. This requirement recognised the importance of having a DRB member capable of resolving issues of contractual interpretation, and experienced in construction law and dispute resolution. The combination of technical engineering skills and legal experience ensured that the DRB was capable of addressing all manner of disputes. • The DRB operating procedures specified that key site representatives and non-​involved senior party representatives must be present at all DRB meetings. This requirement ensured that the DRB could develop positive working relations with key on-​site and off-​site personnel. This acted as a catalyst for open and constructive communications. • A further unique provision in the DRB agreement was that if the DRB concluded that a particular issue could not be resolved by direct negotiations between the contracting parties, the DRB had the power to compel the disputants to refer the dispute to the DRB for a recommendation, unless the parties resolved it themselves within a designated timeline. Generally, a dispute only ends up being heard by a DRB if one or both of the parties elect to refer the matter for a hearing. It is highly unusual for a DRB to be empowered to itself initiate a hearing.

[5.40]  263

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Dispute Review Boards in Australia cont. • The DRB members were required to meet on site at three monthly intervals from the commencement of the project. If a key event was about to occur that would give rise to potential issues, a meeting would be arranged to take place shortly after the event. This ensured that the DRB was kept informed of developments and remained in regular communication with the parties so as to identify potential causes of conflict as soon as practicable. Further, the DRB operating procedures required that all significant project documents, such as design review minutes and monthly reports of the Superintendent, be forwarded to the DRB, so that the DRB stayed abreast of progress in between site meetings. The DRB operating procedures for the Sydney Desalination Project demonstrated that the parties were committed to ensuring that there were open lines of communication with the DRB members, and that the DRB was empowered to proactively identify potential causes of conflict so that they could be addressed before they escalated into disputes. The chairman, George Golvan QC believes that the DRB worked as the parties intended, and noted: On a personal level, the most significant feature which I have observed during my involvement with the Sydney Desalination Project DRB is the mutual problem solving environment which exist[ed] at DRB meetings to facilitate the success of the project. Set against the backdrop of a collaborative working environment, it is not surprising that no disputes were referred to the DRB for a formal hearing, which suggests that the DRB worked “remarkably well as a dispute avoidance mechanism”. This is consistent with the parties’ objectives. Indeed, Ian Payne, Sydney Water’s General Manager of Asset Solutions, considered that the parties would have failed if a dispute had ended up being referred to the DRB for a determination

 [5.45] Although the uptake of DRBs as a dispute avoidance or dispute resolution process

has been slow in Australia, there has been an increase in the number of contracts that include dispute boards from about 21 in 2010 to over 70 in 2017. Of those projects, the one with the highest contract value is the Pacific Highway Upgrade:  Woolgoolga to Ballima Project which is valued at approximately AU$4.3 billion. The Dispute Resolution Board Foundation (DBRF) keeps a dispute board project database accessible via its website (http://​www.drb.org/​ publications-​data/​drb-​database/​). The DBRF, a not-​for-​profit organisation, promotes the use of dispute boards for dispute avoidance and resolution.

PARTNERING [5.50]  As with dispute boards, partnering is designed to deal with disputes at their origin

and therefore can be classed more accurately as a dispute avoidance process rather than a resolution process. The process can, however, be used for both purposes. Partnering is most common in the building and construction industries which involves many parties coming together to conduct projects that are often characterised by frequent disputes over the quality of labour and work. If successfully implemented partnering is an immensely powerful tool that can deliver significant improvements in performance and value for money for all stakeholders in a construction project. However, as with dispute boards, partnering can be developed for use in relationships outside of building and construction, particularly where the project is a complex one or in relationships involving multiple parties and where, consequently, there is the potential for communication lines to break down and disputation to occur. 264 [5.45]

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The now defunct National Alternative Dispute Resolution Advisory Council (NADRAC), a body designed to advise the Commonwealth Attorney-​General on matters pertaining to dispute resolution, defined partnering as a process that: involves the development of a “charter based on the parties” 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.1

As the above definition indicates, partnering is a collaborative process and consensual decision-​ making is emphasised. The principles of good communication, negotiating in good faith and internal team dynamics are in line with the partnering philosophy. According to the Australian Competition and Consumer Commission: Common features of partnering relationships are agreed processes and procedures 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.2

It is important to note that whilst the parties become partners in their shared objectives, they ultimately remain separate parties under the contract. Thus, the partnering process does not result in a legal partnership or joint venture. The next extract describes the process of partnering and its usefulness. Partnering and alliances [5.55]  In discussing partnering, it is important to note that the process could refer to strategic

partnering or project partnering and may be confused with other processes including project alliancing and strategic alliancing. The emphasis in this book is on the dispute avoidance/​resolution function of such processes particularly in the construction industry largely known for its adversarial nature. While some see these processes as a continuum of relational contracting, others view them separately as indicated in extract below:

Conceptual Model of Partnering and Alliancing [5.60] A M Anvuur and M M Kumaraswamy, “Conceptual Model of Partnering and Alliancing” (2007) Journal of Construction Engineering and Management 225 at 230. Partnering and strategic alliances are forms of relational contracting (see Bradach and Eccles 1989; Macneil 1978; Rahman and Kumaraswamy 2002; Williamson 1985). However, there is a conceptual difference between them. Assuming a continuum exists of possible relational contracting arrangements (as suggested in Bennett and Jayes 1998; Thompson et al. 1998), although such a view has been argued to be misleading (see Bradach and Eccles 1989), partnering and strategic alliances are the poles of this continuum. A strategic alliance is a long-​term interorganizational arrangement for mutual benefit, which is based on equivalence and high complementarity (Cox 1996; Hampson and Kwok 1997; Kanter 1994). Because of their long-​term nature, strategic alliances facilitate interorganizational learning, which is important for the commitment-​building process and increases the chance of achieving optimal contact (Katzenbach and Smith 1993; Love et al. 2002; Pettigrew 1998). In other 1 https://​ w ww.ag.gov.au/​ L egalSystem/​ A lternateDisputeResolution/ ​ D ocuments/ ​ N ADRAC%20Publications/​ Dispute%20Resolution%20Terms.PDF (accessed 14 August 2018). 2 ACCC, Benchmarks for Dispute Avoidance and Resolution (ACCC, Canberra, October 1997) p 20. Also available at https://​www.accc.gov.au/​system/​files/​Benchmarks%20for%20Dispute%20Avoidance_​0.pdf (accessed 14 August 2018). [5.60]  265

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Conceptual Model of Partnering and Alliancing cont. words, a strategic alliance is a cooperative relationship between parties when some shared expectation about the future (ie, trust) exists. There is evidence of the existence of trust-​based relationships in the construction industry between main and subcontractors (eg, Eccles 1981b; Hampson and Kwok 1997; Kale and Arditi 2001) and also between clients and main contractors (eg, Barlow 2000; Bennett and Jayes 1998; Loraine 1994; Tse 1984). However, the future is rarely preordained. Instead, the future is built on the basis of past and present actions. As Oberschall and Leifer –​1986, p 248 –​put it: “a lot of effort is required before there is an indefinite transaction future ahead to constrain exploitative behavior”. Asset specificity and uncertainty can grow out of such effort, rather than being present from the start, and facilitate a trust relationship. Many of the strategic alliances or term arrangements in the offshore construction sector grew out of many successful competitively let contracts, which themselves lasted several years (Loraine 1994). This underlines the crucial role of partnering as a transformative mechanism through which such a future can be constructed … Partnering provides a mechanism through which to foster cooperation in a project environment where trust is limited or non-​existent. This favourable contact then increases the likelihood and attractiveness of future contact and constitutes the foundation of a trust-​based relationship.

 [5.65]  It appears from the above extract that partnering may be used to achieve the goals of a

strategic alliance, for example, where parties are already in a contractual relationship to deliver a project. Partnering establishes procedures which enable parties to work toward the same objectives or common goals. To achieve the goals, identification of needs and interests, mode of communication, procedure for joint-​decision making and addressing differences before escalation are all important matters to discuss. With trust underlying the process of partnering, these matters are discussed and agreed upon in workshops or team building sessions. The Charter [5.70] The common goals and objectives agreed by partners are set out in the partnering

agreement which is referred to as a “Charter”. The Charter should include what each party considers most important to guarantee project excellence. More importantly, the Charter should include the parties’ preferred approach to resolving disputes or managing difference. Usually, cooperative alternative dispute resolution processes are agreed upon and the charter would set out different levels of dispute resolution and processes. The charter may be a binding or non-​binding agreement, but it is generally viewed by the parties in the following way: Partnering itself is not a contract. A partnering charter is developed to run in parallel with a traditional construction contract to provide guidelines to the relationship among the organizations (CIIA 1996). Parties agree to act reasonably and fairly and to “shake hands on it.” (Thomson 1998). Partnering relies solely on the commitment of individuals, as the partnering charter is not legally binding –​and this can be its best or worst feature.3

Distinction between dispute review boards and partnering [5.80]  One distinguishing feature between dispute review boards and the concept of part-

nering is the development and adherence to the charter. The charter sets out the road map 3 A J Hauck, D H T Walker, K D Hampson and R J Peters, “Project Alliancing at National Museum of Australia –​ Collaborative Process” (2004) 130 Journal of Construction Engineering and Management 143 at 144. 266 [5.65]

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of how the relationship between the stakeholders will proceed through to the successful implementation of the project via the dispute avoidance and resolution mechanisms. The big challenge in partnering is to develop the charter in a way that addresses the needs of the stakeholders and foresees the types of issues that will arise as the project progresses. In this respect it is advisable to have a flexible process in place for varying the charter as new and unforeseen issues arise. Dispute resolution advisers [5.85]  Dispute resolution advisers (DRAs) generally assist in the design and implementation

of dispute avoidance, management and resolution systems and often will design and implement training schemes within organisations so that the stakeholders within an organisation are equipped with dispute handling skills. DRAs work initially at the level of discovering difference and dealing with difference to avoid full-​blown disputes. However, they are also equipped with the ability to resolve disputes should they escalate, largely through negotiation and mediation. DRAs can be found on specific projects that require an experienced dispute resolution practitioner who can resolve disputes as they arise, thereby preventing projects from being delayed because of the commencement of litigation. One of the more well-​known uses of standing DRAs occurs in the oil industry with the appointment of the Oil Code DRA who: provides a central point of contact for distributors, wholesalers and retailers who are in dispute over the supply of motor fuel in Australia. The DRA has been appointed by the Commonwealth Minister for Resources and Energy. The Oilcode is a mandatory Statutory Regulation under the Federal Competition and Consumer Act 2010 (formerly known as the Trade Practices Act 1974). Disputes can be resolved with the assistance of the DRA more quickly and cheaply than if the parties engage in court based approaches. Other benefits to the parties in using the DRA service is that the process is confidential, the parties can maintain an ongoing relationship and they can develop solutions that best meet their needs.4

The Australian Energy Regulator, which is a statutory authority charged with making determinations regarding disputes involving electricity distribution, is required to appoint a DRA, pursuant to Chapter 8 of the National Electricity Rules. Other industry codes requiring DRAs include, but are not limited, to the: Franchising Code of Conduct; Australian Film Exhibition and Distribution Code; Produce and Grocery Industry Code; Australian Wine Industry Code of Conduct. [5.90]  The role of DRAs may differ across organisations and projects and may also be determined

by legislation. For example, the Oilcode provides that the DRA advises the Minister on dispute resolution matters, receives complaints and resolves disputes (ss 41 and 43 of the Competition and Consumer (Industry Codes –​Oil) Regulations 2017 (Cth)). Under the National Electricity Rules, the DRA ensures effective operation of the sector’s dispute resolution process, maintains a dispute resolution panel and may attempt to resolve a dispute referred to the DRA (Chapter 8, National Electricity Rules, 2018).

In other forums, a DRA may be required to act as an appraiser or referee but in most cases, the DRA does not impose a solution on the parties in the adjudicative sense. In the tradition of more non-​interventionist methods of dispute resolution, such as negotiation and mediation, the DRA seeks a consensual outcome from the parties should a dispute arise. However, like 4 http://​www.oilcodedra.com.au/​disputes.html (accessed 18 October 2013). [5.90]  267

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other forms of dispute avoidance processes discussed in this chapter, the DRA seeks to identify difference and assist the parties to avoid disputes rather than let differences between the parties escalate to the point of formal dispute resolution.

CONCILIATION Defining conciliation [5.95]  In Australia there is, regrettably, little consensus amongst conciliation providers as to

what, precisely, conciliation means. This may reflect the diversity and flexibility of this process. This uncertainty may also be a product of historical influences –​as society has changed in a century, so too has the context in which conciliation has been needed. The problem of lack of consistency in the definition of terms used in dispute resolution was recognised by the defunct NADRAC when it defined conciliation as: 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 • 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.5

Regardless of inconsistencies in the definition of conciliation, the process is now the most mandated process of dispute resolution. The growth in the use of conciliation across organisations and fields exacerbates the definitional problem: conciliation is now what a piece of legislation, an organisation or dispute resolution provider says it is. For example, in the international trade law context, Art 1(3) of the United Commission on International Trade Law Model Law for International Commercial Conciliation (UNCITRAL Model Law) describes conciliation as: a process, whether referred to by the expression conciliation, mediation, or an expression of similar import, whereby parties request a third person or persons (“the conciliator”) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship. The conciliator does not have the authority to impose upon the parties a solution to the dispute.

Similarly, the Mental Health Act 2014 (Vic) provides that parties may conciliate a dispute if the matter is determined appropriate for conciliation and all parties agree to conciliation but there is no stipulated process for conciliation. Section 244 of the Act provides:

(4) Subject to subsection (5), the conciliator may conduct the conciliation in any manner that the conciliator considers appropriate in order to resolve the complaint.



(5) The conciliator must take reasonable steps to ensure that the conciliation is conducted in a manner that promotes the wellbeing of the consumer in relation to the complaint.

5 National Alternative dispute Resolution Advisory Council, Dispute Resolution Terms, September 2003 p 5. 268 [5.95]

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[5.100]  Some conciliations may require application of mandatory principles as in the case of

the Mental Health Act above, and some may require the Conciliator to make recommendations or to merely facilitate the dispute resolution process without making any recommendations. In addition, conciliators in some processes may provide advice on substantive issues or contribute their expertise while in other conciliations, they are not permitted to. To further understand the diversity in the process and practice of conciliation, it is worthwhile considering how conciliation developed in Australia. The history of conciliation [5.105]  In the following extract, Creighton reviews one hundred years of the conciliation and

arbitration power in the Australian Constitution.

One Hundred Years of the Conciliation and Arbitration Power [5.110] B Creighton, “One Hundred Years of the Conciliation and Arbitration Power: A Province Lost?” (2000) 24 Melbourne University Law Review 839 at 839-​844. I. Introduction The new province is that of the relations between employers and employees … the process of conciliation, with arbitration in the background, is substituted for the rude and barbarous processes of strike and lockout. Reason is to displace force; the might of the State is to enforce peace between industrial combatants as well as between other combatants; and all in the interest of the public. This passage constitutes the classic rationalisation for the system of industrial regulation that was adopted in the early days of federation. Its author, Henry Bournes Higgins, played a leading role in the inclusion of the conciliation and arbitration power in the Australian Constitution. He was appointed as a Justice of the High Court of Australia in 1906, and in the following year became the [840] second President of the Commonwealth Court of Conciliation and Arbitration. He is both revered and reviled as one of the progenitors of the system of conciliation and arbitration as it developed in the first quarter of the 20th century. This system had its origins in a series of resounding defeats which were inflicted upon the Australian trade union movement in the early 1890s. One of the central issues in these disputes was the assertion by employers of the principle of “freedom of contract” –​that is, of their capacity to negotiate terms and conditions of employment directly with their employees rather than through intermediaries such as trade unions. Put differently, as a consequence of their victories in these disputes, employers had successfully repudiated the concept of collective bargaining as a means of regulating terms and conditions of employment. Several of the disputes were long drawn out, and in a number of instances were accompanied by serious levels of violence. They involved enormous hardship for striking workers and their families, and gave rise to widespread social and economic disruption. They were also distinguished by the fact that, for the first time in Australian history, they involved concerted industrial action in two or more colonies. These developments coincided with the move towards Federation, and they prompted a sizeable body of liberal opinion to conclude that the legislature of the proposed federation should have the capacity to ensure that there be no repetition of the events of the early 1890s, or that, if there were a repetition, the Parliament could take appropriate remedial action. Contemporaneously, significant elements of the labour movement came to the view that, in the prevailing circumstances, trade unions could not realistically hope to persuade employers to engage in collective bargaining without some kind of legal compulsion. Similarly, some, but by no means all, business groups came to see advantage in some kind of system of industrial regulation which could prevent major industrial dislocation, and which could also afford a measure of protection against “unfair” competition from employers (at home and abroad) who enjoyed significant advantages in labour costs. [5.110]  269

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One Hundred Years of the Conciliation and Arbitration Power cont. Taken together, these considerations help explain the fact that by 1900 most of the colonies had developed some form of conciliation and arbitration and/​or [841] wages board system for the prevention and settlement of industrial disputes and/​or the regulation of terms and conditions of employment. It also helps explain why the Commonwealth Parliament was given power to “make laws for the peace, order and good government of the Commonwealth with respect to … conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State”. Given the significance that the system put in place in reliance upon this provision was to assume in the future, it is important to appreciate that many of the proponents of its inclusion in the Constitution assumed that it would rarely, if ever, be relied upon in practice. It is even more important to appreciate that conciliation and arbitration for the prevention and settlement of disputes was originally conceived purely in terms of a mechanism that could be called in aid if and when collective bargaining failed –​for example, because of the refusal of one or both parties to come to the bargaining table. It seems clear, however, that the framers of the original Commonwealth Conciliation and Arbitration Act 1904 (Cth) (“the 1904 Act”) expected that the normal means of determining terms and conditions of employment would be through processes of collective bargaining between employers and organisations of workers. Not only was this the expectation, for a considerable period after its inception, that is how the system operated. Part VI of the 1904 Act made detailed provision for the recognition of industrial agreements between employers and unions. In the early days of the system, these provisions were extensively relied upon in practice, and as late as 1919 the number of agreements exceeded the number of awards by a factor of almost six to one. For a variety of reasons, these provisions fell into disuse from 1913 onwards. They did, however, remain in the 1904 Act, in largely unaltered form, until its repeal in 1988. Furthermore, the Hancock Committee in 1985 recommended that they should be amended to provide that parties who wish to make their own arrangements for the prevention and settlement of disputes by conciliation and arbitration may do so, and that the terms and conditions of employment resulting from [842] those agreed arrangements would be able to operate to the exclusion of federal awards. This recommendation was not acted upon in precisely those terms when the 1904 Act was repealed and replaced by the Industrial Relations Act 1988 (Cth), but the sentiments it contained do find clear expression in what is now Part VIB of the Workplace Relations Act 1996 (Cth). Although the provision concerning conciliation and arbitration which was put in place in 1904 was originally conceived as a support mechanism for the regulation of terms and conditions of employment by means of collective bargaining, that is not how the system developed in practice. Instead, the support mechanism evolved into a highly sophisticated system of industrial regulation which, for good or ill, played a prominent role in the development and implementation of social and economic policy throughout most of the 20th century. As Australia enters the second century of federation, there are many who would argue that the system has outlived its usefulness, and that conciliation and arbitration should revert to its “proper” role as a supplement to collective bargaining. Others would go further and, in a somewhat disconcerting evocation of the 1890s, urge that the system should be entirely dismantled, and that terms and conditions of employment should be regulated solely on the basis of the law of contract … [843] II Conciliation with Arbitration in the Background It is important to appreciate that the use of conciliation and arbitration (compulsory or otherwise) as a means of preventing and settling industrial disputes is not a uniquely antipodean phenomenon. As Mitchell points out: [T]‌he Australasian legislatures relied to a considerable degree upon the experiences with conciliation and arbitration in other countries in order to justify and support the introduction 270 [5.110]

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One Hundred Years of the Conciliation and Arbitration Power cont. of the conciliation and arbitration process into Australasia. The British experience was clearly of interest to the Australasian parliaments. Debate on the various Bills … invariably contained historical accounts of the development of conciliation and arbitration in Britain … [T]he most thorough review was carried out by the New South Wales Royal Commission on Strikes [in 1891], which in a special “Conciliation Appendix” listed and briefly examined the legislative schemes operating in ten countries (including France, the United States of America, Germany, Italy, Denmark, and Sweden) … Nevertheless, it is true that the concept of conciliation and arbitration took hold in Australia and New Zealand to an extent that is unequalled anywhere in the world. It is not entirely clear why this should have happened. The accident of timing may provide a partial explanation: the various Australian colonies adopted their systems of conciliation and arbitration and/​or wages boards at very much the same time that they were maturing in economic terms and, as such, these systems became part of the established economic order. Similarly, the federal system matured along with the federation and, as noted earlier, played an integral role in the development and implementation of social and economic policy throughout much of the 20th century. The Commonwealth’s longstanding adherence to conciliation and arbitration can also be explained by the fact that they were the only forms of industrial regulation to be accorded express recognition in the Constitution. As will appear presently, there are several other heads of power that can be, and increasingly have been, used as the basis for federal regulation of industrial issues. But the fact that s 51(xxxv) expressly endorses conciliation and arbitration as the preferred means of preventing and settling industrial disputes must inevitably have served to consolidate the primacy of those techniques. This latter consideration was no doubt compounded by a certain element of inertia, perhaps stemming from a perception that the system worked in a reasonably effective manner and that in consequence there was no real need to look for alternatives. As against that, there was recognition at an early stage that conciliation and arbitration were not necessarily the most effective means of dealing with industrial and employment issues and/​or that the power set out in s 51(xxxv) was excessively restrictive –​as evidenced by the fact that in the first 20 years of federation there were no fewer than four attempts either to extend the [844] scope of the conciliation and arbitration power or to give the Commonwealth the capacity to make laws with respect to employment in general. Like most attempts at constitutional amendment, these proposals were rejected by the electorate. Perversely, the inability to broaden the scope of legislative power in relation to employment and industrial issues served further to entrench the system based upon s 51(xxxv). The fact that the Constitution expressly endorses two specific techniques for the prevention and settlement of industrial disputes is not surprising. It will be recalled that the outcome of the great industrial disputes of the 1890s was that employers had successfully asserted their right to agree terms and conditions of employment directly with their workforce without third-​ party intervention, and that conciliation and arbitration were conceived as a kind of default mechanism to be used where collective bargaining proved impossible or ineffectual. Where that happened, the industrial tribunal was to have the capacity to compel the parties to come to the bargaining table with a view to obtaining an agreed outcome through processes of conciliation. If conciliation failed, then, and only then, could the tribunal impose an arbitrated settlement upon the parties. This explains Higgins’ reference to “conciliation, with arbitration in the background”. It also helps to explain why the Australian system of conciliation and arbitration is commonly described as “compulsory” in character.

 [5.115]  It can be seen from the above extract that arbitration and conciliation have been part of the Australian dispute resolution system since federation albeit only in relation to industrial [5.115]  271

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disputes. As mentioned above, this is no longer the case. Between the 1970s and 1980s, the use of conciliation spread into diverse areas, such as family law, commercial law and the area of discrimination. Furthermore, of note is the fact that conciliation has always been viewed as a compulsory process which may lead to a recommendation or determination even if that determination is through a subsequent process like arbitration. It is still largely the case that conciliation is mandated by legislation but private conciliations are also prevalent in the market place. Another point to note is the introduction of conciliation and mediation to balance the power between two disputing parties. In the extract below, comparisons between conciliation (in the anti-​discrimination context) and mediation and the emphasis on the educational functions of conciliation is shown.

A Brief Discourse on Conciliation, Fairness and Illumination [5.120] D Tyler, “A Brief Discourse on Conciliation, Fairness and Illumination” (2000) 3(3) ADR Bulletin 39 at 39-​41. Differences between Conciliation and Mediation Apart from the distinctions revealed in NADRAC’s definition –​such as the advisory role of conciliations and the impact of a statutory framework –​how is conciliation different to mediation? Other differences identified by authors include compulsion to attend conciliation, imposition of the conciliator on the parties, lack of neutrality or impartiality, strong intervention and the use of rules and regulations, with the result of increased formality. From the perspective of conciliation under the Discrimination Act 1991, it is argued that differences also exist in relation to the therapeutic-​like and educational functions of conciliation (which are rolled into the term “illumination skills”); that is, conciliation of discrimination complaints can include a responsibility to “name the problem … and help devise a fair and durable resolution”. [40] … With this overview in mind, consideration will be given to two essential and important differences between conciliation and mediation. These are “expert knowledge” and “illumination skills”. Expert Knowledge Bryson and McPherson define expert knowledge as “knowledge of the relevant law, case law and other relevant developments, including an understanding of the legal options, processes and practices beyond conciliation”. This is certainly important to conciliation –​a skilled conciliator in discrimination cases must have knowledge beyond that of discrimination case law. However, Bryson and McPherson’s definition of expert knowledge may be too narrow, as an understanding of the psychology and culture of discrimination is also relevant to the management of the expectations and defensiveness revealed in a conciliation conference. By way of contrast, Thirgood argues that a mediator should assume, by definition, a low interventionist role. His position is that “mediation is a forum whereby the parties resolve their differences according to their own standards”. In particular, he argues that it is the parties’ internal notions of fairness that should govern outcomes, internal notion of fairness being: … Therefore, if conciliation in complaints of discrimination is to be successful there is a need for the conciliation to be skilled in: • understanding the external standard of fairness as legislated in the statutes such as the Discrimination Act 1991 or, as Bryson and McPherson state “knowledge of the relevant law”; • how that law might apply to the dispute in question, which means that conciliators are not neutral (with respect to the Discrimination Act 1991 this analysis is set out in the Discrimination Commissioner’s decision to attempt conciliation); • investigation and analysis skills, with an enhanced sensitivity to the subtleties of discrimination, particularly indirect discrimination; but also

272 [5.120]

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A Brief Discourse on Conciliation, Fairness and Illumination cont. • an understanding of the ideological assumptions that underpin conciliation and their juxtaposition with the social construct of conflict; and • an understanding of the psychology and culture of discrimination … [41] Illumination and Conciliation It is speculated that illumination may occur at any stage within the conciliation. From the perspective of the Discrimination Act 1991, the first point of illumination is where both the complainant and respondent are educated about fairness; the last point is when the Commissioner gives his or her reasons for attempting conciliation …

 [5.125]  To summarise then, the similarities between conciliation and mediation are:

(a) (b) (c)

both mediator and conciliator are a neutral third party; the processes of identifying disputed issues, developing options, considering alternatives and endeavouring to reach agreement are identical; neither the mediator nor the conciliator have a determinative role;

(d)

both the mediator and the conciliator may advise on or determine the process used.

The differences between conciliation and mediation are: • the conciliator may have an advisory role on the content of the dispute, the mediator does not; • the conciliator may have an advisory role on the outcome of the dispute, the mediator does not; • the conciliator may make suggestions for terms of settlement, the mediator does not; • the conciliator may give expert advice on likely settlement terms, the mediator does not; • the conciliator may actively encourage the participants to reach an agreement, the mediator is not so active in this regard. Of course, it should be noted that these similarities and differences are by no means set in stone, and many experienced dispute resolution practitioners have found themselves crossing the very nebulous boundaries which are (perhaps quite artificially) drawn between and around the various dispute resolution processes. Nonetheless, in the present context it is the differences between mediation and conciliation which will assist in developing and implementing a model of conciliation. Models of conciliation [5.130]  Conciliation may be used to achieve different goals in different contexts and therefore

different models have developed, but these differences make it more difficult to identify a single definition of conciliation. Some of the tensions associated with the use of conciliation include: • Whose interests does conciliation serve? • How can a process satisfactorily balance intervention by the conciliator with the empowerment of the parties? • How are power imbalances dealt with when representation is not inevitable? In the extract below, Poole discusses how conciliation may be both facilitative and advisory to address systemic issues in anti-​discrimination contexts with conciliation prescribed as the dispute resolution process. [5.130]  273

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Facilitating Systemic Outcomes Through Anti-​discrimination Conciliation [5.135]  R Poole, “Facilitating Systemic Outcomes Through Anti-​discrimination Conciliation and the Role of the Conciliator in this Quest” (2016) 27 Australasian Dispute Resolution Journal, 49 at 49, 55-​57. In Australia anti-​discrimination laws operate at both a federal and state/​territory level. Each of these laws sets up an independent anti-​discrimination statutory authority for the relevant jurisdiction. One of the key roles of these bodies is to resolve disputes about alleged breaches of the relevant anti-​discrimination law(s) using a conciliation-​based alternative dispute resolution (ADR) process. This process will be referred to as anti-​discrimination conciliation for the purposes of this article. In this context, the term conciliation should be understood as statutory conciliation that incorporates both a facilitative and advisory dispute resolution process. If a matter is not resolved through anti-​ discrimination conciliation, the complainant can choose to pursue their complaint at the relevant court or tribunal, depending on the jurisdiction. In some jurisdictions, a complainant can go directly to a court or tribunal without having to go through anti-​discrimination conciliation first. In other jurisdictions the complainant must go through the anti-​discrimination conciliation process before they have access to a court or tribunal. The role of the conciliator in facilitating systemic outcomes The next question that follows from the conclusion that it is appropriate and achievable to aim for systemic outcomes through an anti-​discrimination conciliation process is whether this should have an impact on the way the conciliator conducts the process. Specifically, should conciliators be tailoring their approach to the dispute resolution process in a way that best facilitates systemic outcomes? And, if so, what would this look like? These questions are explored below. Role of the conciliator As was mentioned in the introduction, anti-​discrimination conciliation typically includes both a facilitative and advisory process. Alexander’s definition of conciliation is appropriate, being a process in which a conflict resolution practitioner called a conciliator assists disputing parties to identify the issues in dispute, develop options, consider alternatives and reach an agreement and [u]‌nlike facilitative mediators, conciliators may adopt an advisory role in relation to: the content of the dispute; and its outcome or resolution. The first component of Alexander’s definition is consistent with the concept of a facilitative process, and the second describes elements of a typical advisory process. Raymond et al explain the role of the conciliator in the context of anti-​discrimination conciliation in a similar way to Alexander, describing the role as including requirements for the conciliator to intervene to ensure a fair process for both parties, to provide information on a range of possible settlement options and to ensure any agreement does not contravene the interest and purpose of the legislation. As referred to above, the objectives of the Equal Opportunity Act 2010 include identifying and eliminating systemic causes of discrimination, sexual harassment and victimisation. Raymond has later expanded on the role of the conciliator, concluding that the conciliator does not need to apply absolute neutrality and operate as a detached neutral to facilitate a fair process. Raymond suggests that in the anti-​ discrimination conciliation context, fairness is better achieved by the conciliator restraining from acting on personal biases and conducting the process in a way that does not privilege one party over the other and maximises party control, which, in itself may sometimes require the broader social context of the matter to be acknowledged. According to Raymond, the conciliator must have a professional interest in the content, process and outcome of the dispute which includes attending to its social context. Raymond’s arguments around when it is appropriate for the anti-​discrimination conciliator to take a more active role in the process are supported by the work of Ojelabi, who draws similar conclusions in the context of culture. Specifically, Ojelabi recommends that the dispute resolution practitioner does not stand back with the aim of being non-​judgmental and non-​discriminatory but rather participates actively with parties to identify and engage the real issues to the advantage of the parties in 274 [5.135]

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Facilitating Systemic Outcomes Through Anti-discrimination Conciliation cont. the future. Like Raymond, Ojelabi also reinforces the importance of the dispute resolution practitioner having an awareness of balances of power between the parties, and taking an active role in monitoring the impact this may have on the dispute. The above analysis suggests that a component of the role of the anti-​discrimination conciliator includes an exploration with parties of possible systemic outcomes that could be agreed through the dispute resolution process. The next step is to then consider how the conciliator should engage in this exploration. Approaches the conciliator could adopt to facilitate systemic outcomes As set out above, the Gardner Report recommended that the Commission’s conciliators facilitate systemic outcomes through the Commission’s dispute resolution process by taking a more active, interventionist role in the process. The Gardner Report suggested techniques such as providing parties with information about the relevant law, including parties obligations under the law and the scope/​ operation of the law, and information about how the dispute could be resolved, referencing outcomes achieved in similar matters. This approach was intended to empower parties to be able to engage in the process in a way that facilitates an appropriate settlement, including the incorporation of any suitable systemic outcomes. Raymond also recommends an interventionist approach to anti-​discrimination conciliation as a means of facilitating systemic outcomes, suggesting that the conciliator should undertake both rights-​ based and interest-​based interventions. Raymond puts forward the following rights-​based interventions, which are similar to those recommended by the Gardner Report: • investigating the dispute; • providing advice to parties in relation to the relevant facts; • providing advice to parties in relation to the relevant law, including parties rights and responsibilities under that law, relevant case law and how the matter could be decided by the relevant court or tribunal; • providing advice to parties in relation to possible, probable and desired outcomes, including how these may be achieved; and • encouraging outcomes that further the objectives of the applicable legislation, where possible. Raymond then suggests that the conciliator should also adopt the following interest-​based interventions, as a means of prompting parties to consider systemic outcomes: • encouraging each party to understand the other’s view; • assisting in facilitating positive, constructive dialogue between parties; and • encouraging the development of creative outcomes that address needs and interests common between the parties, which is likely to include systemic outcomes. Raymond recommends that the conciliator’s interventions take into account any power disparities between parties, to ensure that a party is not disadvantaged not only in respect of the process followed but also in relation to any outcome agreed by parties through the process. For example, a less powerful party may not feel in a position where they are able to raise a potentially appropriate systemic outcome as an option, and in this scenario, the conciliator should intervene to assist this party to do so.

 [5.140]  While the above approach relates to conciliation in anti-​discrimination matters, the

next extract compares the use of mediation and conciliation in family dispute resolution and how practitioners can move, back and forth, from one end of the spectrum, being outcome focused, to the other end of the spectrum, being process focused. This indicates a hybrid model [5.140]  275

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that allows practitioners to pick and choose from different DR approaches depending on the context and specific issues in dispute.

The Practice of Mediation and Conciliation in Family Dispute Resolution in Australia [5.145] M Brandon and T Stodulka, “A Comparative Analysis of the Practice of Mediation and Conciliation in Family Dispute Resolution in Australia: How Practitioners Practice Across both Processes” (2008) QUT Law and Justice Journal 194 at 200-​201. In both mediation and conciliation practitioners can incorporate facilitative problem solving, advisory, or evaluative approaches and use narrative, transformative, solution focused and therapeutic principles of practice. Depending on the particular training and philosophical underpinning of the practitioner’s theoretical framework, they will use the process and skilled interventions (such as reframing, summarising and clarifying questioning) accordingly. The following continuum shows how a practitioner can move from being outcome focused to concentrating more on process over outcome. The continuum also demonstrates the behaviours that may indicate such goals. Outcome focused Process focused Control of content & process Control over process Directive Non-​directive Rigid Objectives Flexible Objectives Settlement Relational Model bound Client centered © Source: L Fisher and M Brandon, Mediating with Families (2nd ed, Thomson, to be released late 2008) used by permission. Along the spectrum practitioners can actively contribute to “what” is discussed, “how” the issues are addressed, and “bring in” issues that the parties may not have considered but that may be important to the successful outcome of workable agreements. For example, raising the role of the grandparents, new partners in each separated person’s life, financial support, or taxation and capital gains consequences may be important issues to attend to. At the non-​directive end of the spectrum the process could take different forms and a practitioner incorporating the parties “voice” could shape the structure of the process. In complex cases practitioners may need to move between the relational and settlement end of the spectrum as these cases often “need more flexible, more intensive, more therapeutic and longer term services than less complex cases” and Parties may need to sort out their emotions first and have some evaluative recommendations later. Some community centres use a 12 or 10 step process that mediators must follow and is generally conducted as a co-​mediation rather than by a sole mediator. Such a process could be considered more “model bound”, however is “non directive” in the sorts of skills being used and belongs therefore on the process focused end of the continuum … Conciliators can be seen more at the directive end of the spectrum as they have more control over and provide more process, and content-​directed, interventions than that which is generally expected from mediators, using a facilitative approach. There are many variations in practitioners’ control and focus. Conciliators could be regarded as belonging to the outcome and settlement end of the spectrum as “dealmakers” in contrast to mediators at the other end …

 [5.150]  The above extract emphasizes flexibility in the practice of family dispute resolution

but notes that conciliators are more outcome-​focused than mediators. The next extract sets out what a hybrid model of family dispute resolution might look like. 276 [5.145]

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Private Conciliation in Family Law [5.155]  T Altobelli, “Private Conciliation in Family Law” (2002) 13(4) Australasian Dispute Resolution Journal 230 at 242-​247. A Model of Conciliation? It is tempting at this point to proceed to devise a model of conciliation, but that is unwise without first reconsidering the interests of the stakeholders in the conciliation process, and exploring how those interests will help to shape the model. A consideration of the interests of the stakeholders necessarily involves [243] some reflection on the values of those stakeholders. Thus, for example, the corporate PDR provider, and the individual conciliation practitioners, may cherish values associated with the parties’ self-​empowerment to resolve their own dispute, or to be transformed as a result of their conflict. These values may predicate against intervention. However the values of the court-​referrer may be entirely different. There may be far greater importance attached to outcomes. On the litigation process-​line which leads eventually to adjudication, there is a high expectancy that when cases are diverted away for alternative interventions, outcomes and turn-​around time will be very determinative. These values might predicate strongly towards intervention. And what of the values of the disputants –​as diverse as they are, how will they be factored into this complex equation? At some stage also, the PDR service provider must confront the question: who is the real client: the court-​referrer of the dispute, or the disputants themselves? The writer’s impression is that courts want the cases they refer out for conciliation settled, and so long as the process used achieves that result, the terminological turmoil and nebulous uncertainties that surround the debate about the boundary between mediation and conciliation mean very little to courts. But it might mean far more for PDR service providers and practitioners who embrace philosophies of self-​empowerment and reject as unacceptable any notion of systematic intervention as to both process and content. What is unacceptable, however, is the court-​referrer of disputes requiring and expecting conciliation, but the provider providing a process labelled conciliation, but which is really just traditional mediation. How then, can a model of conciliation be devised that is both outcomes focussed, and is still philosophically grounded in empowering the parties to resolve their own dispute, and that perhaps even develops skills which are taken into their lives… In developing a possible model of conciliation, therefore, one starting point is to focus on how conciliation differs from mediation. The defining features of conciliation in this regard are: • advice

→

content of dispute

• advice

→

outcome of dispute [244]

• suggestions

→

terms (content) of settlement

• expert advice

→

terms (content) of settlement

• encourage (actively)

→

(fact of) agreement

The conciliator does not investigate, but this should not constrain a conciliator from asking questions. However, the conciliator cannot demand answers –​though note O 24 r 1(3) and the requirement for parties to make a bona fide endeavour to reach agreement. Clearly one possible difference between the role of the mediator and the conciliator is the extent to which each intervenes in the parties’ dispute: • mediator is a passive intervener • conciliator is an active intervener Please note that it is not suggested that mediators do not intervene in the parties’ disputes –​clearly that intervention is present, but it is limited, more focussed on process rather than content, and is [5.155]  277

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Private Conciliation in Family Law cont. often guised in subtlety. Clearly conciliation calls for more extensive, process and content directed, and perhaps less delicate intervention. Interestingly, the mediator and conciliator’s neutrality is meant to be identical, and inappropriate intervention leads to the risk that one or even both parties will perceive the conciliator to be biased … The fundamental values of neutrality remain intact: impartiality, objectivity, detachment and non-​ partisanship. However, the role of the neutral is slightly different –​the mediator is passively neutral, but the conciliator is proactively neutral. At its simplest, therefore, at least initially a hybrid model of mediation-​conciliation is suggested. In this way the practitioners at least start from the familiar before moving into (for some) the unfamiliar. The model might be illustrated thus: Introduction by Practitioner

 

(modified opening statement)

Parties’ Opening Statements

 

 

Summary

 

 

Clarification of Issues

 

 

Issue Identification and Agenda Setting

 

(Practitioner may add issues)

Discussion in Open Sessions

 

 

Discussion in Private Sessions

 

(Reality testing positions and options)

Option Generation

 

 

Option Evaluation

 

(Comparing options to likely outcomes. Pointing to alternatives to agreement) [245]

Encouraging Agreement (Based on the best options likely to correspond with most likely outcome)

Agreement Documentation

(Suggestion and advice)

No Agreement

Discussion in Private Sessions Generating fresh options Evaluating fresh options Encouraging agreement

End session: Identify common ground Explore other ADR options Focus on best interests of children

No Agreement Agreement Documentation

… Conciliation processes and techniques come into play at the following points: • Introduction by practitioner: The practitioner’s opening statement is modified to the extent that it is necessary to explain the slightly different role of the conciliator. … • Issue clarification and agenda setting: As the practitioner is a proactive intervener rather than a passive one, and having regard to the conciliator’s role in terms of advice about the content

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Private Conciliation in Family Law cont. and the outcome of the dispute, it is appropriate for the practitioner to add other agenda items for discussion … It is entirely appropriate, therefore, for the conciliator to, in effect, champion the values of the statutory scheme. Thus, adding issues to the agenda, [246] even on a tentative basis, is acceptable provided they are appropriately framed, are grounded in the values of the Family Law Act 1975, and arise out of the parties’ dispute as introduced by the parties in their opening statements and the preliminary discussion which flows out of that. • Discussion in private sessions: Reality testing positions and options in private sessions is a common feature in mediation. The difference in conciliation is one of degree. It comes back to the proactive versus passive intervener dichotomy. In conciliation, it is quite legitimate for the conciliator to engage in a more robust form of reality testing. … Reality testing even robust reality testing, does not mean advice as to content or outcome –​that is shortly to emerge. • Option evaluation: It is at the option evaluation stage where the differences between mediation and conciliation come to the fore. Here the options developed by the parties are actively compared to likely outcomes as they are known to the conciliator. The likely outcomes are, of course, impossible to predict with certainty –​they are likely outcomes, rather than certain outcomes. But the likely outcomes redefine or reconstruct the alternatives, and in particular the alternative of adjudication at a contested hearing. Those parties who feel that they will do better by proceeding to a hearing because of the merits of their case are confronted with the conciliator’s view of likely outcomes. Whereas the mediator can do no more than cause a disputant to reconsider the perceived benefits of litigation (weakening the litigated alternative) the conciliator can actively suggest that the parties’ perception of an anticipated outcome is illusory, or over-​stated … • Encouraging agreement: Even mediators encourage disputants to reach an agreement, but this is often framed on the basis that agreement is better than the uncertainty of the adjudication alternative. In conciliation, the adjudication alternative is still framed in undesirable terms, but on the basis of likely outcomes rather than uncertainty as to outcomes. … [247] • No agreement –​from advice to suggestion: If there is no agreement after option evaluation and the encouraging agreement stage, the model suggests either terminating the session or, alternatively and preferably, going into another round of private sessions, generating fresh options, evaluating these fresh options, and again encouraging agreement. This is not dissimilar to mediation in some contexts. … But this time the conciliator becomes even more proactive in assisting the parties to find an agreement. Hitherto the conciliator has actively reality tested and compared options to likely outcomes, having regard to the alternatives to agreement. Encouragement to agree has been framed in terms of the best option likely to correspond with the most likely outcome. But now the conciliator becomes free to actively suggest possible terms of settlement. This obviously does not take place in isolation. It takes into account likely outcomes in an adjudicated context, and where the parties have come from and reached in terms of their dispute, their interests and their options. The conciliator is not imposing on the parties any particular settlement or outcome –​that never seemed to work in Family Court conciliation anyway (indeed, it just generated distrust in the system). However, the conciliator may well be suggesting options the parties have not considered. The conciliator’s suggested terms of settlement must: • be based on likely outcomes; • take into account the best interests of the child; • have regard to the parties’ interests.

 [5.155]  279

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[5.160]  Inherent in the model of conciliation in family law referred to above is a commitment

by the writer to the value of empowering the parties to resolve their own conflict if possible. The conciliator’s intervention is clearly limited, specific, measured, but progressively increases in intensity if the dispute is not being resolved. The discussion of the values and interests of the stakeholders is important, for those values and interests ultimately determine the model of conciliation that is chosen. In the next model, fairness is introduced as a relevant factor, with the conciliator expected to remain fair while nonetheless remaining a process facilitator, exercising power, but seeking to empower at the same time.

A Conciliation Model for Workplace Disputes [5.165]  D Bryson, “And the Leopard Shall Lie Down with the Kid: A Conciliation Model for Workplace Disputes” (1997) 8 Australian Dispute Resolution Journal 245 at 245-​246. Conciliation has become one of the principal dispute resolution methods favoured by Australian governments to reduce legal costs and divert cases from the court lists. There now exists a significant number of highly experienced conciliators from a wide range of backgrounds who resolve tens of thousands of disputes each year, disputes often with high substantive and emotional complexity. Increasingly, conciliation is offered to the community as a mandatory process prior to legal proceedings and, in some jurisdictions, excludes legal practitioners. Dispute resolution, institutionalized in this way to achieve political and fiscal goals, has emerged as an interventionist form of mediation, practised within considerable time and resource constraints. Conciliators under the law are given a variety of roles. They include: • settlement of disputes as expeditiously as possible; • administrative review of decisions; • identification of systemic issues giving rise to disputation;[246] • facilitation of mutually acceptable agreements; • power to issue recommendations; • power to give directions; • assessment of parties’ genuine attempt to conciliate. The inherent contradictions of these roles threaten the integrity of the process, and have led to the following common criticisms: • idiosyncratic styles, inconsistent outcomes, leading to conciliator “shopping” by parties; • time pressures result in no time to explore underlying (real) agenda of parties; • repeat players have too much power which can undermine or circumvent conciliatory objectives; • imbalance of power results in conciliators becoming advocates for less powerful; • pressure or threats used by conciliators (“headbanging”); • repeat players and conciliators may collude to achieve settlement. Other dispute managers in the justice system are not immune from such criticism but, unlike those claiming to practice orthodox mediation, conciliators have lacked their own distinctive dispute resolution model to respond to their critics. A lack of conceptual clarity has also robbed them of proper recognition of the skills they have, and opportunities for professional and career development. The aim of this article is to suggest a simple working model of conciliation that stands on its own as a valid dispute resolution concept. It attempts to reflect the complexity of roles expected of conciliators in the Australian context today, issues of power and authority, and indicates ways in which conciliation professionals can become more consciously competent at what they do. …

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[5.170]  Clearly, conciliation has been a practice in search of a coherent theory and workable

model for some time. Bryson goes on to explain the vulnerabilities of a conciliation model that was merely “mediation within a legal framework” (at 246) when the context becomes one where the conciliator is expected to facilitate structured negotiations based on conciliator interventions. Conciliation becomes a process whereby the conciliator balances the requirements of the statutory or administrative framework within which the conciliation takes place with seeking an agreement between the parties through negotiation. The conciliator manages the negotiation between the parties by driving the transition from positional bargaining to interest-​based bargaining, while at the same time seeking to empower the parties by openness to explore and integrate their interests, thus facilitating consensual problem solving. In short, the conciliator is both using power and seeking to empower, and the strategic choice for the conciliator is to know when to move from one mode to the other. The risk, of course, is that conciliators will stay in power mode. In the next extract from Bryson’s article, he deals with this issue, and then sets out his model.

A Conciliation Model for Workplace Disputes [5.175]  D Bryson, “And the Leopard Shall Lie Down with the Kid: A Conciliation Model for Workplace Disputes” (1997) 8 Australian Dispute Resolution Journal 245 at 250-​254. Since context governs the choice of conciliation approach, there is a danger that the model in practice will incline conciliators to use the power mode most frequently. The current preference for this mode among many conciliators is rationalized in terms of maintenance of the social intent of the legislation and other political agendas. Colossal caseloads and severe time and resource constraints on the process play their part too. The issue for best practice in this context is to think beyond the inevitability of conciliator power, to understand when power may be acceptable. Mediation research indicates that mediators perceive the use of pressure to be effective in gaining agreement but that it is highly contingent on the dispute situation and on the adaptability of the mediator to use other, more non-​contingent strategies. Client research confirms that pressure can be perceived as competence, but is likely to be most successful when used alongside integrative strategies or strategies that reward or concentrate on [251] facilitation only. However, when pressure means threat, the research shows that an accelerated escalation of the dispute is likely. Conciliators who have statutory powers to recommend or direct can cast this shadow across the conciliation discussions. … A best practice conciliation model therefore needs to be centered on critical non-​contingent strategies; that is, conciliator interventions that exist, and are seen to exist by the clients, whatever the choice of negotiation mode. … These non-​contingent strategies are not straightforward in conciliation practice. Take, for example, the concept of fairness in the conciliation context. Fairness in relation to the content of the dispute can have particular difficulties for a conciliation due to the substantive expertise they possess from their system knowledge. Procedural and psychological fairness is demonstrated by a conciliator in a range of standard interventions –​for example, equal manner verbally and non-​verbally, demonstrating equal interest, summarizing each party’s concerns –​but the conciliation context demands other actions. … While the conciliator attempts to balance a structured negotiation process with legislative and administrative demands, they are very likely to be seen as “unreasonable” rather than unfair, because they will introduce or reflect the demands of the context against the personal wishes of parties. … [252] The reputation of conciliators in Australia as heavy-​handed and idiosyncratic does not do justice to the significant expertise they have developed in many areas of workplace disputes, nor their ability to manage huge volumes of complex cases. Nevertheless, the use of pressure by conciliators is necessary, given the legislative and administrative framework in which they work. [5.175]  281

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A Conciliation Model for Workplace Disputes cont. Power strategies in dispute resolution are acceptable and more effective when they work alongside empowerment strategies. The practitioner’s challenge is to be able to know what situation gives rise to which dispute resolution mode, and then to have the skill to be able to effect the transition between them. Whatever the mode, there are core skills that are not reliant upon the context. These skills are shared with mediation best practice and are the counter-​intuitive, micro-​skills or orthodox dispute resolution. Chief among them is the ability to demonstrate fairness. This is a constant challenge to conciliators who, due to their statutory authority, are often called upon to be unreasonable from one party’s view or another. This dilemma is not vastly different from mediators working within the courts or other jurisdictional environments, or indeed, managers resolving workplace disputes through negotiation while retaining authority over the content and outcome … [254] The practitioner needs to be clear about why and how he or she acts. Likewise, the consumer must know what can be expected from conciliation agencies. The model described in this article … aims to make progress towards these objectives.

 [5.180] Bryson’s model for conciliation is a comprehensive one. It focuses on striving to

achieve the balance between power and empowerment and suggests strategies to achieve this. It is a model that would be flexible enough to work beyond the workplace context as well. It does place onerous responsibilities on the conciliator, however is it a realistic expectation? In another context, the core competencies of conciliators have been examined.

Pathways to Learning: Conciliator Core Competencies [5.185] D Bryson and M McPherson, “Pathways to Learning: Conciliator Core Competencies” (1998) 1(3) ADR Bulletin 45 at 45. The proven result is a person, somewhere between a lawyer and a counsellor who can work effectively within personal, legislative and administrative constraints, while delivering a product that is highly satisfactory to most clients. Analysis

Effectiveness in identifying the issues in dispute and seeking out relevant information pertinent to the resolution of the case.

Objective empathy

Ability to refocus a party’s self-​absorption in their dispute to a problem-​solving approach. Rapport, awareness and consideration of their needs and interests is demonstrated, but the objective is always towards the path to resolution.

Inventiveness and problem-​ solving

Pursuit of collaborative solutions and generation of ideas and proposals consistent with case facts.

Interpersonal skills

Effectiveness of verbal expression, gesture and body language in communication and managing the interaction between parties.

Strategic direction

Effectiveness in moving parties toward areas of agreement or towards a productive streamlining of the dispute.

Legislative framework

Appropriate use of administrative law principles in considering parties’ rights, options and responsibilities under the law.

Expert knowledge

Knowledge of the relevant law, case law and other relevant developments, including an understanding of the legal options, processes and practices beyond conciliation.

Multiple roles

Parties need to be clear about what role the conciliator has at any time. Conciliators must manage their various roles effectively. For example, signal changes in roles and in more determinative or conclusive interventions, conform with rules of natural justice.

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Pathways to Learning: Conciliator Core Competencies cont. Personal flexibility

Effective in adapting preferred styles and roles to differing circumstances during conciliation.

Self-​efficacy

Personal power and psychological strength to be effective in a meeting with changing emotional and power dynamics within the limitations of what a conciliator can actually achieve. This includes the capacity to manage the dumping, blaming and aggressiveness of parties.

Managing expectations

Effectiveness in managing the parties’ expectations of conciliation. This is important where the entry to conciliation is a compulsory phase prior to legal proceedings.



NEUTRAL EVALUATION, EXPERT DETERMINATION AND CASE APPRAISALS [5.190]  Neutral evaluation, expert determination and case appraisals are very similar in terms

of their processes. They are more adjudicatory than consensual processes in their approach to resolving disputes outside of a direct court hearing. They can be privately run by the parties to the dispute but are a popular way for courts to avoid a costly hearing while at the same time keeping the dispute under the control of the court. NADRAC defined each of the processes as follows: Early neutral evaluation is a process in which the participants 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. 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. Expert determination is a process in which the participants 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. 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.6

The difference between a case appraisal and a determination is that: in the former the appraiser suggests desirable outcomes to the parties, who may or may not accept the suggested outcomes unless they have agreed to be bound by those suggested outcomes; whereas in the latter, the expert provides a determination which is an adjudication of the dispute. Further, an expert appraisal is usually not binding on the parties while a determination is generally binding on the parties by way of contract –​this can be varied by agreement between the participants. However, caution needs to be exercised as some jurisdictions use the term case appraisal to mean a process more akin to neutral evaluation or expert determination. For example, s 41 of the Civil Proceedings Act 2011 (Qld) states: 6 https://​ w ww.ag.gov.au/​ L egalSystem/​ A lternateDisputeResolution/ ​ D ocuments/ ​ N ADRAC%20Publications/​ Dispute%20Resolution%20Terms.PDF (accessed 28 August 2018). [5.190]  283

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(1) Case appraisal is a process under the rules in which a case appraiser provisionally decides a dispute.



(2) A case appraiser’s decision is not binding on the parties until –​



(a) the time prescribed under the rules for filing an election to go to trial has passed; and



(b) a court, by order, gives effect to the decision.

Pursuant to this definition, case appraisal in Queensland requires the appraiser to make a decision about the dispute as opposed to merely providing advice on possible outcomes and the means by which these can be achieved. In other jurisdictions the decision-​making nature of the role of the third-​party neutral in the process would be classed as being similar to that of an expert determination or neutral evaluation. Due to the lack of uniformity in this area of dispute resolution, there is a need to have a detailed description of the preferred in contractual documents including in dispute resolution clauses or dispute resolution contracts. It is also important to be clear about the binding nature (or otherwise) of the outcome of the process. Neutral evaluation [5.195]  The first piece of legislation establishing neutral evaluation as a court-​annexed dis-

pute resolution system was the Courts Legislation (Mediation and Evaluation) Amendment Act 1994 (NSW), which amended certain Acts governing the administration of justice in New South Wales so that matters could be referred to neutral evaluation (and mediation) by the various courts operating within New South Wales. The Act did nothing to curtail the use of private neutral evaluation, although this was not and has not been a growing area of dispute resolution despite the passing of the 1994 Amendment Act. Interestingly, the Courts Legislation Amendment Act 2004 (NSW) and the Supreme Court Rules (Amendment No 387)  2003 (NSW) removed all references to neutral evaluation in the Supreme Court Act 1970 (NSW) and Supreme Court Rules 1970 (NSW) respectively. According to the Hon Henry Tsang, Parliamentary Secretary, in his Second Reading of the Courts Legislation Amendment Bill 2003 on 12 November 2003: The amendments to sections 110H through to 110Q remove any reference to the process of early neutral evaluation, as it has not been useful in the Supreme Court because litigants generally have legal representation and have received advice on their prospects of success. Mediation, on the other hand, is useful as an alternate means of dispute resolution that has widespread acceptance among practitioners and parties.

Those appointed as evaluators under neutral evaluation schemes tend to be senior or former senior judicial officers or legal practitioners. This is mainly because the role of the evaluator includes assessing the relative strengths and weaknesses of each party’s case and offering an opinion as to the likely outcome of any court proceedings, including any likely findings of liability or the award of a remedy. Experience in how a court would find on any given matter is essential for the evaluator to fulfil his or her role. The Administrative Appeals Tribunal has a model of Early Neutral Evaluation. The model is reproduced below:

Administrative Appeals Neutral Evaluation Process Model [5.200]  The Administrative Appeals Tribunal model of Early Neutral Evaluation is available at http://​ www.aat.gov.au/​steps-​in-​a-​review/​alternative-​dispute-​resolution/​neutral-​evaluation-​process-​model (accessed 27 August 2018). 284 [5.195]

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Administrative Appeals Neutral Evaluation Process Model cont. Neutral Evaluation is understood by the Tribunal as: 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. Neutral Evaluation Process Neutral Evaluation may be undertaken at any time in the Tribunal process. Neutral Evaluation is a process of assessing a dispute in which the evaluator seeks to identify and limit the issues of fact and law that are in dispute and, by that process, assist the parties to resolve the dispute. The Neutral Evaluation process is undertaken in confidence and without prejudice to the parties. Neutral Evaluation will usually be conducted in the presence of the parties, following the receipt of oral or written submissions, but may be conducted on the papers alone. The evaluator will determine the method of evaluation in consultation with the parties. Where the evaluation is conducted in the presence of the parties, the Applicant and the Respondent are expected to attend in person. Representatives may play an active role in the process, with a focus on the parties’ prospects of success and consequently the outcome of the issues to be determined. The evaluator examines factual information provided by the parties, listens to the parties submissions and provides a non-​binding opinion. An oral opinion will usually be given on the same day following a brief adjournment. In more complex matters, the evaluator may issue a written opinion within 48 hours of the Evaluation. 1. Preparation and Referral Referral to Neutral Evaluation will usually take place following a conference in which the conference convenor may make directions for the provision and exchange of documents in preparation for the Evaluation. The conference convenor, in consultation with the parties, may prepare a list of suggested factual and/​or legal issues in dispute or questions for determination in the Evaluation. A date for the Evaluation will be set at the conference or shortly after. The evaluator may conduct a telephone directions hearing prior to the evaluation to discuss or amend the list of suggested issues and/​or questions. The parties are encouraged to discuss with each other and the evaluator whether they may want the neutral evaluation process to include the possibility of settlement discussions instead of, or in addition to, a formal evaluation. 2. Evaluator’s Opening Statement The evaluator will explain the process and his/​her role to the parties and/​or their representatives. The evaluator will focus specifically on key issues raised by the facts of a case (as presented by the parties) and relevant questions of law. 3. Identification and Listing of Issues At the commencement of the Neutral Evaluation, the evaluator may seek endorsement from the parties as to the agreed list of issues and/​or questions for determination and make any appropriate changes. The parties are encouraged to prioritise issues for discussion from the agreed list of issues in dispute. The evaluator may facilitate negotiations between the parties and may hold private meetings in order to explore options with either party prior to the giving of an opinion. 4. Parties Presentations The parties present their cases on the agreed issues either by written submissions, by oral presentation, or by a combination of both. [5.200]  285

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Administrative Appeals Neutral Evaluation Process Model cont. The evaluator manages the length of any oral presentations. The evaluation process will be informal; rules of evidence will not apply and there will be no formal examination or cross-​examination of parties. The evaluator considers the factual information and applicable law as presented by both parties. The evaluator may ask questions and will summarise the submissions and presentations made by the parties. The parties are encouraged to ask clarifying questions of each other. 5. Evaluator’s Oral Opinion At the conclusion of the Evaluation, the evaluator will offer the parties a non-​binding oral opinion on the issues in dispute, based on an objective, independent and impartial analysis of the evidence available at the time of the evaluation. This opinion may include advice as to the possible or probable outcomes. The purpose of the non-​binding opinion is to provide the parties with an objective basis for further negotiation. The evaluator’s non-​binding opinion will indicate how the key disputed issues between the parties may be resolved and suggest options to the parties for negotiation and compromise. As the Evaluation will also include an opinion regarding legal issues, the parties should be in a position to re-​assess their risks regarding the final outcome of the dispute and that risk re-​assessment will provide the parties with an objective basis for proceeding with further negotiations. 6. Concluding Joint Session The evaluator will usually facilitate settlement negotiations following the giving of the opinion. Where an opinion has been given on the papers, a face-​to-​face or telephone session will be convened within 7 days to discuss possible settlement options or to prepare the matter for hearing. Where possible, this will be conducted by the evaluator. Where agreement between the parties is reached and the matter is settled, the evaluator must ensure that the terms of settlement are in accordance with the law, before making a consent decision. If settlement is not reached, the evaluator may record a plan or make directions to identify and exchange further relevant information which may assist in achieving resolution through the use of some other ADR process or to progress the matter to a hearing. The fact that an Evaluation has occurred will be reported to the Tribunal hearing the application. However, the details of the Evaluation will not be reported unless all parties consent. 7. Evaluator’s Written Opinion If the matter has not resolved by negotiation, the evaluator may, at the request of a party, give a written opinion about the factual and legal issues in dispute. The report will only be a summary of the likely outcome at a hearing of the evaluated factual and legal issues based on the evidence available at the time of the Evaluation. The opinion may be admitted in evidence at the Tribunal hearing unless a party objects.7

 [5.205] The procedures for neutral evaluation are characterised by the evaluator making

inquiries from parties to the extent deemed necessary in order to express an opinion on the likely outcome of the dispute. The process as indicated in the AAT’s model is confidential and parties must engage in good faith. The opinion is however non-​binding but may be admitted in evidence. Experience with neutral evaluation indicates that it is very sobering for a party to hear from a senior judicial officer or legal practitioner acting as the evaluator on the possible 7 See  http://​www.aat.gov.au/​steps-​in-​a-​review/​alternative-​dispute-​resolution/​neutral-​evaluation-​process-​model (accessed 27 August 2018). 286 [5.205]

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outcomes if the matter were to proceed to a court hearing. It is this “preview” of a litigated result that acts as the motivating force to settle that is an attractive characteristic of neutral evaluation. While there are models of early neutral evaluation, each organisation may develop a model that is best suited to the types of disputes it handles. Expert determination or appraisal [5.210]  Unlike other forms of dispute resolution, determinations are made by experts in the

subject matter area of the dispute. For example, in a building and construction dispute, the expert may be an engineer, architect or builder. Where there are legal issues involved, perhaps over the interpretation of a term of a contract, the expert may be a lawyer or somebody experienced in the drafting of the contract between the parties. Where there are financial issues involved, the expert may be an accountant or other expert experienced in the finance sector to which the dispute relates. Thus, whereas other forms of dispute resolution tend to rely on somebody experienced in the dispute resolution process, experts usually need to have technical experience in the area of the dispute. Again, it is important to be cautious about the use of the phrase “expert appraisal” as it is confusing with the above definition of case appraisal.

Binding and Non-​Binding Expert Appraisal [5.215]  Sir Laurence Street, “Binding and Non-​Binding Expert Appraisal” (1990) 1 Australian Dispute Resolution Journal 133 at 133-​135. An ADR mechanism that is becoming increasingly used in New South Wales is expert appraisal by a chosen independent neutral. The process is as simple as it is flexible and expeditious. Ordinarily this process is initiated by a formal agreement signed by the disputants and by the consultant selected to carry out the expert appraisal. The essential nature of an expert appraisal can best be expressed by considering the terms of a Precedent for such an agreement. To this end I have prepared a Precedent the terms of which are set out in this article. Before quoting it there are some general introductory comments that I should make in relation to this Precedent. It can, of course, be freely adjusted to meet the particular requirements of the parties. In the Precedent provision is made for three matters: (a)

The determination can be agreed to be either binding or non-​binding as they wish.

(b)

The prospect that the parties may wish to have an opportunity of meeting with the consultant and if so the question of whether at any such meeting they should be accompanied by legal representatives is covered by paragraph C. As is stated in Note 2, the terms of paragraph C can be adjusted as the parties may agree. Care should be taken to avoid adjusting paragraph C so as to make provision for a formal hearing as this might provide some basis for arguing that the process is an arbitration within the meaning of the relevant legislation.

(c)

Paragraph E records the prospect that the parties may wish some of the matters in dispute to be the subject of mediation after the resolution of some of the earlier matters. This is a course that can at times be useful. A simple example is a case in which it is sought to have the question of liability determined by a binding certificate with the anticipation that damages will thereafter be mediated. Note 4 indicates that paragraph E can be omitted if the parties so wish but, as it only records the prospect of a future agreement by the parties to incorporate a mediation process in respect of some of the matters in dispute, it has no operative effect to qualify in any way the agreement recorded in the expert appraisal agreement.

The form of the Precedent is as follows: [134] Agreement for Binding/​Non-​Binding (Note 1) Determination of Disputes by Expert Appraisal [5.215]  287

Dispute Resolution in Australia: Cases, Commentary and Materials

Binding and Non-Binding Expert Appraisal cont. Whereas: 1.

By Contract made on (date) A and B agreed to (brief description of contract), and

2.

Disputes have arisen between the parties as to certain matters relating to the contract and its performance

It is now Agreed: A.

That the parties hereby request (name) (“the consultant”) to determine the matters in dispute outlined in the Notice of Dispute dated (date) annexed to this Agreement by issuing a certificate stating his/​her determination, and the consultant by signing his/​her acceptance of this agreement agrees to comply with such request in accordance with the terms of this agreement.

B.

The consultant in so determining and certifying –​



(i)

will act as an expert and not as an arbitrator;



(ii)

will proceed in such manner as he/​she thinks fit without being bound to observe the rules of natural justice or the rules of evidence;



(iii)

will take into consideration all documents, information and other written and oral material that the parties place before him/​her including documents, information and material relating to the facts in dispute and to arguments and submissions upon the matters in dispute;



(iv)

will not be expected or required to obtain or refer to any other documents information or material but may do so if he/​she so desires;



(v)

will without giving reasons issue a certificate in such form as he/​she considers appropriate stating his/​her determination of the matters in dispute;



(vi)

will act with expedition with a view to such certificate being issued as soon as practicable.

C.

The consultant may if he/​she so desires arrange to meet with the parties to discuss the dispute; at and in connection with any such meeting:



(i)

either party may be accompanied by a legal representative;



(ii)

the parties agree to be bound by such procedural directions as may be given by the consultant both in preparation for and during the course of the meeting. The parties agree that any such meeting shall be deemed not to be a hearing such as to import any colour of the proceedings under this agreement being considered to be an arbitration. (Note 2)

D.

The parties agree to accept the determination in the said certificate as final and binding. (Note 3) [135]

OR E.

The parties agree that they will not be bound by the said determination. (Note 3)

F.

The parties may agree to confine the matters in dispute to be determined and certified in contemplation that the remaining matters in dispute will be the subject of a formal mediation by the consultant designed to achieve agreement between the parties on the resolution of such remaining matters. In that event the mediation shall take place at such stage and by such procedures as the parties and the consultant may agree. (Note 4)

G.

The consultant shall not be liable to the parties or either of them or to any third party or stranger for anything done or omitted by him/​her pursuant to this agreement and the parties release and indemnify him/​her from and against any claims for negligence, bias or other misconduct other than actual fraud.

H.

The parties shall share equally in paying the costs and expenses of the determination and mediation as previously agreed with the consultant or, in the absence of previous agreement, as certified by the consultant.

288 [5.215]

Other Dispute Resolution Processes  Chapter  5

Binding and Non-Binding Expert Appraisal cont. Note 1 One of these alternatives must be deleted Note 2 Paragraph C can be deleted in whole or in part or amended as the parties may wish Note 3 One of these alternatives must be deleted Note 4 Paragraph E can be omitted if the parties so wish.

 [5.220] As can be seen from Sir Laurence Street’s precedent, the expert has discretion to

conduct the appraisal or determination as he or she thinks fit without being fettered by the rules of evidence or preservation of the rules of natural justice. This allows the expert to be inquisitorial and seek out facts that will assist in making an appraisal or determination of the dispute. Also of note is the fact that the process can be an appraisal or a determination depending on the wishes of the parties to the dispute. Advantages and disadvantages associated with expert determination [5.225]  It is generally accepted that the advantages of expert determination are that:

• it provides an informal, speedy and effective means of resolving disputes, particularly where the dispute is of a specific technical character or specialised kind (Heart Research Institute Ltd v Psiron [2002] NSWSC 646); • the parties can dictate the procedures by which the expert determination is established; • it is not governed by legislation thus the rigours of the application of the rules of evidence and procedure involved in arbitration and litigation can be avoided; • the finality of the procedure may appeal to parties seeking to avoid the delays, potential re-​hearings and appeals typically experienced in the formal litigation system; and • it is private and therefore promotes the maintenance of ongoing commercial relationships. Conversely, the evident disadvantages of expert determination are that the expert cannot issue subpoenas, request the production of documents and determine interlocutory issues. Further, the court will not determine procedures to be followed in an expert determination if the agreement engaging the expert is silent. Where a report is not adopted, the effect is a significant increase in the time and cost of dispute resolution. Careful consideration should be given to whether or not a particular case is appropriate to be referred out for determination. Parties entering into a binding agreement, under which they agree that a dispute shall be submitted to expert determination, may utilise the Resolution Institute’s expert determination rules.8 Similarly, the Australian Disputes Centre (ADC) has prepared Rules for Expert Determination.9 Whilst the precise terms of these rules vary, they have in common that they provide a contractual process by which expert determination is conducted. Essentially, the appointment of an expert is a matter of choice and agreement by the relevant parties. If the parties are unable to agree on the identity of the person to be appointed, according to the Resolution Institute

8 https://​www.resolution.institute/​documents/​item/​1845 (accessed 27 August  2018). 9 https://​www.disputescentre.com.au/​adr-​guidelines/​ (accessed 27 August  2018). [5.225]  289

Dispute Resolution in Australia: Cases, Commentary and Materials

Rules, the process shall be conducted by a person nominated by the Resolution Institute. Rule 3 of the Resolution Institute Rules provides that “unless otherwise agreed in writing by the parties, the determination of the Dispute by the Expert shall be final and binding between the parties”. Campbell J, in Ipoh v TPS Property No 2 [2004] NSWSC 289, confirms that the phrase “that the decision of an expert shall be final and binding between the parties” –​means exactly what it says, and once an expert decision has been made, the only grounds on which court proceedings may thereafter be commenced for judicial review of that decision are on the limited grounds of error or mistake of law.10 According to Rule 5 of the Resolution Institute Rules, the role of the expert is as follows:

1. The Expert shall determine the Dispute as an expert in accordance with these Rules and according to law.



2. The parties agree that: a. the Expert is not an arbitrator of the matters in dispute and is deemed not to be acting in an arbitral capacity; b. the Process is not an arbitration within the meaning of any statute.



3. The Expert 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 Dispute.



4. The Expert 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 make submissions on the conduct of the Process.

5. Any dispute arising between the parties in respect of any matter concerning these Rules or the Process, (including the Expert’s jurisdiction) shall be submitted to and determined by the Expert.

Federal, State and Territory neutral evaluation and case appraisal schemes [5.230] Table  5.1 lists the relevant sections of the respective Acts, Rules and Regulations

referring to neutral evaluation, expert determination or case appraisal. As discussed at [5.190], terms are interchangeable between jurisdictions and where more than one process is in place in one jurisdiction, it is interesting to note the similarity between the processes especially in relation to the adjudicatory nature of those processes. Impugning expert determinations [5.235]  Where the use of expert determination as an integral dispute resolution process to

resolve questions of contractual rights and grievances has resulted in litigation, the courts have had to determine the extent to which they will review an expert determination (see Fletcher Construction Australia Ltd v MPN Group Pty Ltd (unreported, SC (NSW), Rolfe J, 14 July 1997) and Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314). Impugning expert determinations may involve a number of legal issues including: challenging the agreement to refer a dispute to expert determination; enforcing the result of an expert determination; challenging the result of an expert determination; differences between expert determination and arbitration; and the liability of an expert determination.11 Fundamentally,

10 L Campbell, “Final and Binding Expert Determination and the Discretion to Stay Proceedings” (2005) 16 Australasian Dispute Resolution Journal 104. 11 See R Hunt, “The Law Relating to Expert Determination” (2001) 20 Arbitrator & Mediator 39. 290 [5.230]

–​

–​

29

–​

–​

Privilege

Appointments and directions

Exoneration from liability

Duty to participate

32

Notification of conclusion

Secrecy

28/​29

30

21

Reference to/​Meaning of “early neutral evaluation”

Procedure

27

Referral by court

Costs

Federal Circuit Court of Australia Act 1999 (Cth)

 

1,180

1,185

1,178/​1,182

1,184

1,183

–​

1,181

–​

1,176

1,179

Court Procedures Rules 2006 (ACT)

–​

–​

–​

–​

–​

–​

–​

37

–​

37

Civil and Administrative Tribunal Act 2013 (NSW)

271(5)*

271(8)*

271(2)*

271(6)*

–​

–​

71/​271(7)*

271(4)*

–​

71/​271(1)*

Supreme Court Act 1935 (SA) and Local Government Act 1999 (SA)*

44/​322*

52

51/​335*

54

53

49(2)/​341*/​342*

344*

45/​337*

41

43/​334*/​345*

Civil Proceedings Act 2011 (Qld) and Uniform Civil Procedure Rules 1999 (Qld)*

Table 5.1  Neutral evaluation, expert determination and case appraisals enabling legislation

6

12

9

11

10

–​

7

–​

3

5

Alternative Dispute Resolution Act 2001 (Tas)

–​

68

–​

67

–​

–​

–​

–​

3

66

Civil Procedure Act 2010 (Vic)

Other Dispute Resolution Processes  Chapter  5

[5.235]  291

Dispute Resolution in Australia: Cases, Commentary and Materials

independent expert determination needs to be distinguished from arbitration at least on the basis that arbitration is governed by uniform legislation in the form of the various State and Territory Commercial Arbitration Acts. However, on this basis the distinction is arguably a fine one (see Capricorn Inks Pty Ltd v Lawter International (Australasia) Pty Ltd [1989] 1 Qd R 8). For example, in M1 v L1 [2007] NSWSC 346, proceedings were conducted to determine whether the “Wise Man” clause in the contract between the parties appointed the designated wise man as an arbitrator or expert. Einstein J did not accept that the absence of the words “expert determination” converted the Wise Man into an arbitrator.12 The extract below further discusses issues that may arise in relation to expert determination and recommends greater responsibility for experts.

With Great Power There Must Also Come Great Responsibility: Reining in Unbridled Expert Determinations [5.240]  A Taylor, “With Great Power There Must Also Come Great Responsibility: Reining in Unbridled Expert Determinations” (2017) 28 Alternative Dispute Resolution Journal 196 at 197-​200. The Expert’s Broad Powers Expert determination is not governed by legislation but is a “consensual process by which the parties agree to take defined steps in resolving disputes”. The expert’s only source of power is, therefore, the contract. Unsurprisingly, there is little uniformity in the agreements parties reach. The ADR clause may be bespoke, or part of a standard form contract negotiated at an industry level. It may prescribe a detailed process, or adopt by reference a set of rules published by another body. Or it may specify only the mode of appointment of the expert and leave the rest to the discretion of the expert. Provided the expert acts within the scope of appointment under the contract, the expert has unlimited power “to carry out his own investigations, form his own opinion and come to his own conclusion regardless of any submissions or evidence adduced by the parties themselves”. McDougall J, in Ipoh v TPS Property No 2, confirmed this broad remit, noting (in obiter) it would even be possible for an expert to merge two separate expert determinations together, using material submitted in one to inform the decision in the other. There is also no temporal limit on an expert’s powers. Unlike litigation or arbitration, no statutory limitation period applies. The Expert’s Scant Responsibilities The expert’s responsibilities are threefold. First, the expert must comply with the terms of appointment. It is, in that sense, irrelevant whether the determination is correct so long as it was made in accordance with the contract. Second, expert determination agreements include an implied obligation on the expert to act honestly, impartially and in good faith. To the extent that the expert’s role is not expressly spelled out, by necessary implication the expert is appointed on terms which “are reasonable having regard to the qualifications he has, the function he is to perform, the expertise he is to bring to his task and the responsibility which he is to undertake”. Third, the expert’s determination will be unenforceable if it is tainted by fraud or collusion. These three constraints aside, the expert may determine the matter in any manner he or she chooses, including “based on personal opinions and expertise rather than on the parties’ submissions or on law”. As such, “the activities of an expert are subject to little control by the court” … 12 See D Spencer, “Casenotes:  Jurisdiction to Make Tribunal Order from Mediated Agreement, the Wise Man Clause” (2009) 20 Australasian Dispute Resolution Journal 5. 292 [5.240]

Other Dispute Resolution Processes  Chapter  5

With Great Power There Must Also Come Great Responsibility: Reining in Unbridled Expert Determinations cont. THE PROBLEMS WITH SIGNING UP TO VIGILANTE JUSTICE The efficiency of expert determination necessarily comes at a cost. The safeguards considered by our society to be inherent in a fair process will not feature in an expert determination unless the parties specifically contract for them, and many parties consciously choose not to complicate the process. Others naively assume that the law will fill in the gaps. And many are saddled with an ADR clause they have no bargaining power to change. No Natural Justice An expert is obliged to provide the parties with natural justice “only to the extent required by the express terms of the (expert determination) agreement”. If the agreement is silent, the expert has complete discretion whether to afford procedural fairness. This was emphasised in Glenvill Projects Pty Ltd v North North Melbourne Pty Ltd with Vickery J finding an expert “is not obligated to abide by the rules of procedural fairness in the manner required of a court or arbitration in a curial context”. No Rules of Evidence The rules of evidence applied in courts were implemented to promote the accuracy of fact-​finding, and to exclude irrelevant and unreliable information. Experts are not, unless otherwise agreed, required to comply with them. The notion that a decision-​maker may disregard the rules of evidence is not novel, and has been adopted in administrative tribunals around Australia. Even in tribunals this approach has been subject to criticism, but at least in tribunals a dissatisfied party will be entitled to seek review by courts, either under the legislation regulating the tribunal, under the applicable equivalent to the Administrative Decisions (Judicial Review) Act 1977 (Cth), or utilising the inherent jurisdiction of the court. The expert determination process is also often conducted “on the papers”, making it unsuited to disputes involving issues of witness credibility. Some commentators consider that expert determination results in “a necessarily arbitrary outcome” with respect to disputed facts. In 1997, in Baulderstone Hornibrook Engineering v Kaya Holdings, the Western Australian Supreme Court took the groundbreaking step of declaring unenforceable a clause that referred all disputes under a complex construction contract for engineering works, on the basis of public policy. The Court found the contract prescribed “a procedure which is entirely unsuited to the resolution of disputes which may arise out of the contract”. But the case is an outlier that does not garner support either from commentators or the judiciary.

 [5.245] The above extract identifies some issues that may arise in relation to expert deter-

mination. Regardless of the issues raised, expert determination is becoming more popular as a dispute resolution process particularly in relation to commercial matters. Legislation exists in all states and territories relating to expert determination as a dispute resolution process in courts and tribunals.

REFERENCING OUT [5.250]  Each jurisdiction in Australia has a system of referencing out whereby the respective

court may, at any stage of the proceedings –​except in matters to be tried by jury –​make orders for reference to a referee appointed by the court for inquiry and report by the referee on the [5.250]  293

294 [5.250]

*Supreme Court Act 1935 (WA)

–​

54A(3)

Adopting, setting aside or variation of reference

Proceedings on the report

1,536

–​

Interlocutory directions

–​

–​

Conduct of proceedings

–​

–​

Powers

Report

–​

Remuneration of referee

Service of report

1,533

–​

Appointees

–​

1,537

1,536(3)

–​

1,534

–​

1,538

1,532

1,531

–​

54A(1)

Definition

Court Procedures Rules 2006 (ACT)

Ordering reference

Federal Court of Australia Act 1976 (Cth)

 

20.24

20.23

20.23

20.22

20.21

20.20

–​

20.18

20.15

20.14

20.13

Uniform Civil Procedure Rules 2005 (NSW)

Table 5.2   Enabling legislation for referencing out

50.03

50.03

50.03

50.03

50.02

50.02

–​

50.06

–​

50.01

–​

Supreme Court Rules (NT)

505

504

504

505

502

502

502

506

–​

501

–​

Uniform Civil Procedure Rules 1999 (Qld)

–​

–​

67(3)

67(3)

67(2)

–​

67(2)

67(4)

67(2)

67(1)

–​

Supreme Court Act 1935 (SA)

575

575

575

575

579

577

579

578

–​

574

–​

Supreme Court Rules 2000 (Tas)

50.04

50.03

50.03

50.01 50.04

50.02

50.02

–​

50.06

–​

50.01

50.01

Supreme Court (General Civil Procedure) Rules 2005 (Vic)

35.9

35.7

52(2)*

35.8

35.4

35.2

53*

52(3)*

4A.9

50* and 51*

–​

Rules of the Supreme Court 1971 (WA) and Supreme Court Act 1935 (WA)*

Dispute Resolution in Australia: Cases, Commentary and Materials

Other Dispute Resolution Processes  Chapter  5

whole of the proceedings or on any question arising in the proceedings (see for example: r 20.14 Uniform Civil Procedure Rules 2005 (NSW)). Upon the referee providing a reasoned report on the disputed technical issues, the court and the legal representatives may then ascertain the legal and non-​technical aspects of the dispute. Significantly, the reference is subject to the ultimate control of the court. Generally, a court may: • Adopt, vary or reject a referee’s report in whole or in part; • Require an explanation from the referee; • Remit the whole or any part of the report to the referee for further consideration; or • Decide any matter on the evidence taken by the referee. While a referee’s report is of no legal consequence unless and until it is adopted by the court (see:  Xuereb v Viola (1989) 18 NSWLR 453), the court “will have a disposition towards acceptance of the report, for to do otherwise would be to negate the purpose of the facility of referring complex technical issues to independent experts for inquiry and report” (see Chloride Batteries Australia Ltd v Glendale Chemical Products Pty Ltd (1988) 17 NSWLR 60 at 67 per Cole J). A referee is expected to act impartially and any apprehended bias will void a referee’s report. The rules governing the availability of referencing out vary between Australian State jurisdictions. Table 5.2 sets out the enabling legislation for each jurisdiction for referencing out matters being heard by the respective courts and other procedural issues commonly dealt with by the respective jurisdictions. [5.255]  Despite the age of the following extract it is still an interesting perspective on refer-

encing out by a judge who is an experienced end-​user of the system. His Honour’s reference to Pt 72 of the Supreme Court Rules 1970 (NSW) is now embodied in Div 3 of Pt 20 of the Uniform Civil Procedure Rules 2005 (NSW).

The Supreme Court Reference Out System [5.260] Justice R D Giles, “The Supreme Court Reference Out System” (1996) 12 Building & Construction Law 85 at 85-​94. The effect of a reference pursuant to Pt 72 is that someone other than a judge comes to a decision on questions arising in a case or the whole of the case, which decision may or may not prevail in the case. It must be emphasised that reference by a court for non-​judicial decision is not new, and once that is appreciated the place of references in the administration of justice can be better understood. Without going too far into the past, with the reform of the English courts by the Supreme Court of Judicature Act 1873 provision was made for enquiry and report by a referee in lieu of trial by a judge. By s 56 of the Act, and excluding criminal proceedings, subject to any existing rights to have particular cases submitted to the verdict of a jury “any question arising in any cause or matter” could be referred by the court “for enquiry and report to any official or special referee”, and “the report of any such referee may be adopted wholly or partly by the court and may (if so adopted) be enforced as a judgment by the court”. By s 57, even where there was an existing right to have the case submitted to the verdict of a jury the court could order that any question or issue of fact be tried before an official referee or a special referee agreed between the parties, if all parties consented or in [86] the absence of their consent if the case required prolonged examination of documents or accounts or any scientific or local investigation which could not in the court’s opinion conveniently be made before a jury or conducted by the court through its other officers, and s 58 made the report of the referee on any question of fact on any such trial equivalent to the verdict of a jury unless set aside by the court. Section 58 also provided that in all cases of reference to or trial by referees the referees were deemed [5.260]  295

Dispute Resolution in Australia: Cases, Commentary and Materials

The Supreme Court Reference Out System cont. to be officers of the court and had such authority for the purpose of the reference or trial as was prescribed by rules of court or, subject to the rules, by the court or judge ordering the reference or trial. The details of this turned on language which could be improved, but the features are clear enough. Putting aside criminal proceedings, there were two streams. Following one stream, there could be a reference of any question (not the whole of the case, but not confined to an issue of fact) for enquiry and report, unless there was a right to a jury trial; consent to the reference was not needed; the report would be considered for adoption, and if adopted would be enforced as a judgment. Following the other stream, there could be reference of any question or issue of fact (not the whole of the case, and confined to fact) for trial before a referee agreed between the parties; consent to the reference was not needed where the question was, to use an inaccurate shorthand, technical; the report would be equivalent to the verdict of a jury unless set aside. It is convenient to refer to reference following the first stream as reference for report and to reference following the second stream as reference for trial, noting that the features of reference for report are quite similar to those of a reference under Pt 72. In either stream the referee was given the status of an officer of the court, and controlled the conduct of the reference or trial, but subject to the overriding control of the court … [92] Thirdly, the place of references in the administration of justice may not be accurately described … as providing a form of partial resolution of disputes alternative to orthodox litigation. Although it had not been imported into New South Wales, in England there had long been reference for report, and making a special referee an officer of the court by virtue of the reference itself did not change the substance of the reference: in a sense the referee became part of the judicial system, but that was in title only. Until comparatively recent times the substantial decision maker was usually a jury, whose verdict became “as inscrutable as the sphinx” and could be overturned on appeal only if the evidence in its totality preponderated so strongly against the jury’s conclusion that the verdict was one that reasonable jurors could not reach. In the second stream earlier identified the special referee took the place of the jury, in a great many cases the special referee with his knowledge and skill would be likely to achieve a more correct result than an inexperienced and unskilled group of jurors, and the referee’s report was given the status of the verdict of a jury and was open to challenge only as such a verdict. In the first stream, the availability in appropriate cases of the report of a knowledgeable and skilled referee followed by the consideration of a judge might have been seen as an advance on general commitment to a jury verdict. When juries have largely gone, why should judges always replace them as decision-​makers? References can be seen as a means of arriving at decisions under the control of the court and subject to the court’s opinion that justice is thereby done within a system of orthodox litigation, not as an alternative to the system. References are here to stay, a position which is underlined by a continued public interest akin to that evident in the second reading speeches for the 1892 Act, the public interest in efficient use of [93] scarce judicial resources by freeing judges to make decisions appropriate for judges and using persons other than judges as part of the decision-​making process in making decisions appropriate for that course. The task, then, is to make the system of references pursuant to Pt 72 work to maximum advantage as part of the administration of justice in this State. There is no doubt that references have most frequently been ordered in the Construction List of the Supreme Court of New South Wales. An investigation of those references for a particular period will not necessarily reflect the use of references outside the Construction List or for other periods, but it may give an idea of how references have worked at a general level. I emphasise that the following figures for orders for reference made in the Construction List in cases brought in 1992 and 1993 are “rubbery”, the records being in some respects unsatisfactory or difficult to extract. Of the 232 cases brought in those two years no order for reference was made in 166 cases and one order for reference (occasionally more than one) was made in 66 cases; thus orders were made in 28% of the cases. Of the 66 cases, in 31 cases the whole of the case was referred (13%) and in 35 cases part of the case was referred (15%). The referees were engineers in 29 of the cases, architects in 13, builders in 6, lawyers in 20, and other in 2 (the total greater than 66 is due to joint references 296 [5.260]

Other Dispute Resolution Processes  Chapter  5

The Supreme Court Reference Out System cont. between engineers and engineers and lawyers). These figures do not seem out of place given the nature of proceedings in the Construction List. Of the 66 cases, 31 cases, or almost half, were settled before consideration of a report for adoption, rejection etc: whether they settled before, during, or after the hearing of the reference I cannot tell you. That left 35 cases where reports were considered. In 4 cases the result was pending or otherwise unknown when the figures were taken out earlier this year. Eight reports were adopted by consent. Twelve were adopted as to the whole after a contested hearing, 7 were adopted as to part after a contested hearing, and the result in the remaining four cases were more complex because of multiple references. Thus something like 60% of the cases referred were satisfactorily resolved prior to consideration of a report and something like 63% of the contested reports were adopted as to the whole … If one looks at the cases in which the whole of the case was referred, of the 31 cases 17 were settled before consideration. Four reports were adopted by consent, 5 were adopted as to the whole after a contested hearing, and 5 were adopted as to part after a contested hearing. Of these cases, 68% of the cases referred were satisfactorily resolved prior to consideration of a report and 50% of the contested reports were adopted as to the whole … matters were more complicated and settlement was less likely when part of the case was referred, which is probably not surprising. This does not suggest that using references as a form of resolution of disputes, partial or otherwise, is any more inimical to the administration of justice according to law than the so-​called orthodox litigation. Given the nature of proceedings in the Construction List, the settlement and consent adoption rate is in line with that which might have been expected had the cases moved towards decision by a judge alone, particularly when the figures exclude settlements prior to any order for reference. It is by no means self-​evident that the result was any more or less correct when a report was considered than the result had a judge alone decided the case. The court was not just a rubber stamp, as to something like 40% of the contested reports being satisfied that there was reason not to adopt the report as to the whole, but of course within that there was adoption in part. Remember that the relevant comparison is with decisions by a judge alone: if judges had tried the referred questions in all 35 cases, would the judges have done as well as the referees? Averages are not particularly meaningful, but for what it is worth the average time from commencement of the case to the order for reference was 141 days (20 weeks), from the date of the order to the delivery of the report was 122 days (17.5 weeks), and from the delivery of the report to the decision on consideration of the report was 74 days (10.5 weeks). A little more meaningful are the median figures, since they remove some of the distortion from a few extreme cases. The corresponding [94] median figures are 128 days (18 weeks), 105 days (15 weeks) and 22 days (3 weeks). One can wish, and strive, for greater expedition, but given the nature of cases in the Construction List in which orders for reference are made the figures are understandable. They certainly show greater expedition than would be possible if the few judges assigned to such cases had to take on the full trial of the questions referred. To return to the point earlier made, the task is to make the system of references pursuant to Pt 72 work to maximum advantage as part of the administration of justice in this State. I make no apology for emphasising the role of the lawyers for the parties to a dispute, as participants in the administration of justice, in that task. As with any procedure for resolving disputes, a reference pursuant to Pt 72 should be used where it is appropriate but not used where it is inappropriate. There can be difficulty if there is referred to a referee with technical qualifications the whole or substantially the whole of the dispute where there are overlapping factual, technical and legal issues. There must be carefully considered who is an appropriate referee, taking account not only of the nature of the question or questions to be referred but also of the referee’s ability to conduct the reference in a positive and flexible manner. There must be carefully considered what question or questions should be the subject of the order for reference, to that a question which should not be thrust upon the referee is left for the court to determine (and it is possible to have the court’s determination and the reference running concurrently). This calls for a clear understanding of what the dispute is about and what questions really [5.260]  297

Dispute Resolution in Australia: Cases, Commentary and Materials

The Supreme Court Reference Out System cont. arise, and the lawyers are in the nature of things in a better position than the court to fully understand the issues, the suitability of questions for reference, and the talents of the available referees. Referees cost money, and when considering the conduct of the reference the lawyer must not be tied to stereotyped, albeit familiar, notions of how it should be conducted (other than the fundamental need for procedural fairness). The lawyers should be prepared to assist the referee in, even initiate, sensible steps to achieve the object and purpose of the rules. Important to the task also is promoting the skills of non-​lawyer referees in conducting references fairly, efficiently and decisively, and I do not mean a limited group of “gentlemen in Sydney” devoting themselves entirely to references as Mr Pilcher contemplated in 1892. A wide pool of capable referees is desirable. Perhaps most important, lawyers and litigants must recognise that it is not and never has been the position that all litigants are entitled to have a judge decide all issues of fact and law arising in a dispute, and decide them according to the rules and practices governing traditional litigation. They must recognise that a person of independent mind, with the necessary skills and experience, can by other means enquire into and report upon appropriate questions referred as part of the administration of justice according to law.

 [5.265]  As a dispute resolution process, referencing out seems quite efficient and relatively

cost efficient compared to other forms of dispute resolution. In addition to allowing a court to take advantage of any special skill or knowledge that the special referee might possess, referencing out enables a matter to be heard in private while court proceedings generally take place in public. This feature of referencing out may be particularly advantageous where the matters raised are commercially sensitive. Finally, the parties to the reference have some say in the procedure used during the inquiry, which gives them some control over the process. While the use of referrals out of court is becoming increasingly common, concern has been expressed about whether it is appropriate to continue to send building and construction disputes to determination by referees. According to Mr Justice P W Young AO, there is some dissatisfaction with the “way in which some referees tend to decide on their own feelings rather than evidence, and considerable dissatisfaction with the limited avenues of appeal against apparently wrong findings” and the “time take by referees to bring down their decisions” (see: Current Issues (2005) 79 Australian Law Journal 663). [5.270]  In an address to the University of NSW Law School on 1 December 2011, McClellan

J, Chief Judge at Common Law of the Supreme Court of NSW, was asked to speak on the future role of the judge. In the following extract from that speech his Honour speculates on the judge moving from adjudicator to being an umpire, manager, mediator or service provider.

The Future Role of the Judge –​Umpire, Manager, Mediator or Service Provider [5.275] Justice P McClennan, http://​w ww.supremecourt.justice.nsw.gov.au/​D ocuments/​ Publications/​Speeches/​Pre-​2015%20Speeches/​McClellan/​mcclellan011211v2.pdf  (accessed  27 August 2018). Looking back over the last 40 years there have been many changes in court processes in New South Wales. They have been concentrated in the resolution of civil disputes rather than in crime. In the civil area we have seen, at least in New South Wales, the virtual elimination of juries, the development of the judge as a manager, the increasing use of referees to resolve problems where experts cannot agree, and the very significant growth in the use of mediation. 298 [5.265]

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The Future Role of the Judge – Umpire, Manager, Mediator or Service Provider cont. Although not always obvious, many of the changes have been, at least in part, a response to a significant reduction, in real terms, in the preparedness of government to fund the courts at the level which was previously provided. This, of course, [2]‌parallels a retraction of government funding in many areas. The cost to the parties has also increased –​a matter frequently commented on by judges. There are other issues. The growth in mediation has also seen, and has perhaps encouraged, a greater preparedness by insurance companies to compromise an arguable claim … Where to from here? Although I am sure there will be many other changes there are at least two significant issues which I expect will be confronted in the next 40 years. The last 40 years have seen a significant increase in the use and complexity of expert evidence in the court room. This has been manifested in many areas. It is largely a product of the extraordinary growth of knowledge in every field of learning. The development of knowledge in medicine is occurring at a rapid rate. There are specialists and sub-​specialists in many other areas of learning who are available to assist in almost any dispute which involves issues which can be informed by a body [3]‌ of expert knowledge. Engineers, valuers and builders are now joined by market analysts, economists, media experts, biologists, architects and geneticists and many other professionals. My experience as a judge in the Land & Environment Court, where every case requires expert evidence, as well as in the civil matters in the Supreme Court common law list, indicates that there is an increasing scepticism amongst experts about the validity of the decisions made by judges. This scepticism is communicated to their clients. The concern is about a judge’s capacity to resolve complex issues without input into the actual decision making from a person with relevant expert knowledge. In part, this problem has been addressed by concurrent evidence and the use of referees to report on part, or the whole, of a dispute. For many years it has been common practice to use persons with practical experience in building or engineering to report to the court on the issues that arise in major construction disputes. Many references are presently conducted by a lawyer sitting with one or two professional people who have specialised knowledge directly relevant to issues in dispute. This is sometimes done with valuers or accountants. Accepting, as I believe we must, that there will be a reluctance in governments to increase the proportion of the total budget provided to fund the courts, the use of referees will inevitably increase. This has the effect of moving a significant proportion of the costs of any dispute back to the parties. The State must accept responsibility for funding the mechanisms to resolve disputes between individuals, or corporations, and the State arising either from breaches of the criminal law, or where the welfare of citizens, particularly children, is of concern. But when the parties are in dispute over an alleged breach of contractual arrangements, or the alleged negligent act of one of [4]‌them, the imperative for that dispute to be resolved in a court has already been challenged and I believe further change will occur. We have in the last 40 years developed a complex of tribunals responsible for the review of administrative decisions and the supervision of professional people in the discharge of their professional obligations. In New South Wales we have also significantly changed the process by which workers compensation claims are resolved or compensation for motor accidents is determined. There is no reason why governments may not decide to extend these changes across a broader range of disputes. Provided the courts maintain their traditional supervisory role over the primary decision maker, the changes I contemplate may prove difficult to resist. If these changes do occur, they will meet the complaint that judges are ill-​equipped to resolve disputes involving the expertise of others in various fields of learning. The inevitable consequence will be a growth both in the use of referees and specialist tribunals to make the primary decision in any dispute … [10] Our system is already evolving so that the judge has ceased to be a silent umpire and accepts a significantly greater management role. Although I doubt whether we will have judges, at least at the superior court level as mediators but I am sure that courts will, as they have done in the past, continue to provide a service.

 [5.275]  299

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CONFLICT COACHING [5.280]  Conflict coaching (sometimes called conflict management coaching) has been defined

in a number of ways: • A process in which a coach and client communicate one-​on-​one for the purpose of developing the client’s conflict-​related understanding, interaction strategies, and interaction skills. (Jones & Brinkert, 2008) • A one-​on-​one process in which a trained coach helps people gain increased competence and confidence to manage and engage in interpersonal conflicts and disputes. (Noble, 2012) • A process of conflict analysis involving one disputant and one conflict resolution professional. The coach and the disputant communicate one-​on-​one for the purpose of developing the disputant’s conflict-​related understanding, interaction strategies, and interaction skills. (Brinkert, 2006) • Conflict coaching is a service provided by a conflict specialist to a person who is, or may in the future be, involved in conflict. The conflict coach’s role is to assist the client to develop the 5 Cs: – CLARITY: Gain clarity about the conflict situation. – COMPREHENSION: Understand their own, and the other person’s, needs and goals. – CHOICES: Identify and evaluate their choices for moving forward. – CONFIDENCE: Develop confidence about managing conflict and achieving their goals. – COMPETENCE:  Increase their conflict management skills so that they can constructively engage in the conflict. (Conflict Coaching International, 2012)

Uses for conflict coaching [5.285]  Conflict coaching can be used to assist someone to manage conflict that currently

exists, or to increase someone’s capacity to manage conflict that may occur in future. Conflict coaching is useful, for example: Where conflict exists: • Where it is not feasible to engage both parties in a conflict resolution process. • As a kind of ADR triage process (to assist the client in identifying the conflict resolution method most suitable for them). • Pre-​mediation/​negotiation (to assist the client in preparing for the process). • Post-​mediation/​negotiation to: • Assist the client in managing any adverse reactions from the process or outcomes; • Support the client to continue to develop the relationship with the other person involved in the mediation/​negotiation; • support the client in improving his or her conflict management skills; • allow the client to work on any unmet or unresolved issues.

Non specific to any particular conflict: 1

Pre-​and post-​conflict training (to consolidate learning and work on integrating it into practice).

2

As part of general professional development  –​to develop a person’s conflict related understanding, interaction strategies, and interaction skills.

300 [5.280]

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3

To encourage and facilitate a client to engage in self-​reflection.

4

To support a client to consider how to change their habitual behaviours which contribute to conflict.

5

To support a client to reflect on the improved ways they react to and manage conflict

6

To shift unhelpful reactions to conflict into constructive responses.

7

To improve language and communication skills in order to interact and address conflict situations more effectively in the future.

How conflict coaching developed [5.290] Conflict coaching finds its roots in the conflict resolution and executive coaching

fields. The conflict resolution field (as discussed by Brinkert at [5.295]) recognised that there was a need for conflict intervention with an individual, particularly when mediation was not possible. The executive coaching field also began to realise that much of their work involved assisting clients to manage conflict.

Conflict Coaching [5.295]  R Brinkert, “Conflict Coaching: Advancing the Conflict Resolution Field by Developing an Individual Disputant Process” (2006) 23(4) Conflict Resolution Quarterly 517 at 518-​521. An Overview of Conflict and Coaching in the Executive Coaching and Conflict Resolution Fields Over the past twelve years, the concepts of “conflict” and “coaching” have been addressed in combination by a number of scholars and practitioners. These writings can be grouped and presented in two general categories, although it should be emphasized that they basically developed simultaneously and sometimes thematically overlap. The first category is made up of work from the executive coaching field that, usually incidentally, mentions conflict as playing a role in the executive coaching process. The second category captures work from an explicitly conflict resolution point of view. Background on executive coaching Executive coaching is usually one-​on-​one professional development within an organizational setting. Tobias (1996) noted that the term first appeared in business settings in the late 1980s and came about not as a strikingly [519] new concept or practice but as a more appealing label for a practice of consultation offered to managers and senior leaders that had evolved over time. A thorough review of the literature generally supports this view (Kampa-​Kokesch, 2001). Berglas (2002) stated that there were two thousand executive coaches in 1996 and at least ten thousand in 2002, and there are projected to be more than fifty thousand by 2007. Executive coaching can be narrow to expansive in terms of topics and duration. Executive coaching has been used to teach specific skills, improve job performance, prepare for professional advancement, and assist with broader purposes such as an executive’s agenda for major organizational change (Witherspoon and White, 1996). Diedrich (1996) worked to modify an executive’s style, assist executives in adjusting to change, help in developmental efforts, and provide assistance to derailed executives. Kiel, Rimmer, Williams, and Doyle (1996) characterized approximately one-​quarter of their clients as needing help preparing for advancement, a second quarter as having performance problems, and the remaining half as needing to increase in their existing areas of strength. Levinson (1996) noted simply that executive coaching largely involves supporting clients as they advance in terms of adaptive work behaviors. Those with a stronger popular emphasis also commonly include life coaching within a typology executive coaching. For instance, Morgan, Harkins, and Goldsmith (2005) make distinctions among coaching leaders and behavioral coaching, career and life coaching, coaching for leadership development, coaching for organizational change, and strategy coaching. Given the topical breadth of executive [5.295]  301

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Conflict Coaching cont. coaching, it is not surprising that the coaching relationship may be limited to one or two meetings or extend over many years. Conflict and coaching in the executive coaching community As briefly introduced earlier, the terms conflict and coaching seem to have been first joined together in 1994 when Stern commented on the potential importance of addressing the topic of conflict management within executive coaching work. He noted that executive coaching may be relevant in situations where executives trigger conflict ineffectively or perpetuate destructive conflict. Kilburg (2000), a prominent executive coaching scholar who has written numerous articles for academically grounded consulting psychologists, wrote a book chapter titled “Working with Client Conflicts”. The chapter, consistent with the overall book and Kilburg’s general perspective, [520] addressed clients’ internal and external conflicts as understood in terms of a combined psychodynamic and systems approach. The chapter is a notable contribution to conflict coaching, especially but not exclusively for those working from a therapeutic background. As well as providing general guidelines, Kilburg offered suggestions for coaches working with executives who are effecting change, managing boundaries and limits, dealing with spiritual and moral issues, and valuing diversity. Kets de Vries (2005), another executive coaching author working from a psychotherapeutic orientation, combined the concepts of conflict and coaching in terms of more broadly addressing group-​ based leadership coaching. He proposed that there are important benefits to carrying out leadership coaching in a group setting, in part because it allows for effective conflict resolution. Coaching for conflict is integral to the executive coaching field because conflict permeates the executive’s work world. “Coping with internal and external problems forms the foundation of managerial work, and these problems almost always consist of some form of human conflict” (Kilburg, 2000, p 217). Conflict and coaching in the conflict resolution community The need for a one-​on-​one conflict resolution process, in cases where only one party was present for mediation, emerged at Macquarie University in Australia in 1993 (as documented by Tidwell, 1997). A response to this need was formalized and put into practice on campus three years later and was known as “problem solving for one”. This process involved a six-​step model based on the generation of multiple solutions and the selection of optimal solutions through a process of costing. Conflict coaching seems to have first been named as such and actively practiced in North America as of January 1996 at Temple University in Philadelphia, Pennsylvania (as documented by Brinkert, 1999). The campus conflict resolution program was experiencing a low demand for mediation and, consequently, conflict coaching was developed under the co-​leadership of professors Joseph P. Folger and Tricia S. Jones. Conflict coaching thereafter became one of the conflict-​related services promoted (Jameson, 1998) and engaged by the Temple campus community. While conflict coaching at Temple was limited to conflict styles coaching until spring 2000 (Brinkert, 2000), it was expanded shortly thereafter to include such subtypes as coaching for confrontation, coaching for diversity, and coaching in possible preparation for mediation. Conflict coaching remains [521] a central conflict resolution service offered on Temple’s campus and, year to year, is consistently put into practice more often than mediation. Over the last ten years, conflict and coaching have been addressed in the literature in ways that differ from the definition of conflict coaching presented at the outset of this article. Keil (2000) applied the coaching metaphor to intervening with work teams. Blitman (2004) suggested ways that skills and behaviors associated with sports coaches may be helpful within mediation. A recent article in Personnel Today (“NHS Conflict…,” 2005) noted the need for a massive amount of “conflict coaching training” (or group-​based training meant to assist professionals in working through conflict with clients) in Great Britain’s National Health Service (NHS). The NHS Counter Fraud and Security Management Service (CFSMS) was instructed to train 750,000 employees in techniques to calm people in potentially violent situations … 302 [5.295]

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Conflict Coaching cont. Conflict coaching as a one-​on-​one process has grown in significance over the past five or six years. Conflict coaching is a service marketed by a growing number of for-​profit and not-​for-​profit conflict resolution organizations and individual practitioners. It has visibility on the relatively popular http://​ www.mediate.com Web site and looks to be a growing topic of interest at the annual Association for Conflict Resolution conference. The emergence of conflict coaching as a recognizable and valued intervention process is perhaps most evident given that top-​ranked organizations are adopting the practice. Cloke and Goldsmith (2000) noted the opportunity to use coaching as one conflict resolution system in organizations. More recently, Weiss and Hughes (2005) recommended, as one of six strategies, that companies use the escalation of conflict as an opportunity for coaching. They went on to describe how IBM executives receive training in conflict management and are provided with online resources to assist them in coaching others. As Guttman (2005) recently noted, conflict coaching is relevant for building leadership competency. As such, it is of interest to training development, human resource, and other professionals who regularly facilitate such initiatives.



DIFFERENT APPROACHES TO CONFLICT COACHING [5.300]  Just like mediation and negotiation, there are a number of different ideologies or phi-

losophies that form the basis of different approaches to conflict coaching. Brinkert (at [5.305]) describes some of the different approaches related closely to different models of mediation (problem-​solving, transformative, narrative) and conflict styles analysis.

Conflict Coaching [5.305] R Brinkert, “Conflict Coaching” (2002) 2(2) Conflict Management in Higher Education Report available at http://​www.campus-​adr.org/​CMHER/​ReportArticles/​Edition2_​2/​Brinkert2_​2a.html (accessed 28 August 2018). Just as there are different general types of coaching, so too are there different approaches to conflict coaching. These approaches include the following: Interest-​based, problem-​solving conflict coaching –​Tidwell (1997) created a conflict coaching model that was derived from Fisher and Ury’s (1983) interest based negotiation model. This model has the coach assist the participant in uncovering the likely interests of all parties to a conflict. The coach also supports the participant’s exploration of common ground and creative solutions. Transformative conflict coaching –​Bush and Folger’s (1994) transformative approach to mediation offers another way of structuring conflict coaching. Their view replaces the emphasis on interests with an emphasis on empowerment (strength of self) and recognition (acknowledgment of other). While not formally developed into a coaching model, a focus on empowerment and recognition could form the basis of a distinctive approach to coaching. The transformative conflict coach would probably strive to minimize his/​her directiveness by, for example, not following a linear model and not using the skill of reframing (rewording statements to make them less negative). The transformative coach would attempt to have the coaching participant lead the process. This would include not trying to change the participant’s language. Narrative conflict coaching –​Just as Bush and Folger proposed an alternative to the dominant model of interest based mediation, so too did others. Winslade and Monk’s (2000) narrative mediation model is another possible bridge to a new model of conflict coaching. Narrative mediation theory is interested in the ways humans use stories to make sense of their lives and the ways different stories [5.305]  303

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Conflict Coaching cont. can lead to conflict and resolution. Narrative mediation might be used to design a model of conflict coaching where current conflict stories are identified and the possibilities of new, more effective stories are explored. Conflict styles coaching –​This approach involves using the Thomas-​Kilman Conflict Styles Instrument to determine a participant’s conflict styles profile. It then moves to an exploration of a particular conflict situation using the profile as conversational springboard. This model provides a fairly structured coaching model that new coaches can learn quickly and that remains reasonably sensitive to the unique life situations of participants. The conflict styles approach to conflict coaching includes assessments of the participant’s general conflict style and style choice considerations in a specific conflict. Although the conflict styles approach to conflict coaching uses a standardized measurement device, the conflict styles coach encourages the participant to bring his or her own experience to evaluating conflict categories and relational behaviors.

 [5.310] There are a number of different conflict coaching models and systems. Broadly

speaking they tend to follow a standardised process starting with goal setting, discussing the past, and then moving on to future planning. There are, however, differences between all the models. The following extracts each discuss a particular model of conflict coaching. The first model, “Problem Solving for One (PS1)” is one of the earliest kinds of conflict coaching models developed in Australia in a university conflict service. PS1 was introduced as an alternative process to mediation when one party either refused to participate or did not show up on the day for mediation. As indicated by its name, this coaching model is a very pragmatic one aimed at analysing the problem and generating and costing options for managing it effectively.

Problem Solving for One “PS1” [5.315]  A Tidwell, “Problem Solving for One” (1997) 14(4) (Summer) Mediation Quarterly 309 at 313-​315. The Process The PS 1 process consists of six steps that may be familiar to the reader: • Preamble and introduction • Storytelling • Conflict analysis • Alternative generation and costing • Communication strategy development • Restatement of the conflict handling plan The PS 1 facilitator first provides a preamble and introduction, detailing the PSI process and clarifying expectations. Second, the PSI facilitator asks the presenting party to describe the conflict. This story establishes the essential facts as perceived by the party. At this early stage, the PSI facilitator can also make some inferences concerning the state of mind and sophistication of the presenting party, and gain some appreciation of the scope of the conflict. Third comes conflict analysis, in which the PSI facilitator helps the party dissect the conflict, in an effort to better understand its dynamics and to establish perspective. Thus, the party learns more about the specific conflict, and perhaps more about himself or herself … [314] … The PSI facilitator employs conflict mapping in an effort to counter some of the effects of the fundamental attribution error, thus creating a sense of perspective on the conflict. Thus, conflict 304 [5.310]

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Problem Solving for One “PS1” cont. analysis arises from conflict mapping and the development of perspective. With analysis concluded, the PSI facilitator can move to generation of alternatives. This fourth stage in PSI generates alternatives and costing. With the analysis completed, the PS 1 facilitator and presenting party work together to develop a range of possible options to be used in handling the conflict. Emerging from the conflict analysis are a series of problem statements, which serve as the basis for alternative generation. Brainstorming techniques are used to generate a list of alternatives to each problem statement … With the alternatives generated; the PSl facilitator and presenting party work through the list of alternatives using such an analysis. Of course, this must be done with great care, so that costing reflects constraints and opportunities as they exist away from the PSl context. The range of options may be wide, from establishing a dialogue with the other party to doing nothing. Each option is tested in terms of costs and [315] benefits, in an effort to evaluate the relative merits of each item, and not to establish a beachhead for later mediation. The objective is to assist the presenting party with methods needed to better manage the negative consequences of the conflict. This may include trying to resolve the conflict, or it may simply be establishing better coping mechanisms. Fifth in the PSI process is development of communication strategies. It is useless to ask a presenting party to employ a strategy if they do not possess the necessary communication skills to implement it. In developing a communication strategy, the PS 1 facilitator helps the presenting party by asking critical questions, practicing assertiveness, using active listening skills, and role playing. The objective is to establish communication strategies that are within the skill range of the presenting party … The sixth stage of PSI is development of a conflict handling strategy. This consists of conflict analysis, generation of alternatives and costing, and communication strategy. The plan is an outline for future action, aimed at decreasing the negative aspects of a given conflict. The plan may lead to a wide range of possible outcomes, including renewed interest in mediation. More likely, however, it will result simply in a greater sense of coping and conflict handling for the presenting party.

 [5.320]  The next conflict coaching model to be considered was also developed in a university

context, this time at Temple University in the USA. The CERT model (named after its developers, the Conflict Education Resource Team) is based primarily on administering a conflict styles instrument (a kind of conflict personality test) and then considering which kind of conflict style might be best suited to the client’s current conflict situation.

Conflict Education Resource Team “CERT” [5.325] R Brinkert, “Conflict Coaching” (2002) 2(2) Conflict Management in Higher Education Report available at http://​www.campus-​adr.org/​CMHER/​ReportArticles/​Edition2_​2/​Brinkert2_​2a.html (accessed 28 August 2018). Below is an outline of the conflict styles coaching process, as used by CERT. The outline is borrowed with permission from Temple University’s Conflict Education Resource Team. Introduction • Personal introductions • Introduction to CERT and UCS • Confidentiality • Coaching explanation (ie, focus on behavioral choices and behavioral interactions and not psychological issues [5.325]  305

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Conflict Education Resource Team “CERT” cont. • What to expect in this session • Participant hopes and expectations for the session Conflict Styles • Introduction to the conflict styles instrument • Complete and score the instrument • Participant reflections: “What it was like to do the survey?” • The survey in perspective • An explanation of each style (made in reference to the scored instrument) • Participant shares example of using each style (do individual style explanation and example cycles) • Style choice factors • Emphasize the “collaborative perspective” (combining personal empowerment and concern for other even though the conflict might not end in a collaborative outcome) • Participant shares reactions on the styles and the style profile Developing Choices in a Particular Conflict • Introduction to a conflict exploration • Participant describes the conflict and, if helpful, the background to the conflict • Participant establishes what it would mean to approach the conflict from each of the five conflict styles • Participant evaluates the choices represented by the respective styles • Participant develops optimal choices • Participant determines next steps to take (ie, in the actual conflict) • General reflections, questions, and reworking • Summary of the conflict exploration process Close • Acknowledge the challenges and opportunities of conflict • Invite final reflections and questions, particularly on what was most valuable and/​or useful • Briefly summarize the participant’s key points from throughout the session • Handout evaluation and exchange good-​byes

 [5.330]  The CINERGY model, created by Cinnie Noble, a Canadian lawyer, is one of the

most commercialised models of conflict coaching, or “conflict management coaching” as Noble calls it. The CINERGY model is quite a structured model in which the client is taken through the conflict situation from their own perspective, and then again through the situation from the other person’s perspective, using a series of stages set out in the following extract.

CINERGY [5.335]  C Nobel, Conflict Management Coaching: The CINERGY Model (Cinergy Publishing, 2012) p 111, Figure 4.1. 306 [5.330]

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CINERGY cont. Table 6.3 The CINERGY model C

Clarify goal

•  To determine what the client wants to achieve in coaching.

I

Inquire about the situation

•  To hear what interaction(s) precipitated the conflict or dispute. •  To let the client vent. •  To clarify with whom the client is in conflict.

N

Name the elements

• To help the client deconstruct the elements of conflict to (a) increase the client’s self-​awareness and (b) consider the other person’s viewpoint. • To have the client identify and reflect on any new awareness, insights and perspectives, based on deconstructing the conflict. • To have the client reassess the goal, having deconstructed the situation and gained different views.

E

Explore choices

• To help the client explore possibilities for a plan of action to reach the stated goal. •  To help the client consider the risks and opportunities of the possible choices.

R

Reconstruct the situation

• To have the client confirm a choice, or select the order of choices, to develop a plan of action. • To coach the client to create, reconstruct, rehearse and prepare options for reaching the goal. This involves (a) confirming the client’s desired outcome of the choice selected, (b) setting up situations for the client to test and examine and (c) providing effective feedback and observations to the client, who practices new skills consistent with his or her goal and outcome.

G

Ground the challenges

• To consider any challenges that may impede the client’s plan, once it is confirmed.

Y

Yes, the commitment

•  To confirm the client’s next steps. •  To hear the client’s learnings (“takeaways”). •  To discuss a task for moving forward. •  To acknowledge the client’s efforts and end on a positive note.

 [5.340]  The Comprehensive Conflict Coaching (CCC) Model was developed by Tricia Jones

and Ross Brinkert at Temple University. The CCC model is based on a narrative approach to conflict, and has its foundations in many principles of narrative therapy. As the following extract demonstrates, the CCC model is very much focused on the client’s conflict story, and how to re-​write and enact a more constructive conflict story through coaching.

Comprehensive Conflict Coaching “CCC” [5.345]  T Jones and R Brinkert, Conflict Coaching: Conflict Management Strategies and Skills for the Individual (SAGE Publications Inc, 2008) pp 35-​39. Stage One: Discovering the Story. The first stage helps clients construct a coherent narrative of their experience of the conflict and engage in perspective taking about the possible narratives of other parties in the conflict. In this stage, the coach concentrates on discovering as much of the story as possible in order to have an adequate understanding of the conflict, the parties and the context … Most coaching will involve at least the following levels of clarification: Initial Story. This is the client’s story that comes with little urging from the coach. The conversation begins with the coach asking very general questions about the conflict and listening as the client tells the story for the first time to the coach. The initial story provides information about how the client sees important issues, persons and opportunities in the conflict. The initial story often presents characterization of other parties and assumptions about information and actions … [5.345]  307

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Comprehensive Conflict Coaching “CCC” cont. Refine Story. After the client presents the initial story, the coach helps the client refine the story. The story is expanded through some basic questions that ask the client to add information or detail. Part of the refinement process is encouraging the client to provide more information pertinent to how other parties in the conflict may be communicating and experiencing the conflict and talking more about how the conflict is affecting others in the system … [36] Testing the story. At this point the coach becomes more assertive by “testing” the refined narrative. The coach can ask questions to challenge the client’s understanding of facts or information. Or the coach can test assumptions that the client is making about the situation or the people involved … Stage Two: Exploring Three Perspectives –​Identity, Emotion, and Power. Once the client’s story has been told, refined and tested, the client has a description of the current situation… The coach has to help the client understand the forces or drivers in the conflict in order to understand what to change and how to change it. We believe that there are three essential analytic elements in any conflict: issues of identity, issues of emotion, and issues of power … [38] … Stage Three: Crafting the Best Story. At this stage in the conflict coaching, the client has constructed a coherent story of the conflict and has looked at that conflict through the three perspectives of identity, emotion and power. The coach has facilitated the client’s analysis of the conflict and now encourages the client to envision what the situation would be like if the conflict was managed most effectively … [39] Stage Four: Enacting the Best Story. … In this stage, the coach helps the client consider the best approach for dealing with the conflict to ensure the optimum outcome. Part of this will be to identify basic strategies for conflict management …

 [5.350]  Another conflict coaching model based on a narrative/​storytelling approach to conflict

is the REAL Conflict Coaching System developed by Samantha Hardy and Nadja Alexander for Conflict Coaching International. The REAL acronym stands for Reflection, Engagement, Artistry and Learning –​four philosophical principles that underpin the model, both in terms of what clients and coaches should aspire to achieve. The REAL Conflict Coaching System was developed in response to the need for a clear and academically grounded conflict coaching model with minimal jargon. It is currently used in workplace and university contexts, and is also being developed and piloted in the family dispute resolution context in Australia. In Hong Kong it has been adapted for use in schools as “REAL Peace Coaching” to support students in conflict.

REAL Conflict Coaching™ System [5.355] S Hardy and N Alexander, REAL Conflict Coaching Fundamentals (2012) Conflict Coaching International at 42-​65. [42] 1.

Goal setting Goal setting is important so that the client is focused and has something to work towards. It sets up an environment where the client is working on something, rather than just talking about problems. It also provides a basis for reviewing progress … [45]

2.

What happened? Once the client has identified a goal for the session, it is important that the client have a supportive space and sufficient time to explain what has lead to this situation arising … It is the coach’s role to non-​judgmentally and supportively assist the client to become clear about

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REAL Conflict Coaching™ System cont. the situation, to ensure that they have all the relevant facts and that they are aware of any assumptions that they are making before they make any decisions about what steps they may take in the future to improve the situation … [50] 3.

Why does it matter? Clients often have no trouble telling you their conflict story, but sometimes cannot clearly identify the ways in which the situation is affecting them. The coach’s role is to assist the client to explore how and why the situation is impacting on the client … [58]

4.

Other perspectives People in conflict tend to be caught up in their own perspectives. They don’t often realize or acknowledge that others might see the situation differently. In any situation there are three main perspectives: (1) The client’s perspective; (2) the other person’s/​people’s perspective/​s; (3) An independent perspective … [60]

5.

Preferred  future In this stage the coach focuses the client on his or her preferred future (what the situation will be like when the client’s goal has been achieved), and what capacities, resources and steps can be used to work towards it… The coach’s role in this stage is to encourage the client to envision a better future, and to be optimistic and creative in doing so … and also to assist the client to “reality test” the future story to ensure that it is not completely unrealistic … [62]

6.

Action  steps By this stage in the process, the client should have a clear idea about what happened, why it matters, and what the client’s preferred future would be like. Now it is time for the client to develop action steps to work towards that preferred future … [64]

7.

Reflection Towards the end of each session, the client should be encouraged to reflect on what he or she has gained from the session, how well the coaching session/​s are working for the client, and how the client is now feeling about the situation and any future action plan … [65]

8.

Closure Each coaching session should be effectively closed, and not just cut off because time has run out …



CONFLICT COACHING PRINCIPLES [5.360]  Jones and Brinkert propose a number of principles for the practice of conflict coaching. In particular, they emphasise flexibility and a “big picture” approach, that is, recognising that coaching occurs within existing relationships, organisations and systems, and a change in one will impact on the others. They also emphasise the role of the coach as a conflict specialist, with high level knowledge and skills but they also acknowledge the need to foster client empowerment (and not just use the coach’s knowledge to provide expert advice about what to do). They explain that conflict coaching should be efficient, ethical and culturally sensitive.

Conflict Coaching [5.365]  T Jones and R Brinkert, Conflict Coaching: Conflict Management Strategies and Skills for the Individual (SAGE Publications Inc, 2008) pp 12-​17. [5.365]  309

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Conflict Coaching cont. A flexible model is vital. While some aspects of the conflict coaching process may always or at least often follow a linear pattern, movement throughout stages or onto and off of thematic touchstones is often flexible. The Comprehensive Conflict Coaching model is presented in stages that have an internal logic. We believe that the logic is compelling enough for the coach and client to follow these stages in many coaching situations. However, we do not believe that coaching is limited to a lockstep application of these stages. The stages could occur in a nonlinear or even simultaneous manner. Both direct and indirect clients should be considered in the coaching experience. There are organizational or systems participants and stakeholders who may need to be considered in the process of coaching, even though they are not in the room. The organization, in the form of one or more organizational representatives, can play the role of indirect client. Involvement of indirect clients underscores the importance of the organizational context for the [13] disputant. Whether indirect clients are involved in conversations about the coaching process is a case-​by-​case decision. But all conflict coaching should focus on whether critical indirect clients exist, who they are, and how they might be effectively involved or simply acknowledged. A relational and systems orientation to conflict coaching is essential. Conflicts must be understood as social constructions of interdependent relationships with normative structures that influence interpretation and action. The Comprehensive Conflict Coaching model is strongly relational in that it assumes a client’s conflict only makes sense in terms of his or her relationship to others –​his or her web of relationships that define the critical social context. The context of the dispute includes culture in various forms. As such, the conflict coaching conversation never steps out of contextual or cultural concerns. Consequently, within any given coaching session, it is a reasonable expectation that the coach should directly acknowledge this issue, especially if the client does not. Coaching is a contingent activity. Knowledge is never complete, and coaching should emphasize that there is always another point of view, another way of knowing that might alter the understanding of the conflict. Both the coach and client should be encouraged to take a contingent approach to understanding and approaching conflict. This has deep implications for conflict coaching. In part it means: (a) The coach should express humility even while speaking as an expert; (b) the client should be encouraged to develop his or her understanding and appreciation for the complex and ongoing dance of conflict, particularly given his or her unique circumstances; and (c) coaches and clients should be cautioned about the inherent inability to definitively understand past or present conflict as well as definitively plan future action at strategic or tactical levels. Conflict coaches should be knowledgeable about conflict theory and research as well as competent in conflict analysis. Conflict coaching requires a knowledge base that not all aspiring coaches have acquired. For the model proposed in this book, the conflict coach needs to be knowledgeable and experienced in conflict research and theory, be knowledgeable and experienced in facilitating adult learning, have considered his or her own cultural background (including perceptions and possible biases), and have some understanding of the context in which the client is experiencing the conflict. Extrapolating from lessons learned from the study of mediator competence (Lieberman, Foux Levy, & Segal, 2005), conflict coaches should be involved in ongoing training that is both practical and clearly related to theory. Further, coach assessment should combine self-​assessment and assessment by others. Finally, coaches’ abilities to recognize and respond to clients’ emotions may be especially important to develop (Jones, 2005). [14]

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Conflict Coaching cont. Coaching aims to foster client empowerment with the coach combining expert and facilitative approaches. Conflict research and theory can routinely be made accessible and can often be of notable value to individual disputants. Therefore, it is appropriate for coaches to combine expert and facilitative approaches and to share this information. While this model fully embraces the conflict coach as sometimes acting in an expert role, coaches should only assume this stance if they are suitably qualified. Because expertise is limited by its very definition, coaches should expect, not infrequently, to express the limits of their knowledge and/​or to recommend outside experts or authoritative resources. Although this model involves the conflict coach occasionally adopting an expert role, this role should not predominate. Any individual conflict coaching session or ongoing conflict coaching relationship should have a general conversational quality. We caution against excessive directiveness by the conflict coach especially, given some practitioner research (Bacon & Spear, 2003) in the executive coaching field, including contrasting findings regarding the coach’s role as perceived by the coach and client. However, arguing that any coach directiveness is inappropriate is unwise, given the value of an executive coach’s expertise as demonstrated by Wasylyshyn (2003). Coaching is about helping someone reflect on conflict and possible courses of change; it is not about forcing that reflection or change. Because the client has control and responsibility, his or her point of view is central to the coaching process. The client retains full control about which perspectives to consider as well as which strategies and skills to use outside of the coaching session. While the coach should encourage the client to be aware of multiple perspectives and practical opportunities within the conflict, and the coach can give advice about a particular viewpoint or course of action, the client determines what can be done. We encourage coaches to embrace an active role in providing clients with information and alternatives that will foster client empowerment. The coach has a responsibility to sufficiently understand the particular client’s point of view of the conflict, including the conflict context, prior to offering additional perspectives or specific practical opportunities. The sharing of perspectives and practical opportunities by the coach should always be followed by a clear invitation for the client to respond. This response, even a negative response, should be treated with respect by the coach and integrated into the overall conversation. Conflict coaching is not appropriate for all cases. There are a variety of reasons why conflict coaching may not be a good alternative. Organizations may advocate coaching as a means of manipulating or silencing. A client may not have the cognitive, emotional, or behavioral competence to participate productively in coaching. There may be a larger social issue that [15] requires an alternative action before or in addition to coaching, but where coaching alone is not appropriate. In some cases, conflict coaching may begin, but the coach or client may realize that the process is flawed and should be discontinued. In Chapter Two we discuss terminating a conflict coaching process and relationship in more detail. Here, it is important to note that such termination can and, when appropriate, should happen. Conflict coaching should follow a principle of efficiency. A common question about conflict coaching and executive coaching is, “How long will this take?” Of course, there is no definitive answer to that question other than, “It depends”. Still, we believe that conflict coaching should attempt to follow a basic principle of efficiency –​getting the most benefit with the least amount of time and effort. Some executive coaches describe their coaching relationships as taking months or even years. While there may be some mutually defined conflict coaching relationships of this length, we encourage coaches to think in terms of shorter term coaching cycles in which the client can move quickly through analysis and action planning to intervention and assessment. Conflict coaching should follow a high ethical standard. Any discussion of ethics is fraught with disagreement about what is ethical and how one should behave to enact that standard. In the conflict field, ethical codes of conduct are generated and continually

[5.365]  311

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Conflict Coaching cont. debated. This is certainly the case with the practice of mediation despite considerable attention being focused on mediation ethics over the span of many years (McCorkle, 2005). But we believe that no conflict process can be introduced without a consideration of ethics. Even if the frequency with which conflict coaching is used does not grow, a serious examination of conflict coaching ethics is needed within the ADR field. Whether or not this field-​level conversation takes place anytime soon, coaches and organized coaching programs need to be clear with themselves and with potential clients about fundamental ethical matters such as impartiality, conflict of interest, dual roles, and confidentiality. Impartiality would seem to be primarily concerned with ensuring that the coach has no prejudice toward the client. In terms of conflict of interest, the coach has a responsibility to disclose any and all actual or potential dealings or relationships that would result in bias against the client. Likewise dual roles prior to and during the conflict, and those foreseen after conflict coaching, should be directly acknowledged to the client. In order to reasonably safeguard the client and make the process as effective as possible, we strongly advise that, where dual roles exist for coaches, these are put aside within individual coaching sessions. However, we recognize that the complexity of this issue means that it must be more thoroughly considered for each context. The boundaries of confidentiality also need to be made clear to [16] clients prior to engaging in a coaching session. This can be a challenging but vital issue to clarify in some cases, such as those involving an organizational sponsor who insists on some degree of reporting regarding a particular client’s coaching involvement or progress. Other matters such as responsibility for the coaching process and outcomes, coach compensation, other coach and client commitments, and the procedure for terminating the coach-​client relationship should all be dealt with at the outset of the coaching relationship. Where major ethical compromises exist, the coach should independently withdraw from acting in a coaching capacity. Conflict coaching requires quality control, assessment, and monitoring. As with any professional human intervention and any business practice, conflict coaching should be introduced only where it can reasonably be considered in alignment with the goals and capacities of those involved and where it can otherwise be executed successfully. Just as important, it should be adopted only in circumstances where there is a commitment from the outset to ensuring quality thresholds, systematic scanning for unanticipated negative and positive outcomes, and a general striving to develop a stronger process through continuous learning on a multitude of levels. Just as the use of other ADR processes tends to be more readily accepted if it is institutionalized before conflicts arise, so too may quality control, assessment, and monitoring be best introduced prior to the start of conflict coaching activities. Conflict coaching should be seen as part of a larger system of conflict management. Conflict coaching is most powerful if it is offered within a context-​specific organizational dispute system, or at least where it is offered within the context of more generally available ADR options. In no respect is conflict coaching meant to supplant more established conflict management options or deemphasize the value of a systemic approach. On the contrary, conflict coaching should be introduced in a manner that strengthens the attractiveness, use, and outcomes of organizational dispute systems and ADR. Conflict coaching can function as an inflow, parallel, or outflow mechanism for mediation, ombuds processes, and other ADR and organizational dispute system processes. An effective conflict coaching model integrates with a wide range of process options, in the very least, by minimally introducing those options to clients. In this manner, conflict coaching can work well as an initial process for clients and the conflict professionals they engage. Conflict coaching can provide a good setting for the client, and possibly also the coach, to determine the appropriateness and appeal of other conflict processes. Conflict coaching can also be used parallel to or after other processes. In organizational dispute system terms, conflict coaching should be seen as a key loop back process. Conflict coaching is a process to which people can always return as a way [17] of refocusing a conflict at the interest-​based level. Of course, the coach must be considerate of potential conflicts in cases 312 [5.365]

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Conflict Coaching cont. where he or she functions in different professional roles with a given client. Conflict coaching can serve an individual or a group of clients, and the client(s) can likewise be involved in conflict with an individual or group. Although conflict coaching may have gained early appeal and may have primary ongoing appeal as a way to offer conflict management services to individuals who are alone in seeking professional assistance, other client configurations are certainly possible. For instance, two clients in conflict with one another may both opt for conflict coaching prior to, after, or in place of mediation. Conflict coaching may need to be adapted somewhat but is certainly also possible with a client group representing a common party in a conflict. The coaching client(s) may be using the conflict coaching process to explore strategies and skills with another party consisting of one or more individuals or a defined group. Conflict coaching must be sensitive to various cultural contexts. The direct and indirect parties to conflict coaching are never outside of culture. Cultures relevant to a given coaching interaction may exist at both broad and narrow levels and are likely to be multiple even for a single individual. While most professionals inside and outside of the conflict management field may generally appreciate the importance of relatively universal cultural concerns such as race, ethnicity, gender, and sexual orientation, more local cultural concerns can be just as significant. These can include organizational culture, organization department-​level culture, regional differences, industry sector culture, and professional culture. The overall design of a conflict coaching program needs to take prevailing cultural currents into account. Cultural currents also need to be taken into account within specific conflict coaching relationships.



COMPETENCIES FOR CONFLICT COACHES [5.370] There are general competencies and codes of conducts for executive coaches,

which can apply to Conflict Coaches (particularly if they are accredited by the International Coaching Federation), and there are also particularised standards for conflict coaches (eg, Resolution Institute Model Standards of Ethical Conduct for Conflict Coaches and REAL Conflict Coaching Practice Standards). The ICF Core competencies for coaches are extracted below. They are not written specifically for conflict coaches, but many of the competencies are applicable.

ICF Core Competencies [5.375] ICF, ICF Core Competencies, https://​coachfederation.org/​core-​competencies A. Setting the Foundation 1.

Meeting Ethical Guidelines and Professional Standards –​Understanding of coaching ethics and standards and ability to apply them appropriately in all coaching situations.



Understands and exhibits in own behaviors the ICF Code of Ethics (see Code, Part III of ICF Code of Ethics).



Understands and follows all ICF Ethical Guidelines.



Clearly communicates the distinctions between coaching, consulting, psychotherapy and other support professions.



Refers client to another support professional as needed, knowing when this is needed and the available resources. [5.375]  313

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ICF Core Competencies cont. 2.

Establishing the Coaching Agreement –​Ability to understand what is required in the specific coaching interaction and to come to agreement with the prospective and new client about the coaching process and relationship.



Understands and effectively discusses with the client the guidelines and specific parameters of the coaching relationship (eg, logistics, fees, scheduling, inclusion of others if appropriate).



Reaches agreement about what is appropriate in the relationship and what is not, what is and is not being offered, and about the client’s and coach’s responsibilities.



Determines whether there is an effective match between his/​her coaching method and the needs of the prospective client.

B. Co-​Creating the Relationship 3.

Establishing Trust and Intimacy with the Client –​Ability to create a safe, supportive environment that produces ongoing mutual respect and trust.



1.

Shows genuine concern for the client’s welfare and future.



2.

Continuously demonstrates personal integrity, honesty and sincerity.



3.

Establishes clear agreements and keeps promises.



4.

Demonstrates respect for client’s perceptions, learning style, personal being.



5.

Provides ongoing support for and champions new behaviors and actions, including those involving risk-​taking and fear of failure.



6.

Asks permission to coach client in sensitive, new areas.

4.

Coaching Presence –​Ability to be fully conscious and create spontaneous relationship with the client, employing a style that is open, flexible and confident.



1.

Is present and flexible during the coaching process, dancing in the moment.



2.

Accesses own intuition and trusts one’s inner knowing –​“goes with the gut”.



3.

Is open to not knowing and takes risks.



4.

Sees many ways to work with the client and chooses in the moment what is most effective.



5.

Uses humor effectively to create lightness and energy.



6.

Confidently shifts perspectives and experiments with new possibilities for own action.



7.

Demonstrates confidence in working with strong emotions and can self-​manage and not be overpowered or enmeshed by client’s emotions.

C. Communicating Effectively 5.

Active Listening –​Ability to focus completely on what the client is saying and is not saying, to understand the meaning of what is said in the context of the client’s desires, and to support client self-​expression.



1.

Attends to the client and the client’s agenda and not to the coach’s agenda for the client.



2.

Hears the client’s concerns, goals, values and beliefs about what is and is not possible.



3.

Distinguishes between the words, the tone of voice, and the body language.



4.

Summarizes, paraphrases, reiterates, and mirrors back what client has said to ensure clarity and understanding.



5.

Encourages, accepts, explores and reinforces the client’s expression of feelings, perceptions, concerns, beliefs, suggestions, etc.

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ICF Core Competencies cont.

6.

Integrates and builds on client’s ideas and suggestions.



7.

“Bottom-​lines” or understands the essence of the client’s communication and helps the client get there rather than engaging in long, descriptive stories.



8.

Allows the client to vent or “clear” the situation without judgment or attachment in order to move on to next steps.

6.

Powerful Questioning –​Ability to ask questions that reveal the information needed for maximum benefit to the coaching relationship and the client.



1.

Asks questions that reflect active listening and an understanding of the client’s perspective.



2.

Asks questions that evoke discovery, insight, commitment or action (eg, those that challenge the client’s assumptions).



3.

Asks open-​ended questions that create greater clarity, possibility or new learning.



4.

Asks questions that move the client toward what they desire, not questions that ask for the client to justify or look backward.

7.

Direct Communication –​Ability to communicate effectively during coaching sessions, and to use language that has the greatest positive impact on the client.



1.

Is clear, articulate and direct in sharing and providing feedback.



2.

Reframes and articulates to help the client understand from another perspective what he/​she wants or is uncertain about.



3.

Clearly states coaching objectives, meeting agenda, and purpose of techniques or exercises.



4.

Uses language appropriate and respectful to the client (eg, non-​sexist, non-​racist, non-​ technical, non-​jargon).



5.

Uses metaphor and analogy to help to illustrate a point or paint a verbal picture.

D. Facilitating Learning and Results 8.

Creating Awareness –​Ability to integrate and accurately evaluate multiple sources of information and to make interpretations that help the client to gain awareness and thereby achieve agreed-​upon results.



1.

Goes beyond what is said in assessing client’s concerns, not getting hooked by the client’s description.



2.

Invokes inquiry for greater understanding, awareness, and clarity.



3.

Identifies for the client his/​her underlying concerns; typical and fixed ways of perceiving himself/​herself and the world; differences between the facts and the interpretation; and disparities between thoughts, feelings, and action.



4.

Helps clients to discover for themselves the new thoughts, beliefs, perceptions, emotions, moods, etc. that strengthen their ability to take action and achieve what is important to them.



5.

Communicates broader perspectives to clients and inspires commitment to shift their viewpoints and find new possibilities for action.



6.

Helps clients to see the different, interrelated factors that affect them and their behaviors (eg, thoughts, emotions, body, and background).



7.

Expresses insights to clients in ways that are useful and meaningful for the client.



8.

Identifies major strengths vs. major areas for learning and growth, and what is most important to address during coaching. [5.375]  315

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ICF Core Competencies cont.

9.

9.

Designing Actions –​Ability to create with the client opportunities for ongoing learning, during coaching and in work/​life situations, and for taking new actions that will most effectively lead to agreed-​upon coaching results.



1.

Brainstorms and assists the client to define actions that will enable the client to demonstrate, practice, and deepen new learning.



2.

Helps the client to focus on and systematically explore specific concerns and opportunities that are central to agreed-​upon coaching goals.



3.

Engages the client to explore alternative ideas and solutions, to evaluate options, and to make related decisions.



4.

Promotes active experimentation and self-​discovery, where the client applies what has been discussed and learned during sessions immediately afterward in his/​her work or life setting.



5.

Celebrates client successes and capabilities for future growth.



6.

Challenges client’s assumptions and perspectives to provoke new ideas and find new possibilities for action.



7.

Advocates or brings forward points of view that are aligned with client goals and, without attachment, engages the client to consider them.



8.

Helps the client “Do It Now” during the coaching session, providing immediate support.



9.

Encourages stretches and challenges but also a comfortable pace of learning.

10.

Planning and Goal Setting –​Ability to develop and maintain an effective coaching plan with the client.



1.

Consolidates collected information and establishes a coaching plan and development goals with the client that address concerns and major areas for learning and development.



2.

Creates a plan with results that are attainable, measurable, specific, and have target dates.



3.

Makes plan adjustments as warranted by the coaching process and by changes in the situation.



4.

Helps the client identify and access different resources for learning (eg, books, other professionals).



5.

Identifies and targets early successes that are important to the client.

11.

Managing Progress and Accountability –​Ability to hold attention on what is important for the client, and to leave responsibility with the client to take action.



1.

Clearly requests of the client actions that will move the client toward his/​ her stated goals.



2.

Demonstrates follow-​through by asking the client about those actions that the client committed to during the previous session(s).



3.

Acknowledges the client for what they have done, not done, learned or become aware of since the previous.



4.

Effectively prepares, organizes, and reviews with client information obtained during sessions.



5.

Keeps the client on track between sessions by holding attention on the coaching plan and outcomes, agreed-​upon courses of action, and topics for future session(s).

316 [5.375]

Asks the client to distinguish between trivial and significant issues, situational vs. recurring behaviors, when detecting a separation between what is being stated and what is being done.

Other Dispute Resolution Processes  Chapter  5

ICF Core Competencies cont.

6.

Focuses on the coaching plan but is also open to adjusting behaviors and actions based on the coaching process and shifts in direction during sessions.



7.

Is able to move back and forth between the big picture of where the client is heading, setting a context for what is being discussed and where the client wishes to go.



8.

Promotes client’s self-​discipline and holds the client accountable for what they say they are going to do, for the results of an intended action, or for a specific plan with related time frames.



9.

Develops the client’s ability to make decisions, address key concerns, and develop himself/​herself (to get feedback, to determine priorities and set the pace of learning, to reflect on and learn from experiences).



10.

Positively confronts the client with the fact that he/​she did not take agreed-​upon actions.

 [5.380] While various approaches to conflict coaching, principles and competencies devel-

oped have been presented above, Brinkert in below extract outlines six propositions on the current state of conflict coaching and also makes suggestions in relation to future development of conflict coaching.

State of Knowledge: Conflict Coaching Theory, Application, and Research [5.385] R Brinkert, “State of Knowledge: Conflict Coaching Theory, Application, and Research” (2016) 33(4) Conflict Resolution Quraterly 383 at 392-​396. Six Propositions on the Current State of Conflict Coaching The following six propositions were crafted to generally characterize the current state of conflict coaching and recommend further efforts to develop the field in the coming years. Proposition 1 Conflict coaching is an established conflict resolution and executive coaching practice, an equal to closely allied practices such as mediation. Conflict coaching is now approximately twenty years old. It started as a secondary process when mediation was not viewed as a possibility for one or both parties (Tidwell 1997). Early on, it was positioned as a potential secondary or tertiary practice for those primarily trained in another conflict resolution process such as mediation (Brinkert 2006). Given the general attractiveness of dyadic conflict coaching and similar processes and the high proportion of the time they are engaged (Levine-​Finley 2014), as well as the sometimes inappropriateness or ineffectiveness of using other conflict resolution processes such as mediation (Bollen and Euwema 2016), the conflict resolution field should make a deliberate effort to move beyond “mediation-​centrism” (Yarn 2014, 97). This is especially the case when engaging conflict coaching means upholding a key tenet of alternative dispute resolution by keeping the conflict process as close as possible to those directly involved (Yarn 2014). Proposition 2 Conflict coaching has developed within a dispute systems framework, and this should continue. Although a strong case can be made that conflict coaching has achieved equal status to longer-​ standing alternative dispute resolution processes such as mediation from a practice point of view, in no way does the establishment of the conflict coaching process do away with its support of and its reliance on integrated dispute resolution systems. In fact, the direct and [393] indirect [5.385]  317

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State of Knowledge: Conflict Coaching Theory, Application, and Research cont. strengths of conflict coaching are tied to the quality of the larger dispute framework in which it is situated (Brinkert 2011). It is notable that all moderately lengthy or lengthy articles on conflict coaching in the previous ten years have positioned conflict coaching in the context of an integrated dispute system. While conflict coaching may be the most appropriate and effective process in some instances, it should not be viewed as generally surpassing the value of other processes such as mediation. Also, it is likely that it will continue to play a routine but secondary role in some practice areas such as the work of ombuds. Finally, there is no reason for those heavily invested in other conflict resolution processes to perceive a threat from the rise of conflict coaching because these processes may very well grow together in a non-​zero-​sum manner. For instance, Brubaker and others (2014) see the increasing use of conflict coaching in addition to increasing use of mediation and ombuds processes in the workplace, and they encourage greater adoption of integrated conflict management systems. Proposition 3 While conflict coaching theory and application have made notable strides in the past ten years, continued progress in these areas is needed. Two major models of conflict coaching have been generally elaborated, and other conflict coaching models exist, some of them hybrids. The issue of the relationships among these models remains to be more fully compared and contrasted. Efforts to theoretically extend the comprehensive conflict coaching model to specific topic and process areas have shown the merits and also the complexities of doing so. Theoretical extension can be an important precursor to effective application; consequently, there is a considerable need to advance theory further. Since there is considerable diversity in the practice of conflict coaching even now, effort is needed to ensure that prospective and actual conflict coaches, sponsors, and, especially, clients are clear about the nature of conflict coaching that is being implemented. Much more needs to be written from theoretical standpoints about issues of transparency, confidentiality, and ethics surrounding conflict coaching. Given the many challenges of the contemporary workplace, it is reasonable to assume that conflict coaching could be put to more use in the private sector workplace, even, and perhaps especially, when the organization itself does not provide an adequate integrated dispute system. Given the [394] demographic and ideological diversity of constituencies within the conflict resolution and executive coaching communities, as well as the diversity of those served and who could be served, existing conflict coaching models could be adjusted and additional ones proposed. For instance, in terms of a general approach to executive coaching, O’Neil, Hopkins, and Bilimoria (2015) demonstrated the relevance of and outlined an approach that specifically addresses the needs of women. Finally, the extension of conflict coaching to the family and larger personal life sphere remains open in terms of both theory and application, although the theoretical and practical extensions by ombuds noted by Levine-​Finley (2014) certainly point the way. Proposition 4 Conflict coaching research must advance so that the entire enterprise can achieve greater legitimacy. In introducing an issue of the Journal of Applied Behavioral Science dedicated to the scholarship of coaching, Boyatzis, Smith, and Van Oosten (2015, 149) offered a blunt initial statement: “The intellectual integrity of coaching depends on research”. They note a twenty-​year lag between the sharp rise in the practice of coaching and the scholarly study of it (Van Oosten 2013, cited in Boyatzis et al 2015). They call for more research into coaching processes and methods (Boyatzis et al 2015). This assessment and call need to be embraced by all who are committed to developing the area of conflict coaching. Research into conflict coaching has just begun, and any face validity associated with the considerable breadth and volume of applied conflict coaching activity in recent years cannot, on its own, provide a credible rationale for the continued practice in the coming ten years. While conflict coaching has emerged as an equal to mediation from theoretical and practice adoption 318 [5.385]

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State of Knowledge: Conflict Coaching Theory, Application, and Research cont. standpoints, it is not an equal in terms of research substantiation. However, this should not be a moment of panic for those committed to conflict coaching. A considerable body of conflict coaching work has been carried out or is ongoing, and these activities offer significant research potential. Clients, sponsors, and practitioners are encouraged to partner with researchers to evaluate conflict coaching intervention efforts. The ongoing widespread use of conflict coaching in the ombuds field and the recognition that practice is shaped in part by each individual style (Gadlin 2014b) and academic background (Michael 2014) suggest the opportunity for study. The data collected by the NIH OO/​CCR, though limited (Michael 2014), could be a valuable source of insights [395] Of course, other research opportunities exist too, including carrying out studies in more controlled settings. Those interested in researching conflict coaching are encouraged to review opportunities previously identified in the literature (Jones and Brinkert 2008). While theory-​driven and systematic research in peer-​reviewed journals and scholarly books is most highly valued, straightforward practitioner reports in books, periodicals, and online platforms are also encouraged, especially when there is some editorial oversight in the absence of peer review. Efforts should be undertaken to share scholarly research findings with practitioner audiences, including through conferences and communities of practice. Proposition 5 More could be done to bring in insights from elsewhere in the conflict resolution field and executive coaching field. Perhaps the most efficient and effective way to move conflict coaching forward is to apply recent insights from the wider fields of conflict resolution and executive coaching. For instance, the finding that preferences for third-​party help in conflict situations can differ across cultures (Giebels and Yang 2009) means that conflict coaching models need to be considered from different cultural viewpoints. Work on mediator style (McDermott 2012) supports consideration of conflict coaching style. The approach to clarifying the challenges and strategies of expert mediators (Poitras and Raines 2013) could be adapted and applied to expert conflict coaches. The documented benefits of coaching by managers (Kim and Kuo 2015) and the documented conditions under which peer coaching is most effective (Parker et al 2015) suggest careful consideration of who is in the best position to act as a conflict coach and how this position can be maximized. Breakthrough work in the area of eliciting emotional communication (Jameson, Bodtker, and Linker 2010) supports refinements in approaches to emotion in conflict coaching models. The determination that goal attainment in coaching is far more likely when clients, as opposed to coaches, decided on goals (Gessnitzer and Kauffeld 2015) indicates that conflict coaching theorists, researchers, and practitioners might give close attention to the mechanisms by which clients are fostered or hindered in setting goals within conflict coaching processes. The fact that current ethical codes in the broader coaching community have been shown to have limited relevance, shortcomings, and occasionally even act as barriers to ethical behavior by coaches (Diochon [396] and Nizet 2015) suggests that conflict coaching needs to address this topic with research as well as theory. Proposition 6 While incremental growth would be beneficial, bolder developments could be valuable too. There is much to be gained in continuing to develop conflict coaching along the lines of the past ten years, but this could be supplemented with bolder efforts as well. In the original proposal of the comprehensive conflict coaching model (Brinkert 2006), conflict coaching was partially presented as an opportunity for conflict resolution professionals to share more of their knowledge and skills since, for example, those working as mediators were unlikely to directly explore theory and research with those with whom they worked. The hope is that this emphasis on finding new spaces for conflict resolution knowledge dissemination and related conversation will continue to receive attention and be charted, at least in part, by those involved with conflict coaching. [5.385]  319

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State of Knowledge: Conflict Coaching Theory, Application, and Research cont. One step in this direction is work on gratitude communication as conflict management (Brinkert forthcoming). This initiative provides a bridge between positive organizational studies (Cameron and Dutton 2003) and conflict coaching, including the possibility for conflict coaches to engage topics not widely conceived as falling within the conflict resolution field. Another step could be the development of a conflict coaching specialty that more fully embraces individual and organizational concerns and therefore becomes coaching for strategic communication. This could mean supporting individuals in their own careers while simultaneously making sure they uphold fiduciary responsibility and advance the organization with internal and external constituencies. Of course, issues surrounding transparency of practice and distinction among forms of practice would need to be addressed in this kind of undertaking; however, such issues exist even now.

 [5.390] Brinkert in the extract [5.385] mentions the need to take cultural diversity into

account in developing or applying models of conflict coaching. The extract below considers how conflict coaching principles may be applied in indigenous settings.

Conflict Coaching in Indigenous Australian Settings [5.395] S Medway, “Conflict Coaching in Indigenous Australian Settings –​Sharing Lessons from Mediation” (2015) 26 Australasian Dispute Resolution Journal 38 at 40-​42. THE COACHING RELATIONSHIP While there has been an emphasis on developing conflict coaching models and processes, it is only recently that interest in the coaching relationship has become a focus. As a conflict coach, it is important to acknowledge how personal experiences influence perceptions of a client’s life context and experience. The ability to recognise cultural orientations, and acknowledge different orientations is fundamental to being an effective conflict coach. Because Indigenous worldviews are vastly different to Western worldviews, a sensitivity to and awareness of these factors is important. A deep awareness of our cultural orientations is critical for developing rapport with a client. The relationship between the conflict coach and client is established by the client’s unique context, purpose and motivation for commencing coaching. However, clients do not always have a good understanding of their goals and objectives. In many cases, clients may require a number of sessions to clearly define what they want to achieve from coaching. Kemp argues strongly that, as a coach, the way to interact effectively and respond to a client’s needs, develop trust, empathy, and shared insights is through a deep awareness of one’s own unique idiosyncrasies. This comes through reflective practice. The effectiveness of coaching also requires a connection between coach and client, developed through strong communication skills, and in particular how questions are asked and how the relationship is built. Impartiality is an interesting issue in practice in Indigenous settings because it has been suggested there are benefits for a third-​party intervener to have an interest in the outcome of the dispute. Honeyman et al demonstrated in two case studies that the mediation benefited from a co-​mediator “who was personally known to –​and trusted by –​the family”. An elder (or family member) is likely to get involved and attempt to influence the mediation, for example, by speaking to either party in between mediation sessions. The coach can use the external influence to build on the value of coaching because it directly helps the client explore possible courses of action in context –​a real situation. 320 [5.390]

Other Dispute Resolution Processes  Chapter  5

Conflict Coaching in Indigenous Australian Settings cont. The coach can readily accommodate reality testing in reality. This also strengthens Indigenous authority in the process: “[A]‌ny ADR model that does not feature the involvement of Elders is one step away from undermining cultural values”. [40] APPLYING PRINCIPLES OF CONFLICT COACHING IN INDIGENOUS SETTINGS This section considers how some of the principles suggested by Jones and Brinkert apply to conflict coaching Indigenous conflict settings. Consideration of direct and indirect clients In Indigenous societies, people who seem to be removed from disputes both influence and are affected by the outcomes. Kinship relationships –​central aspects of contemporary Indigenous societies –​define inter-​personal obligations, rights and privileges. This is an important consideration for conflict coaching because whatever is discussed and agreed in the coaching session will likely be shared and examined within the wider community. Awareness of this allows the adjustments to the coaching process design to allow sufficient time to explore the effectiveness of selected courses of action, thereby allowing the client to reflect and adjust thinking in devising subsequent proposed courses of action. A relational and systems orientation Managing conflicts is part of everyday life and conflicts occur in the context of relationships. Conflict in Indigenous contexts is made more complex by the historical and contemporary sources of disadvantage, compounded by exceptional violence experienced in some communities. Jones and Brinkert suggest acknowledging contextual issues even if the client does not. This requires considerable expertise on the part of the coach in recognising that cultural issues are inseparable from other issues affecting Indigenous peoples’ lives and will influence responses to present day conflict. Coaching as part of a larger system of conflict management Effective conflict coaching models integrate a wide range of process options. Jones and Brinkert suggest coaching can provide a good setting for the client to consider the appropriateness of it and other conflict management processes. Coaching is contingent Jones and Brinkert emphasise the importance of both coach and client ability to fully understand past or present conflict. Brigg uses the term “susceptibility to the world of the parties” where practitioner and client are vulnerable to one another. A coach would have rapport and empathy with parties, providing them with support and having their respect and appreciation. Conflict is deeply embedded at all levels of Indigenous existence and conditions of poverty, social dysfunction, unemployment and illness remain major causes of conflict within Indigenous communities. An understanding of Australia’s history of colonisation and its impacts can help dispute management practitioners appreciate the underlying reasons for disputes and the ways in which disputes manifest in Indigenous communities. Coaching aims to foster client empowerment. Coaching is founded on the principal that individuals have the capacity to solve their own problems. Because of the emphasis on empowerment (strength of self) and recognition of other, the approach is sympathetic with traditional processes. The case study discussed below provides a concise example of [41] a process that aimed at building communication, problem-​solving, and conflict resolution skills to develop greater control over choices. While not employing conflict coaching processes, this case study is informative for designing a pilot conflict coaching program in an Indigenous organisation.

 [5.395]  321

Dispute Resolution in Australia: Cases, Commentary and Materials

[5.400] Questions

1.

Describe the operation of dispute review boards.

2.

Are decisions by dispute review boards final and binding?

3.

Why is the use of dispute review boards not as widespread in Australia as they are overseas?

4.

Describe the operation of partnering.

5.

Who are the stakeholders in partnering?

6.

Describe the operation of DRAs.

7.

Why did conciliation emerge as a distinct dispute resolution process?

8.

Why are statutory references to conciliation so poorly defined? What is precisely meant by the term conciliation?

9.

What are the similarities and differences between conciliation and mediation?

10. What type of disputes would be most appropriately addressed using conciliation? 11. Describe the operation of appraisals. 12. Are appraisals binding or non-​binding? 13. Describe the operation of referencing out in your choice of jurisdiction. 14. How effective is referencing out? 15. Describe the operation of neutral evaluation? 16. What is the purpose of conflict coaching? 17. How can conflict coaching help people:

a) before conflict has arisen;



b) during conflict situations; and



c) after conflict resolution.

18. Which of the conflict coaching models described in this chapter appeals to you the most? Explain why. 19. What are your views on the future of conflict coaching?   

322 [5.400]

CHAPTER 6

Arbitration [6.05] [6.10]

[6.35] [6.40] [6.50] [6.65]

INTRODUCTION......................................................................................................... 324 THE DEVELOPMENT OF THE UNIFORM COMMERCIAL ARBITRATION ACTS................ 324 [6.15] Historical perspective.................................................................................. 325 [6.17] Commonwealth of Australia Constitution Act 1900 s 51............................ 325 [6.30] The new uniform Commercial Arbitration Acts............................................ 327 MANDATORY OR VOLUNTARY REFERRAL AND PROVISIONS?...................................... 328 WHICH RULES APPLY?................................................................................................. 329 [6.45] Commercial Arbitration in Australia...................................................... 329 IS ARBITRATION A FORM OF DISPUTE RESOLUTION?.................................................. 330 [6.55] Is (International Commercial) Arbitration ADR?....................................... 331 THE RELATIONSHIP BETWEEN DOMESTIC AND INTERNATIONAL ARBITRATION......... 332 [6.80] [6.90]

[6.95]

International Commercial Arbitration in Australia: Legal Framework and Problems................................................................................... 333 Towards a New Brand of Australian International Arbitration...................... 337

AUSTRALIAN DOMESTIC ARBITRATION –​UNIFORM LEGISLATION.............................. 338 [6.100] Part 1A Preliminary, s 1C –​paramount object of the Act.............................. 338 [6.102] Commercial Arbitration Act 2010 (NSW) s 1C......................................... 338 [6.105] Part 1 General provisions, s 1 –​scope of application.................................... 339 [6.107] Commercial Arbitration Act 2010 (NSW) s 1........................................... 339 [6.110] Part 2 Arbitration agreement, s 7 –​definition and form of arbitration agreement.................................................................................................. 339 [6.112] Commercial Arbitration Act 2010 (NSW) s 7........................................... 340 [6.120] Part 3 Appointing the arbitrator.................................................................. 341 [6.123] Commercial Arbitration Act 2010 (NSW) s 11......................................... 341 [6.133] Commercial Arbitration Act 2010 (NSW) s 12......................................... 342 [6.140] Pan Atlantic Group Inc v Hassneh Insurance Co of Israel Ltd....................... 343 [6.145] Part 4 Jurisdiction of arbitral tribunal, s 16 –​competence of arbitral tribunal to rule on its own jurisdiction......................................................... 346 [6.147] Commercial Arbitration Act 2010 (NSW) s 16......................................... 346 [6.150] QH Tours Ltd v Ship Design & Management (Aust) Pty Ltd........................ 346 [6.155] Part 4A Interim measures, s 17A –​conditions for granting interim measures......................................................................................... 348 [6.156] Commercial Arbitration Act 2010 (NSW) s 17......................................... 348 [6.158] Commercial Arbitration Act 2010 (NSW) s 17A....................................... 348 [6.160] Beecham Group Ltd v Bristol Laboratories Pty Ltd..................................... 349 [6.165] Part 5 Conduct of arbitral proceedings........................................................ 351 [6.167] Commercial Arbitration Act 2010 (NSW) s 19......................................... 351 [6.180] Phoenix v Pope................................................................................. 353 [6.190] Neale v Richardson........................................................................... 355 [6.200] Hopcraft v Hickman.......................................................................... 357 [6.210] WFA v Hobart City Council.................................................................. 358 [6.220] Chilton v Saga Holidays plc................................................................. 360 [6.233] Commercial Arbitration Act 2010 (NSW) s 27D....................................... 364 [6.240] Commercial Arbitration in Australia...................................................... 365 [6.245] Part 6 Making of award and termination of proceedings............................. 366 [6.247] Commercial Arbitration Act 2010 (NSW) s 28......................................... 366 [6.255] Yesodei Hatorah College Inc v The Trustees of the Elwood Talmud Torah Congregation................................................................................... 367 [6.263] Commercial Arbitration Act 2010 (NSW) s 31......................................... 370 [6.267] Commercial Arbitration Act 2010 (NSW) s 32......................................... 372  

323

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[6.270] Part 7 Recourse against an award................................................................ 373 [6.272] Commercial Arbitration Act 2010 (NSW) s 34......................................... 373 [6.275] Re Tiki International Ltd..................................................................... 374 [6.283] Commercial Arbitration Act 2010 (NSW) s 34A....................................... 376 [6.285] Norwest Holst Construction Ltd v Co-​operative Wholesale Society Ltd........... 377 [6.290] A more flexible process................................................................................................ 381 [6.295] Use of Arbitration in Copyright Disputes................................................. 381 [6.300] Fast tracking arbitration............................................................................................... 385 [6.305] IAMA’s Fast Track Arbitration Rules....................................................... 385 [6.310] Questions.................................................................................................................... 388

INTRODUCTION [6.05]  In Chapter 1, the predominant forms of dispute resolution that are practised in Australia

were explained, and it was noted that they can be distinguished, amongst other ways, by their levels of formality, consensuality and intervention. According to Figure 1.1 in Chapter 1, arbitration lies at the formal/​adversarial/interventionist end of the scale because it is the most formal of all the non-​curial forms of dispute resolution –​if, indeed, it can be classed as being “non-​curial”, a point to be discussed below. This is because arbitration is governed by a statutory framework and relies on adjudication by the arbitrator, who hands down a binding award at the conclusion of the arbitration. The process of arbitration cannot be classed as consensual; rather, it takes place in a framework of adversarial advocacy where parties present evidence that seeks to persuade the arbitrator of the legal validity of their case. Arbitration is the most interventionist of all the non-​curial methods of dispute resolution because: • Arbitrators are empowered by statute to conduct arbitration in any manner they see fit pursuant to s 19 of the uniform Commercial Arbitration Acts (the Acts); and • Arbitrators can also gather information in relation to any matter in such a manner as they think fit pursuant to the paramount object of the Acts set out in s 1C of the Acts, which is to facilitate the fair and final resolution of commercial disputes without unnecessary delay or expense. According to the former National Alternative Dispute Resolution Advisory Council, “arbitration is a process in which the participants to a dispute present arguments and evidence to a dispute resolution practitioner (the arbitrator) who makes a determination”.1 This definition probably omits more than it discloses about what arbitration is about. The determination referred to in the definition is called an “award” and has the force of a judicial determination only subject to appeal on a point of law. Further, arbitration proceedings are conducted on an adversarial basis where the parties to the arbitration present their case to the arbitrator in a similar fashion to court proceedings. They may call witnesses who are examined and cross-​examined; although pursuant to s 19(3) of the Acts the arbitral tribunal has the power to determine the admissibility, relevance, materiality and weight of any evidence presented at arbitration. [6.10]  Of all the dispute resolution processes being formally practised in Australia, arbitra-

tion is the oldest. It dates back to 1904 when the Commonwealth enacted the Conciliation and Arbitration Act, whose objects were: 1 https://​ w ww.ag.gov.au/​ L egalSystem/​ A lternateDisputeResolution/ ​ D ocuments/ ​ N ADRAC%20Publications/​ Dispute%20Resolution%20Terms.PDF (accessed 5 June 2018). 324 [6.05]

Arbitration  Chapter  6

(a) to promote goodwill in industry; (b) to encourage, and provide means for, conciliation with a view to amicable agreement, thereby preventing and settling industrial disputes; (c) to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality; (d) to provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes; (e) to encourage the organisation of representative bodies of employers and employees and their registration under this Act; and (f) to encourage the democratic control of organisations so registered and the full participation by members of such an organisation in the affairs of the organisation. The same objects are probably true of current legislation governing arbitration only without the emphasis on industrial disputes. Since 1904, domestic arbitration in Australia has enjoyed a long and illustrious history. All jurisdictions within Australia have court-​referred mechanisms for arbitration, and international arbitration has enjoyed a gradual rise in popularity since its formalisation under both the Commonwealth Conciliation and Arbitration Act 1904 (Cth) and the International Arbitration Act 1974 (Cth) (IAA). However, because of its cost and duration, domestic arbitration is now in decline and has largely been overtaken by mediation.

THE DEVELOPMENT OF THE UNIFORM COMMERCIAL ARBITRATION ACTS Historical perspective [6.15] Section  51(xxxv) of the Commonwealth of Australia Constitution Act 1900 (the

Constitution) states:

Commonwealth of Australia Constitution Act 1900 s 51 [6.17]  Section 51 The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: … (xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.

 [6.18]  Like all of the enumerated powers granted to the Commonwealth under s 51 of the

Constitution, placitum (xxxv) is limited by the interpretation imposed on it by the High Court of Australia over the subsequent years since Federation. [6.20]  One of the early cases before the High Court of Australia on the issue of how widely

the term “arbitration” could be read in s  51(xxxv) was Australian Boot Trade Employees Federation v Whybrow & Co (No 1) (1910) 10 CLR 266. In this case, the Australian Boot [6.20]  325

Dispute Resolution in Australia: Cases, Commentary and Materials

Trade Employees Federation served a log of claims on Whybrow & Co and other boot makers located in Queensland, New South Wales, Victoria and South Australia. The Commonwealth Court of Conciliation and Arbitration made the award binding on all the boot makers who had been served the log of claims. Later, the Employees Federation applied to the Arbitration Court for an order declaring that the award be made a common law rule in the boot making industry applying to the four original States who had been served with the log of claims, plus Tasmania. The Commonwealth Conciliation and Arbitration Act 1904 (Cth) authorised the making of such an order, declaring the award a common law rule in the boot making industry. Several employers not involved in the original dispute that gave rise to the award objected to the Arbitration Court’s jurisdiction, claiming it was unconstitutional. By a unanimous judgment of five judges (the full Bench of the High Court of Australia comprised only five judges at the time), the court found for the employers on the basis that the arbitration power in s 51(xxxv) was limited to the making of an award for specific disputants in specific proceedings and not in making a common law rule. Of interest to this chapter is the interpretation the court put on the words “conciliation and arbitration”. The court made it clear that the function of conciliation and arbitration is not a legislative one. Therefore, a conciliator or arbitrator cannot change the law. On the contrary, a conciliator or arbitrator must obey the law. Barton J stated (at 293): Arbitration is a term which, taken by itself, connotes a process for the settlement of disputes by submitting them to the decision of a tribunal selected by the parties or accepted by them, and an agreement by both to be bound by the decision, which is commonly called the award. The submission may include questions of pure law, of mixed law and fact, or fact alone … and beyond all question the award is a judicial determination … The range, then, of an arbitrator’s authority … is co-​extensive with the powers of the parties to settle their dispute without him [sic]. Whatever they can lawfully agree to, he may lawfully award. If however they desire him to make for them an agreement in breach of the mandate of positive law, he is powerless to do so … it is one thing for a party to waive a legal right, and another thing for the tribunal to impair the obligation of a law or to attempt to make a new one. [6.25]  The case law that has developed since federation mean that the arbitration power of the Commonwealth is a restricted power that only allows the feedral parliament to pass laws relating to arbitration arising from disputes involving employees and employers across State or Territory borders. Ultimately, because of the interpretation of s  51(xxxv) of the Constitution and the concomitant parameters of the elements of that section, it became clear that the Commonwealth had no power to pass laws governing arbitration outside of the industrial relations sphere. Therefore, the States and Territories agreed with the Commonwealth to pass uniform legislation governing the conduct of domestic arbitration. As well as the apparent lack of jurisdiction of the Commonwealth to pass legislation governing arbitration outside the industrial relations sphere, the introduction of uniform legislation was seen as being necessary in order to provide some certainty in regard to business transactions among the Australian business community. Due to specific rules of statutory interpretation in the States and Territories, subtle differences have crept into the separate State and Territory superseded Acts. However, they are largely the same in that they sought to establish a common set of rules for the provision of arbitration, thus providing some certainty to business transactions in Australia. 326 [6.25]

Arbitration  Chapter  6

The new uniform Commercial Arbitration Acts [6.30]  In April 2009, the Standing Committee of Attorneys-​General agreed to draft a new

uniform Commercial Arbitration Act for domestic arbitration in Australia. The new Acts seek to apply the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration 1985 (including the 2006 amendments) thereby aligning some features of international arbitration to the domestic application of arbitration. The States listed below have enacted the new uniform legislation in the following order: • New South Wales –​ Commercial Arbitration Act 2010 • Victoria –​ Commercial Arbitration Act 2011 • South Australia –​ Commercial Arbitration Act 2011 • Tasmania –​ Commercial Arbitration Act 2011 • Western Australia –​ Commercial Arbitration Act 2012 • Queensland –​ Commercial Arbitration Act 2013 • Australian Capital Territory –​Commercial Arbitration Act 2017 As with most legislation, the Act is divided into various Parts, as follows: • Part 1A –​Preliminary. This part includes the name and paramount object of the Act. • Part 1 –​General provisions. This part includes the scope of the Act and definitions and rules of interpretation used in the Act. • Part 2 –​Arbitration agreement. This part includes the definition and form of an arbitration agreement and how such an agreement must be dealt with in a substantive claim before the court. • Part 3 –​Composition of arbitral tribunal. This part includes the number and appointment of arbitrators and why and how they can be challenged and how to appoint a substitute arbitrator. • Part 4 –​Jurisdiction of arbitral tribunal. This part deals with the competence of the arbitral tribunal to rule on its jurisdiction. • Part 4A Interim measures. This part includes the power of the arbitral tribunal to order interim measures and the provision, recognition and enforcement of those measures. • Part 5 –​Conduct of arbitral proceedings. This part includes: how parties will be treated; determination of the rules of procedure; representation; duties of parties; power of arbitrator to act as a mediator, conciliator and non-​arbitral intermediary and disclosure of confidential information. • Part 6 –​Making of award and determination of proceedings. This part includes: decision making by the tribunal; the form and contents of an award; termination of proceedings; and costs and interest. • Part 7 –​Recourse against award. This part deals with setting aside an award and appeals against an award. • Part  8  –​Recognition and enforcement of awards. This part deals with recognising and enforcing an award and grounds for refusing to recognise or enforce an award. • Part 9 –​Miscellaneous. This part includes what happens on the death of a party, immunity of arbitrators and the courts power to make rules to support the Act. [6.30]  327

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Interestingly, the names of the uniform legislation are a misnomer as there is no restriction invoking the Acts based on the subject matter of the dispute. In other words, the Acts can be invoked whether the dispute is commercial in nature or not. The word “commercial” could be removed from the title of the Acts and not affect their operation in the slightest. While all States and Territories have enacted the uniform legislation, it is important to note that the Acts are only invoked when the parties have entered into an “arbitration agreement”, a term to be defined below, or when the legislature has empowered a court to refer matters to arbitration under the Acts. However, not all court-​annexed arbitration takes place under the Act. For example, in Victoria, s 106 of the Magistrates’ Court Act 1989 prohibits the use of the respective uniform Act and replaces it with conduct rules listed under s 103 of the Magistrates’ Court Act 1989. Conversely, r 50.08(2)(a) and r 50.08(3)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and the County Court Civil Procedure Rules 2008 (Vic), respectively, specify the use of the uniform legislation for domestic arbitral proceedings in their jurisdictions. Given the space limitations of this text, this chapter will deal only with selected sections of the Act that reflect some of the more contentious issues surrounding domestic arbitration in Australia.

MANDATORY OR VOLUNTARY REFERRAL AND PROVISIONS? [6.35]  Courts in Australia have the power to order arbitration with or without the consent of

the parties to a dispute. The following list of empowering legislation specifies whether courts can order arbitration with or without the consent of the parties. Jurisdiction

Legislation

With consent

Without consent

Commonwealth

Federal Court of Australia Act 1976 s 53A(1A)

✓

Australian Capital Territory

Court Procedures Rules 2006 r 3252

✓

New South Wales

Civil Procedure Act 2005 s 38(1)

✓

Northern Territory

Local Court (Civil Procedure) Act s 16(1)(e)

✓

Queensland

Commercial Arbitration Act 2013 s 8

South Australia

Supreme Court Act 1935 s 66

Tasmania

Supreme Court Rules 2000 r 772

✓

Victoria

Civil Procedure Act 2010 s 66

✓

Western Australia

Supreme Court Act 1935 s 51

✓

✓ ✓

✓

Some jurisdictions place conditions on the mandatory ordering of arbitration. For example, in New South Wales, a mandatory order for arbitration can only be made pursuant to s 38(1) of the Civil Procedure Act 2005 on a claim for the recovery of damages or other money, or in which any equitable relief or remedy is claimed ancillary to a claim for the recovery of damages or other money. Further, before making such an order, the court is to consider the preparations for hearing of the proceedings and is, as far as possible, to deal with all matters that may be dealt with by the court on application to the court before hearing of the proceedings and is to give such directions for the conduct of the proceedings before the arbitrator as appear best adapted for the just, quick and cheap disposal of the proceedings. Finally, the 328 [6.35]

Arbitration  Chapter  6

court may not make a mandatory order if no issue in the proceedings is contested or judgment in the proceedings has been given or entered and has not been set aside, or the proceedings are proceedings within a class of proceedings prescribed by the rules as a class of proceedings that may not be so referred, or cause is otherwise shown why the proceedings should not be so referred.

WHICH RULES APPLY? [6.40] In Australia, certain peak bodies arose in order to provide training, support and a

professional community of interest for arbitrators and dispute resolution practitioners. These peak bodies also developed their own arbitration rules which parties can employ should a dispute require arbitration. It is up to the parties to choose the forum for arbitration which is usually expressed in their arbitration agreement. Usually the decision over the forum determines the agreed rules for the conduct of the arbitration although parties may select a particular forum and a certain set of rules to govern the arbitration. In the following extract, well-​known lawyer and arbitration practitioner Professor Doug Jones provides a useful summary of those peak bodies and their services.

Commercial Arbitration in Australia [6.45]  D Jones, Commercial Arbitration in Australia (2nd ed, Thomson Reuters, Sydney, 2012) pp 16-​18. Amongst those supporting reform were various professional organisations that have contributed to arbitration in Australia through research, training and practicing alternative dispute resolution processes. The main bodies in Australia include the Australian Commercial Disputes Centre (“ACDC”), the Institute of Arbitrators and Mediators Australia (“IAMA”), the Chartered Institute of Arbitrators (Australia) (“CIArb Australia”), the Australian Centre for International Commercial Arbitration (“ACICA”) and the [former] National Alternative Dispute Resolution Advisory Council (“NADRAC”). These institutions have played a critical role in foregrounding the need for reform in Australian arbitration law and many contributed to reforming the legislative framework by making submissions to the SCAG committee on the Commercial Arbitration Bill 2009: Consultation Draft (“2009 Consultation Draft Bill”). The ACDC was established in 1986 with government funding from the New South Wales Government, to promote alternative dispute resolution processes in Australia, such as mediation, conciliation and arbitration. These procedures have been rapidly accepted and adopted as part of the overall private sector and government approach to dispute resolution. Its primary responsibilities were to provide administrative services for the resolution of major commercial disputes with the aim of decreasing the amount of costly and time-​consuming disputes heard in the courts and to provide alternative disputes resolution (“ADR”) training. In 2010, ACDC expanded its focus to encompass international dispute resolution and changed its name to the Australian International Disputes Centre (“AIDC”). In addition to its case management and training services, it now offers a prime venue for domestic and international dispute resolution in Sydney. [17] IAMA was founded in 1975 as a not-​for-​profit company limited by guarantee. It is now Australia’s largest and most experienced independent domestic arbitration and mediation service. IAMA has a strong commitment to multi-​disciplinary fellowship and learning. It aims to serve the community, commerce and industry by facilitating efficient dispute resolution procedures including mediation. Members are represented in all States and Territories. IAMA was instrumental in an important shift in Australia’s arbitration landscape with the introduction of the IAMA Rules for the Conduct of Commercial Arbitrations (incorporating the Expedited Arbitration Rules) 1999. Interestingly, these rules echo many of the principles of procedural control and flexibility in the Arbitration Act 1996 (UK), [6.45]  329

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Commercial Arbitration in Australia cont. and in 2007 were amended and renamed the IAMA Arbitration Rules Incorporating the Fast Track Arbitration Rules (“IAMA Rules”). CIArb Australia is one of around 30 national branches of the Chartered Institute of Arbitrators founded in London in 1915 and comprising 12,000 members. It is a professional body active in the settlement and determination of disputes by alternative dispute resolution processes. Traditionally, CIArb focussed on arbitration, however, in recent years, it has branched out to all forms of private dispute resolution to maximise the contribution that dispute resolution practitioners make. CIArb Australia offers accreditation and training for arbitrators and mediators. ACICA is Australia’s only international arbitral institution. ACICA was established in 1985 as a not-​ for-​profit public company. Its membership base includes leading practitioners and academic experts in both international and domestic commercial arbitration. ACICA’s main aims are to educate, promote and encourage the use of international commercial arbitration as a means of dispute resolution, and to promote Australia as an international seat and venue for arbitration. As such, in 2005 ACICA launched its own Arbitration Rules (“ACICA Rules”). Following this successful launch, in 2008 ACICA developed its own Expedited Arbitration Rules (“ACICA Expedited Rules”). ACICA updated its arbitration rules in 2011, and introduced rules for the appointment of arbitrators in order to facilitate its function as an appointing authority under the IAA. Although ACICA is focussed predominately on international arbitration in Australia, ensuring that Australia has a sound domestic commercial arbitration regime is a fundamental part of these aims. ACICA’s headquarters are based in Sydney and it has registries in Melbourne and Perth. NADRAC was established in 1995. Its origins stem from a 1994 report by the Access to Justice Advisory Committee chaired by the Hon Justice Ronald Sackville, Access to Justice –​an Action Plan. The report recognised the need for a peak national body to advise the Government, the Federal Court and tribunals on ADR issues with a goal of achieving and maintaining a high quality, [18] accessible, integrated federal ADR system. NADRAC is an independent, non-​statutory body charged with providing policy advice to the Australian Attorney-​General on the development of ADR and with promoting the use and raising the profile of ADR. Funding is provided through the Australian Government Attorney-​General’s Department.



IS ARBITRATION A FORM OF DISPUTE RESOLUTION? [6.50] There are some characteristics of arbitration which are similar to litigation. For

instance, arbitration is an adjudication, where the arbitrator hands down an award that determines, with reasons pursuant to s 31(3) of the Acts, whether the plaintiff’s cause of action has been proved based on findings of fact. It is formal in the sense that prescribed procedures are followed and the arbitral tribunal will determine the admissibility and weight of evidence to apply throughout the arbitration. The plaintiff, defendant and any other parties joined to the proceedings are given the opportunity to examine and cross-​ examine witnesses and introduce certain documentation as evidence to be considered by the arbitrator. Expert evidence can be presented, and lawyers generally represent the parties. The arbitrator generally conducts proceedings in a formal manner, and parties may only appeal an award on a point of law. Given the above characteristics, it is not surprising that the question is often asked, “Is arbitration a form of dispute resolution?” The following extract seeks to shed some light on that very question regardless of it dealing primarily with international arbitration. 330 [6.50]

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Is (International Commercial) Arbitration ADR? [6.55]  L Nottage, “Is (International Commercial) Arbitration ADR?” (2002) Bar News (Winter) at 28. If international arbitrators, in law or in practice, have a very broad margin of discretion as to whether or not to apply strict rules of law to resolve a dispute, the central issue becomes whether they do so nonetheless, and for what reasons. No doubt it depends firstly on the circumstances of the case, and in particular the type of dispute, as they try to envisage what sort of approach the particular parties (or even most parties in such circumstances) would generally want. Parties may be content with quicker, yet sometimes more “rough justice” when the stakes are low, or the business environment is growing rapidly (as in the People’s Republic of China over the last decade). Other parties may well prefer certainty and predictability, arguably better promoted by stricter application of bright-​ line rules, when they are well-​advised, experienced and large companies dealing in certain types of transactions, such as charter parties. Even here, however, there may be differences in local markets and legal worlds. Arbitrators –​more than judges, whose reputations (and certainly remuneration) are not so dependent on meeting the expectations of particular parties and their communities –​need to be careful not to be dogmatic, but rather draw for example on a growing body of empirical work comparing practices and expectations in contractual relationships. A second consideration may be the general reputation a particular arbitrator wants to develop or maintain: as someone who prefers a stricter application of narrow legal rules, or someone willing to adopt a more expansive approach. This factor also seems to be important in the debate world-​wide as to whether or not, and to what degree or under which safeguards, an arbitrator should actively encourage settlement. Thus, in low-​value cross-​border disputes involving transactions where bright-​line rules are not readily applied, in expanding markets where developing long-​term relationships is important, we might expect parties to select arbitrators known to take a less strict approach to determining and applying legal rules, and to prefer a pro-​active role in encouraging early settlement. Further, if the curial law of the arbitration provides limited grounds for having an award reviewed by the courts, attempts by the arbitrators to encourage a mediated settlement may have even more persuasive force than those by judges, since a recalcitrant party can ignore similar attempts by judges if an appeal can be brought against adverse judgments. Thus, some arbitration processes and resulting awards may become very much like “interest based resolution of disputes by agreement”, with little or any “element of third party determination … of legal rights”, which the President of LEADR suggests distinguish ADR. In other words, at least certain types of international commercial arbitration may become so informal as to merge with some mediation processes, especially the more “evaluative” processes, rather than the more “facilitative” ones (where the third party tends to just paraphrase what each side says, more to defuse emotions and ensure surface understanding of issues and perceptions). Taking this more expansive view of arbitration, as a variable and sometime overlapping part of a broad spectrum of ADR processes, then allows us to map how certain types of arbitration processes are evolving, to examine how these may influence the overall “world” of arbitration, and even to note parallels or contrasts with developments in other parts of the spectrum (such as mediation). For example, empirical studies added to more anecdotal evidence of a gradual formalisation of international commercial arbitration over the 1970s and 1980s, partly due to the growing involvement of international law firms. Yet the 1990s have seen significant counter-​reactions, including revisions of arbitration laws and (more importantly) institutional rules to expedite proceedings, arguably underpinned by the emergence of many novel forms of arbitration in its broader sense, such as domain name dispute resolution procedures, cyber-​arbitration, arbitration in financial transactions, sports arbitration, and resolution of disputes about dormant bank accounts in Switzerland. Somewhat ironically, moreover, there has been a significant and ongoing “professionalisation” of mediation, for example through the expansion of organisations such as LEADR and recent attempts to standardise certification, which could result in significant formalisation of these originally very informal processes. In addition, there has been an upsurge in the use of court-​ annexed mediation in the Asia-​Pacific region, which aims of course at consensual resolution by parties, but occurs –​to greater or lesser degrees –​in the shadow of formal judicial court adjudication.

 [6.55]  331

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[6.60]  The informality that has begun to find its way into arbitration as described in Nottage’s

article is an issue taken up below (at [6.295]-​[6.305]) when we discuss the need for arbitration to be more flexible in its procedures and outcomes in order to reduce its expense and duration. For the moment, it is worthwhile reflecting on Nottage’s article in relation to whether arbitration can be truly classed as being part of dispute resolution.

THE RELATIONSHIP BETWEEN DOMESTIC AND INTERNATIONAL ARBITRATION [6.65]  The relationship between domestic arbitration conducted under the uniform legislation

and international arbitration conducted under the IAA is simply the difference in the selection of rules to arbitrate under. Parties are bound to conduct arbitration under whatever rules they specify in their arbitration agreement. The only exceptions to this is if a court empowered by legislation refers disputes to arbitration under a specific set of rules or, for example, a dispute between two parties is the subject of an industry code and they have a certain set of rules imposed on them by virtue of that operative industry code. This leaves open the situation where a dispute between international parties could select the uniform domestic legislation to govern their arbitration or domestic parties could select the international rules to govern their arbitration. It is up to the parties to agree on the rules governing their arbitration. Where parties to an international dispute choose the domestic uniform legislation to govern their arbitration, the uniform legislation treats such arbitration as a domestic one. [6.70] While this chapter does not deal with international arbitration in detail, it is worth

noting that like all treaties and conventions, the UNCITRAL Model Law on International Commercial Arbitration cannot have the force of law in Australia unless it is passed into domestic law through an Act of parliament. Section  16 of the IAA passes the UNCITRAL Model Law into Australian domestic law. In addition, it adopts the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in 1958 by the United Nations Conference on International Commercial Arbitration at its 24th meeting, a copy of which is set out in sch 1 of the Act. Importantly, this additional adoption allows each subscribing country to recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the country where the award is relied upon pursuant to the conditions of the Convention. Therefore, parties have choices when it comes to which rules to arbitrate under. They may choose rules pursuant to: uniform domestic legislation; international legislation; or peak bodies –​both domestic and international. Well-​known international peak body rules include those by the: American Arbitration Association; International Chamber of Commerce; and London Court of International Arbitration. The rules of these organisations are often used by multinational corporations and governments in their commercial agreements to ensure standard rules, that are well known by all the contracting parties and provide some certainty, are applied should a dispute arise under the relevant contract. [6.75] International arbitration in Australia is not conducted under a simple dichotomy

of using the uniform arbitration legislation for domestic disputes and the IAA for international disputes. Where an international commercial dispute does not meet the definition of the Model Law, the State and Territory uniform legislation may be invoked. This sets up the 332 [6.60]

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rather unsatisfactory situation of two statutory regimes competing for arbitration which has the potential to create confusion. The following extract discusses this issue.

International Commercial Arbitration in Australia: Legal Framework and Problems [6.80]  R Garnett, “International Commercial Arbitration in Australia: Legal Framework and Problems” (2008) 19 Australasian Dispute Resolution Journal 249 at 253-​257. UNCITRAL Model Law In 1989, the Commonwealth Parliament amended the IAA by enacting the 1985 UNCITRAL Model Law on International Commercial Arbitration (the Model Law) in s 16 and Sch 2 of the IAA. The Model Law was developed by the United Nations as a curial law or law of arbitral procedure to be adopted by member states for the conduct of arbitrations within their territories. It was intended to be a vehicle for global harmonisation of arbitration law on the basis of the principles of party autonomy and reduced judicial interference in the arbitral process. In this way, the Model Law would complement the New York Convention by supplying the “middle procedural part”, between enforcement of the agreement and the award. The Model Law was the result of a compromise by 60 participating countries from a variety of different legal traditions. Before the Model Law was created there was great disparity in domestic arbitration laws with some very liberal in form giving arbitrators wide authority and autonomy (mainly European civil law countries) and others more rigid, allowing close court supervision of the process (for example, England). Some countries (for example, Vietnam) had no arbitration law at all. According to its drafters, the Model Law was also designed to “level the playing field” between the dominant players in the arbitration market (France, United Kingdom, United States and Switzerland) and the countries with less developed regimes but great keenness to attract international dispute resolution business (for example, Singapore and Australia). Unlike a treaty, whose provisions have to be enacted in full, the idea behind the Model Law was to allow states freedom to enact those provisions which they wanted and ignore the rest. In practice, however, most countries that have adopted the Model Law have largely enacted it in full or with only minor modifications. Most countries have been mindful of the need to insure uniformity in the area of arbitral procedure law. The Model Law now has wide acceptance, having been adopted in over 30 countries, including Australia, Canada, Germany, Hong Kong, India, Iran, Ireland, Mexico, New Zealand, Russian Federation, Singapore, Sri Lanka, Scotland and four states of the United States (including California). A number of other countries’ laws (for example, the Arbitration Act 1996 (UK)) while not adopting its principles directly nevertheless show strong signs of its influence (for example, in the implicit recognition of amiable composition in s 46(1)(b)). Moreover, a number of the leading global arbitral institutions (for example, the International Chamber of Commerce (ICC) in Paris, the London Court of International Arbitration (LCIA) in London and the American Arbitration Association (AAA) in the United States) have recently amended their procedural rules to be closer to the Model Law framework. Australia enacted the Model Law because it was felt that this would assist the country in becoming a centre for international arbitration as foreign parties would be attracted to arbitrating under an internationally agreed framework with no parochial or peculiar provisions of domestic law to trap or deter them. The Australian Working Group felt that enhancing party autonomy and limiting judicial intervention in the arbitral process would be good selling points to foreign parties, given that Australia had no reputation as a centre for international dispute resolution. As mentioned above, the Model Law embodies the progressive continental European tradition of arbitration, which is to minimise judicial intervention and maximise party autonomy. Its provisions are framed to allow parties great freedom in their choice of arbitral rules and procedures (see Art 19) with only a few mandatory requirements based on due process considerations such as the obligation [6.80]  333

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International Commercial Arbitration in Australia: Legal Framework and Problems cont. on the arbitrator to treat both parties equally and to give each a full opportunity to present its case; (Art 18) and the direction that each party supply the other with all information provided to the tribunal (Art 24(3)). Often, the parties will choose the rules of an arbitral institution to govern the arbitration [254] which may be very useful in an expensive and complex dispute requiring significant administrative support to resolve. The flexibility of the Model Law encourages this practice. There are also provisions in the Model Law which are designed to assist parties to an arbitration by giving them the right to obtain interim measures of protection from a court, or the arbitral tribunal, or to approach the court for assistance in appointing an arbitrator where the appointment process has broken down. The grounds for challenge of arbitrators are also significantly reduced under the Model Law, for example there is no general right of removal of an arbitrator for misconduct or incompetence as exists under the Commercial Arbitration Act 1984 (Vic) (CAA). In fact the only real bases for removal are where the arbitrator is found not to be impartial, lacking the stated qualifications or where he or she is unable or unwilling to perform their functions. The grounds for setting aside or challenge to an award are also much reduced compared to the CAA. Instead of broad categories of misconduct and misconducting the proceedings and a right of appeal on an error of law parties to a Model Law arbitration have only the New York Convention grounds to attack an award. As mentioned above, these grounds focus on serious irregularity in the process rather than the merits of the dispute and have been generally narrowly construed in favour of upholding the tribunal’s decision where possible. The Model Law also contains provisions for enforcement of agreements (Art 8) and awards (Arts 35 –​ 36) again closely modelled on the terms of the New York Convention, although in the case of awards, enforcement is not limited to foreign awards but would encompass an award made in Australia in a Model Law arbitration. Scope of Application of the Model Law in Australia An important issue to consider is when the provisions of the Model Law apply to an international commercial arbitration in Australia. The key point to note at the outset is that the Model Law does not apply to all such arbitrations. First, it will only apply to arbitration agreements entered into after 12 June 1989 or before that date where the parties have expressly agreed that the Model Law will apply. International Commercial Next, the Model Law only applies to “international commercial arbitration” as defined in Art 1, para 3. An arbitration is defined as “international” where: (a)

the parties to an arbitration agreement have, at the time of the conclusion of their agreement, their places of business in different countries;

(b)

one of the following places is situated outside the country in which the parties have their place of business:



(i)

the place of arbitration;



(ii)

any place where a substantial part of the contractual obligations is to be performed or the place most closely connected with the subject matter of the dispute; or [255]

(c)

the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.

As can be seen, the drafters of the Model Law provided a broad definition of the term “international”. The effect of paras (b) and (c), in particular, is that parties can convert an otherwise domestic agreement into an international one by merely selecting a foreign place of arbitration under (b)(i) or by making a declaration that the subject matter of the arbitration relates to more than one country (under (c)). 334 [6.80]

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International Commercial Arbitration in Australia: Legal Framework and Problems cont. Courts have also taken an expansive view of (b)(ii), namely “any place where a substantial part of the obligations is to be performed”. In a Hong Kong case, there was a contract for the sale of goods between two parties with their places of business in Hong Kong which provided for delivery of the goods in China. The delivery in China was found by the Hong Kong court to be a substantial part of the parties’ obligations and so the arbitration was “international”. As well as being “international”, for an arbitration to come within the scope of Art 1, it must also be “commercial”. There is included in Art 1 a footnote that provides a large list of relationships considered commercial. The list includes supply contracts for goods and services, agreements for distribution, agency, leasing, construction, financial services, joint ventures, mineral concessions and transport contracts. The use of the word “commercial” was therefore intended to be a broad concept, covering almost all situations in international trade. The Working Group engaged in drafting the Model Law did suggest that employment and consumer claims be excluded from the scope of the term. The use of the word “commercial” was also not intended to exclude state parties from the coverage of the Model Law and allow them to plead sovereign immunity. In a Canadian case involving an arbitration under Ch XI of the NAFTA treaty, the court found a dispute between the Mexican government and an American company over a permit to operate a waste dump to be “commercial” and so within the scope of the Model Law. While the matter did involve issues of government regulation and policy relating to environmental matters, the essence of the dispute was an investment and the treatment of investors under the NAFTA treaty. In practice, therefore, given the wide breadth of the terms “international” and “commercial” in Art 1 there will be few arbitration agreements with a foreign element that will not fall within the terms of the Model Law. However, where an agreement to arbitrate in Australia does not satisfy Art 1, then the provisions of the Commercial Arbitration Act 1984 will govern the arbitration. Excluding the Model Law Once the parties’ agreement is found to fall within Art 1, the Model Law will apply to govern the procedure of the arbitration. However, the Australian legislation then proceeds to give the parties a choice as to whether they wish to have the Model Law apply. Under s 21 of the IAA, the parties may agree that “any dispute that has arisen between them is to be settled otherwise than in accordance with the Model Law”. The intention of the drafters in enacting s 21 appears to have been to grant further flexibility to the parties by allowing them to choose a procedural law other than the Model Law to govern their arbitration. For example, the parties may choose the uniform State arbitration legislation (the CAA) or the curial law of another country, such as the Arbitration Act 1996 (UK). However, the choice of a foreign procedural law, while theoretically possible, would be in practice be unwise and complicate the process enormously. [256] An example of an agreement where parties were found to have excluded the Model Law in favour of the uniform legislation arose in the New South Wales case of Aerospatiale Holdings Australia Ltd v Elspan International Ltd (1992) 28 NSWLR 321. In that case, the court had to construe the following clause: Any dispute … shall be referred to arbitration for determination by a single arbitrator to be agreed between the parties or failing such agreement by a single arbitrator appointed by the President of the Institution of Engineers in accordance with the Commercial Arbitration Act NSW. The court found that the parties, by their reference to the New South Wales commercial arbitration legislation, had excluded the Model Law under s 21 of the IAA. Therefore, after this case, it would seem that courts are likely to construe any reference to the Commercial Arbitration Act 1984 in the parties’ agreement as an exclusion of the Model Law. However, mere silence as to the procedural law would not likely amount to an exclusion. A clause, for example, which provides for “arbitration in Sydney” and nothing more would mean that the Model Law would apply. [6.80]  335

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International Commercial Arbitration in Australia: Legal Framework and Problems cont. However, would an arbitration agreement that incorporates the rules of an arbitral institution, such as the ICC, or ad hoc rules such as the 1976 UNCITRAL Rules, amount to an exclusion of the Model Law under s 21? Recent authority has concluded that such an arbitration agreement would constitute an exclusion of the Model Law. However, the conclusion that a choice of arbitral rules amounts to an exclusion of the Model Law raises another problem. If the Model Law is not applicable as the procedural law of the arbitration, what is the procedural law? In the Eisenwerk and Gradipore cases, the view was expressed that any arbitration with its seat in Australia must have an underlying statutory procedural law. This is in contrast to the position to [sic] European countries such as France which recognise the concept of “delocalised” arbitration –​that is, an arbitration conducted entirely according to the terms of the parties’ agreement. In rejecting delocalisation, the Australian courts have clearly acted wisely: the concept of an arbitration proceeding without the assistance of the local courts may run into serious problems if interim measures of protection (for example, injunctions) are sought by one party. Because a tribunal has no coercive power over the parties to the agreement (for example, to imprison someone for contempt) or jurisdiction over third parties any injunctive orders must be either issued by the court or enforced by it to be effective. Reference to a national arbitration law which provides court access in such situations is therefore important. However, the real problem in the Australian context is not the rejection of delocalisation. It is the courts’ conclusion in the above cases that where the parties have made a choice of institutional or ad hoc rules in their arbitration agreement, the Model Law will be excluded, but the provisions of the Commercial Arbitration Act 1984 will not. The consequence then is that the mandatory provisions of this legislation will apply to the arbitration even though the parties did not actually choose this statute to govern their arbitration agreement. The issue is significant because of the important differences that exist between the rules of most major arbitral institutions and the provisions of the Commercial Arbitration Act 1984. The CAA allows for wide judicial intervention in the arbitral process (for example, as mentioned above, provisions allowing a party to approach the court to challenge the arbitrator’s jurisdiction during the reference, wider scope for arbitrator removal and the right of appeal on an error of law) whereas most institutional rules, similar to the Model Law, seek to limit access to the court in arbitration proceedings. Hence, parties will be largely denied the benefits of such rules due to the overriding operation of the CAA. The Model Law by contrast, would hardly conflict with institutional rules at all. [257] The recently drafted Australian Centre for International Commercial Arbitration (ACICA) Arbitration Rules seek to avoid the Eisenwerk problem by providing in Art 2(3) that “the parties, by selecting these Rules do not intend to exclude the operation of the Model Law”. Hopefully, courts will give effect to this provision and allow the Model Law to operate concurrently with the Rules. However, more fundamentally, s 21 of the IAA needs amendment by the federal parliament to provide that a choice of other institutional rules does not amount to an exclusion of the Model Law. Such an approach was taken in Singapore where a similar problem appeared with its legislation. An amendment to the IAA as proposed would have the effect of confining the CAA to domestic arbitrations, unless the parties had expressly chosen the CAA in their arbitration clause. Such an outcome would not only render the law simpler but also avoid the injustice of foreign parties being subjected to an arbitral regime which they would likely not have anticipated at the time of entering the agreement …

 [6.85] Since Professor Richard Garnett wrote the above article (at [6.80]), the federal gov-

ernment passed the International Arbitration Amendment Act 2010 (Cth) which, among other things, amended s 21 of the IAA to eliminate the choice parties had to opt-​out of the Model Law. Further, opt-​in provisions of the amended IAA give parties greater protection over confidential information. The relevant amendments and their effects are discussed in the following extract. 336 [6.85]

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Towards a New Brand of Australian International Arbitration [6.90]  P Megens and A Peters, “International Arbitration Amendment Act 2010 –​Towards a New Brand of Australian International Arbitration” (2011) 30(1) The Arbitrator & Mediator 43 at 52-​53 and  61-​62. A. Model law now covers the field Under the new s 21 of the IAA, parties are no longer able to exclude the operation of the Model Law. Prior to the amendment of s 21, it was possible for the parties to opt-​out of the application of the Model Law by agreeing that any dispute between them would be settled otherwise than in accordance with the Model Law. The parties could, for example, choose to adopt an alternative law to apply to an arbitral proceeding or simply agree that the Model Law will not apply. While this ability to tailor the governing law of arbitration was consistent with arbitration’s consensual underpinnings, it gave rise to a number of problems. First, while the parties could choose to opt-​out of the Model Law, other provisions of the IAA could continue to apply even though those provisions were reliant upon the Model Law. Second, particular difficulties could arise if parties had agreed to exclude the Model Law but had not specified an alternative law to govern an arbitration. In such a case, a dispute between the parties will be further compounded by the need to decide what law will govern the arbitral proceedings. Finally, the unamended formulation of section 21 has given rise to problematic decisions such as Eisenwerk. In Eisenwerk, the Queensland Court of Appeal held that if parties have chosen to adopt a set of institutional arbitral rules (in that case the ICC Rules) to govern an arbitration, then they had in that case evinced an intention to exclude the operation of the Model Law for the purposes of s 21 of the IAA. Such an implied exclusion has the detrimental consequence of depriving a party of an avenue for recourse under the Model Law that ought properly be available to it. The Eisenwerk decision, it is submitted is clearly wrong and has been subject to criticism for its failure to recognise that the Model Law can co-​exist with alternative systems of arbitral rules. We note with some concern that the Qld Court of Appeal recently had an opportunity to itself overrule Eisenwerk but declined to do so. To address these concerns, the Amending Act has revised s 21 of the IAA to provide simply that if the Model Law applies to an arbitration, the law of a State or Territory relating to the arbitration does not apply to that arbitration. The new s 21 is aptly headed “Model Law covers the field” and the ability to opt-​out of the Model Law’s application has noticeably been removed. This illustrates a clear Parliamentary intention to have the Model Law apply in all cases of international arbitration governed by the IAA. The amendment to s 21 also clarifies the position that if the Model Law applies, then any potentially applicable State or Territory laws (such as the state Commercial Arbitration Acts) have no residual application. Such a position makes clear, particularly to the courts, that the exclusive application of the IAA and the Model Law should not be undermined. The choice of an institutional set [53] of procedural rules will now also not exclude the operation of the Model Law. This amendment to s 21 also settles the much vexed issue of whether State and Territory laws have any residual application in the context of international arbitration. It is now clear that no such residual application exists. However there have been concerns expressed that the removal of the ability to opt-​out of the Model Law has “undesirably compromise[d]‌party autonomy”. The response to these concerns is contained in the Model Law itself. In particular, Art 19 of the Model Law preserves the ability of the parties to decide what procedural rules will govern an arbitration, and Art 28 contemplates the parties’ right to decide the law that will apply to the substance of their dispute. On its face, it does not seem possible for the Model Law to always “cover the field” harmoniously in circumstances where the parties have chosen to adopt a set of rules for the procedural aspects of the arbitration. In such circumstances, there are two potentially conflicting sets of rules -​the Model Law and the arbitral rules chosen to govern procedure. However by enacting the new s 21, Parliament must have intended for the Model Law to “co-​exist” with any alternative rules which the parties have nominated to govern [6.90]  337

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Towards a New Brand of Australian International Arbitration cont. the arbitration. In practice, we suggest that what this is likely to mean is that the nominated rules will apply, but in the event that the nominated rules do not provide for the particular issue in dispute, then the parties may have recourse to the Model Law. Such an interpretation arguably strikes a desirable balance between maintaining the autonomy of the parties on the one hand and ensuring that the Model Law covers the field in relation to international arbitration …



AUSTRALIAN DOMESTIC ARBITRATION –​UNIFORM LEGISLATION [6.95]  As stated at [6.30], all six States and one Territory of Australia have passed the new

uniform Act. This section of the chapter will discuss some of the key operational areas of the Act, and for the sake of ease, the Commercial Arbitration Act 2010 (NSW) will be used as the reference point. Part 1A Preliminary, s 1C –​paramount object of the Act [6.100]  The new Acts have a paramount object to guide the interpretation of the Acts. In this

respect , s 1C of the Acts states:

Commercial Arbitration Act 2010 (NSW) s 1C [6.102]  Section 1C (1)

The paramount object of this Act is to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense.

(2)

This Act aims to achieve its paramount object by:



(a)

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), and



(b)

providing arbitration procedures that enable commercial disputes to be resolved in a cost effective manner, informally and quickly.

(3)

This Act must be interpreted, and the functions of an arbitral tribunal must be exercised, so that (as far as practicable) the paramount object of this Act is achieved.

(4)

Subsection (3) does not affect the application of section 33 of the Interpretation Act 1987 for the purposes of interpreting this Act.

 [6.103]  During debate on the second reading of the Commercial Arbitration Bill 2010, NSW

government backbencher Kayee Griffin made the following statement in her speech about the paramount objective: The Commercial Arbitration Bill 2010 aims to ensure that arbitration can provide an efficient and cost-​effective alternative to litigation for parties seeking to settle their commercial disputes. The bill’s paramount objective is to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense. It aims to achieve this by enabling parties to agree about how their commercial disputes are resolved, subject to safeguards necessary in the public interest, and providing arbitration procedures that enable disputes to be resolved in a cost-​effective manner, informally and quickly. To preserve the attributes that make arbitration a viable and attractive alternative dispute resolution process, 338 [6.95]

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the bill also clearly defines and limits the role of the courts in arbitration while maintaining the important protective function they exercise.2

Part 1 General provisions, s 1 –​scope of application [6.105] Section  1(1) of the Acts states, “This Act applies to domestic commercial arbitra-

tions”. The word “commercial” is defined in the footnote to s 1(1) by adopting the interpretation given to the word by the Art 1(1) of the Model Law. The footnote states: The term “commercial” should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business co-​operation; carriage of goods or passengers by air, sea, rail or road.

Section 1(3) and (4) of the Acts state:

Commercial Arbitration Act 2010 (NSW) s 1 [6.107]  Section 1 (3)

An arbitration is “domestic” if:



(a)

the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in Australia, and



(b)

the parties have (whether in the arbitration agreement or in any other document in writing) agreed that any dispute that has arisen or may arise between them is to be settled by arbitration, and



(c)

it is not an arbitration to which the Model Law (as given effect by the International Arbitration Act 1974 of the Commonwealth) applies.

(4)

For the purposes of paragraph (3) of this article:



(a)

if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement;



(b)

if a party does not have a place of business, reference is to be made to his habitual residence.

 [6.108] Section  1(3)(c) specifically precludes arbitration to which the IAA applies. It was

drafted in order to avoid confusion regarding whether arbitration was governed by the domestic Acts or the IAA. Part 2 Arbitration agreement, s 7 –​definition and form of arbitration agreement [6.110]  For the Acts to be invoked, the parties are required to have an “arbitration agree-

ment”, which is defined by s 7 as meaning: 2 New South Wales, Parliamentary Debates, Legislative Council, 9  June 2010, 23996-​24033 (The Hon Kayee Griffin). [6.110]  339

Dispute Resolution in Australia: Cases, Commentary and Materials

Commercial Arbitration Act 2010 (NSW) s 7 [6.112]  Section 7 (1)

An “arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

(2)

An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

(3)

The arbitration agreement must be in writing.

(4)

An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means.

(5)

The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained in it is accessible so as to be useable for subsequent reference.

(6)

In this section: data message means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy. electronic communication means any communication that the parties make by means of data messages.

(7)

Furthermore, an arbitration agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other.

(8)

The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract.

 [6.113]  The legislation notes that s 7 is substantially the same as Option 1 of Art 7 of the

Model Law. Although the Acts adopt a requirement for arbitration agreements to be in writing, the common law still allows for a verbal agreement, and any such arbitration triggered by a verbal agreement would be conducted under common law rules. Section 8 of the Acts states that, “a court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party’s first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed”. This section gives the court the right to refer matters to arbitration without one or more parties’ consent where they have previously agreed to arbitration should a dispute arise. [6.115] The courts do not require the use of special words to be used preferring that the

words used make it apparent that the parties intended that any disputes that arise under the agreement be resolved through arbitration. In other words, the arbitration agreement itself must make it clear that arbitration is the chosen process to deal with a dispute. Further, the words must indicate that arbitration rather than any other form of dispute resolution is the preferred method. 340 [6.112]

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Part 3 Appointing the arbitrator

Section 11 –​Appointment of arbitrators [6.120]  Section 11 of the Act provides that the parties to arbitration are free to agree on a

procedure to appoint an arbitrator or arbitrators. The note to s 11 states that this section is modelled on Art 11 of the Model Law. Section 11 states:

Commercial Arbitration Act 2010 (NSW) s 11 [6.123]  Section 11 (1)

Note: Art 11 (1) of the Model Law (which provides that no person is precluded by nationality from acting as an arbitrator unless otherwise agreed by the parties) has been omitted.

(2)

The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of subsections (4) and (5).

(3)

Failing such agreement:



(a)

in an arbitration with 3 arbitrators and 2 parties, each party is to appoint one arbitrator, and the 2 arbitrators so appointed are to appoint the third arbitrator; if a party fails to appoint the arbitrator within 30 days of receipt of a request to do so from the other party, or if the 2 arbitrators fail to agree on the third arbitrator within 30 days of their appointment, the appointment is to be made, on the request of a party, by the Court, and



(b)

in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, an arbitrator is to be appointed, on the request of a party, by the Court, and



(c)

in an arbitration with 2, 4 or more arbitrators or with 3 arbitrators and more than 2 parties the appointment is to be made, at the request of a party, by the Court.

(4)

Where, under an appointment procedure agreed on by the parties:



(a)

a party fails to act as required under the procedure, or



(b)

the parties, or 2 or more arbitrators, are unable to reach an agreement expected of them under the procedure, or



(c)

a third party, including an institution, fails to perform any function entrusted to it under the procedure,

any party may request the Court to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. (5)

A decision within the limits of the Court’s authority on a matter entrusted by subsection (3) or (4) to the Court is final.

(6)

The Court, in appointing an arbitrator, is to have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator.

 [6.125]  Parties sometimes request an arbitrator with special qualifications (expressed pos-

itively) that enable them to have some appreciation for the subject matter of the dispute or they may specify arbitrators that exclude certain qualifications (expressed negatively) for example a lawyer. The following excerpt explains the requirement for special qualifications for appointment as an arbitrator: Where the parties have agreed that the arbitration shall be before a person or persons having special qualifications, the award of non-​qualified persons will be void, as the agreed [6.125]  341

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qualifications of the arbitration tribunal refer to its jurisdiction to act:  Re Backhouse and Taylor (1851) 20 LJQB 233; French Government v Tsurushima Maru (owners) (1921) 7 Ll L Rep 244, on appeal French Government v Tsurushima Maru (owners) (1921) 8 Ll L Rep 403. In  Jungheim, Hopkins & Co v Foukelmann  [1909] 2 KB 948, the arbitrator was required to be a member of the trade association. See also  Merchants’ Marine Insurance Co Ltd v North of England Protecting & Indemnity Association (1926) 32 Com Cas 165; Ringland v Lowndes (1864) 17 CB (NS) 514; 144 ER 207. Unless the agreement between the parties otherwise provides, if an arbitrator satisfies the necessary qualifications at the time of his or her appointment, the arbitrator should not be disqualified from holding that position by his or her subsequent retirement from the position which clothed him or her with the necessary qualifications at the time of appointment. In Pan Atlantic Group Inc v Hassneh Insurance Co of Israel Ltd [1992] 2 Lloyd’s Rep 120 the court per Sir Donald Nicholls VC, Russell and Leggat LJJ held that it would be ridiculous if an arbitrator on accepting an appointment was impliedly expected to remain employed in the position which gave him or her qualifications for the duration of the arbitration. Provided the person nominated has the special qualifications, the other party or parties to the arbitration are not concerned as to the first party’s method of selection:  Re Shaw and Sims (1851) 17 LTOS 160. The qualifications can be expressed either positively or negatively.3

Section 12 –​grounds for challenge [6.130]  Section 12 of the Act provides grounds where parties can challenge the appointment

of an arbitrator or arbitrators. The section is modelled on Art 12 of the Model Law and states the grounds as being:

Commercial Arbitration Act 2010 (NSW) s 12 [6.133]  Section 12 (1)

When a person is approached in connection with the person’s possible appointment as an arbitrator, the person must disclose any circumstances likely to give rise to justifiable doubts as to the person’s impartiality or independence.

(2)

An arbitrator, from the time of the arbitrator’s appointment and throughout the arbitral proceedings, must without delay disclose any circumstances of the kind referred to in subsection (1) to the parties unless they have already been informed of them by the arbitrator.

(3)

An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence, or if the arbitrator does not possess qualifications agreed to by the parties.

(4)

A party may challenge an arbitrator appointed by the party, or in whose appointment the party has participated, only for reasons of which the party becomes aware after the appointment has been made.

(5)

For the purposes of subsection (1), there are justifiable doubts as to the impartiality or independence of a person approached in connection with a possible appointment as arbitrator only if there is a real danger of bias on the part of the person in conducting the arbitration.

(6)

For the purposes of subsection (3), there are justifiable doubts as to the impartiality or independence of an arbitrator only if there is a real danger of bias on the part of the arbitrator in conducting the arbitration.

 3 Commercial Arbitration Law and Practice (Thomson Reuters, Sydney, May 2018), Update 187 at [CA27.60]. 342 [6.130]

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[6.135] In the following extract, the issue for the Court was whether an arbitrator who

according to the arbitration agreement was qualified when he entered upon the reference but later allegedly became unqualified could remain as the arbitrator of the dispute.

Pan Atlantic Group Inc v Hassneh Insurance Co of Israel Ltd [6.140]  Pan Atlantic Group Inc v Hassneh Insurance Co of Israel Ltd [1992] 2 Lloyd’s Rep 120 at 124-​126. [Facts: The plaintiff, Pan Atlantic, together with 18 other insurance companies, purchased a reinsurance contract from the defendant, Hassneh. Under the contract of reinsurance, the plaintiffs paid a premium to the defendant reinsurance company, who in exchange contracted to pay a share of the claims incurred by the plaintiffs when claims arose. The contract contained the following arbitration clause: ARTICLE 16 (a) All disputes of differences arising out of the interpretation of this Agreement shall be submitted to the decision of two Arbitrators, one to be chosen by each party and in the event of the Arbitrators failing to agree, to the decision of an Umpire to be chosen by the Arbitrators. The Arbitrators and Umpire shall be disinterested executive officials of insurance or reinsurance companies. If either of the parties fails to appoint an Arbitrator within one month after being required by the other party in writing to do so, or if the Arbitrators fail to appoint an Umpire, within one month of a request in writing by either of them to do so, such Arbitrator or Umpire, as the case may be, shall at the request of either party be appointed by the Chairman of the Reinsurance Offices Association of London … A dispute arose between the parties and the plaintiffs served on the defendant a notice of arbitration calling on the defendants to appoint an arbitrator within 30 days. The defendants appointed Mr John Butler of the Mercantile and General Insurance Co, who at the time of his appointment was a non-​practising barrister as well as the President of the Association Internationale de Droit des Assurances and of the British Insurance Law Association. He was an initiator of the French Association’s Reinsurance and Insurance Arbitration Service, and for 10 years was frequently appointed as an arbitrator in insurance and reinsurance disputes. He is the co-​author of Butler & Merkin on Reinsurance Law, a leading textbook on the subject and had worked for M&G for 29 years, for all but four as its Legal Officer. Two and a half years after his appointment as arbitrator in this dispute, he retired from M&G. The plaintiffs sought an order from the Court disqualifying Mr Butler as an arbitrator. The issue before the Court was whether, given Mr Butler’s retirement, he was qualified as an “executive official of an insurance or reinsurance company” under the second sentence of Article 16. Held: The arbitration clause did not stipulate that ex-​officials could remain as arbitrators not withstanding retirement nor did it stipulate that arbitrators had to remain employed until after their award was made. The purpose of the clause was to ensure that the right sort of persons sat as arbitrators rather than to ensure that those appointed remained officials of the insurance or reinsurance companies] [124] Leggatt LJ: The approach to be adopted is well summarized by the second edition of Mustill and Boyd on Commercial Arbitration at p. 249, where the editors say: Where the appointed arbitrator does not possess the required qualifications, his appointment is nugatory and any award which he may make is void. By their agreement to arbitrate, the parties contracted to honour an award made by a duly qualified arbitrator; but they promised nothing with regard to the award of anyone else. Unlike the position where the complaint is of incapacity or bias, the Court has no discretion to uphold an appointment or award where the arbitrator lacks the qualifications stipulated in the contract. Subject to waiver, it has no choice but to treat the proceedings and the award as void. It is common ground that Mr. Butler was at the time of his appointment a disinterested official of an insurance company, that he is not at this time and, so far as is known, will not be at the date when [6.140]  343

Dispute Resolution in Australia: Cases, Commentary and Materials

Pan Atlantic Group Inc v Hassneh Insurance Co of Israel Ltd cont. the hearing either begins or ends or at the date of the award, an official of an insurance company, and that, in accordance with the passage I have read from Mustill and Boyd, if he is found to be lacking the necessary qualifications at whatever is the material time for the purposes of art. 16, he would not be entitled to act as arbitrator in default of waiver, and there has been no waiver. It was argued in the Court below, but not in this Court, that Mr. Butler has ceased to be disinterested because the firm which he has joined [125] as a consultant might be drawn into the dispute between the parties in one way or another. That submission is not persisted in, and Mr. Butler’s appointment is sought to be impugned, not on the footing that he is not disinterested, but on the footing that he is no longer qualified. The issue for present purposes accordingly is whether the fact that Mr. Butler was at the date of his appointment, but no longer is, an official of an insurance company, disqualifies him from continuing to act as an arbitrator. Mr. Beloff, on the appellant’s behalf, advances four reasons for construing the clause in such a way as to require that the qualifications should be enjoyed by an arbitrator, not only at the date of appointment, but throughout the currency of the arbitration. He invites the Court to look at art. 16(a) through the eyes of an officious bystander, and an officious bystander doing so after the appointment but before the hearing of the arbitration. He contends that such a person would assume that the qualifications referred to in par. (a) of art. 16 would still have to be enjoyed at the date of the hearing and indeed at the date of the publication of the award. The absence of an express time limit in art. 16, such as, “at the date of appointment” with reference to the qualifications to be enjoyed, Mr. Beloff contends, should result in a construction of the clause which would require possession of the qualifications without time limitation, i.e. throughout the currency of the arbitration. In my judgment the absence of a time limit tells nothing. Mr. Beloff says that the clause could have stipulated that ex-​officials could remain as arbitrators notwithstanding retirement. Equally, it could have been said that arbitrators must remain employed until after their award has been made. It did neither, and that suggests that it was not concerned with any stage in the arbitration after appointment. If it had said anything about the need to maintain qualification so long as the arbitrator remained, it would have seemed unnecessary and indeed otiose. The purpose of the clause is to ensure that the right sort of persons sit as arbitrators, rather than to ensure that those appointed keep their hand in. Mr. Beloff’s second argument is that the reference in par. (a) of art. 16 to the words, “decision of the arbitrators” puts a focus upon the need to continue to enjoy the qualifications until such time as the decision is given, that is, after the hearing and in the form of an award. The subject-​matter of par. (a) of art. 16 is the composition of the tribunal. The first sentence deals with the method of selection of two arbitrators and an umpire and it is, of course, to them that the dispute is to be submitted. The use of the word, “decision” is not for purposes of emphasis, but simply to identify, by reference to their purpose, the persons by whom the tribunal is to be constituted. It merely refers to the method of determination of the dispute or difference. The second sentence describes the qualifications of the persons who are to be appointed and the third sentence deals with default of appointment. The context seems to me to be firmly set at the stage of appointment. Mr. Beloff’s third argument is that it is inconceivable that it was envisaged that the arbitrators could be other than disinterested at the date of the hearing, and therefore the same consideration should apply to the possession of the other part of the qualification, that is to say, the need to be in the employment of an insurance or reinsurance company at the same time. The description of the arbitrators and umpire in the second sentence of art. 16, par. (a), is of persons of requisite experience who have no interest in the dispute. For my part, I doubt whether it is right to infer that the draftsman was content to leave bias after appointment to be dealt with according to the common law. It is more likely that it is directed to procuring that the persons chosen should have the specified qualifications. The loss of either qualification is unlikely. I therefore do not consider it sensible to contemplate that the clause was evolved with the object of ensuring that the arbitrators remain experienced, and indeed disinterested, until they have made their award. It seems to me that there was no necessary focus upon the stage at which it was required that the arbitrators appointed should be disinterested. 344 [6.140]

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Pan Atlantic Group Inc v Hassneh Insurance Co of Israel Ltd cont. Mr. Beloff’s fourth argument is that the experience which was presumably thought desirable that the arbitrators should enjoy might have receded in the memory of a retired arbitrator, at any rate if any length of time had elapsed between his retiring as an official of an insurance company and the publication of his award. Mr. Beloff contends that in any event, passage of time following retirement as an employee of an insurance or reinsurance company might render him of what Mr. Beloff calls “less utility” in case market practices might have changed in the meanwhile. He also instances a requirement such as is not present in this arbitration clause, but which is sometimes found, that the person concerned should not be a lawyer. If such a person, having been appointed as an arbitrator, were to acquire the qualification of a lawyer he would seem to be flying in the face of the prohibition in the arbitration [126] clause. As against that, however, it might be thought that he would have relatively little time in which to acquire the pedantry and the hide-​bound approach which might be thought to be the objectionable characteristics that a lawyer might bring to the arbitration process. Mr. Beloff’s argument about the risk of the experience enjoyed by arbitrators having receded in memory seems to me to miss the mark. It is with the practice of the time when the dispute arose that the arbitrators must be familiar, and that is ensured by the requirement that they should still be serving employees at the time of appointment. The pool of arbitrators is a relatively small one, at any rate in relation to the volume of work. Those who might be expected to be allowed to take time to sit as arbitrators would normally be senior employees. It would be ridiculous if, on accepting appointment, an arbitrator were impliedly expected to accept an obligation to remain employed, assuming it was a matter within his own choice, so long as the arbitration might subsist. If that were indeed the true construction of the clause, the number of those willing to accept appointment as arbitrators might be considerably diminished. Mr. Beloff also looks to the practical consequences of the rival constructions of art. 16(a). He starts by remarking that adverse practical consequences should not be held to detract from the result which is reached by correct analysis of the words used, and with that Mr. Flaux, had we heard him, would no doubt have been constrained to agree. Mr. Beloff also argues that the need for an arbitrator to retire his appointments if he retires his position is not at all absurd, and he observes that a disqualification can be waived. But in circumstances such as these, where there has been no waiver, that must be adjudged a bold submission. Finally, in this context, he gives an example of how the memory of the arbitrator might fade, were he to retire as an official immediately after appointment and the award not be given for five or, as Mr. Beloff speculates, even 10 years after that stage. That seems to me to be an extreme, if not an extravagant, example, which does nothing to assist in the proper construction of the clause. For my part, I doubt whether it would occur, or whether it would have occurred to any commercial lawyer or prospective arbitrator, that the qualification required by art. 16 might be intended to be a continuing one. The notion has been, if I may so say, contrived by the appellant’s lawyers, and Mr. Beloff has striven, with characteristic skill and ingenuity, to lend the argument respectability. In my judgment, he has failed. The answer to the question why the plaintiffs should be intent on removing Mr. Butler instead of waiving any objection they might have to his sitting as arbitrator, appeared at one time to be that the appellants were trying to achieve the result that their own arbitrator should sit as sole arbitrator. That would not have been a very creditable plan, and they have resiled from that submission. Now they say that, though they do not impugn Mr. Butler’s disinterestedness, they take their stand on their legal right to challenge his qualification to act. In my judgment, the point is devoid of merit. Mr. Butler was appointed two and a half years before retirement and retired as an executive official four months before the arbitration was due to be heard. He is as well qualified as anyone to sit as an arbitrator, his experience enhanced by his new-​found association with leading insurance solicitors. For the reasons I have given, there is no qualification required by art. 16(a) which Mr. Butler does not possess. I would dismiss the appeal.

 [6.140]  345

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Part 4 Jurisdiction of arbitral tribunal, s 16 –​competence of arbitral tribunal to rule on its own jurisdiction [6.145]  Section 16 of the Act empowers the arbitral tribunal to rule on its own jurisdiction

and is based on Art 16 of the Model Law. Section 16 states:

Commercial Arbitration Act 2010 (NSW) s 16 [6.147]  Section 16 (1)

The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.

(2)

For that purpose, an arbitration clause which forms part of a contract is to be treated as an agreement independent of the other terms of the contract.

(3)

A decision by the arbitral tribunal that the contract is null and void does not of itself entail the invalidity of the arbitration clause.

(4)

A plea that the arbitral tribunal does not have jurisdiction must be raised not later than the submission of the statement of defence.

(5)

A party is not precluded from raising such a plea by the fact that the party has appointed, or participated in the appointment of, an arbitrator.

(6)

A plea that the arbitral tribunal is exceeding the scope of its authority must be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings …

 [6.148]  The following extract addresses the issue of arbitration clauses living on after a con-

tract is found by the tribunal to be null and void due to, for example, an error at the formation stage of the contract.

QH Tours Ltd v Ship Design & Management (Aust) Pty Ltd [6.150]  QH Tours Ltd v Ship Design & Management (Aust) Pty Ltd (1991) 33 FCR 227 at 235-​236, 239-​240. [Facts: The applicant is involved in the tourism industry and entered a contract with the respondent to design and construct a cruise vessel to conduct tours in the waters of the Great Barrier Reef. The purchase agreement contained an arbitration clause. In the course of discussing and negotiating the agreement the respondent made certain representations about its knowledge and skill in designing and building of cruise ships and in particular its ability to build a 73 metre cruise ship in accordance with certain specifications and to the standard subsequently set out in the agreement. The agreement specified that the cruise ship would be built promptly and within 15 months of the date of the agreement. The ship was not completed on time and remained incomplete. The applicant alleged that each of the representations made by the respondents were false and constituted misleading or deceptive conduct. The court has before it a notice of motion brought by the first and second respondents in these proceedings seeking orders that the action be dismissed, or in the alternative stayed on the basis that the proceedings should be referred to the decision of an arbitrator. The applicants submit, in answer, that the current proceedings, cannot, as a matter of law, be dealt with by an arbitrator. They assert that the claim that the contract should be set aside ab initio is not one that can be dealt with by an arbitrator whose jurisdiction comes from a clause of the same contract. Held: An arbitrator is not prevented by any rule of law from deciding whether the contract, in which the arbitration clause empowering him to arbitrate is incorporated, is void ab initio. Further an arbitration clause, generally speaking, can be regarded as severable from the main contract with the result that an arbitrator, if 346 [6.145]

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QH Tours Ltd v Ship Design & Management (Aust) Pty Ltd cont. otherwise empowered to do so, can declare the main contract void ab initio without at the same time destroying the basis of his power to do so.] [234] Foster J: The perceived impediment to an arbitrator deciding whether or not the contract containing the arbitration clause under which he is appointed is void ab initio appears to arise from certain passages in the speeches in the case of Heyman v Darwins Ltd [1942] AC 356, a decision of the House of Lords of great significance in the law of contract dealing with the repudiation of agreements. The headnote encapsulates the essential point decided in the case. It reads, so far as relevant, as follows: “ ‘When an arbitration clause in a contract provides without any qualification that any difference or dispute which may arise ‘in respect of’ or ‘with regard to’ or ‘under the contract’ shall be referred to arbitration, and the parties are at one in asserting that they entered into a binding contract, the clause will apply even if the dispute involves an assertion by one party that circumstances have arisen, whether before or after the contract has been partly performed, which have the effect of discharging one or both parties from all subsequent liability under the [236] contract, such as repudiation of the contract by one party accepted by the other, or frustration of the contract”. The case involved only allegations that a contract duly entered into had been subsequently repudiated by one of the parties. It was held that, on a proper construction of the arbitration clause in question, this question fell to be determined by the arbitrator. The case, however, contains passages which clearly gave rise to the following further statement in the headnote: “Secus, generally, if the point in dispute is whether the contract containing the clause was ever entered into at all or was void ab initio, for example, because the making of it was illegal”. … [239] However, there can be no doubt that the view has been taken in subsequent cases, in England, that Heyman (supra) laid down a rule of law to the effect that an arbitrator can in no circumstances be clothed with the power of deciding whether the contract, in which the arbitration clause is incorporated, is void ab initio. Thus in Ashville Investments Ltd v Elmer Contractors Ltd [1988] 3 WLR 867; [1988] 2 All ER 577, May LJ said (at 873; 582): “ ... it has been decided and is a principle of law that an arbitrator does not have jurisdiction, nor can the arbitration agreement be construed to give him jurisdiction, to rule upon the initial existence of the contract. On the other hand, given an appropriate arbitration clause, an arbitrator does in general have jurisdiction to rule upon the continued existence of the contract: see Heyman v Darwins Ltd and H J Mustill and S C Boyd, The Law & Practice of Commercial Arbitration in England (1982), p 78 et seq”. (See also at 877-​878; 584-​585). May LJ (at 878; 586) considered the passage from the speech of Viscount Simon LC in Heyman quoted above and stated that, whilst it was obiter, it was: “quite clear that in Heyman’s case the House of Lords were intending to give general guidance on the scope of arbitration clauses where the dispute was whether the contract was ever made or whether it had come to an end as a result of an accepted repudiation”. His Lordship said that “in those circumstances I would not lightly decline to follow such guidance, even though strictly obiter, if I thought it were applicable to our case”. Balcombe LJ (at 883; 589) described as “clearly right” the proposition that “an arbitrator cannot have jurisdiction to decide that the contract under which he is appointed is void or voidable, since by so doing he would be destroying the very basis of his own position”. Finally, Bingham LJ (at 884; 591) stated that: “A non-​statutory arbitrator derives his jurisdiction from the agreement of the parties at whose instance he is appointed. He has such jurisdiction as they agree to give him and none that they do [6.150]  347

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QH Tours Ltd v Ship Design & Management (Aust) Pty Ltd cont. not. The only inherent limitation is that he cannot make a binding award as to the initial existence of the agreement from which his jurisdiction is said to derive”. [240] For my part, I am unable to accept that Heyman is authority for any such broad proposition. I am fortified in this view by the discussion of this topic to be found in M S Jacobs, Commercial Arbitration Law and Practice (1990), pars 5.140, 5.220-​5.230. I am not satisfied that there is any rule of law which prohibits the empowering of an arbitrator to decide the initial validity of the contract containing the arbitration clause. With respect to those who hold a different view, I do not consider that there is any “received doctrine” to this effect. Moreover, having regard to the specific nature of an arbitration clause, as discussed by Lord Wright in Heyman, I consider that, generally speaking, it can be regarded as severable from the main contract with the result that, logically, an arbitrator, if otherwise empowered to do so, can declare the main contract void ab initio without at the same time destroying the basis of his power to do so. I am therefore of the view that, in the present case, an arbitrator appointed under cl 16, having regard to the width of the clause, as already discussed, would have the necessary power to declare the main contract void ab initio as a result of breaches of s 52 of the Act. I should add that when cl 16 is considered in the context of the whole of the purchaser agreement, further assistance is found for concluding that it is wide enough to give the arbitrator this power.

 Part 4A Interim measures, s 17A –​conditions for granting interim measures [6.155]  Section 17 gives the parties to arbitration the right to empower the arbitral tribu-

nal to grant interim measures upon request by the parties. The section also defines the term “interim measures” in the following way:

Commercial Arbitration Act 2010 (NSW) s 17 [6.156]  Section 17 (2)

An “interim measure” is any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party to:



(a)

maintain or restore the status quo pending determination of the dispute, or



(b)

take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself, or



(c)

provide a means of preserving assets out of which a subsequent award may be satisfied, or



(d)

preserve evidence that may be relevant and material to the resolution of the dispute.

 [6.157]  Section 17A sets out the conditions for granting interim measures and states:

Commercial Arbitration Act 2010 (NSW) s 17A [6.158]  Section 17A (1)

The party requesting an interim measure under section 17 (2) (a), (b) or (c) must satisfy the arbitral tribunal that:

348 [6.155]

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Commercial Arbitration Act 2010 (NSW) s 17A cont.

(a)

harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and that harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted, and



(b)

there is a reasonable possibility that the requesting party will succeed on the merits of the claim.

(2)

The determination on the possibility referred to in subsection (1) (b) does not affect the discretion of the arbitral tribunal in making any subsequent determination.

(3)

With regard to a request for an interim measure under section 17 (2) (d), the requirements in subsection (1) (a) and (b) and subsection (2) apply only to the extent the arbitral tribunal considers appropriate.

 [6.159]  The following extract is a landmark decision of the High Court of Australia that dis-

cusses the conditions by which an interlocutory injunction may be granted. While the granting of the interlocutory injunction was not heard by an arbitrator, the extract looks at the balance of convenience in granting an injunction that applies to all such applications.

Beecham Group Ltd v Bristol Laboratories Pty Ltd [6.160]  Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1 at 4-​10  (HCA) [Facts: The plaintiff/​applicant, Beecham, owned certain patents for penicillin nucleus that allow the production of a semi-​synthetic penicillin called “ampicillin” and for the production processes to produce the drug. The alleged patent infringement consisted of the defendant/​respondent advertising, offering for sale, selling and supplying in Australia of a semi-​synthetic penicillin called “hetacillin” which is manufactured outside of Australia. Hetacillin is chemically a different structure to ampicillin however it is produced by a process that uses the same penicillin nucleus. The applicant alleged that if hetacillin were produced in Australia some of its patents would be infringed both through manufacture and use of the chemical. Hetacillin is produced overseas under licence but the applicant asserted that its sale in Australia would be an infringement of its patents. The respondent asserted that hetacillin is a different substance from ampicillin and that no infringement occurs by its use in Australia. The applicant applied for an interlocutory injunction preventing the respondent from bringing hetacillin into Australia. The court at first instance rejected the applicant’s application for an interlocutory injunction. The applicant appealed to the full court of the High Court of Australia (then consisting of five justices). Held: Appeal allowed on the basis that the balance of convenience favours the granting of the injunction because protecting the applicant’s goodwill built from an established product outweighs any injury the respondent would suffer given its product is a new product on the market.] McTiernan J, Kitto, Taylor, Menzies and Owen JJ: 4.

It is as well to begin consideration of the appeal by recalling the principles to be observed in dealing with applications for interlocutory injunctions in patent cases. The jurisdiction is discretionary, being a part of the jurisdiction under s 31 of the Judiciary Act 1903-​1965 (Cth) to make all such orders as are necessary for doing complete justice in the cause. The Court addresses itself in all cases, patent as well as other, to two main inquiries. The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief: Preston v Luck (1884) 27 ChD 497 at 506; Challender v Royle (1887) 36 ChD 425 at 436. How strong the probability needs to be depends, no doubt, upon the nature of the rights he asserts and the practical consequences likely to flow from the order he seeks. Thus, if merely [6.160]  349

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Beecham Group Ltd v Bristol Laboratories Pty Ltd cont. pecuniary interests are involved, “some” probability of success is enough: Attorney-​General v Wigan Corporation (1854) 5 De GM & G 52 at 53, 54 [1854] EngR 309; (43 ER 789) and in general it is right to say, as Roper CJ in Eq said in Linfield Linen Pty Ltd v Nejain (1951) 51 SR (NSW) 280 at 281: There are disputes of fact as to a number of matters … but this being an application for an interlocutory injunction I look at the facts simply to ascertain whether the plaintiff has established a fair prima facie case and a fair probability of being able to succeed in that case at the hearing. 5.

This is generally true, but in a particular case it may be that although the plaintiff has shown a probability of success other considerations make it unjust to grant an injunction, especially if another form of interlocutory relief is possible. The second inquiry is directed to this aspect of the matter. It is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted. It is of course to be remembered that if an injunction be granted it will be upon terms of the plaintiff submitting, in the event of his ultimately failing, to such order as to damages as the Court may make in order to compensate the defendant for any injury caused by the injunction; and likewise it is to be remembered that if the injunction be refused the defendant may be required to keep an account of the profits he makes from the course of conduct of which the plaintiff complains, so that, if he loses the case and the plaintiff elects under s 118 of the Patents Act to recover the amount of those profits rather than damages, the quantum will be readily ascertainable …

7.

The chief questions to be decided at the trial concern the issue of infringement. We have had in the course of the argument a detailed review by counsel of the respective contentions of the parties under this head, but we think it neither necessary nor desirable to discuss them here. All that can be said without danger of prejudicing the ultimate decision is that upon the material at present before the Court the plaintiff has shown, in our opinion, so substantial a probability of succeeding in the action that it is entitled to have the status quo preserved. The defendant offered before McTiernan J, and has offered again on this appeal, to submit to an order that it keep full and proper accounts of all sales of its substance hetacillin, showing the quantities sold, the sale prices, the profits therefrom and the manner of calculating the profits, every sale of hetacillin being treated as having been made in place of a sale of the plaintiff’s substance ampicillin. The order under appeal, as drawn up, is a bare order that the defendant keep an account of all moneys received or to be received by it by reason of the sale or use of hetacillin in Australia. A variation of the order would therefore be necessary in any event; but the substantial question is whether the balance of convenience will be better served in the circumstances of the case by adopting that course or by granting an injunction until the trial.

8.

The learned Judge expressed the opinion that on the evidence it would seem that the balance of convenience would be strongly against the grant of an injunction, but he did not elaborate the statement. With great respect, we think the problem ought to be considered as Brett JA considered the corresponding problem in Plimpton v Spiller (1876) 4 Ch D 286 at 292, 293. He said: … if you assume that the defendant is in the right, there is no doubt that an injunction is a great hardship upon him; but if you assume that the plaintiff is right, then the mere keeping of an account by the defendant seems to me to be a great hardship on the plaintiff, for he would be driven to commence actions against the purchasers from and customers of the defendant, which would obviously lead to a multiplication of suits. There will be a hardship on the one side or on the other, and the question is, on which side does the balance appear to lie? Now if the trade of a defendant be an old and an established trade, I should say that the hardship upon him would be too great if an injunction were granted. But where, as here, the trade of the defendant is a new trade, and he is the seller of goods to a vast number of people, it seems to

350 [6.160]

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Beecham Group Ltd v Bristol Laboratories Pty Ltd cont. me to be less inconvenient, and less likely to produce irreparable damage, to stop him from selling, than it would be to allow him to sell and merely keep an account, thus forcing the plaintiff to commence a multitude of actions against the purchasers. Therefore, as a rule of conduct, I think that in such a case as this it is better, where the trade of the defendant is a new one –​and not an old established trade –​and where there are likely to be many customers of the new trade, to say that you will act against the new trader by injunction, whereas if he were carrying on an old trade you would act in the other way. 9.

The facts which appear to us to be decisive on this question may be stated quite briefly. In April 1967, after the plaintiff had been building up in Australia a substantial business in ampicillin over a period of several years, the defendant announced its intention of marketing hetacillin in Australia. The plaintiff on 10th May 1967 warned the defendant that if it began to do so proceedings for infringement of the patents would be taken. It was in the face of this warning that the defendant commenced the acts now complained of, and the action was thereafter instituted without delay. Any goodwill the defendant may since have built up for hetacillin would of course be destroyed or damaged by granting an injunction, but that was a risk the defendant took with its eyes open. If it be not restrained, it will presumably take advantage of the time before the hearing to subject the goodwill of the plaintiff’s established trade in ampicillin to the prejudice of competition from a product which the defendant maintains has some points of superiority. In no meaningful sense could matters be said to be kept in status quo if in these circumstances the defendant were left free to pursue its course, merely keeping an account of the profits it makes.

10.

There is a further point. The defendant’s conduct out of which this action arises is a part only of a campaign in which the defendant and its associated companies, after having worked for some years under agreements designed to divide the world market in ampicillin between the plaintiff and its associates on the one hand and themselves on the other, have set out to capture for hetacillin the trade which the plaintiff and its associates have enjoyed under those agreements. The campaign has resulted in litigation in several jurisdictions, in each of which, outside Australia, an interlocutory injunction has been granted to the present plaintiff or the party corresponding with it, after full consideration of the balance of convenience. We are persuaded upon the like consideration that the interests of justice will best be served by adhering to the general pattern of granting the patentee an injunction to keep the invader of its existing market at bay until a decision has been reached as to whether the invasion is lawful or not.

 Part 5 Conduct of arbitral proceedings

Section 19 –​Determination of rules of procedure [6.165]  The power for the tribunal to conduct arbitral proceedings is set out in Pt 5 of the

Acts and is more detailed in its approach to empowering the tribunal to so conduct proceedings than the superseded Acts. Section 19 is the main section that empowers the tribunal to conduct proceedings and states:

Commercial Arbitration Act 2010 (NSW) s 19 [6.167]  Section 19 (1)

Subject to the provisions of this Act, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. [6.167]  351

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Commercial Arbitration Act 2010 (NSW) s 19 cont. (2)

Failing such agreement, the arbitral tribunal may, subject to the provisions of this Act, conduct the arbitration in such manner as it considers appropriate.

(3)

The power conferred on the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

(4)

The power conferred on the tribunal also includes the power to make orders or give directions for the examination of a party or witness on oath or affirmation.

(5)

For the purposes of the exercise of the power referred to in subsection (4), the arbitral tribunal may administer any necessary oath or take any necessary affirmation.

(6)

An order made or direction given by an arbitral tribunal in the course of arbitral proceedings is, by leave of the Court, enforceable in the same manner as if it were an order of the Court and, where leave is so given, judgment may be entered in terms of the order or direction.

 [6.170]  When interpreting the power of an arbitrator note: When considering the powers of an arbitrator in detail, it must be remembered that subject to the express or implied provisions of the arbitration agreement, the provisions of the relevant legislation and considerations of natural justice, the procedure of the arbitration is controlled by the arbitrator and the courts do not have an inherent general power to control the activities of the arbitrator: Abu Dhabi Gas Liquefaction Co Ltd v Eastern Bechtel Corp [1982] 2 Lloyd’s Rep 425 per Watkins LJ; FR Waring (UK) Ltd v Administracao Geral do Acucar E do Alcool EP [1983] 1 Lloyd’s Rep 45; Kirkawa Corp v Gatoil Overseas Inc “The Peter Kirk” [1990] 1 Lloyd’s Rep 154 …4

In Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66, Martin CJ, with Buss JA concurring, had the following to say about the exercise of judicial power by an arbitral tribunal. His Honour said at [28]: Thirdly, arbitrators do not exercise judicial power; an arbitrator’s power is defined by the content of the relevant arbitration agreement and the lex arbitri -​see Electra Air Conditioning BV v Seeley International Pty Ltd ACN 054 687 035 [2008] FCAFC 169 [50]; Commonwealth v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662, 675 -​677 (Kirby P); Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 464. While a court is able to attach conditions to the orders which it makes which can limit the operation of those orders generally (Knight v Henderson [1958] VicRp 26; [1958] VR 134), and under the Act (s 7(2)), under Australian law (Ch III of the Australian Constitution), federal judicial power cannot be delegated to a non-​judicial person or body –​see Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45 [60]; Harris v Caladine (1991) 172 CLR 84; 65 ALJR 280, 94–​95. Accordingly, the powers conferred upon the court by the Act cannot be delegated by the court to an arbitrator. However, this is not to say that a court could not make orders which terminate upon the occurrence of an event, such as the appointment of an arbitrator. Such an order would not involve the delegation of judicial power –​rather it would define the extent of its exercise.

The following extracts highlight the common law’s approach to the power of and the rules binding arbitrators in the conduct of arbitral proceedings. As stated previously, while the Acts do not address each power and the following cases are established law prior to the Acts being assented to, the courts are likely to follow the established common law when it comes to interpreting the power of the tribunal to conduct proceedings. 4 Commercial Arbitration Law and Practice (Thomson Reuters, Sydney, May 2018), Update 187, at [CA34.120]. 352 [6.170]

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Arbitrators can only exercise powers granted to them [6.175] The primacy of the arbitration agreement is once again evidenced in the rule that

arbitrators can only exercise the powers granted to them under the arbitration agreement.

Phoenix v Pope [6.180]  Phoenix v Pope [1974] 1 WLR 719 at 723-​727. [Facts: Twelve partners in a real estate business signed a partnership agreement that lacked a method for the dissolution of the partnership. The partnership agreement contained an arbitration clause empowering an arbitrator to arbitrate any disputes arising under the partnership agreement. Eleven of the twelve partners served a notice of expulsion on the twelfth partner, who sought an order from the court dissolving the partnership. A stay of proceedings was sought on the dissolution proceedings so that the matter could be arbitrated. The plaintiff claimed that the arbitrator had no power to dissolve the partnership. Held: the arbitration clause in the partnership agreement was wide enough to include the power for the arbitrator to consider whether the partnership should be dissolved. That being so, the court found that it could order a stay of proceedings for the matter to be arbitrated.] [723] Goff J: There have been a number of cases –​on the subject which Mr Hames ably and carefully reviewed and which J Mr Waite, for the defendants, has also critically analysed before me, and one must see where they lead. The first is Russell v Russell (1880) 14 ChD 471. There the question whether the arbitrator could award dissolution was not argued, but in the opening words of his judgment Sir George Jessel MR clearly decided that he had such power. He said, at 474: The arbitration clause in this case is in terms sufficient to cover every dispute having any relation to the transactions between the partners, and it is clearly so expressed as to include the dispute in question. As to that there is no contest whatever. In that case, however, there was a provision in the partnership articles authorising one of the partners to determine it at will so that it did not raise the point involved in Mr Hames’s argument. Then came the highly important case of Joplin v Postlethwaite (1889) 61 LT 629 where the [724] partnership was for 14 years and there was no power of premature determination. As I read it, Kay J decided that the arbitrator could not deal with dissolution. I will cite two passages from his judgment, both at 631, the first: But what power has the arbitrator to say that the partnership shall be dissolved? The clause does not give him any such power, and I have no right to give the arbitrator any such power. It is not an arbitration directed by the court, but it is a provision agreed upon by the parties, and there is not a word in the arbitration clause about the arbitrator saying, “The partnership shall come to an end, I dissolve the partnership”. The arbitrator has no power of the kind. And the second passage: There is a question in it which the arbitrator has no power to determine, namely, whether the partnership shall be dissolved or not. That is a matter that can only be determined by the order of the court; and the court, before it makes that order, ought to be judicially satisfied that it is a case in which the order ought to be made. There was an appeal and the Court of Appeal did not say that Kay J was wrong. Indeed Cotton LJ expressed a doubt whether the matter did come within the arbitration clause. None of the three Lords Justices [Cotton, Bowen and Fry LJJ] however decided the case on that ground. They all said “anyway as a matter of discretion it is not right to grant a stay”. The law then might have developed on the lines that Kay J had decided, that the arbitrator has no such power and that such a decision was right, and that it is not a question of discretion at all. It looked as if it was going to do so when in 1891 Kekewich J decided Turnell v Sanderson (1891) 60 LJ Ch 703 in that sense. That again was a case where there was no express power in the articles to determine the partnership. However, Kekewich J did not [6.180]  353

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Phoenix v Pope cont. express any opinion of his own, but purported to follow the Court of Appeal in Joplin v Postlethwaite (1889) 61 LT 629, saying, at 704: I will not venture to say what my own opinion might have been as to whether the question falls within the arbitration clause, for in the case of Joplin v Postlethwaite, 61 LT 629 I have a distinct expression of opinion by the Court of Appeal that a question of dissolution does not come within an arbitration clause in articles of partnership. And again, at 705: Bowen LJ states that one of the matters to be determined was whether or not the partnership should be dissolved, and that was not a matter which should be determined by arbitration. With all respect, Kekewich J’s appraisal of the judgments of the Court of Appeal was, in my view, inaccurate. They did not say that a question of dissolution does not come within an arbitration clause, though Cotton LJ certainly doubted whether it did. In Vawdrey v Simpson [1896] 1 Ch 166, 168 Chitty J pointed out this error, though again, with all respect, he appears to me to have made another of his own, for he there said: In Joplin v Postlethwaite, 61 LT 629 Kay J, in the exercise of his discretion, declined to stay proceedings, and the Court of Appeal in that case held that he was right, and that he was not bound to stay the proceedings. In my judgment, as I have already indicated, Kay J was not acting in the [725] exercise of his discretion, but on the footing that no question of discretion arose at all, because the arbitrator had no power to deal with the matter; although I observe that Lindley LJ took the same view as Chitty J in the next case, that of Walmsley v White (1892) 40 WR 675; 67 LT 433, in an interlocutory observation which he made, at p 675. In that case, however, the Court of Appeal expressly adopted Russell v Russell, 14 Ch D 471 and held that the question of dissolution does come within the arbitration clause. The interlocutory observation of Lindley LJ was: In Russell v Russell 14 Ch D 471; 28 WR Dig 154, the partnership articles contained a clause for reference to arbitration exactly similar to clause 23, and Jessel MR, held that such a clause was sufficient to cover a question of dissolution, and made an order staying all proceedings in the action and referred the question in dispute to arbitration, thereby showing that the arbitrators had power, if they thought fit, to award a dissolution. I do not read the decision of the Court of Appeal in Joplin v Postlethwaite as being inconsistent with Russell v Russell, for in Joplin v Postlethwaite Kay J in the exercise of his discretion declined to stay the proceedings, and the Court of Appeal in that case held that he was right and that he was not bound to stay the proceedings. I have respectfully criticised the latter part of that interlocutory observation in Walmsley v White, 40 WR 675 but that does nothing to cast doubt on the earlier part, and in the judgment Lindley LJ himself said, at 676 Ought we to interfere with the order of Kekewich J, staying the proceedings? In my opinion we ought not. So far as concerns the construction of the partnership articles, the case of Russell v Russell shows that clause 23 covers a claim for dissolution of the partnership, and shows that the arbitrators can, if they think fit, award a dissolution; in Russell v Russell the action raised a question as to dissolution of the partnership, and the material clauses in the partnership articles in that case were exactly similar to the material clauses in the present case, and Jessel MR made an order to stay the proceedings in the action. As a matter of construction of the articles in the present case therefore, the defendant is right in saying that clause 23 applies. It does not, however, follow from that that the judge is bound to make an order to stay the action. In Walmsley v White there was a power of expulsion but it had not been exercised. The action was for dissolution and in those circumstances it seems to me that the existence of that power is irrelevant. 354 [6.180]

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Phoenix v Pope cont. Then in Vawdrey v Simpson [1896] 1 Ch 166, which I have already mentioned, where also there was no power of determination, Chitty J said, at 168 Walmsley v White, 40 WR 675; before the Court of Appeal, has settled the question, about which a difference of opinion seems at one time to have been entertained, whether, when articles of partnership contain an arbitration clause similar to the one before me, an arbitrator has power, if he see fit, to award a dissolution. In that case the judge in the court below had made an order that the action should be stayed, and the Court of Appeal declined to interfere with his discretion. But it is a distinct decision that an arbitrator has power in a case like this to award a dissolution; it is, therefore, unnecessary for me to go into and examine any of the other authorities which have been cited to me … [727] In my judgment … Apart from everything else, the decision in Walmsley v White, 40 WR 675 appears to me to be a decision of the Court of Appeal binding me just as it appeared to Chitty J in Vawdrey v Simpson [1896] 1 Ch 166; if it be wrong it is not for me to say so.

 An arbitrator may only delegate powers when authorised to do so [6.185]  Part 5 of the Act does not specifically prohibit the delegation of an arbitrator’s pow-

ers. However, the common law has provided that given the primacy of the arbitration agreement to appoint the arbitrator and define the procedures to be followed, an arbitrator can only delegate authority if authorised by the arbitration agreement to do so. The following extract highlights the accepted wisdom that arbitrators cannot delegate the role of arbitrator to another.

Neale v Richardson [6.190]  Neale v Richardson [1938] 1 All ER 753 at 756-​758. [Facts: The defendant hired the plaintiff to build a home. Their contract provided for payments by instalment, to commence when the defendant received a certificate from the architect. It was agreed that should a dispute arise, the architect would act as arbitrator. When a dispute arose, the architect nominated a third party to act as arbitrator, refusing to arbitrate the matter himself or to issue a certificate for the final payment. The plaintiff-​builder sued the defendant-​property owner for the outstanding balance for labour and materials. The defendant argued that payment was not required as per the contract, since payments were only due upon receipt of the architect’s certificate. Held: An arbitrator cannot delegate the role of arbitrator to another. Moreover, as arbitrator, it was the architect’s duty to decide whether the final certificate should be provided. The failure of the architect to arbitrate the matter or issue the certificate however, did not bar the plaintiff from recovering the balance. With the architect refusing to act as arbitrator, the builder could appoint a new arbitrator or seek a court order.] [756] Slesser LJ: On the whole, though with some hesitation, I think that it would not be proper, having regard to the whole current of authority, and, more particularly, to the case of Hickman & Co v Roberts, to extend the grounds on which the absence of a certificate may be excused. I cannot see why in principle the defendant should not be entitled to stand upon her contract and say that she has undertaken to pay when, and only when, the architect gives his final certificate. In the present case, his real failure of duty was to refuse to arbitrate so that the final sum could [757] be ascertained, but for this I cannot see that the defendant can in any way be held responsible. To say that a person by relying upon his legal rights has taken advantage of somebody else’s failure of duty, in a case where there is no suggestion that he has prompted, or even acknowledged, that breach of duty, seems to me [6.190]  355

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Neale v Richardson cont. to be contrary to principle, and, if Kellett’s case is to be taken to provide more than another example of collusion, respectfully, I find myself unable to follow it. The county court judge in the present case appears to have found that the architect had colluded with the builder. This is to me unintelligible, in that the builder was constantly pressing the architect for his certificate. The statement is twice repeated, and the reference to the fact that the architect is said to have told the builder what he was entitled to on his full claim leaves the matter beyond doubt. It is, of course, clear that no collusion between the architect and the builder could affect the matter. In the result, I think that the county court judge must be taken to have held that the refusal of the architect to arbitrate or certify was sufficient to disentitle the defendant to rely upon the absence of a certificate. This, for the reasons I have stated, I think is wrong. I pass next to consider cl 8 of the agreement, which provides for the decision of the architect being binding on all parties in all cases of dispute arising out of the contract. This clause, in my view, must be read in conjunction with the clause dealing with certificates, and may override it. This, I think, is the proper conclusion to be derived from the principles underlying the case of Brodie v Cardiff Corporation. There it was provided that works could be ordered as extras only if the order was given by the engineer in writing, but it was also provided that, in case any dispute should arise between the corporation, or the engineer on their behalf, and the contractor, such dispute should be referred to an arbitrator. The engineer, having given certain orders which the contractor claimed should be treated as extras, refused his written order, and the matter went to arbitration. The arbitrator awarded that the items in question should be paid for as extras, notwithstanding the absence of written orders of the engineer. In the present case, the person who had the duty to give the final certificate, the architect, was the same person as the one named as arbitrator under cl 8, but this fact does not affect the principle. In Brodie’s case, as is pointed out by Lord Shaw, at 362: Wherever a dispute is remitted to arbitration on admitted fact, it must be assumed that the fact admitted was not conclusive of the point to be determined, and that the arbitrator is free to make an effective award … Here, the question being as to whether or not the final certificate ought to be given, a dispute arose on which, under cl 8, I think the arbitrator had power to determine that the certificate ought to have been given, and, if he had, the legal effect would have been, as their Lordships assumed in Brodie’s case, as if it had been so given. In the present case, it is clear on the facts that the arbitrator under the [758] contract has refused to arbitrate, and the question of the builder’s right to remuneration, in the absence of a final certificate, has failed to be determined. Following Brodie’s case, an arbitration resulting in favour of the builder for a sum there determined would have enabled him to sue for his payment as if a final certificate for that amount had been granted and not wrongfully refused. The defendant in her defence relies upon the absence of a final certificate, and takes no point that a new arbitrator might have been appointed by the court under the Arbitration Act 1889, s 5, nor has she herself applied under that section to have an arbitrator appointed in lieu of the architect who has refused to act, nor taken any steps to stay this action on the ground that the parties had agreed to submit their differences to arbitration. In these circumstances, I think that the plaintiff is not precluded from having the whole question determined in court, and that the judge was entitled, though for reasons different from those upon which he relied, to take seisin of the matter, and to refer the claim and counterclaim to the registrar for report. In the result, this appeal must be dismissed with costs.

 An arbitrator cannot substitute the opinions of others for their own opinion [6.195]  An arbitrator cannot substitute the opinions of others for their own, which is a dele-

gation of the arbitrator’s authority. However, while this power ensures an arbitrator makes a 356 [6.195]

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finding using an independent mind based on the evidence presented, an arbitrator is not prevented from seeking an expert opinion (see s 26 of the Act), providing he or she has assessed the merits of the evidence and has formed an independent view. The following extract is an example of joint arbitrators employing a third-​party opinion in the conduct of arbitral proceedings.

Hopcraft v Hickman [6.200]  Hopcraft v Hickman (1824) 57 ER 295 at 296-​297. [Facts: The plaintiff agreed to purchase an estate from the defendant at a price to be determined by two surveyors; one selected by each party. Upon the valuation of the estate by the surveyors, the defendant communicated to the plaintiff that it did not agree with their findings. The defendant argued that the surveyors consulted outside parties without the defendant’s consent, thus rendering their decision invalid. Held: An arbitrator may come to the same conclusion as an expert opinion, providing the arbitrator’s independent mind has assessed the merits of such an opinion, and the arbitrator formed an independent view in adopting the whole or part of the opinion.] [296] Sir John Leach: The valuation by which the parties were to be bound was to be made by surveyors appointed by each party; and, if they could not fix a value, whether, from ignorance or any other cause, their only course was to choose an umpire. The valuers acknowledged by their conduct that they were unable to fix a value; but, nevertheless, they never appointed an umpire. They did not choose to exercise the power which had been delegated to them; but they called in two other persons to exercise it. Such conduct is a direct violation of the maxim “delegatus non potest delegare”. There is a great difference between a valuation made by a builder, and one made by a land surveyor. The latter would consider the house with reference to the land only. The former would estimate it according to the value of the materials. It is impossible to hold that the parties are bound by this valuation. There is another objection to this valuation: that it is not final. It was clearly intended by the parties that the valuation should be made in such a manner as to prevent any further dispute between them. But the price is not finally fixed by this estimate. It may be either to be increased or diminished, according as the number of acres shall turn out to be more or less than the estimated quantity. It is nowhere asserted that the estate has been accurately measured, and that it contains the quantity of land mentioned in the valuation. Consistently with this award the sum stated as the price might have been diminished one-​half. It is quite clear that, before a specific performance can be decreed, the price must be fixed either by the parties, or by those to whom they delegate that duty. Can the Court, in this case, say what the price to be paid for this estate is? If it cannot, a specific performance cannot be decreed. (See Emery v Wase, 5 Ves 846; and 8 Ves 505.) Mr Bickersteth, in support of the bill. The objection that this award is uncertain cannot be made upon demurrer. It must be done either by plea or answer. Without an allegation of error there cannot be any relief against this award. If the two arbitrators had agreed [297] together to be bound by the opinion of the two builders whom they consulted, there would have been much weight in the first objection to the award. But, according to the statement of the bill, upon which I am now to act, the arbitrators received the opinion of the two builders merely as evidence, and adopted it as their own upon the credit which they gave to the testimony.

 The taking of evidence [6.205]  Section  19(3) of the Act empowers the arbitral tribunal to determine the admissi-

bility, relevance, materiality and weight of any evidence presented to the tribunal. However, this sub-​section only comes into effect if the parties to arbitration fail to agree on procedures for the conduct of arbitration pursuant to subs (1). Therefore parties can agree to invoke the [6.205]  357

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rules of evidence or if they fail to agree on procedures, the arbitral tribunal will invoke said rules pursuant to subs (3). Arbitrations are generally governed by the rules of evidence as they provide for the inclusion of useful rules such as the avoidance of hearsay evidence. However, from a procedural perspective, parties prefer to keep the rules and procedures simple so as not to allow arbitration to become long-​winded and, therefore, expensive. The common law has established numerous requirements when it comes to hearing evidence in arbitral proceedings, some of which are not expressly dealt with by the Acts but can be implied via the application of the rules of evidence to such proceedings. For example, the common law prescribes a duty to hear all relevant evidence and prevents a party from leading irrelevant evidence. Section 36(1)(a)(ii) of the Act provides, among other things, that recognition or enforcement of an arbitral award may be refused at the request of the party against whom it is invoked, if that party furnishes to the Court proof that the party against whom the award is invoked was unable to present its case.

WFA v Hobart City Council [6.210]  WFA v Hobart City Council [2000] NSWCA 43 at [1]‌-​[11]. [Facts: A contract between two parties contained an arbitration clause setting out a timetable for proceedings and the presentation of evidence. A dispute arose between the parties and arbitration was initiated. After the proceedings had commenced, and both parties had a chance to present evidence, the WFA applied for an extension of time, expressing its intentions to present new evidence. The arbitrator rejected their request, refusing to receive further documentary evidence, and made an award in favour of Hobart City Council. The WFA sought to have the arbitrator’s decision set aside, arguing that his refusal to grant more time resulted in a breach of natural justice. Held: The Supreme Court held that an arbitrator owes a duty to hear all relevant evidence, and is prohibited from preventing a party from leading relevant evidence. However, in this case, it was found that the parties were already given ample opportunity to present their evidence, and that the proceedings had abided by the arbitration clause agreed to by both parties. Thus, it was held that the arbitrator’s refusal to receive additional evidence was not an abuse of process, nor a denial of the appellant’s right to procedural fairness.] [1]‌ Meagher JA: This is an appeal from Hunter J, who dismissed a claim of the present appellant Waterfurnace Australia Pty Limited to set aside an award made on 3 March 1998 by an arbitrator, Mr Graham Easton, in an arbitration between the appellant and the respondent. [2]‌The arbitration clause is contained in a written contract between the parties. That clause is clause 47.3 of the agreement. It is so important in the present case, and so unusual, that I think it should be set out in full. It is in the following form: 47.3 Arbitration If the dispute involves a claim for an amount of $50,000.00 or more or an extension of time of 14 days or more and either party is dissatisfied with the decision of the nominated person under Clause 47.2 then the dissatisfied party (“the Claimant”) shall within 7 days of receipt of the nominated person’s decision give (sic) notice to the other party (“the Respondent”) referring the dispute to arbitration in accordance with the terms of this Clause 47.3. The dispute shall be arbitrated by a single arbitrator (“the Arbitrator”) agreed to by the parties, or, if the parties are unable to agree upon an arbitrator within 7 days of the service of notice under the preceding paragraph, the nominee of the person named in Annexure Part. For the purposes of the following paragraphs of this Clause 47.3, a reference to a number of days shall be construed as a reference to that number of days from but not including the date of appointment of the Arbitrator. 358 [6.210]

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WFA v Hobart City Council cont. Within 7 days each party shall lodge with the Arbitrator security for the Arbitrator’s fee for arbitrating the dispute in the sum of $5,000.00 or such greater sum as the Arbitrator may determine. Within 7 days the Claimant shall submit a written statement of the Claimant’s claims to the Respondent. Within 14 days the Respondent shall submit a written defence to the claims and a written statement of the Respondent’s counterclaims, if any, to the Claimant. Within 21 days the Claimant shall submit a written reply to the defence and a written defence to the counterclaims of the Respondent. Within 28 days the Respondent shall submit written reply to the defence to the counterclaims to the Respondent. Within 28 days both the Claimant and the Respondent shall provide a copy of these submissions to the Arbitrator and shall provide all arguments and supporting information (which either party wishes to put to the Arbitrator) to the Arbitrator and to the other party. Within 35 days each party shall submit its best offer of settlement. Each offer shall be of an amount in dollars (even if only $1.00) which the party offers to pay or to accept from the other party in full settlement of all of the claims and counterclaims, but excluding the costs of arbitration. Within 42 the Arbitrator shall deliver an award. The award shall be for the amount of one or other of the offers referred to in the preceding paragraph. The Arbitrator shall select the offer which the Arbitrator considers to be the more just and fair. The Arbitrator shall not give any reasons for the award. Upon delivery of the award the Arbitrator shall be entitled to the Arbitrator’s fee. The whole of the Arbitrator’s fee shall be paid by the party against whom the award is made. If the fee is not paid within 49 days the Arbitrator apply the security to the payment of the fee. When the Arbitrator’s fee has been paid, the Arbitrator shall release any remaining security to the party entitled to it. Each party shall bear its own costs of the arbitration. [3]‌In the arbitration, the present appellant was the “Claimant” and the present respondent was the “Respondent”. Mr Easton was the Arbitrator. [4]‌The arbitrator set out a timetable for the delivery of pleadings, and other documents, between the parties.(No oral evidence was taken, or indeed permissible). The timetable complied with Clause 47.3. On more than one occasion the time table was varied by the arbitrator with the consent of both parties. [5]‌The arbitration concluded with an award of the arbitrator on 3 March 1998. The arbitrator found for the respondent in the amount claimed by the respondent (his role, of course, was limited to the choice of one sum out of two, even if he agreed with neither). There were no reasons given, because he was forbidden to give reasons. [6]‌What has caused the present dispute is the refusal of the arbitrator to receive certain documentary evidence which the appellant sought to tender to him on 11 February 1998. By this stage, the appellant had submitted a written statement of it is claims to the respondent, the respondent had submitted it is written defence to the appellant, and the appellant had submitted it is reply to the respondent. All submissions as to any counterclaims had also been completed. Then, all the above documents, together with “supporting information”, was tendered by the respondent to the arbitrator. [7]‌The appellant claims that some of the “supporting information” took it by surprise. It sought an extension of time from the arbitrator in order to counter this “supporting information”. He refused its request. [8]‌This court has no idea what the documentation was which allegedly caught the appellant by surprise. Nor did Hunter J. Nor, apparently, did counsel who appeared before us. Nor do we have [6.210]  359

Dispute Resolution in Australia: Cases, Commentary and Materials

WFA v Hobart City Council cont. any idea what “evidence in rebuttal” of this “surprise” evidence the appellant asked to lead but was precluded from doing so. [9]‌In these circumstances, I find certain remarks of his Honour a little perplexing. One is: I have no doubt that, in the absence of the procedure agreed to by the parties in the arbitration agreement in the contract, it would have been incumbent upon the arbitrator to have granted time to the plaintiff, in the interests of natural justice, to afford it the opportunity sought by it in its application to him. The other is: Had the plaintiff been given the opportunity of further time to consider that material it would have been in a position to have presented further material than that which it had previously provided to the arbitrator, in accordance with clause 47 as amended by the agreement, and that material would have been favourable to the plaintiff. [10] I do not know on what factual basis these remarks proceed. Certainly there was a concession of counsel for the respondent that the evidence that the appellant was constrained from leading was relevant to the issues being arbitrated. But the attack on the arbitrator by the appellant was that he denied natural justice to the appellant. All he did was deny another deviation from an agreed timetable. I know of no authority which holds that an arbitrator must admit all relevant evidence even if it be tendered outside the agreed timetable. Arbitrations are intended to be swift, and timetables are the means by which that swiftness is achieved. I can see no basis for impugning the decision of the arbitrator, arrived at were for reasons were never enunciated. [11] One further curiosity deserves notice. There is also litigation concerning this arbitrator in the Supreme Court of Tasmania and the Supreme Court of South Australia. I cannot understand this proliferation of litigation. Nor, I must say (although I am perhaps alone in this) can I understand how this Court gained jurisdiction in this matter. Accordingly I would advise that the appeal be dismissed with costs.

 A duty to allow cross-​examination of witnesses unless the parties have expressly or impliedly agreed otherwise [6.215]  Consistent with the predominance of the arbitration agreement between parties that determines matters of procedure during arbitration, comes the notion that parties have a duty to allow cross-​examination of witnesses unless they agree otherwise. This is an important convention as it ensures a fair process that will allow a just outcome. Each party is entitled to test the evidence being put to the arbitral tribunal, and the best way to do so is through cross-​examination of witness testimony. The following extract establishes this important right.

Chilton v Saga Holidays plc [6.220]  Chilton v Saga Holidays plc [1986] 1 ALL ER 841 at 843-​845. [Facts: The plaintiff, Mr Chilton, took legal action against Saga Holidays, claiming substandard service and conditions on his family holiday. The matter was referred to arbitration, in which the Chelmsford County Court registrar conducted the proceedings. The defendants had legal representation, but the plaintiff opted to represent himself. During the proceedings, the registrar 360 [6.215]

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Chilton v Saga Holidays plc cont. declined the defendant’s counsel’s request to cross-​examine the plaintiff on the grounds that without legal representation, the plaintiff would be unduly disadvantaged. On appeal, the court affirmed the arbitrator’s decision, finding that there is no express right of cross-​examination, and that an arbitrator has discretionary powers to allow or refuse it. The defendants appealed. Held: The Court of Appeal found that the arbitrator’s refusal to allow cross-​examination deprived the defendant of a right to develop its case. The judiciary stressed the importance of natural justice, the adversarial system, and the opportunity for parties to determine issues and present evidence. It was held that an arbitrator has a duty to allow cross-​examination of witnesses, unless the parties have expressly or impliedly agreed otherwise. The award was set aside, and the case was ordered to be reheard by a different registrar.] [843] Sir John Donaldson MR: There is no express right to cross-​examine. The registrar took the view in this case that it was unfair advantage to the defendants Saga Holidays if, their being represented, they could cross-​examine the witnesses, whereas Mr and Mrs Chilton could only approach cross-​examination from a layman’s point of view. I am by no means surprised that the registrar did take view that he did. The terms of reference in relation to arbitration are CCR Ord 19, r 5. The relevant rules are (3) and (4) and it states that any hearing shall be informal … In my view there is a clear wide discretion to adopt any method of procedure –​viva voce or one-​sided –​ clearly a method of procedure –​and afford a fair and equal opportunity to each party to present his case –​where there is an imbalance –​both parties are laymen –​in this case one side is represented the other side was not. In my view this is clearly a case where it was perfectly proper to say no to cross-​examination. Later on he said: What happened here is well within the discretion of a normal arbitrator and, if a party wishes to have a full dress hearing, that party must take the necessary steps, after referral on a normal course to arbitration, to make application to refer the matter to open court. It is clear that the whole object of having small claims dealt with by arbitration, the whole object is to save time, trouble and expense. To bring about a speedy conclusion. I am asked to say that the registrar erred in law in not allowing cross-​examination. I do not consider that the registrar was at all wrong in taking the course he did in this particular dispute. I regret to say that I find myself in total disagreement with the county court judge and, of course, with the registrar. It is quite right that the small claims procedure is intended to be informal. It is intended that no one shall be disadvantaged by not being represented by counsel. But that is quite different from saying that the procedure adopted must be such as to deprive anybody of the services of solicitors or counsel if they wish to have them. It would have been open to the rule-​making body, subject to any question of vires, to have provided by rules that in small claims arbitrations neither party should be represented by lawyers. I am sure that that would seem attractive to most laymen, but there is a very real problem which has to be faced, if anybody is considering making a rule such as that, that it does not exclude the disbarred barrister and the solicitor who has been struck off the roll. I take that as an extreme example, but it would be an extremely odd situation if it were open to parties to be represented by those who have left the legal [844] profession and not by those who are members of it. To take a less extreme example, there would be no way in which the rules could provide for the degree of experience which would be permissible for someone who is appearing for one of the parties. Such a rule would be quite unworkable. However, no such rule has been made, and it must follow that Saga Holidays were entitled to be represented. It would seem from what the registrar has said that, if Mr Chilton had been represented, he would have had no objection to cross-​examination. What he seems to have overlooked is that both courts and arbitrators in this country operate on an adversarial system of achieving justice. It is a system which can be modified by rules of court; it is a system which can be modified by contract between the parties but, in the absence of one or the other, it is basically an adversarial system, and it is fundamental to that that each party shall be entitled to tender their own evidence and that the [6.220]  361

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Chilton v Saga Holidays plc cont. other party shall be entitled to ask questions designed to probe the accuracy or otherwise, or the completeness or otherwise, of the evidence which has been given. If authority for this proposition is required, it is to be found in Allen v Allen and Bell [1894] P 248 at 253 in the judgment of Lopes LJ where he says: It appears to us contrary to all rules of evidence, and opposed to natural justice, that the evidence of one party should be received as evidence against another party, without the latter having an opportunity of testing its truthfulness by cross-​examination. That has been applied to arbitrations, subject always to the right of the parties to agree otherwise, as has been made clear by Russell on the Law Arbitration (20th edn, 1982) p 215 where in a quotation from Drew v Drew and Leburn (1855) 2 Macq 1 at 3 in the judgment of Lord Cranworth LC it is said: The principles of universal justice require that the person who is to be prejudiced by the evidence ought to be present to hear it taken, to suggest cross-​examination or himself to cross-​examine, and to be able to find evidence, if he can, that shall meet and answer it in; short, to deal with it as in the ordinary course of legal proceedings. Mr Chilton has argued his case in this appeal with great moderation, great enthusiasm and great skill. What he says is that, where there is unequal expertise available to the two sides, the party with the greater expertise must be disadvantaged to the point at which they have the same expertise effectively as the other party. That seems to me to be a perversion of what the rule requires, which is “a fair and equal opportunity to each party to present his case”. The problem which arises where you have one represented party and one unrepresented party is very well known to all judges and in particular to judges who deal with small claims in the county court. It becomes the duty of the judge so far as he can, without entering the arena to a point where he is no longer able to act judicially, to make good any deficiencies in the advantages available to the unrepresented party. We have all done it; we all know that it can be done and that it can be done effectively. That is the proper course to be adopted. The informality which is stressed by the rule and the requirement that the arbitrator may adopt any method of procedure which he considers to be convenient (it would have been better perhaps if it had said “just and convenient”) covers the situation where, as so often happens, a litigant in person is quite incapable of cross-​examining but is perfectly capable in the time available for cross-​examination of putting his own case. The judge or the registrar then picks up the unrepresented party’s complaints and puts them to the other side. There was a paper included in the appeal documents setting out the practice in other courts. I do not rely on it at all. I accept that different courts have different procedures. But Mr Chilton rightly drew attention to one paragraph where it was said by the registrars of the courts concerned that the unrepresented party had the “dubious” advantage of being represented by the registrar. I do not think the author of that document meant the word “dubious” to be taken literally. In fact, it is a very real [845] advantage. One of the things that judges have to watch when they are faced with an unrepresented litigant is that they do not become so solicitous for his welfare that they think of all sorts of points to which, on reflection, they would have given very short shrift but which, because they thought of them themselves, develop a curious life and appeal of their own so that, if anything, the advantages lie with the unrepresented party. I think that the registrar and the county court judge were plainly wrong in this case in refusing to allow Saga Holidays to ask questions of Mr Chilton, and I would therefore set the award aside. I would like to add one further word. Informality is all important in these small claims cases provided that the rules of natural justice are observed; and, while I have not actually invited counsel for Saga Holidays to defend his application for further and better particulars in this case, it is virtually indefensible. It was an attempt to turn this arbitration into a High Court hearing with detailed

362 [6.220]

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Chilton v Saga Holidays plc cont. requests for information of which there was not the slightest need since they were already set out in a document prepared by the claimant. That is the sort of formality which should be disapproved of without qualification but cross-​examination is quite different. I would set the award aside and reluctantly, because additional costs may be involved, would direct that it be reheard by a different registrar. The court concerned no doubt can be agreed between the parties. If not, we can make suggestions. Alternatively, it would be open to a county court judge of that court, on application, to say that it should not be dealt with by arbitration at all; it should be dealt with by litigation. I am not suggesting that that would be a wise course, but it would be a course which would be open to the parties. One final word, since Mr Chilton raised the point. He asked whether, if it went back, he would be entitled to call different and additional evidence. The answer to that is Yes; the matter will start entirely afresh. I would allow the appeal accordingly

 Section 27D –​Power of arbitrator to act as mediator, conciliator or other non-​arbitral intermediary [6.225]  Section 27D of the Acts deals with an area of arbitration that has previously been

controversial. Prior to the passing of the Commercial Arbitration (Amendment) Act 1990 (NSW) and its uniform Act equivalents, s 27 allowed the parties to arbitration to authorise the arbitrator to act as a mediator, conciliator or other non-​arbitral intermediary before or after proceeding to arbitration. If the mediation failed to settle the dispute, then no action could be taken to the conduct of the arbitrator because they acted as mediator. Finally, unless parties otherwise agreed in writing, an arbitrator was bound by the rules of natural justice when mediating.The term “natural justice” means, in this instance, the right for a party to be given a fair hearing and to have the opportunity to present their argument and to answer allegations put by the other party. It also encompasses the right to have a decision made by an unbiased and neutral third-​party arbitrator and to have that decision based on probative evidence presented to all of the parties and the arbitrator. Because of the use of separate sessions, mediation does not comply with the rules of natural justice as mediators have conversations with one party at the exclusion of the other. The way s 27 was drafted created quite a problem for arbitrators who saw the opportunity to resolve the dispute or elements of the dispute through mediation mid-​way through arbitration. If an arbitrator was granted the right to act as mediator before or during arbitration then they could not conduct mediation using separate sessions as this would breach the natural justice provisions of arbitration. In an attempt to enable parties the flexibility to mediate before or during arbitration, many arbitrators appointed a separate mediator so that if arbitration resumed, they were not compromised by the requirements to observe natural justice. However, the cost of employing a mediator in addition to an arbitrator made this precaution an expensive option for parties. Other arbitrators disqualified themselves if they had acted as mediators during an arbitral process, thus necessitating the appointment of a new arbitrator. Once again, the cost of instructing a new arbitrator mid-​way through arbitration was prohibitive and undesirable.

[6.225]  363

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[6.230]  The Act overcame this problem by a redrafting of the provisions that allow for a non-​

arbitral intermediary. Section 27D has no equivalent in the Model Law and states:

Commercial Arbitration Act 2010 (NSW) s 27D [6.233]  Section 27D (1)

An arbitrator may act as a mediator in proceedings relating to a dispute between the parties to an arbitration agreement (“mediation proceedings”) if:



(a)

the arbitration agreement provides for the arbitrator to act as mediator in mediation proceedings (whether before or after proceeding to arbitration, and whether or not continuing with the arbitration), or



(b)

each party has consented in writing to the arbitrator so acting.

(2)

An arbitrator acting as a mediator:



(a)

may communicate with the parties collectively or separately, and



(b)

must treat information obtained by the arbitrator from a party with whom he or she communicates separately as confidential, unless that party otherwise agrees or unless the provisions of the arbitration agreement relating to mediation proceedings otherwise provide.

(3)

Mediation proceedings in relation to a dispute terminate if:



(a)

the parties to the dispute agree to terminate the proceedings, or



(b)

any party to the dispute withdraws consent to the arbitrator acting as mediator in the proceedings, or



(c)

the arbitrator terminates the proceedings.

(4)

An arbitrator who has acted as mediator in mediation proceedings that are terminated may not conduct subsequent arbitration proceedings in relation to the dispute without the written consent of all the parties to the arbitration given on or after the termination of the mediation proceedings.

(5)

If the parties consent under subsection (4), no objection may be taken to the conduct of subsequent arbitration proceedings by the arbitrator solely on the ground that he or she has acted previously as a mediator in accordance with this section.

(6)

If the parties do not consent under subsection (4), the arbitrator’s mandate is taken to have been terminated under section 14 and a substitute arbitrator is to be appointed in accordance with section 15.

(7)

If confidential information is obtained from a party during mediation proceedings as referred to in subsection (2)(b) and the mediation proceedings terminate, the arbitrator must, before conducting subsequent arbitration proceedings in relation to the dispute, disclose to all other parties to the arbitration proceedings so much of the information as the arbitrator considers material to the arbitration proceedings.

(8)

In this section, a reference to a “mediator” includes a reference to a conciliator or other non-​ arbitral intermediary between parties.

 [6.235]  Combination or hybrid processes are well-​known in the practice of dispute resolu-

tion and are dealt with in more detail at [4.390]. In the following extract, Professor Doug Jones explains how the issue of bias, brought about by the arbitrator acting as mediator, was dealt with by the Hong Kong Court of Appeal in the international arbitration case of Gao Haiyan v Keeneye Holdings Ltd [2012] 1 HKLRD 627. 364 [6.230]

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Commercial Arbitration in Australia [6.240] Doug Jones, Commercial Arbitration in Australia (2nd ed, Thomson Reuters, Sydney, 2013) pp 350-​352. Recent developments in arb-​med The Keeneye decision There is little international jurisprudence that has arisen out of arb-​med proceedings. A recent Hong Kong decision is the first case in Hong Kong to deal with such issues. The case is of note as it deals with many of the procedural issues that can arise out of arb-​med procedures, but is of little direct application due to the unusual nature of the procedures adopted by the tribunal. In Gao Haiyan v Keeneye Holdings Ltd, Reyes J of the Hong Kong Court of First Instance refused to enforce an award that was made pursuant to arb-​med (termed “med-​arb”) proceedings. This decision was later overturned by the Hong Kong Court of Appeal. The arbitration was conducted under the rules of the Xian Arbitration Commission (XAC), which explicitly empowers the tribunal to conduct a mediation at any time before the award is rendered. The rules further provide the procedure by which the mediation should be conducted. There were a number of irregularities in the conduct of the proceedings, as identified by Reyes J at first instance. While the XAC Arbitration Rules provided that the mediation should either be conducted by the tribunal as a whole, the presiding arbitrator, or a third party approved by the parties, the mediation was conducted by one of the party appointed arbitrators in conjunction with the Secretary-​ General of the XAC. This took place despite the parties not having approved the Secretary-​General to operate in this capacity. There were further procedural irregularities. It is unclear as to whether the time and place of mediation was actually assented to by the parties, and it is unclear as to why the mediators did not invite the respondents’ lawyers to attend the mediation, instead inviting another individual who was known to be “friendly with” the respondents. Additionally, the mediators proposed a settlement figure without the authorisation of either party, and directed the respondents’ [351] representative to “work on” the respondents to accept the proposal. The setting of the mediation was also unusual, as it took place during the course of a private dinner at a hotel. Reyes J raised the possibility of this being seen to be a case of the mediators “wining and dining” the respondents’ representative to make a difficult proposal palatable. Finally, Reyes J expressed serious reservations about the settlement figure proposed by the mediators, which was five times the eventual payment recommended (but not required to be paid) in the tribunal’s award. There was no explanation of how the mediators came to a figure so disproportionate to the recommendation in the eventual award. For all of these reasons, Reyes J found that the tribunal’s conduct gave rise to an apprehension of bias, and therefore refused to enforce the award. Justice Reyes made a number of comments about the difficulty of avoiding the apprehension of bias where mediation and arbitration processes are combined, noting that “[f]‌rom the point-​of-​view of impartiality, the med-​arb process runs into self-​evident difficulties. The risk of a mediator turned arbitrator appearing to be biased will always be great”. His Honour continued to note that: ... labelling a process as mediation does not mean that anything goes. There are appropriate and inappropriate ways of conducting mediations. The would-​be mediator must ensure at all times, especially when one might act as arbitrator later on, that nothing is said or done in the mediation which could convey an impression of bias. The decision of Reyes J was overturned on appeal on two bases. First, the Hong Kong Court of Appeal found that the respondents had waived their right to complain about the procedure of the mediation by choosing to continue with the arbitration proceedings. Further, the Court of Appeal put significant emphasis on the fact that the respondents had already attempted, unsuccessfully, to have the award set aside in the Xian Intermediate People’s Court of Shaanxi. Both the arbitration and the mediation [6.240]  365

Dispute Resolution in Australia: Cases, Commentary and Materials

Commercial Arbitration in Australia cont. took place in Xian, and thus the proceedings were subject to the arbitration law of Xian. The Hong Kong Court of Appeal stated with regard to apparent bias: With respect, although one might share the learned Judge’s unease about the way in which the mediation was conducted because mediation is normally conducted differently in Hong Kong, whether that would give rise to an apprehension of apparent bias, may depend also on an understanding of how mediation is normally conducted in the place where it was conducted. In this context, I believe due weight must be given to the decision of the Xian Court refusing to set aside the award. [352] The Court of Appeal was not convinced that the discrepancy between the outcome of the mediation and the outcome of the arbitration gave rise to an apprehension of bias, nor that any of the other factors identified were sufficient to give rise to an apprehension of bias, and “certainly not such that would lead [the court] to refuse enforcement of the award”. The Keeneye decision is interesting for a number of reasons. First, it would appear that the Hong Kong Court of Appeal is willing to look into the wider context of the mediation proceedings before too readily finding an apprehension of bias. That is to say, while the court expressed “unease” with the way the mediation was conducted, it found that whether or not this unease could give rise to an apprehension of apparent bias may depend on an understanding of how mediations are usually conducted in the place where the mediation took place. In a domestic context this is not likely to become an issue, given the commonalities between legal culture in all Australian jurisdictions, but it does suggest that the court should not be too quick to apply rigid conceptions of procedural fairness to arb-​med procedures. Instead, the court should look to all the circumstances of the case at hand, and approach the issue with a willingness to appreciate the wider context of the proceedings. Secondly, the Keeneye decision should stand to encourage the increased utilisation of arb-​med procedures. Tribunals can have increased confidence that the courts will not too readily refuse to enforce an award that arises out of arb-​med proceedings, even where the proceedings are subject to peculiarities. It would appear that, at least in Hong Kong, the courts are aware of the difficulties inherent in arb-​med proceedings, and are willing to take this into account. Whether parties will be put off by the court’s approach to procedural fairness in arb-​med proceedings remains to be seen, but it is suggested that parties have little to fear, so long as they are fully aware of the issues surrounding the use of arb-​med procedures. Further, should a party be concerned that the proceedings are tainted by bias, this should be raised as soon as possible, and the party should not wait until the proceedings have been finalised before making an objection.

 Part 6 Making of award and termination of proceedings

Section 28 –​Rules applicable to substance of dispute [6.245]  Section 28 of the Act requires parties to choose rules of law that are applicable to

the substance of the dispute. Section 28 is modelled on Art 28 of the Model Law and states:

Commercial Arbitration Act 2010 (NSW) s 28 [6.247]  Section 28 (1)

The arbitral tribunal must decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute.

(2)

Any designation of the law or legal system of a given State or Territory must be construed, unless otherwise expressed, as directly referring to the substantive law of that State or Territory and not to its conflict of laws rules.

366 [6.245]

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Commercial Arbitration Act 2010 (NSW) s 28 cont. (3)

Failing any designation by the parties, the arbitral tribunal must apply the law determined by the conflict of laws rules which it considers applicable.

(4)

The arbitral tribunal must decide the dispute, if the parties so agree, in accordance with such other considerations as are agreed to by the parties.

(5)

In all cases, the arbitral tribunal must decide in accordance with the terms of the contract and must take into account the usages of the trade applicable to the transaction.

 [6.248]  Section 28 attempts to overcome the cost and wasted time of parties having to deter-

mine the proper law of the arbitration agreement by placing the onus of choosing the appropriate law on the parties to the arbitration agreement. If parties fail to choose a governing law then subs (3) empowers the arbitral tribunal to make that choice for them. [6.250] The previous version of the Act contained a provision that arbitrators must make

their determinations according to law unless they are instructed to do otherwise by the arbitration agreement. It provided that if the parties to an arbitration agreement agree in writing, the arbitrator may determine any question that arises for determination by reference to considerations of general justice and fairness. In such circumstances an arbitrator was known as an “amiable compositeur”, which means the arbitrator is a friendly arbiter or compositor. This method of making a determination did not mean the arbitrator must reject the law when deciding issues. An arbitrator may be of the view that adhering to the law will either produce or not produce a just and fair outcome. The new s 28(4) of the Act is a reflection of its previous version (previously s 22(2)) and allows parties to empower the arbitral tribunal to include “other considerations” in addition to the proper choice of law pursuant to s 28(1). In the following extract, Croft J of the Supreme Court of Victoria found that the arbitrator had failed to exercise the powers granted to him in accordance with s 22(2) of the Commercial Arbitration Act 1984 (Vic) as agreed in writing by the parties pursuant to the arbitration agreement.

Yesodei Hatorah College Inc v The Trustees of the Elwood Talmud Torah Congregation [6.255]  Yesodei Hatorah College Inc v The Trustees of the Elwood Talmud Torah Congregation (2011) 38 VR 394 at 413, 417-​418, 438-​440. [Facts: The plaintiff, Yesodei Hatorah College, entered into an agreement for lease of land upon which the College operates a school for Jewish boys from the defendants, The Trustees of the Elwood Talmud Torah Congregation. A dispute arose between the parties to the agreement and they entered into an arbitration agreement that contained, among other things, a term stating, “The Parties agree that the Arbitrator may determine any question that arises for determination in the course of the arbitration by reference to considerations of general justice and fairness”. The pleadings set out three issues for determination that largely revolved around whether an agreement for lease existed and the period of notice required for the College to vacate the land. The arbitrator published an award and an amendment to the award where, among other things, the arbitrator dismissed the College’s claim that there was an agreement for lease and determined that the College occupied the land as a tenant at will. The College sought leave to appeal to the Supreme Court on questions of law that the award and the amended award be varied or set aside for, among other things, the arbitrator’s failure to exercise his jurisdiction on the matters for determination in accordance with section 22(2) of the [6.255]  367

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Yesodei Hatorah College Inc v The Trustees of the Elwood Talmud Torah Congregation cont. Commercial Arbitration Act 1984 (Vic) as agreed in writing by the parties pursuant to the arbitration agreement. Held: granting leave to appeal and allowing the appeal the provisions of s 22(2) of the Act did not require an arbitrator to determine matters the subject of the arbitration in accordance with strict legal principles. The arbitrator could have had regard to such principles but was permitted and required to depart from them and to have regard to wider considerations in determining issues in dispute by reference to considerations of general justice and fairness according to the statutory mandate provided by s 22(2), a mandate which provided him or her with a very broad canvas encompassing the possibility of deciding matters as an amiable compositeur. The error made by the arbitrator in failing to apply the mandate conferred on him under the provisions of s 22(2) of the Act constituted a manifest error on the face of the award.] [413] Croft J: [34] In relation to the application of s 22(2), the arbitrator stated the position in the award as follows: I am satisfied that in determining whether a concluded agreement for lease was entered into on 25 February 2008 between the Congregation and the College I must apply the law, and in particular the common law principles, relating to the formation of enforceable contracts. Section 22(2), in my opinion, has no operation in determining this question. [Plaintiff’s emphasis.] … [417] [42] … It is important in this context to discredit the assumption, which seems to be implicit in the plaintiff’s submission on this point, that “the law” and considerations of general justice and fairness are frequently different and readily distinguishable, and that an arbitrator whose duty it is to apply considerations of general justice and fairness will fail in that duty if he or she applies “the law” … [the] clause requires an arbitrator to avoid legal technicalities if, when applied, they would be inconsistent with considerations of general justice and fairness. It does not require, or necessarily allow, an arbitrator to disregard legal principle. It does not allow an arbitrator to decide a matter by reference to considerations which appear to the arbitrator, but to no one else, to be just and fair. Nor does it require an arbitrator to categorise his or her approach as being in accordance with the law on the one hand or [418] general justice and fairness on the other. The efficacy of arbitration as a mechanism for resolving disputes would be seriously compromised were arbitrators required to perform the mental gymnastics which adherence to that proposition would involve. An arbitrator … will fulfil his or her duty under that clause if he or she adheres to considerations of general justice and fairness. If this is the approach, no misconduct will occur …. [43] … I am of the opinion that the mandate provided by s 22(2) is in aid of greater flexibility of decision-​making by an arbitrator but that, quite clearly, in particular circumstances an arbitrator might quite properly and appropriately decide that application of strict rules of law in relation to some or all issues the subject of the dispute is appropriate in terms of “considerations of general justice and fairness”. Nevertheless, it is incumbent upon the arbitrator holding such a mandate to explain why the arbitrator is of this view …. [438] [70] On the basis of the authorities, legislative context and discussion of statutory interpretation and the commentaries in relation to ex aequo et bono and amiable compositeur arbitration, it is clear, in my opinion, that the provisions of s 22(2) of the Act do not require an arbitrator to determine matters the subject of the arbitration in accordance with strict legal principles. The arbitrator may have regard to such principles, but is permitted and required to depart from them and to have regard to wider considerations in determining issues in dispute “by reference to considerations of general justice and fairness” according to the statutory mandate provided by s 22(2), a mandate which provides him or her with a very broad canvass encompassing the possibility of deciding matters ex aequo et bono or amiable compositeur. In this context, the “or” derived from Art 33(2) of the UNCITRAL Arbitration Rules which have, as indicated previously, effectively been incorporated into s 22(2) is to be read permissively and expansively, not limiting the arbitrator to one or other of these concepts or requiring him or her or the parties to choose between them. I should also note that even if it were to be found that the proper construction of the expression “according to general justice and fairness” 368 [6.255]

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Yesodei Hatorah College Inc v The Trustees of the Elwood Talmud Torah Congregation cont. as used in s 22(2) were to be equated only with one of these concepts, or such elements as are common to both, the arbitrator has, nevertheless, failed to discharge his mandate for the reasons I have indicated. Finally, it should be emphasised that, as discussed previously, the plain meaning of s 22(2) is that it is a legislative mandate for arbitrators, once enlivened by the agreement of the parties, for the determination of any question that arises in the course of the arbitration in accordance with its provisions. [71] Turning to the present case, the college submitted that the arbitrator was in error with respect to s 22(2) of the Act for a variety of reasons: 54. In the presence case, the Arbitrator wrongly determined that he was required to decide whether the parties had entered into an agreement for lease according to law. In doing so, he disregarded the matters which were favourable to the College’s case and which he could and should have [439] considered “by reference to considerations of general justice and fairness”. Those matters included:







(a) evidence as to the actual intention of the parties as to whether they intended to enter into an agreement for lease. The Arbitrator disregarded such evidence because of the strict legal approach which he adopted (at [9]‌and [12]). (b) evidence of the parties’ belief and conduct post 28 February 2008 to the effect that they had an agreement for lease. That evidence consisted of: (i) the acknowledgment by Dr Degen at a meeting of the Congregation on 31 July 2008, that the parties had reached an agreement. The arbitrator disregarded such evidence because of the strict legal approach which he adopted (at [122]). (ii) unchallenged statements by the College on 14 July 2008 (at [106]), 25 July 2008 (at [110]), 13 July 2009 (at [124]) and 29 September 2009 (at [127]), to the effect that the parties had made an agreement for lease. The Arbitrator determined the dispute without reference to such evidence (at [132]). (iii) the fact the parties were exchanging drafts of the lease as contemplated and communicated in the College’s letter of acceptance dated 25 February 2008. (iv) the fact the College was proceeding with its development plans as communicated in its letter of acceptance dated 25 February 2008 and its letter to the Congregation dated 17 July 2008. 55. In addition, the Arbitrator decided the case against the College on the basis that by 25 February 2008 the parties had not agreed upon all terms. For the reasons advanced below that conclusion was unjustified and in any event, did not preclude a finding that the parties had entered into a binding agreement. However, had the Arbitrator determined the matter by reference to considerations of general justice and fairness, he could have filled in any gaps that existed in the agreement for lease. So much is clear from the observations of Young J in Woodbud cited above.

[72] On the basis of what is, in my view, the proper construction of s 22(2) of the Act, I accept these submissions with respect to s 22(2) as illustrative, but not necessarily comprehensive, of the matters to which the arbitrator should have had regard for the purposes of discharging his mandate under these provisions. As indicated, the arbitrator’s mandate under these provisions is broad and is not a mandate which can be “second guessed” by a court which can only apply the law (including equity in the Chancery sense). Also, as I have explained, I base my analysis and views as to the proper construction of s 22(2) beyond the observations of Young J in Woodbud Pty Ltd v Warea Pty Ltd, though I say this with great respect for the observations and statements of Young J in that case. Thus, from the point of view of a court applying the law, the primary and clear [440] error made by the arbitrator with respect to s 22(2) of the Act was his determination, without reasons, that s 22(2) had no operation in determining whether an agreement for lease had been reached between the parties and whether the binding or enforceable nature of any such [6.255]  369

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Yesodei Hatorah College Inc v The Trustees of the Elwood Talmud Torah Congregation cont. agreement, if entered into, was subject to any subsequent event, such as the entering into a formal document, applying the approach and categories of Masters v Cameron, and whether, in the particular circumstances, it contained all essential terms. [73] For these reasons, I regard the error made by the arbitrator in failing to apply the mandate conferred on him under the provisions of s 22(2) of the Act as constituting a manifest error on the face of the award on the basis of the principles in this respect already discussed. Further, to the extent that it might be said that the error is not manifest there is, in my view, certainly strong evidence of an error of law in this respect and having regard to the present state of the authorities on s 22(2), a question that may or is likely to add substantially to the certainty of commercial law.

 Section 31 –​form and contents of award [6.260]  Section 31 of the Act is similar to s 29(1) of the previous Act but more prescriptive in

its approach to the form and content of awards. Section 31 states:

Commercial Arbitration Act 2010 (NSW) s 31 [6.263]  Section 31 (1)

The award must be made in writing and must be signed by the arbitrator or arbitrators.

(2)

In arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the arbitral tribunal suffices, provided that the reason for any omitted signature is stated.

(3)

The award must state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under section 30.

(4)

The award must state its date and the place of arbitration as determined in accordance with section 20.

(5)

The award is taken to have been made at the place stated in the award in accordance with subsection (4).

(6)

After the award is made, a copy signed by the arbitrators in accordance with subsection (1) must be delivered to each party.

 [6.264]  Like the previous Act, the new Act does not define what an award is. Dodds-​Streeton J

in Mond v Berger [2004] VSC 45 at [290]-​[298] made the following comments with regard to the definition of “award”. [291]. Mustill and Boyd recognise the persistent failure of national and international arbitration legislation to define precisely the central concepts of “award” and “arbitration”. They note that “this makes it surprising how rarely it has been asked what are the distinguishing features of an award, the aim and pivot of the entire process. Perhaps it has simply been assumed that however one may define an award, it is easy to recognise one when one sees it”. [292].  The learned authors further state: The reason why a document embodying a decision (using the word in a neutral sense) by an arbitral tribunal is properly described as an “award” or something else may be of practical importance because an accurate classification may determine –​ 370 [6.260]

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1. Whether the decision is enforceable by a domestic or foreign court.



2.  Whether the decision is susceptible of appeal or other intervention by a court, and if so by what means.

3. Whether the decision is binding on (a) the parties and (b) the tribunal.

4.  As regards the latter, the categorisation of the decision may determine whether and to what extent the tribunal can validly recall or vary its decision.

[293].  Mustill and Boyd, in the absence of any legislative definition, suggest two characteristics which we believe would be accepted as indicia of an award by the arbitrating community at large: 1. An award is the discharge, either in whole or in part, of the mandate entrusted to the tribunal by the parties, namely to decide the dispute which the parties have referred to them. That is, the award is concerned to resolve the substance of the dispute. Important aspects of the arbitrator’s duties are naturally concerned with the processes which lead up to the making of the awards, and they are empowered to arrive at decisions which enable those processes to be performed. The exercise of those powers are, however, antecedent to the performance of the mandate, not part of the ultimate performance itself. Thus, procedural decisions, and the documents in which they may be embodied, are not “awards”. 2. Constituting as it does the discharge of the arbitrator’s mandate the award has two effects: (a) Since the parties have, by their agreement to arbitrate, promised to be bound by the arbitrators’ decision of their dispute, they are for all purposes bound by it themselves, although others are not so bound … (b) Since the making of the award constitutes a complete performance of the mandate entrusted to the arbitrators, it leaves them with no powers left to exercise: except of course, in the case of a partial award, when the exhaustion of the arbitrators’ powers is complete as to part and incomplete as to the remainder. So much is, we believe, generally accepted. [294]. Redfern and Hunter recognise that in English contexts, the terms “interim” and “partial” are sometimes used interchangeably. In civil law countries, a “partial award” may refer to an award which is a decision on part of the dispute which is binding, enforceable, and disposes of the issues with which it deals. An “interim award”, in contrast, may commonly deal with classically “preliminary” issues. Both interim and partial awards, however, are distinguished from interlocutory awards, which, as decisions of the arbitrator on procedural issues, are not enforceable as final awards. [295]. Redfern and Hunter, recognise the definitional problem, noting that “[t]‌here is no internationally accepted definition of the term ‘award’ ”. They also recognise that the search for a satisfactory definition is complicated by the need to distinguish between awards that are final and those that are not. [296]. They conclude “In practice the term ‘award’ should be reserved for decisions that finally determine the substantive issues with which they deal. This involves distinguishing between awards (which are concerned with issues) and procedural orders and directions (which are concerned with the conduct of the arbitration)”. [297].  Further, they observe that “Some commentators have suggested that a preliminary award may be treated as ‘provisional’. However, this concept seems to be fraught with perils; the authors suggest that any decision that is not finally determinative of the issues with which it deals should not be called an ‘award’ ”. [298]. Mustill and Boyd, in their discussion of the English Arbitration Act 1996 (which is acknowledged to be “a striking innovation”) observe that under the new English legislation there are now three types of award –​a final award, a partial award and a provisional award. The learned authors also doubt whether “provisional awards”, although [6.264]  371

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termed “awards”, are “awards” at all, as they do not satisfy the fundamental statutory requirement that awards be final and binding.

Section 32 –​termination of proceedings [6.265]  Section 32(2)(c) provides a trigger for termination where arbitral proceedings have

become unnecessary or impossible and states:

Commercial Arbitration Act 2010 (NSW) s 32 [6.267]  Section 32 (1)

The arbitral proceedings are terminated by the final award or by an order of the arbitral tribunal in accordance with subsection (2).

(2)

The arbitral tribunal is to issue an order for the termination of the arbitral proceedings when:



(a)

the claimant withdraws his or her claim, unless the respondent objects and the arbitral tribunal recognises a legitimate interest on the respondent’s part in obtaining a final settlement of the dispute, or



(b)

the parties agree on the termination of the proceedings, or



(c)

the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible, or



(d)

the arbitral tribunal makes an award under section 25(2)(a) dismissing the claim.

(3)

The mandate of the arbitral tribunal terminates with the termination of the arbitral proceedings, subject to sections 33 and 34(4).

 [6.268]  Section  32 is based on Art  32 of the Model Law and is a new addition to the

Act as the previous Act contained no provision for termination. Subsection  (2)(c) provides a trigger for termination of arbitral proceedings where they have become “unnecessary” or “impossible” however the Acts do not define what is meant by those two terms. Professor  Doug Jones in his landmark text Commercial Arbitration in Australia has suggested that: “Impossible” may include situations where the claimant or respondent becomes insolvent, is taken over by another company and no longer has standing. It may also contemplate a situation where a mandatory law prohibits the resolution of any future disputes by way of arbitration. “Unnecessary” may include a situation where parties have not agreed upon termination but the tribunal considers it unnecessary to proceed as all matters in the dispute have been resolved. The limited case law on this point provides further guidance as to the situations in which an arbitral tribunal will exercise its discretion to declare proceedings “unnecessary or impossible”.5

Subsection (3) states that the mandate of the arbitral tribunal ceases with the termination of arbitral proceedings. However, this subsection is conditional on the arbitral tribunal’s mandate not being revived via s 33 which allows for the arbitral tribunal to correct or interpret any part of its award. Further, s 34(4) allows the court to suspend the setting aside of an award upon a party’s application in order to resume arbitration.

5 D Jones, Commercial Arbitration in Australia (2nd ed, Thomson Reuters, Sydney, 2013) p 418. 372 [6.265]

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Part 7 Recourse against an award

Section 34 –​Application for setting aside as exclusive recourse against arbitral award [6.270]  Section 34 provides a trigger allowing a party to make an application to set aside an

arbitral award and states:

Commercial Arbitration Act 2010 (NSW) s 34 [6.272]  Section 34 (1)

Recourse to the Court against an arbitral award may be made only by an application for setting aside in accordance with subsections (2) and (3) or by an appeal under section 34A.

(2)

An arbitral award may be set aside by the Court only if:



(a)

the party making the application furnishes proof that:



(i)

a party to the arbitration agreement referred to in section 7 was under some incapacity, or the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication in it, under the law of this State, or



(ii)

the party making the application was not given proper notice of the appointment of an arbitral tribunal or of the arbitral proceedings or was otherwise unable to present the party’s case, or



(iii)

the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside, or



(iv)

the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Act from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Act, or



(b)

the Court finds that:



(i)

the subject-​matter of the dispute is not capable of settlement by arbitration under the law of this State, or



(ii)

the award is in conflict with the public policy of this State.

(3)

An application for setting aside may not be made after 3 months have elapsed from the date on which the party making that application had received the award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal.

(4)

The Court, when asked to set aside an award, may, where appropriate and so requested by a party, suspend the setting aside of proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside.

 [6.273]  Professor Doug Jones explains the contents of s 34 in the following way: The grounds for challenging an award in s 34 may be broadly divided between substantive and procedural. The substantive grounds include the jurisdiction of the tribunal to hear the dispute, [6.273]  373

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the validity of the arbitration agreement, the capacity of the parties to the arbitration agreement to enter into it, and public policy considerations. The procedural grounds relate to the composition of the arbitral tribunal, compliance with the mandatory provisions of the CAA’s and/​or the agreement of the parties and the requirement that each party be given notice of the proceedings and a reasonable opportunity to present its case.6

The following extract is an example of a procedural error in the conduct of the arbitration and provides a trigger for the setting aside of the award pursuant to s 34(2)(a)(ii) of the Acts.

Re Tiki International Ltd [6.275]  Re Tiki International Ltd [1994] 2 Qd R 674 at 677-​680. [Facts: Perpetual Trustee Company Limited leased real property to the applicants, Tiki Properties Pty Ltd in 1983, who in turn assigned the lease in 1989 to Balfour Centre Pty Ltd. A dispute arose over land tax contributions. The lease specified a lessee contribution based on the identification of the demised premises as set out in two plans contained in the schedule to the lease. The plans were open to various interpretations about what land was included within the definition of “demised premises”. The arbitrator consulted a solicitor to assist in his understanding of what constituted the demised premises. The parties to the dispute were not consulted about the employment of the solicitor and first became aware of it when the solicitor’s costs were listed on the bill forwarded to each of the parties. The arbitrator chose an interpretation of the demised premises that conflicted with the applicant’s. The applicant made application to have the arbitrator’s award set aside for, amongst other things, a breach of s 42(1)(a), in that the arbitrator misconducted the proceedings by not allowing the parties to be heard on the solicitor’s legal advice. Held: Where an arbitrator without the parties’ agreement takes confidential legal advice and does not give the parties a chance to comment on points adverse to their case, a procedural irregularity has occurred which has possibly led to the arbitrator misconducting the proceedings.] [677] Byrne J: But where an arbitrator secretly obtains legal advice, and the potentially influential communications are withheld from the parties, justice may not appear to have been done. Suspicions may be harboured as, for example, that the arbitrator has not exercised an independent judgment. An arbitrator without legal qualifications may often need a lawyer’s assistance, even, perhaps especially, where the parties are legally represented. The arbitrator must apply the law and is not bound to accept [678] the law as the parties or their lawyers propound it. Like the judge, the arbitrator is no mere selector between rival views of the law. In commercial arbitrations the opportunities for curial assistance are narrowly circumscribed. And so, generally speaking, of necessity, in commercial arbitrations like the present independent investigation into the legal issues must be possible. Acknowledging that in general a commercial arbitrator is impliedly authorised to seek guidance on points of law is one thing. It is another to conclude that the arbitrator is entitled to rely on such advice without disclosing it to the parties. Sometimes the ordinary incidents of procedural fairness will require disclosure. Difficulty is unlikely to arise where a commercial arbitrator who is legally qualified and familiar with the law germane to the dispute discusses a point of law with a colleague, just as there is no inhibition on a judge’s consulting other disinterested judges of the court. The appearance of fairness in the process of decision making is not compromised by such a casual discussion. Usually the parties could not reasonably apprehend that the lawyer arbitrator would either canvass a legal point with someone inappropriate or abnegate the duty to decide it. And if the discussion turned to an issue the parties had not addressed, no doubt an arbitrator who was a lawyer would raise it for the parties’ consideration before the reference was decided.

6 D Jones, Commercial Arbitration in Australia (2nd ed, Thomson Reuters, Sydney, 2013) p 470. 374 [6.275]

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Re Tiki International Ltd cont. Different considerations may intrude where an arbitrator who is not [679] legally qualified seeks instruction from a stranger to the arbitration on the law. The arbitrator’s first preference as the legal adviser may have a personal or professional association with one of the parties which would make the choice inappropriate. Errors with a potential to lead to a miscarriage of justice might occur in other ways. In instructing the lawyer, the arbitrator may misstate the facts or the arguments. And, especially where the advice is sought after lawyers have debated legal points, the losing party is apt to suspect that (i) the question has in reality been decided by the new lawyer, the arbitrator deferring to an expert in whom he or she reposes confidence; or (ii) the lawyer has raised new matters which the arbitrator has considered persuasive; or (iii) the lawyer’s intervention has otherwise led to a mistake which might have been corrected had the advice been disclosed. The need to accord procedural fairness should incline an arbitrator to obtain legal advice only with the informed consent of the parties; and usually the advice should be disclosed. Otherwise the process of resolution of the dispute is likely to be regarded as less than the parties bargained for, and unfair. That an arbitrator’s unauthorised communications with lawyers can constitute a procedural irregularity was recognised in Rolland v Cassidy (1888) 13 App Cas 770 where, speaking for the Privy Council, the Earl of Selborne said: [I]‌t would be prudent and discreet for arbitrators, when they desire to put themselves upon the best possible footing of information as to matters of law, to ask all the parties to be present when they communicate with any gentlemen whom they may see upon that subject. The determination in question there was not set aside. The legal advice proved correct, and it had been disclosed before the decision was reached. So also in Buta v Municipal Committee of Lahore (1902) LR 29 Ind App 168 it was held that there was no ground for impeaching an award made after a legal opinion had been provided to arbitrators where the advice was obviously correct. But the omission to communicate the advice to the parties before the award was made was said by the Privy Council to be “an error of judgment”. Here the solicitor’s advice, which appears to have been directed specifically to the meaning of “demised premises”, was of “assistance”. Yet [680] the arbitrator’s reasons indicate that he did deliberate on the rival contentions; and his refusal to disclose the advice, although unfortunate, is no basis in this case for concluding that the arbitrator simply deferred to his solicitor’s viewpoint. In short, he is not shown to have delegated his duty. Other potential problems where an arbitrator omits to secure consent to taking legal advice have not, it seems, eventuated either. The identity of the solicitor is now known. He is not said to be unsuitable. And, because it remains undisclosed, the advice is not shown to be affected by an error of fact or to have been based on some misapprehension of the parties’ arguments. No actual prejudice is proved to have been occasioned by the absence of a chance to controvert or correct the advice or to be heard on the arbitrator’s choice of lawyer. This arbitration, however, was to be conducted according to procedures akin to those in judicial proceedings. The parties were to be legally represented. Lists of documents were to be exchanged and the disclosed documents inspected. A site inspection with the parties’ lawyers was to follow written submissions. After that, there was to be an oral hearing at which the issues were to be debated. All these things were agreed at a preliminary conference. With such a format, secret communications with an influential third party on an issue important to the decision would not appear to tend towards a fair hearing; and so the procedural rules regulating this arbitration impliedly required the arbitrator to disclose his intention to obtain legal advice and at least the substance of such advice as he received. The arbitrator’s failure to reveal his adviser’s identity is not a reason to intervene. Assuming, without deciding, that the arbitrator was obliged to reveal his proposed adviser’s identity before consulting him, if the intention to retain him had been disclosed, there would not have been any objection; [6.275]  375

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Re Tiki International Ltd cont. and so that non-​disclosure is immaterial here. But the absence of an opportunity to comment on the advice might perhaps have mattered. The arbitrator’s silence as to the content of the advice means that there is a chance –​one not so slight it can be ignored –​that the applicants have not had a fair opportunity to comment on points adverse to their case first raised by the arbitrator’s solicitor. A procedural irregularity has therefore occurred which possibly has led to a miscarriage of justice, unless what happened at the preliminary conference, when the arbitrator adverted to taking legal advice, precludes objection.

 Section 34A –​appeals against awards [6.280]  Section 34A allows a party to make application to appeal the arbitral award on a

question of law arising out of the award. It replaces s 38 of the previous Act and is far more prescriptive in its application. It states:

Commercial Arbitration Act 2010 (NSW) s 34A [6.283]  Section 34A (1)

An appeal lies to the Court on a question of law arising out of an award if:



(a)

the parties agree, before the end of the appeal period referred to in subsection (6), that an appeal may be made under this section, and



(b)

the Court grants leave.

(2)

An appeal under this section may be brought by any of the parties to an arbitration agreement.

(3)

The Court must not grant leave unless it is satisfied:



(a)

that the determination of the question will substantially affect the rights of one or more of the parties, and



(b)

that the question is one which the arbitral tribunal was asked to determine, and



(c)

that, on the basis of the findings of fact in the award:



(i)

the decision of the tribunal on the question is obviously wrong, or



(ii)

the question is one of general public importance and the decision of the tribunal is at least open to serious doubt, and



(d)

(4)

An application for leave to appeal must identify the question of law to be determined and state the grounds on which it is alleged that leave to appeal should be granted.

(5)

The Court is to determine an application for leave to appeal without a hearing unless it appears to the Court that a hearing is required.

(6)

An appeal may not be made under this section after 3 months have elapsed from the date on which the party making the appeal received the award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal (in this section referred to as the “appeal period”).

(7)

On the determination of an appeal under this section the Court may by order:



(a)

confirm the award, or



(b)

vary the award, or

376 [6.280]

that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the Court to determine the question.

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Commercial Arbitration Act 2010 (NSW) s 34A cont.

(c)

remit the award, together with the Court’s opinion on the question of law which was the subject of the appeal, to the arbitrator for reconsideration or, where a new arbitrator has been appointed, to that arbitrator for consideration, or



(d)

set aside the award in whole or in part.

(8)

The Court must not exercise its power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the arbitral tribunal for reconsideration.

(9)

Where the award is remitted under subsection (7)(c) the arbitrator must, unless the order otherwise directs, make the award within 3 months after the date of the order.

(10)

The Court may make any leave which it grants under subsection (3)(c) subject to the applicant complying with any conditions it considers appropriate.

(11)

Where the award of an arbitrator is varied on an appeal under this section, the award as varied has effect (except for the purposes of this section) as if it were the award of the arbitrator.



Norwest Holst Construction Ltd v Co-​operative Wholesale Society Ltd [6.285]  Norwest Holst Construction Ltd v Co-​operative Wholesale Society Ltd [1998] EWHC Tech 339 at [241]-​[256]. [Facts: The parties entered a subcontract to complete certain building works involving the installation of complex mechanical and electrical work for the Learning Resources Centre at John Moores University in Liverpool in England. The overall value of the work was somewhere between £1,269,487 and £1,623,315. A dispute arose between the parties and NHC instituted arbitration proceedings against the main contractor, John Moores University. This arbitration claim, with another arbitrator, included a claim for the value of CWS’s subcontract work. The arbitration dealing with the main contract was settled during the course of this subcontract arbitration hearing and the arbitrator then allowed further evidence concerning the main contract arbitration as opposed to the subcontract arbitration. An award was handed down and NHC contended that the award was thoroughly bad in procedure, content and result. Held: The only findings of fact that can be raised as questions of law are findings that no reasonable tribunal could have reached. Further, a question as to whether particular evidence was admissible or should have been excluded and as to whether the arbitrator was obliged to apply the normal rules of evidence are questions of law. Finally, a question as to whether an arbitrator has invented evidence can only be raised as misconduct or procedural irregularity.] [241]. There has always been difficulty in identifying what is and what is not a question of law. The problem of identification arises in an acute form when a party wishes to challenge findings of fact, whether they be primary findings or inferences from primary findings, or else wishes to challenge a finding of mixed law and fact and needs to undermine the factual content of such a finding if the overall challenge is to get off the ground. In some of the questions of law raised in this appeal, both parties seek to challenge findings of fact on at least one of these grounds. [242]. Under the law and practice governing arbitral challenge prior to the introduction of the Arbitration Act 1979, when challenges had to be brought as part of the case stated procedure, a question of law included a question as to whether there was any evidence to support a particular finding of fact. Since an arbitrator could only state a case on a question of law, it [6.285]  377

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Norwest Holst Construction Ltd v Co-operative Wholesale Society Ltd cont. might have been regarded as settled that the same question could be answered by the court under the procedure which replaced the stated case, namely an appeal on a question of law. However, doubt has been thrown on that by the judgments of the members of the Court of Appeal in The “Baleares”. In that case, claimants in an arbitration claimed damages arising out of the late delivery of The “Baleares” which was being chartered on a voyage charter to carry propane which the charterers had contracted to buy at a certain price so long as they presented a vessel for loading by the due date. The charterers cancelled due to the owner’s default and were awarded damages which were calculated on the basis of the additional price per tonne they had to pay their suppliers. The arbitrators’ finding was to the effect that the market had risen by this sum from the price contracted for. The rise was caused by there being a restricted market for propane which had responded to the late delivery by rising rapidly. This rise was the loss that had occurred. The appeal was presented on the basis that on that finding, no loss had been established since, if the purchase price had risen, so must have the selling price and the charterers’ loss in purchasing the cargo would have been off-​set by their gain on reselling it. This argument was rejected by the Court of Appeal who reinstated the award, following a successful appeal to the judge from that award. [243]. As Steyn LJ saw the owners’ case on appeal, the owners had raised the question of whether or not there was any evidence to support the finding of fact that there had been a loss. This argument was put forward with “little enthusiasm” but was never “formally abandoned”. In those circumstances, Steyn LJ considered whether it was still possible for an appellant to contend that an argument that there was no evidence to support a finding of fact was a question of law that can be raised on an appeal under s 1 of the Arbitration Act 1979 and concluded that it was not possible. However, Neill LJ, in a judgment with which Ralph Gibson LJ agreed, concluded that the owners accepted the finding of fact that the charterers had suffered a loss and did not reach any conclusion as to whether or not a question of law included a question of whether there was any evidence to support a finding of fact. Neill LJ concluded his judgment by making it clear that although he was impressed with the argument that it was inconsistent with the thrust and purpose of the 1979 Act to review an arbitrator’s findings of fact where the object was to establish that there was no evidence to support the finding, he was not able, without further argument, to reach a final conclusion on the point. Thus, both because the argument that there was no evidence to support the relevant finding of fact was not in issue on the hearing of the appeal and because the majority of the court declined to reach a conclusion on the question, I accept NHC’s contention that Steyn LJ’s views on the jurisdictional question of the ambit of a question of law under section 1 of the 1979 Act were obiter. These views do, however, have considerable weight given both their provenance and their content. [244]. Since I must decide whether or not the relevant questions are questions of law, I must reach a conclusion as to whether or not Steyn LJ’s views represent the law and should be applied to the grounds of appeal that I am concerned with. Before doing so, I should first explore in more detail what is involved in a contention that there was no evidence to support a finding of fact …. [247]. The conclusion to be drawn from this analysis is that there are four situations covered by the question as to whether a challenge to an arbitrator’s findings of fact can raise a question of law. These are: 1.  An allegation that the raw finding of fact was not supported by any evidence. 2. An allegation that the arbitrator invented evidence or relied on evidence that was never adduced before him in making the disputed finding of fact. 3. An allegation that inferences, made from raw facts, so as to lead to further findings of fact, could not, on any reasonable view, have been made. 4. An allegation that an application of findings of fact to the relevant legal principle has produced a result that no reasonable arbitrator could have reached because the facts in

378 [6.285]

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Norwest Holst Construction Ltd v Co-operative Wholesale Society Ltd cont. question could not lead to, or produce, the result arrived at. This allegation is made of a mixed finding of fact and law, the legal part of the finding being the application of the raw or inferred facts to the legal principle involved. 5. Although it is not clear from Steyn LJ’s analysis, his view that findings of fact are no longer susceptible to review as questions of law would appear to cover all four of these situations. This is because he made them in the context not only of an argument that there was no evidence to support the finding that loss had been caused but also in relation to an argument that, on the basis of the findings of fact, no loss had been established. [248]. The law on this topic is conveniently summarised in a passage in the speech of Lord Diplock in The Nema in which he discussed the meaning of the phrase “question of law”. His analysis of this expression relies on the earlier decision of the House of Lords in Edwards v Bairstow and the oft-​quoted passage on this topic from the speech of Lord Radcliffe. Lord Diplock stated: … ever since the decision of this House 25 years ago in Edwards v Bairstow, [the words “question of law”] have been understood (at least where the tribunal from which such an appeal lies is not itself a court of law) as bearing the precise meaning as to the function of the court to which an appeal is brought that is stated in the classic passage to be found in the speech of Lord Radcliffe …: If the case contains anything ex facie which is bad in law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been error on point of law. [249]. This passage shows that Lord Diplock was accepting that it was still the law under a s 1 of the Arbitration Act 1979 that an erroneous application of findings of fact to the relevant legal principle was an error of law if no reasonable arbitrator could have applied the facts in the way they had been applied …. [251]. There are, therefore, two questions to answer. The first is whether it was ever the law that a pure finding of fact could be challenged, by way of a question or point of law, on the grounds that there was no evidence to support it. The second is whether any possibility of such a challenge under the previous practice governing judicial review of arbitrator’s awards has survived the enactment of the Arbitration Act 1979. The change in the law, if it has occurred, to shut out any possibility of an allegation that there was no evidence to support a finding of fact could only have occurred if the phrase “question of law” appearing in s 1 of the Arbitration Act 1979 has a more restrictive meaning than that phrase, or the equivalent phrases, had when used as part of the practice governing the case stated procedure, the statutory case stated procedures in relation to the General Commissioners of Income Tax in 1956 or appeals from official referees. In view of the reliance by Lord Diplock, in The Nema, on the speech of Lord Radcliffe in Edwards v Bairstow as establishing the ambit of the phrase “question of law”, it is clear that that phrase has the same meaning as the phrase “point of law”, the phrase considered in Edwards v Bairstow. [252]. The suggested change in the ambit of the phrase “a question of law” arises from this passage in Steyn LJ’s judgment in The “Baleares”: … in the limited appellate jurisdiction of the Court under s 1 of the Arbitration Act 1979 this concept [the power to review a finding of fact on the ground that there is no evidence to support it] has no useful role to play. It is inconsistent with the filtering system for the

[6.285]  379

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Norwest Holst Construction Ltd v Co-operative Wholesale Society Ltd cont. granting of leave to appeal which was created by the Arbitration Act 1979. In my judgment it has not survived the changes introduced by the reforming measure of 1979. Steyn LJ stated that he agreed with the views of Mustill & Boyd to the same effect set out in the first edition of their book and reiterated in the second edition. These passages point out that Edwards v Bairstow was concerned with a mixed question of law and fact, that the tribunal’s findings of primary fact were set out in the stated case and were relied on by the House of Lords and that the approach of the House of Lords was to treat, as the ‘evidence’ to be considered when seeing whether the conclusion of the tribunal was supportable, the text of the case stated by, or award of, the tribunal. Moreover, there appeared to be no reported case in which the court had intervened on this ground, its jurisprudential basis was never explored in the authorities where its existence was postulated and Terson’s case, “the nearest approach [of a court treating a pure finding of fact as giving rise to a question of law]”, was a case involving a mixed question of law and fact. [253]. In view of the doubtfulness of the existence of an ability to attack primary findings of fact under the case stated procedure, the absence of any reported case where such an attack has succeeded, the use of the phrase “question of law” in s 1 of the Arbitration Act 1979 and the legislative purpose of that Act as explained by Lord Diplock in The Nema and Steyn LJ in The “Baleares”, I conclude that it is not possible to attack the primary findings of an arbitrator, whether they be pure findings of fact or inferences drawn from such findings, on the basis that there was no evidence to support them. It is, I think, significant, that the Arbitration Act uses the expression “question of law” in s 1 of the Arbitration Act 1950 did not when defining the case stated jurisdiction. Where the jurisdiction, as under the old law, was determined by the common law and by the use of a test based on the presumed intention of the parties, the boundaries of what could be included in a stated case were relatively flexible. Where, however, the statutory formula is, in terms, confined to a “question of law”, it is necessary to take the meaning of that phrase from the Act and to determine its meaning from the legislative purpose and intention of the Act. [254]. This leaves two further matters to be considered. The first is that any question of admissibility of evidence is a question of law. It is also a question of law whether the arbitrator, either generally or in the circumstances of a particular piece of evidence in a particular arbitration, was bound by any evidential rule which would be applicable to that situation in a court hearing. Thus, if an appropriate question of law arises and is answered to the effect that the arbitrator reached particular findings of fact in reliance on materials that he should have excluded from his consideration or by shutting out materials he should have considered, the court could intervene. Usually, it would answer the question of law that arises, assuming the threshold requirements of section 1 of the 1979 Act have been complied with. On some occasions, the erroneous reliance on extraneous evidence might amount to procedural irregularity. In such cases, which are unlikely to occur very often, the court would ordinarily remit the award for further consideration in the light of its views as to the admissibility or otherwise of the material in question. [255]. The second matter concerns the situation where the arbitrator “invents” evidence and then makes findings of fact based on that non-​existent evidence. NHC suggests that this might have occurred in this award. In such a situation, the appropriate relief to seek is for a remission or setting aside for procedural irregularity or misconduct. It is not correct to seek, additionally, to raise a question of law. The alleged mistake of the tribunal is not as to the legal reasoning used to formulate the findings in the award but to adopt a manifestly erroneous procedure in arriving at the primary findings of fact contained in the award. [256]. It follows that my conclusions are: 1.

The only findings of fact, or findings associated with findings of fact, that can be raised as questions of law are not findings of fact at all but are findings that no reasonable tribunal could have reached, namely findings that a particular legal principle was applicable.

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Norwest Holst Construction Ltd v Co-​operative Wholesale Society Ltd cont. 2.

A question as to whether particular evidence was admissible or should not have been excluded and as to whether the arbitrator was obliged to apply the normal rules of evidence to a particular situation are questions of law capable of arising under s 1 of the Arbitration Act 1979.

3.

A question as to whether the arbitrator has invented evidence can only be raised as misconduct or procedural irregularity.

 A more flexible process [6.290]  On 11 June 2002 in the Banco Court of the Supreme Court of New South Wales, the former Lord of Appeal and President of the British Maritime Law Association and the UK Branch of the International Law Association, Lord Mustill, delivered an insightful address entitled “Arbitration, Imagination and the Culture of Compromise”. Lord Mustill is a well-​known arbitration practitioner, advocate and author of the landmark text Law and Practice of Commercial Arbitration in England (co-​authored with Stewart C Boyd). In his address, his Lordship suggested, amongst other things, that arbitration needed to become more flexible in its process and outcomes. He suggested that, if arbitration is to survive, it needs to be more flexible in its process to allow parties to have a more “mediation-​like” experience and it needs to provide more flexible outcomes that are more creative compared to traditional arbitration. His Lordship noted that arbitration had become costly and lengthy to the point where litigation was perhaps the cheaper and more efficient alternative. Lord Mustill challenged arbitrators to be more flexible when it comes to adherence to the rules governing arbitration and to allow the parties more opportunity to participate in the process. Further, arbitrators should not be afraid of handing down awards that adopt a more dispute resolution-​style solution to the dispute. In other words, arbitrators should be encouraged to adopt an outcome that moves away from the type of court-​sanctioned outcome, which has become the norm in arbitration. An example of a high profile case that applied the type of thinking Lord Mustill advocated in his address is the case of IBM v Fujitsu.

Use of Arbitration in Copyright Disputes [6.295]  A Stork, “The Use of Arbitration in Copyright Disputes: IBM v FUJITSU” (1988) 3(2) High Technology Law Journal 241 at 242-​247, 257, 259-​260. [242] I. The Arbitration Agreement A. Dispute Background 1.Fujitsu’s entry into the marketplace The roots of this unusual agreement and licensing arrangement can be traced back to the early 1960s when IBM introduced its then revolutionary System/​360. This family of computers and its accompanying architecture changed the shape of data processing and became the most successful computer in history. The System/​360’s great advantage stemmed from the design of its operating system and applications programs. The operating system controls the overall resources of a computer; it facilitates the transfer of data between the internal memory and the peripheral devices such as the printer, disk [6.295]  381

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Use of Arbitration in Copyright Disputes cont. drives, and terminals, and also prepares the computer to execute the application programs such as word processing and accounting that benefit the end user. The System/​360’s operating system was compatible with the entire line of IBM mainframe computers, from smallest processor to largest mainframe. For the first time users could take an applications program designed for a particular central processing unit, such as the IBM Model 30, and run it on a larger processor, such as the IBM Model 40. This allowed users to protect their investment in applications software while moving up to larger computers as their business expanded. [243] Already a commanding force in the data processing market, the System/​360 and its successor, the System/​370, rapidly gained marketplace acceptance. Users could expand and modify their computer systems while maintaining their existing applications software. These IBM customers subsequently made large investments in applications software designed to run in conjunction with IBM operating system software. As IBM’s installed base grew, so did the market for IBM compatible equipment. The plug-​ compatible manufacturers (PCMs), such as Hitachi and Amdahl, used a combination of lower prices and equivalent or superior performance to gain a market share. Fujitsu, which entered the data processing business in the early 1960s, jumped into the IBM-​compatible market in 1971 when it began development of the M series, an IBM-​compatible mainframe. Fujitsu shipped its first M Series operating system to customers in 1976. Fujitsu continues to develop and sell M Series operating system software. IBM did not register copyright protection on its operating system software until 1978, the year the National Commission on New Technological Uses of Copyrighted Works (“CONTU”) recommended that copyright protection be extended to computer programs. Thus, IBM’s software was in the public domain at the time Fujitsu initially decided to develop IBM-​compatible equipment and software, as well as when Fujitsu first shipped its M Series operating system in 1976. 2.IBM’S Allegations of copyright infringement Fujitsu marketed its operating systems with no interference from IBM until October 1982. IBM then confronted Fujitsu, charging that Fujitsu had illegally appropriated IBM’s mainframe operating system programs for its M Series. Fujitsu argued that it had designed the [244] operating system on its own and the only IBM technology used was already in the public domain. Fujitsu also claimed that much of IBM’s operating system software had become the industry standard and that IBM’s motive in alleging infringement was simply elimination of competitors. The parties decided to negotiate rather than litigate the dispute. IBM’s decision to negotiate may have been based on antitrust considerations. Having just been acquitted of monopolization charge, and with a still dominant 70% market share in the mainframe business, IBM may have been hesitant to bring a suit that could have knocked out one of its major rivals. Fujitsu, along with fellow Japanese computer manufacturer Hitachi were, and still are, IBM’s only two competitors selling IBM compatible mainframe computers. Fujitsu was thus fighting for the same customers as IBM, and some analysts claim that only this has kept price competition alive in the United States’ IBM compatible mainframe market. After months of negotiations, in July 1983 the parties reached a compromise and signed a settlement agreement. Fujitsu made no admission of guilt with regards to copyright infringement but did agree to give IBM a lump sum payment for previous distribution and use of certain Fujitsu programs. In return, IBM waived any infringement claims. Fujitsu further agreed to pay IBM a license fee for future sales of certain programs. Industry experts have estimated these payments to be as high as $60 million a year. The parties also decided to exchange the interface information given to customers who utilize licensed programming material. Significantly, the details of

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Use of Arbitration in Copyright Disputes cont. this exchange were not specific: the agreement did not clearly define which IBM programming material was available for Fujitsu software development or the amount of money Fujitsu would pay for its use. In addition, Fujitsu promised to respect IBM’s intellectual property rights, but the agreement [245] did not specify whether US or Japanese intellectual property law applied. Finally, and most importantly, the parties promised to submit any dispute arising under the agreement to a group of executives from both parties. Any dispute unresolved after sixty days would be subject to binding arbitration. B. The Outcome In July 1985, IBM invoked the arbitration clause in the 1983 Settlement Agreement and filed a demand for arbitration with the American Arbitration Association (AAA) charging Fujitsu with violating IBM’s intellectual property rights in operating systems software. On September [246] 15, 1987, after more than 26 months of arbitration between IBM and Fujitsu, the arbitrators handed down an opinion and order with the following major results: (1) Fujitsu gained access to IBM’s programming material for a limited time through a “secured facility” arrangement, (2) IBM received from Fujitsu a guarantee of payment for past and future use of its technology, and (3) the arbitrators retained authority to resolve software disputes between IBM and Fujitsu even after the secured facility regime ends. In contrast, the typical resolution of a litigated copyright dispute would be either vindication for a defendant or damages and/​or an injunction against further infringement for a prevailing plaintiff. The arbitrators’ order authorizes Fujitsu to examine IBM’s mainframe operating system software in a “secured facility”, separated from all other software development departments. The secured facility will allow Fujitsu to conduct “clean room” engineering. In this “clean room” an isolated group of developers will study the original IBM software and compile a specification list on survey sheets. The survey sheets are then turned over to a software development group to create a compatible operating system based on the listed specifications. Fujitsu will pay IBM $237 million up front for this access, plus as much as $51 million per year until 1997. The actual annual amount paid by Fujitsu will be determined by the number of IBM programs it views in the secured facility. (IBM may also use the same setup to examine Fujitsu material, but has announced it has no plans to do so). A neutral staff will strictly monitor this arrangement to ensure that the information carried out of the secured facility complies with the instructions laid out by the arbitrators. Any data on the approved survey sheets may be used by Fujitsu without fear of penalty. Through the use of the secured facility, Fujitsu will have the right to examine and use all IBM mainframe software released before July 1997. During this period, the arbitrators can assess penalties on either party for violations of the agreement. Even after the secured facility [247] viewing ends, the arbitrators will have power to resolve software disputes between the two parties until November 29, 2002. Although the arbitration outcome left many industry observers aghast, it was not a surprise to the two parties involved. IBM and Fujitsu expressly empowered the arbitrators to create a coerced-​license arrangement if necessary to settle disputes …. [257] III. What Arbitration Offered IBM and Fujitsu Shortly after IBM filed its arbitration demand, both parties agreed to abide by the AAA rules of arbitration. The five major advantages of arbitration over litigation proved to be beneficial in the resolution of the IBM-​Fujitsu dispute. A. Selecting Decision-​Makers IBM appointed John Jones, a computer systems expert and retired Norfolk Southern executive, to preside over the arbitration. Fujitsu chose Robert Mnookin, a Stanford Law School professor and an expert in alternative dispute resolution. The advantage of using these experts was their knowledge

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Use of Arbitration in Copyright Disputes cont. of computer software and copyright disputes. Many judges have no knowledge of computer technology, which complicates the task of effectively presenting a case for software copyright protection. Arbitrators familiar with computer technology are more likely to understand the unique problems involved with its protection. B. Informal Proceedings The informal proceedings were advantageous in four different aspects of the IBM-​Fujitsu arbitration: (1) the conduct of the hearings, (2) the scope and speed of discovery, (3) the amount and manner in which technical evidence was examined, and (4) the sweeping authorization for the arbitrators to resolve the dispute. The first sessions of the IBM-​Fujitsu arbitration were formal, trial like proceedings. There were six to ten lawyers present from each side as well as 25-​40 officers from the two companies. Little progress was made under this arrangement, but arbitration gave the parties the flexibility to subsequently reduce the number of people involved. This facilitated faster settlement and also lowered costs through the reduced involvement of both attorneys and company officers. Discovery in the arbitration was a monumental task, despite efforts to minimize it. The IBM-​ Fujitsu arbitrators subpoenaed and examined a large number of memoranda and exhibits. However, the arbitrators’ decision not to analyze each of the hundreds of programs involved undoubtedly cut down on the amount of documents produced and the scope of discovery in general. Thus, given the scope of the case, discovery was far more limited than in normal litigation where every document relating to the myriad of programs involved might have been requested and ultimately produced. Mnookin and Jones also took advantage of arbitration’s informal, flexible nature via the manner in which evidence was introduced. To inform themselves about the relevant technology, the arbitrators attended a four-​day presentation by a computer science professor from Carnegie Tech. IBM and Fujitsu also conducted seminars to educate the [259] arbitrators about the issues and present their respective sides of the case. The flexibility of the proceedings also allowed the parties to grant the arbitrators broad power to settle the dispute. In February 1987, after some (but by no means all) issues had been settled under the authorization of the initial arbitration agreement, the parties executed an additional document. Known as the Washington Agreement, it granted Mnookin and Jones further authority to create a coerced licensing arrangement if necessary to resolve the remaining points of conflict. C. Private Hearings The details of the IBM-​Fujitsu dispute and arbitration were shrouded in secrecy. The hearings were private and the arbitrators ordered the companies to keep the entire matter confidential while the arbitration proceeded. By express authorization of the parties, the IBM-​Fujitsu arbitrators revealed some details, partially because Fujitsu wanted to reassure its customers that the company had not lost the right to use, support, and enhance the programs that keep their products compatible with IBM computers. However, many elements of the agreement remain confidential. D. Faster Settlement The IBM-​Fujitsu dispute took 26 months to settle, from the initial demand for arbitration until the announcement of the arbitrators’ decision. This was perhaps slowed by the arbitrators’ publication of an opinion, not a normal procedure in arbitration. The arbitrators wrote and published an opinion after express authorization from the parties. Given the delay involved in producing an opinion, the complexity of the case, and the range of issues settled, the overall proceedings were speedy compared to the pace of litigating a similar matter.

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Use of Arbitration in Copyright Disputes cont. [260] E. Lower Cost No official expense figures have been released in the IBM-​Fujitsu arbitration; both companies reportedly incurred millions of dollars in legal fees. However, litigation between the parties could feasibly have dragged on for years, not just 26 months, and this alone would have increased all costs –​attorney fees, officer time, etc to the parties. Thus, the parties probably saved money by arbitrating their dispute.

 Fast tracking arbitration [6.300] In addressing the issue of the spiralling time and cost of arbitration the Council

of The Institute of Arbitrators & Mediators Australia (IAMA) passed a new set of IAMA Arbitration Rules on 1 September 2007 that incorporate a set of Fast Track Arbitration Rules. After the amalgamation of IAMA and LEADR (Leading Edge ADR known previously as Lawyers Engaged in ADR) into the newly named Resolution Institute, on 3 August 2016, the Board of Resolution Institute resolved that, from and including 3 August 2016, where one or more parties submit a dispute to arbitration in accordance with:

(a)

The Resolution Institute Arbitration Rules; or



(b)

The IAMA Arbitration Rules; or



(c)

The IAMA Fast Track Arbitration Rules; or



(d)

The Rules for the Conduct of Commercial Arbitrations (including the Expedited Commercial Arbitration Rules),

these Rules shall apply.

The following extract from the author’s regular quarterly casenotes in the Australasian Dispute Resolution Journal discusses some of the central features of the new fast track rules.

IAMA’s Fast Track Arbitration Rules [6.305]  D Spencer, “IAMA’s Fast Track Arbitration Rules” (2007) 18 Australasian Dispute Resolution Journal 200 at 200-​202. Arbitration has been suffering a downturn in popularity for some time because of the time and expense in conducting the process. Arbitration has turned into a process as complex as litigation because of the lack of rules of evidence that set no parameters on material introduced and the view of some parties that arbitration can be an additional discovery process. Further, the cost has become prohibitive given the length and complexity of the proceedings and the fact that parties pay for the arbitrator and venue as opposed to getting a judge and a court for free if the matter is litigated. A new way to approach arbitration was called for, the lack of which would have sounded the death knell of arbitration. On 18 June 2007 the Institute of Arbitrators and Mediators Australia (IAMA) launched its Fast Track Arbitration Rules and answered the call for a more user friendly process of arbitration. The Fast Track Rules are contained in schedule 2 of IAMA’s Arbitration Rules and state amongst other things that parties may opt into a fast track arbitration which means they commit themselves to concluding the arbitration within 150 days from the day the arbitrator enters the reference. In order to fast track the process the following time lines must be adhered to by the parties and the arbitrator. [201]

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IAMA’s Fast Track Arbitration Rules cont.

IAMA’s Fast Track Arbitration Rules Nomination or agreed appointment of arbitrator 5 days notice (min)

NO YES

Preliminary conference arbitrator enters references

10 days

Nominee or appointment declines to enter on reference

IAMA nominates a replacement arbitrator

20 days

Statement of dispute, submissions & statement of evidence to all parties

40 days

Responses to statements, expert reports, objections to evidence of claims and cross-claims

55 days

Hearing (if required with the imposition of time limits and conducted as a “stop clock” arbitration)

150 days

Further replies, statements of evidence and copies of documents, reply to expert reports, objections to evidence of claims and cross-claims

120 days

Joint expert report

Expert conclave 90 days Award (extent of reasons proportionate to the time available to deliver the award)

Reply to cross-claim

85 days

70 days

All the time lines for IAMA’s Fast Track Arbitration Rules are maximums save for the notice requirement between appointment of the arbitrator and the notice required to schedule the preliminary conference. As a safety net mechanism IAMA has cleverly allowed parties and the arbitrator to make

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IAMA’s Fast Track Arbitration Rules cont. application to extend any of the time limits by up to 10 days at a time providing the arbitrator is satisfied that such an extension is in the interests of justice. A key feature of IAMA’s Fast Track Arbitration Rules is the expedient handling of all documentation concerned with arbitration that has traditionally slowed arbitration to the point of delay and unnecessary expense. The following excerpts from the rules expand on the diagrammatic representation as to what documents are dealt with under the fast track arrangements. 3.

On or before the 20th day the claimant shall provide the following to each other party and to the Arbitrator: [202]



a.

a written statement of the nature of the dispute, the legal and factual issues, its contentions as 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 report on which it relies; and



d.

its written submissions on the legal and factual issues involved in its claim.

4.

On or before the 40th day each party other than the claimant shall provide the following to the other parties and to the Arbitrator:



a.

a written statement responding to the claimant’s written statement under paragraph 3a, its statement of the nature of the dispute (including any cross claim), the legal and factual issues in the claimant’s claim and any cross claim, its contentions as to those issues, and the amount of any cross claim;



b.

all statements of evidence and copies of all documents on which it relies;



c.

any expert report on which it relies;



d.

any objections which it has to the statements of evidence, any expert report, and documents served by the claimant, detailing the basis of objection; and



e.

its written submissions on the legal and factual issues involved in the claimant’s claim and any cross claim.

5.

On or before the 55th day, any party may reply to written material provided under paragraph 4, by providing to the other parties and to the Arbitrator:



a.

a written statement responding to the written statement under paragraph 4a and, its reply as to the nature of the dispute, the issues likely to arise and its contentions in relation to the issues;



b.

all statements of evidence and copies of documents in reply to material served under paragraph 4b;



c.

any expert report in reply to material provided under paragraph 4c;



d.

any objections to the statements of evidence, any expert report, and documents served under to paragraph 4b, detailing the basis of objection; and



e.

its written submissions in reply on the legal and factual issues involved.

IAMA should be congratulated for its innovative thinking in the development of the Fast Track Arbitration Rules. This move will make arbitration a more attractive process than litigation or other quasi-​adjudicative and non-​adjudicative processes. It will deliver what arbitration always promised to deliver –​a more flexible method of enforceable adjudication that was not as time consuming and costly as court. Fast track arbitration is now a reality however, it is up to the legal profession to recommend it and allow their clients to derive the benefits of a more cost and time efficient method of flexible adjudication.



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[6.310] Questions

1. What were the objects of arbitration under the Commonwealth Conciliation and Arbitration Act 1904 (Cth)? 2.

How did the uniform Arbitration Acts develop?

3.

Is arbitration in Australia mandatory or voluntary?

4.

Is arbitration part of the set of processes known as “dispute resolution”?

5.

How does one invoke the uniform Arbitration Acts?

6.

Describe the formal requirements for the appointment of an arbitrator?

7.

Can arbitrators exercise powers outside those granted to them? Quote your authority.

8.

Can an arbitrator make a determination outside the law, such as in mediation and other forms of dispute resolution? State your authority.

9.

What are the complications associated with an arbitrator changing to become a mediator under s 27 of the uniform Arbitration Acts?

10. Does an arbitrator have to make her or his award in writing? 11. What circumstances give rise to an award being set aside? Quote your authority. 12. Under what circumstances can an arbitrator be removed? Quote your authority. 13. What are the advantages and disadvantages of a combination method such as mediation and arbitration? 14. Should arbitration be more flexible, such as mediation and other forms of dispute resolution?   

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CHAPTER 7

Dispute Resolution in Criminal Law [7.05] [7.10] [7.20] [7.30]

[7.55]

[7.85]

INTRODUCTION.........................................................................................................  390 PROCESSES AND TIMING OF DISPUTE RESOLUTION IN THE CRIMINAL CONTEXT.....  390 [7.15] Inquiry into Alternative Dispute Resolution and Restorative Justice............... 391 WHY DISPUTE RESOLUTION IN THE CRIMINAL CONTEXT?.........................................  391 [7.25] Alternative Dispute Resolution as a Crime Prevention Tool......................... 391 RESTORATIVE JUSTICE.................................................................................................  392 [7.30] Definitions of restorative justice...................................................................  391 [7.35] Restorative Justice: The Real Story........................................................ 392 [7.45] Alternative Conflict Resolution and Restorative Justice: A Discussion............. 394 [7.51] Restorative Justice in the Australian Criminal Justice System....................... 394 TRADITIONAL JUSTICE AND RESTORATIVE JUSTICE.....................................................  395 [7.60] Inquiry into Alternative Dispute Resolution and Restorative Justice............... 395 [7.70] Restorative Justice: Offering Benefits to Victims and Offenders.................... 396 [7.80] Debating Restorative Justice............................................................... 396 RESTORATIVE JUSTICE IN AUSTRALIA...........................................................................  397 [7.90] Restorative Justice in the Australian Criminal Justice System....................... 397 [7.100] Restorative Justice in the Australian Criminal Justice System....................... 397 [7.110] [7.120] [7.130]

Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters.............................................................................. 398 National Guidelines or Principles for Restorative Justice Programs and Processes for Criminal Matters....................................................... 399 Guidelines for Restorative Justice Processes in Criminal Cases..................... 399

[7.135] Principles of restorative justice.....................................................................  399 [7.140] National Guidelines.......................................................................... 400 [7.145] Restorative justice processes........................................................................  400 [7.150] Victim Offender Mediation: Evidence-​Based Practice Oover Three Decades.... 401 [7.160] VICTIM-​OFFENDER MEDIATION IN AUSTRALIA...........................................................  401 [7.165] Restorative Justice in the Australian Criminal Justice System....................... 402 [7.170] CONFERENCING.........................................................................................................  403 [7.175] The NZ family conference model and the Wagga Wagga model.................  403 [7.180] Restorative Justice in Non-​Adversarial Justice.......................................... 403 [7.185] Conferencing around Australia....................................................................  404 [7.190] Restorative Justice in the Australian Criminal Justice System....................... 404 [7.195] Circle sentencing.........................................................................................  406 [7.200] Restorative Justice in Non-​Adversarial Justice.......................................... 406 [7.205] Restoring Justice in Criminal Process in Queensland and Western Australia.... 407 [7.210] HISTORY OF RESTORATIVE JUSTICE IN AUSTRALIA......................................................  407 [7.215] [7.225] [7.235]

National Guidelines or Principles for Restorative Justice Programs and Processes for Criminal Matters....................................................... 407 Inquiry into Alternative Dispute Resolution and Restorative Justice............... 408 Restoring Justice in Criminal Process in Queensland and Western Australia.... 410

[7.240] Potential outcomes of restorative justice processes......................................  411 [7.245] Restorative justice for serious crimes............................................................  412 [7.250]

The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harms................................. 412

[7.255] Restorative approaches to serious crime world-​wide....................................  413 [7.260] [7.270]

The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harms................................. 413 The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harms................................. 414  

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[7.280] [7.290] [7.300]

The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harms................................. 416 Putting Justice Needs First: A Case Study of Best Practice in Restorative Justice.......................................................................... 417 Restoring Justice in Criminal Process in Queensland and Western Australia.... 419

[7.305] Critiques of restorative justice......................................................................  420 [7.310] Critical Perspectives on Restorative Justice.............................................. 420 [7.320] Alternative Conflict Resolution and Restorative Justice: A Discussion............. 420 [7.330] Alternative Conflict Resolution and Restorative Justice: A Discussion............. 421 [7.340] [7.350] [7.360]

Unfinished Business: Aboriginal Reconciliation and Restorative Justice in Australia............................................................................ 423 Indigenous Youth and Restorative Justice in Western Australia.................... 423 Restorative Justice: The Real Story........................................................ 426

[7.365] National and international guidelines for restorative justice.........................  427 [7.370] [7.375] [7.380]

National Guidelines or Principles for Restorative Justice Programs and Processes for Criminal Matters....................................................... 427 Handbook on Restorative Justice Programmes........................................ 428 Principles of Best Practice: Restorative Justice in Criminal Cases in NZ.......... 430

[7.385] PLEA BARGAINS IN CRIMINAL LAW.............................................................................  431 [7.390] Plea Negotiations: An Empirical Analysis............................................... 431 [7.400] Plea Negotiations: An Empirical Analysis............................................... 434 [7.410] Plea Negotiations: An Empirical Analysis............................................... 437 [7.415] APPLICATIONS OF DISPUTE RESOLUTION: INTERNATIONAL CRIMINAL LAW..............  437 [7.420] International Conflict Resolution.......................................................... 438 [7.425] CONCLUSION.............................................................................................................  438 [7.430] QUESTIONS................................................................................................................  438

INTRODUCTION [7.05]  Dispute resolution is a process not typically thought of in relation to criminal matters.

This is largely because of the way the criminal justice system is set up in Australia, in which the “dispute” is formally between the State and the offender (rather than between individuals, such as the victim and the offender). In addition, in the criminal justice system, outcomes tend to be seen as being based around punishment, and there is some ideological opposition to the idea of an offender negotiating their punishment, rather than it being imposed on them by an authority. However, dispute resolution has been introduced into the criminal justice system in Australia, as both an additional and an alternative process to standard criminal justice processes. The main dispute resolution processes in the criminal field are based on the theory of restorative justice, which is discussed in detail later in this chapter. [7.10]  Two of the main dispute resolution processes used in the criminal context in Australia

are victim-​offender mediation and conferencing. However, there are a range of other processes, programs and interventions that may also be conceptualised as forms of dispute resolution in criminal matters. These include sentencing circles, plea bargain negotiations, victim-​offender panels, victim support programs, community crime prevention programs, ex-​ offender assistance, community service, school programs, specialist problem-​solving courts, reparation boards, reconciliation commissions and meetings between offenders in correctional institutions and victims. These dispute resolution processes may be used instead of, or in conjunction with, traditional criminal justice processes. The range of timings for dispute resolution interventions is set out in [7.15]. What this figure does not show, and as will be seen later in the chapter, is that 390 [7.05]

Dispute Resolution in Criminal Law  Chapter  7

there is also scope for even earlier interventions at the pre-​crime stage, with dispute resolution being used as a crime prevention measure.

Inquiry into Alternative Dispute Resolution and Restorative Justice [7.15] Victorian Parliament Law Reform Committee, Final Report: Inquiry into Alternative Dispute Resolution and Restorative Justice (Melbourne, 2009) Part III Restorative Justice, pp 193-​194. Restorative justice interventions may be used at any stage of the criminal justice process. [The] figure [below] summarises the stages at which offenders may be referred to restorative justice programs. In general, more serious offences are referred to restorative justice later in the criminal justice process. There is considerable diversity in the entry points to restorative justice programs throughout Australia. Stages of referral to restorative justice.

Pre-charge (police)

Post-charge (prosecuting body)

Pre-sentence (court)

Sentence (court)

Post-sentence (corrections)



WHY DISPUTE RESOLUTION IN THE CRIMINAL CONTEXT? [7.20]  There are many reasons why dispute resolution is seen as appropriate in criminal law

matters. Some reasons are pragmatic, such as the fact that dispute resolution processes divert cases from expensive and time-​consuming court hearings. Other reasons are more ideological, in that dispute resolution processes are seen as providing better outcomes for victims, offenders and the community. The following extracts discuss various reasons for introducing dispute resolution processes in the criminal law context. In the first extract, we see that dispute resolution can actually help prevent crime, by resolving disputes that have the potential to escalate to the criminal justice system.

Alternative Dispute Resolution as a Crime Prevention Tool [7.25]  Crime Prevention Victoria, Appropriate Dispute Resolution as a Crime Prevention Tool (State of Victoria, 2014)  https://​www.crimeprevention.vic.gov.au/​social-​cohesion/​step-​to-​appropriate-​dispute-​ resolution-​as-​a-​crime-​prevention-​tool (accessed 19 September  2018). Appropriate Dispute Resolution (ADR) can be a great option to find workable solutions to community problems. A 15 minute video, “Step to –​Appropriate Dispute Resolution in Action” tells the story of a dispute between teenagers from the Maryborough Parkour Group, the local council, police and community. The film highlights how appropriate dispute resolution or mediation can successfully resolve disputes and prevent issues escalating to the criminal justice system.

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Dispute Resolution in Australia: Cases, Commentary and Materials

Alternative Dispute Resolution as a Crime Prevention Tool cont. Parkour or “free running” is a century-​old form of physical exercise that involves finding the fastest and most efficient way of moving from one place to another, often by jumping, climbing and swinging over obstacles. The group practiced in a town centre park and was seen as an intimidating presence in the main street. Local residents and traders had the impression they were causing damage to trees and bins in the local park. The video shows the young men, together with local residents and Central Goldfields Shire Council, discussing their respective points of view and working out a solution that ultimately brought the community closer together. The community makes use of the Dispute Settlement Centre of Victoria (DSCV) to reach an agreement and develop a clear set of guidelines for the use of public spaces. ADR is a way of resolving problems and issues in a friendly, open and cost effective manner. It keeps the issues low-​key rather than escalating them. This video demonstrates how dispute resolution can break down barriers and make the local community a safer and more engaging place to live.



RESTORATIVE JUSTICE Definitions of restorative justice [7.30]  Restorative justice, like so many terms in the field of conflict resolution, is difficult to

define. It incorporates a range of processes and applications in different settings and jurisdictions, and it can be thought of both as a theory and as a practice. There is also controversy about what should be included and excluded from a definition, as explained by Kathy Daly in the following extract.

Restorative Justice: The Real Story [7.35]  K Daly, “Restorative Justice: The Real Story” (2002) 4(1) Punishment and Society 55 at 57-​58. Restorative justice is not easily defined because it encompasses a variety of practices at different stages of the criminal process, including diversion from court prosecution, actions taken in parallel with court decisions and meetings between victims and offenders at any stage of the criminal process (eg, arrest, pre-​sentencing and prison release). For virtually all legal contexts involving individual criminal matters, restorative justice processes have only been applied to those offenders who have admitted to an offence; as such, it deals with the penalty phase of the criminal process for admitted offenders, not the fact-​finding phase. Restorative justice is used not only in adult and juvenile criminal matters, but also in a range of civil matters, including family welfare and child protection, and disputes in schools and workplace settings. Increasingly, one finds the term associated with the resolution of broader political conflicts such as the reconstruction of post-​apartheid South Africa (South African Truth and Reconciliation Commission, 1998; Christodoulidis, 2000 for more critical appraisal), post-​genocide Rwanda (Drumbl, 2000) and post-​sectarian Northern Ireland (Dignan, 2000: 12-​13). Given the extraordinarily diverse meanings of the term and the contexts in which it has been applied, it is important for analytical purposes to bound the term to a particular context and set of practices. In this article, I discuss its use in the response to individual crime (as compared to broader political conflict); and in reviewing what is known about restorative justice practices, I focus on studies of youth justice conferencing in Australia and New Zealand, giving particular emphasis to my research 392 [7.30]

Dispute Resolution in Criminal Law  Chapter  7

Restorative Justice: The Real Story cont. in South Australia. Even with a narrowed focus on responses to individual crime, there remain problems of definition. One reason is that because the idea of restorative justice has proved enormously popular with governments, the term is now applied after the fact to programmes and policies that have been in place for some time, or it is used to describe reputedly new policing and correctional policies (eg, La Prairie, 1999 for Canada; Crawford, 2001 for England and Wales). Until careful empirical work is carried out, we cannot be certain what is going on or the degree to which any of these newer or repackaged practices could be considered “restorative”. There is great concern among restorative justice advocates to distinguish practices that are near and far from the restorative ideal, and there is debate over how to draw the line on a continuum of practices. One definition, proposed by Marshall, is that restorative justice is “a process whereby all the parties with a stake in a particular offence come [58] together to resolve collectively how to deal with the aftermath of the offence and its implications for the future” (1996: 37). This definition, which McCold (2000: 358) associates with the “Purist” model of restorative justice, has been criticized by other restorative justice advocates who say that the definition is too narrow because it includes only face-​to-​face meetings, it emphasizes process over the primary goal of repairing a harm and actions to repair the harm may need to include coercive responses (Walgrave, 2000: 418). These latter advocates call for a “Maximalist” model, where restorative justice is defined as “every action that is primarily oriented towards doing justice by repairing the harm that has been caused by crime” (Bazemore and Walgrave, 1999: 48). In this debate, advocates are considering the uses of restorative justice in youth justice cases only; and yet we continue to see debate and uncertainty over the optimal size of the restorative justice “tent” and which practices should be included in it. McCold (2000: 401) constructed a Venn diagram to distinguish practices that he considers to be fully, mostly or only partly restorative. He suggests that fully restorative practices occur at the intersection of the three circles of “victim reparation”, “offender responsibility” and “communities of care reconciliation”. At that intersection are practices such as peace circles, sentencing circles and conferences of various types. Outside the intersection are practices he defines as mostly restorative (eg, truth and reconciliation commissions, victim–​offender mediation) or only partly restorative (reparation boards, youth aid panels, victim reparation). The three circles relate to the three major “stakeholders” in the aftermath of a crime: victims, offenders and “communities” (which include victims’ and offenders’ family members and friends, affected neighbourhoods and the broader society). Using McCold’s diagram, the research reviewed here are of practices associated with a “fully restorative” model, although as McCold points out (and I concur), this is no guarantee that actual practices are “restorative”. A selected review of the many lists of “core elements” of restorative justice (eg, Zehr, 1995: 211-​ 12; Nova Scotia Department of Justice, 1998: 1-​2; Dignan, 2000: 4-​7; McCold, 2000: 364-​72, 399-​ 406, to name a few) shows these common elements: an emphasis on the role and experience of victims in the criminal process; involvement of all the relevant parties (including the victim, offender and their supporters) to discuss the offence, its impact and what should be done to “repair the harm”; and decision making carried out by both lay and legal actors. While definitions and lists of core elements of restorative justice vary, all display a remarkable uniformity in defining restorative justice by reference to what it is not, and this is called retributive justice.

 [7.40] The introduction of dispute resolution processes in criminal matters has been one

response to a growing dissatisfaction with the criminal justice system. The extract below explains how the concept of restorative justice began to provide an alternative to retributive and rehabilitative models of criminal justice, leading to what some have called a “paradigm shift” in the system. This shift has broadened the range of people involved in managing the consequences of a crime, from the offender and the state, to an awareness of the needs of, and a more active role for, the victim and the community. [7.40]  393

Dispute Resolution in Australia: Cases, Commentary and Materials

Alternative Conflict Resolution and Restorative Justice: A Discussion [7.45] A Lemonne, “Alternative Conflict Resolution and Restorative Justice: A Discussion” in L Walgrave, Repositioning Restorative Justice (Taylor and Francis, Hoboken, 2012) Ch 3, pp 43-​44. The development of victim-​offender mediation programmes has often been considered as a key element in the implementation of restorative justice, revealing what some authors have called a paradigm shift in the criminal justice system. The idea of restorative justice emerged in the 1970s, in the increasing skepticism towards both retributive and rehabilitative models. Within this context, the theoretical arguments supporting the implementation of restorative justice programmes were very broad and included the devastating effect of the penal system on young offenders and the penal system’s incapacity to handle and ever-​ increasing caseload. The arguments also included growing criticism of the judicial system for victimizing the victims a second time, of the very limited role of the victim in the procedure and of the necessity to revive community participation in the handling of the (penal) conflicts. These arguments contributed to the promotion of new strategies of conflict resolution designed to be more beneficial to society as a whole by taking into account the needs of the citizen … In the European context, the abolitionist movement … [44] … provided the first theoretical framework for the promotion of alternative forms of dispute settlement, such as community boards and victim-​offender mediation programmes … In the 1990s the idea of restorative justice (based on such principles as reparation/​reconciliation and the participation of the victim, offender and community in the process of conflict resolution …) progressively constituted the theoretical framework surrounding various initiatives implemented during the 1980s under various labels, operational philosophies, actors and levels of institutionalization. Victim-​offender mediation programmes and family (or community) group conferencing are good examples of this kind of intervention. Additionally, some victim support programmes as well as community service orders can be considered as part of this movement towards restorative justice. Since then, various theoretical and ideological movements have been more or less associated with development of this model –​for example, Braithwaite’s theory of “reintegrative shaming”, feminist criminology, peace-​making criminology, the victim movement, religious movements and so on …

 [7.50]  Restorative justice practices are now widespread in Australia, operating in every State

and Territory and encompassing youth conferencing, adult conferencing, victim-​ offender mediations and circle sentencing as outlined below.

Restorative Justice in the Australian Criminal Justice System [7.52]  J Larsen, Restorative Justice in the Australian Criminal Justice System (2014) Australian Institute of Criminology Report No 127, Table 1, p 6. Table 1 Restorative justice practices available in Australian criminal justice systems Youth conferencing

Adult conferencing

Victim–​offender mediation

Circle sentencing

New South Wales

✓

✓

✓

✓

Victoria

✓

Queensland

✓

South Australia

✓

394 [7.45]

✓ ✓

✓

Dispute Resolution in Criminal Law  Chapter  7

Restorative Justice in the Australian Criminal Justice System cont. Youth conferencing

Adult conferencing

Victim–​offender mediation

Circle sentencing ✓

Western Australia

✓

✓

Northern Territory

✓

✓

Tasmania

✓

✓

Australian Capital Territory

✓



TRADITIONAL JUSTICE AND RESTORATIVE JUSTICE [7.55]  Many dispute resolution systems in the criminal context also have a focus on heal-

ing and reparation rather than punishment. The differences between “traditional justice” and “restorative justice” are explained in the following extract.

Inquiry into Alternative Dispute Resolution and Restorative Justice [7.60] Victorian Parliament Law Reform Committee, Final Report: Inquiry into Alternative Dispute Resolution and Restorative Justice (Melbourne, 2009) Part III Restorative Justice, pp 192-​193. Restorative justice offers a different framework for responding to offending than is provided by the traditional criminal justice system. Restorative justice shifts the focus away from a rights-​based approach to one where the participants engage actively and honestly and seek to repair the harm caused by offending. While the traditional criminal justice system has a focus primarily on the offender, a restorative justice approach broadens this out to involve victims and the wider community. Figure … below illustrates Australian academic Kathleen Daly’s conceptualisation of the key differences between traditional justice and restorative justice … Traditional and restorative justice Traditional justice (retributive and rehabilitative) Restorative justice Victims are peripheral to the process

Victims are central to the process

The focus is on punishing or on treating an offender

The focus is on repairing the harm between an offender and their victim, and perhaps also an offender and the wider community

The community is represented by the state

Community members or organisations take a more active role

The process is characterised by adversarial relationships among the parties

The process is characterised by dialogue and negotiation among the parties

 [7.65]  Restorative justice has been described as a therapeutic process, particularly because

of its emphasis on the direct involvement of all connected with or impacted by a crime. In the following extract, Laycock discusses some of the therapeutic benefits of restorative processes. [7.65]  395

Dispute Resolution in Australia: Cases, Commentary and Materials

Restorative Justice: Offering Benefits to Victims and Offenders [7.70] D Laycock, Restorative Justice: Offering Benefits to Victims and Offenders (Law Society South Australia, 2011) p 17. The processes of restorative justice, particularly face to face encounters, can be of a therapeutic nature for a number of reasons including: • Active participation (promotes satisfaction in the process); • For victims, the opportunity to articulate their story (to remove negative images associated with the offending); • Removal of shame from victims; • Offenders may express shame (it is not always necessary to actually denunciate behaviour, the victim’s recount of suffering is enough for most offenders to naturally feel shame); • Promotion of reintegration into the community (this is in direct contrast to the potentially stigmatizing shame achieved within court that is alienating and potentially criminogenic); • Forgiveness and remorse may occur (in either order, and be expressed by victims and offenders); • The arena for conveying of emotions within a supportive space (these emotional dynamics can play a significant role in effecting change in both victim and offender). It should always be borne in mind that restorative justice is not an arena for the ongoing therapeutic interventions that those affected by crime will need. It is, however, an opportunity for all those involved and affected to reach a common understanding of what those therapeutic interventions may be, and how they may be undertaken to address the needs of the individuals involved. Participation in this journey can in itself be beneficial to victims, as is ongoing information relating to the fulfilment of obligations/​undertakings (being kept in the loop).

 [7.75]  Restorative justice can also be distinguished from traditional criminal justice on the

basis that it is more “forward looking”.

Debating Restorative Justice [7.80]  C Cunneen and C Hoyle, Debating Restorative Justice (Hart Publishing, Oxford, 2010) pp 2-​3. Criminal justice refers to the statutory responses to crime and disorder of organisations such as the police, prosecutors, defence lawyers, the courts, the prisons, and probation and management offender agencies. It draws on a set of normative and theoretical justifications for attempting to limit and control the actions of citizens and, in those cases where citizens transgress, for sanctioning their behaviour and causing them pain. Such justifications fall into backward-​and forward-​looking aims. Forward-​looking philosophies include deterrance (trying to persuade people not to reoffend), incapacitation (physically preventing them from reoffending) and rehabilitation (using education or therapy to change people’s attitudes and behaviour to stop them reoffending). However, when restorative justice is compared to criminal justice, most commentators have in mind the backward-​looking [3]‌justification of retribution. Retributive justice responds to the offence committed, rather than trying to prevent further offending. It treats all citizens as moral actors who are responsible for their behaviour. Hence, it aims to punish transgressions rather than heal the transgressor, although only with as much punishment as fits the crime. In other words, the punishment must be proportionate to the crime. Retributive justice focuses on the offender and pays little regard to victims or to the wider community. Clearly, restorative justice is a distinct sentencing practice (more like mediation than other sentences 396 [7.70]

Dispute Resolution in Criminal Law  Chapter  7

Debating Restorative Justice cont. such as prison or probation) and is driven by a philosophy distinct from other justifications for punishment, particularly retribution.



RESTORATIVE JUSTICE IN AUSTRALIA [7.85]  In the following extract, Larsen touches on some of the philosophical differences that

Cunneen and Hoyle refer to and examine how restorative justice can be differentiated from conventional criminal justice systems.

Restorative Justice in the Australian Criminal Justice System [7.90]  J Larsen, Restorative Justice in the Australian Criminal Justice System (2014) Australian Institute of Criminology Report No 127, p 2. • rather than crime being seen as a violation of law and committed against the state, it is perceived as a conflict between individuals which has resulted in harm to victims and communities (Latimer & Kleinknecht 2000); • where the traditional approach seeks to determine guilt and impose punishment, restorative justice is more concerned with repairing the harm caused by offending and restoring relationships (Strang 2001); and • restorative justice processes provide an opportunity for “active participation by victims, offenders and their communities” (van Ness cited in Strang 2001: 3), a departure from the passive roles offered to them by the traditional criminal justice system. Some contributors to the field claim to be ‘against punishment’ (Daly 2013: 356 Walgrave cited in Daly & Proitetti-​Scifioni 2011: 219) and do not see its relevance to restorative justice, while others argue that punishment cannot be separated from restorative justice (Daly & Proietti-​Scifoni 2011; see Daly 2013 for a discussion on the relationship of punishment to restorative justice). Umbreit, Coates and Vos (2004) have pointed out that there is an assumption that restorative justice is not punishing because it does not intend to be and yet their research with participants revealed that some offenders felt that they had been punished more through restorative justice processes than would have been the case in the traditional court system. In many ways, restorative justice asks more of offenders than the conventional system; they must participate more actively, remorse is hard to feign and they must engage more directly with the police, judicial officers and victims. Further to this, Foley (2013: 130) argues that ‘retribution is much wider than simply punishment’ and that contrary to prevailing views, restorative justice programs actually play an important role in helping achieve retribution because they include ‘bringing offenders to account, denouncing their behaviour, providing public vindication for victims and setting reparation and sanctions’.

 [7.95]  Larsen then draws on the writing of some of the seminal authors in the field of restor-

ative justice to identify key differences that mark out restorative practices from traditional approaches to criminal justice.

Restorative Justice in the Australian Criminal Justice System [7.100]  J Larsen, Restorative Justice in the Australian Criminal Justice System (2014) Australian Institute of Criminology Report No 127, pp 2-​3. [7.100]  397

Dispute Resolution in Australia: Cases, Commentary and Materials

Restorative Justice in the Australian Criminal Justice System cont. It is said that there are three key characteristics common to restorative justice programs; emphasis on the offender’s personal accountability by key participants, an inclusive decision-​making process that encourages participation by key participants; and the goal of putting right the harm that is caused by an offence (Bazemore & Schiff 2004: 41). Restorative justice is “a process rather than a particular program model” (Umbreit et al. 2004: 82) and as such, encompasses a wide range of practices. Bolitho (2012: 76) suggests that this is due to different processes reflecting and emphasising the various elements and principles of restorative justice; “elements and principles that are given differing weights … reflecting different ‘sensibilities’ and cultures”. Umbreit et al. (2004: 88) add that it is a concept that has evolved over time and while it is important to “guide with care the underlying principles of restorative justice” it is equally important to understand that it is likely to continue to evolve and that this should be viewed positively. The concepts of reparation and restoration are integral to understanding restorative justice. As Daly and Proietti-​Scifoni (2011) note, both concepts are recent additions to domestic criminal justice (with the latter also moving into international law in recent times) and neither has a settled definition. There is some overlap between the concepts and Daly and Proietti-​Scifoni (2011) suggest that the terms may be best understood by noting the starting points of various advocates; that is, some take reparation as the key term, others restoration. Restoration, as referred to earlier, refers to the overarching goal of restorative justice to “put right the harm” (Bazemore & Schiff 2004: 41) and reparation can be seen as a “subsidiary activit[y]‌that may assist in moving a victim to an initial state before the crime” (Duff cited in Daly and Proietti-​Scifoni 2011: 35). Reparation can be made in a variety of ways and can be both material, for example, undertaking work for the victim or community service and making restitution, or symbolic, including but not limited to making a verbal or written apology or entering a treatment program. Importantly, repairing harm goes beyond paying for damages, it is about actively engaging with a victim to acknowledge their “ownership” of the offence and that they have been ‘wronged’ in the commission of the offence.

 [7.105]  The United Nations (UN) decided not to even try to define restorative justice in the

document Basic Principles on the Use of Restorative Justice Programs in Criminal Matters. Instead, the UN proposed the following definitions of restorative justice processes and outcomes.

Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters [7.110]  United Nations Economic and Social Council, Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (Resolution 2001/​12) paragraphs 2 and 3. Restorative process means any process in which the victim and the offender and, where appropriate, any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator. Restorative processes may include mediation, conciliation, conferencing and sentencing circles. Restorative outcome means an agreement reached as a result of a restorative process. Restorative outcomes include responses and programs such as reparation, restitution and community service, aimed at meeting the individual and collective needs and responsibilities of the parties and achieving the reintegration of the victim and the offender.

 398 [7.105]

Dispute Resolution in Criminal Law  Chapter  7

[7.115]  In 2010, the National Justice CEOs Group released a discussion paper aimed at the

development of national guidelines or principles for restorative justice programs in the criminal context in Australia. They also referenced Tony Marshall’s widely accepted definition, but noted that what was more important than the particular form of any process was its underlying aim and values.

National Guidelines or Principles for Restorative Justice Programs and Processes for Criminal Matters [7.120]  National Justice CEOs Group, National Guidelines or Principles for Restorative Justice Programs and Processes for Criminal Matters, Discussion Paper (Department of Justice and Attorney General NSW, March 2011) p 5. Restorative justice practices vary and it has been noted that “the essence of restorative justice is not the adoption of one form rather than another; it is the adoption of any form which reflects restorative values and which aims to achieve restorative processes, outcomes and objectives”. Howard Zehr has stated that at its core, restorative justice “is a set of principles, a philosophy, an alternative set of guiding questions. Alternatively, restorative justice provides an alternative framework for thinking about wrongdoing”.

 [7.125]  In the end, the Guidelines that were released in 2013 included a definition of restora-

tive justice, a restorative outcome, a participant and a restorative justice practitioner.

Guidelines for Restorative Justice Processes in Criminal Cases [7.130]  National Justice CEOs Group, Standing Council on Law and Justice, Guidelines for Restorative Justice Processes in Criminal Cases (Department of Justice and Attorney General NSW, 2013) p 1. 1.

Restorative Justice refers to “any process in which the victim, offender, a facilitator and, where appropriate, any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime”.

2.

A Restorative Outcome refers to an agreement reached that is intended to repair harm caused, and is endorsed by all participants as a result of a Restorative Justice process.

3.

A Participant refers to the victim, the offender, and any other individuals support persons or community members who:



a)

Were affected by the crime;



b)

Were otherwise connected with the crime; and/​or

c)

Can provide specialist advice or support.

4.

A Restorative Justice Practitioner refers to a professional whose role it is to facilitate a Restorative Justice process in a fair and impartial manner.

 Principles of restorative justice [7.135] The national Guidelines also include three general principles and some procedural

safeguards for restorative justice processes in the Australian criminal context. [7.135]  399

Dispute Resolution in Australia: Cases, Commentary and Materials

National Guidelines [7.140]  National Justice CEOs Group, Standing Council on Law and Justice, Guidelines for Restorative Justice Processes in Criminal Cases (Department of Justice and Attorney General NSW, 2013) pp 2-​3. General Principles 11.

Participants and Restorative Justice Practitioners are to be treated with respect and dignity at all times.

12.

The victim and offender should normally agree on the basic circumstances of a case as the basis for their participation in a Restorative Justice process. The offender must accept responsibility for the offence before the process can proceed.

13.

In circumstances where a Restorative Justice process is inappropriate, or is unable to be performed or completed, the case must be referred back to an appropriate authority or institution without delay.

Procedural Safeguards 14.

Any Restorative Justice process must be clearly communicated to all Participants.

15.

The victim and the offender retain the right to seek legal advice.

16.

Before and during a Restorative Justice process, each victim and offender must be well informed and provided with a clear explanation of the process, the consequences of participating and their legal rights. During a Restorative Justice process, the Restorative Justice Practitioner must set clear expectations as to what can be achieved through the Restorative Justice process.

17.

Fundamental procedural safeguards and rights at law guaranteeing fairness must be upheld, including the right to:



a)

the rule of law;



b)

natural justice (including the right to a fair hearing);



c)

translation or interpretation assistance; and



d)

the assistance of a parent, guardian and/​or suitable adult if a victim or offender is a minor.

18.

A victim or offender may ask for cultural assistance.

19.

A victim has the right to have a support person present.

20.

The appropriate decision maker has the discretion to allow a suitable representative (as assessed by the appropriate decision maker) to appear on behalf of the victim should they be unable to physically or emotionally participate in the Restorative Justice process.

21.

All discussions that occur within a Restorative Justice process:



a)

are confidential, unless:



i.

Participants agree to their disclosure;



ii.

disclosure is required by law; and/​or



iii.

such discussions reveal an actual or potential threat to a Participant’s safety;

and

b)

may not be used in any subsequent legal process, excluding those circumstances outlined above.

 Restorative justice processes [7.145]  In this section, the three main kinds of dispute resolution processes used in the crim-

inal context in Australia are described: victim-​offender mediation; conferencing; and circles. 400 [7.140]

Dispute Resolution in Criminal Law  Chapter  7

There are other processes used in many jurisdictions, and some of these are discussed in the following section on the history of restorative justice in Australia.

Victim Offender Mediation: Evidence-​Based Practice over Three Decades [7.150]  M Ubreit, R Coates and B Vos, “Victim Offender Mediation: Evidence-​Based Practice over Three Decades” in M Moffitt and R Bordone (eds), The Handbook of Dispute Resolution (Jossey Bass, San Francisco, 2005) Ch 28, pp 456-​457. Victim offender mediation (VOM) is a process that provides interested victims and offenders an opportunity to meet in a safe and structured setting with a trained mediator. VOM aims to hold the offender directly accountable for his or her behavior while also providing assistance and compensation to the victim. Most commonly, the crimes involved are property crimes and minor assaults, and the mediators are often community volunteers. With the assistance of a trained mediator, the victim is able to let the offender know how the crime affected him or her, receive answers to questions he or she may have, and be directly involved in developing a restitution plan for the offender to be accountable for the losses the victim incurred. The offender is able to take direct responsibility for his or her behavior, learn the full impact of what he or she did, and develop a plan for making amends to the victim. VOM offers opportunities for both parties to come together in a controlled setting to share the anger and pain of being victimized, as well as to answer questions of why and how. This personalization of the consequences of crime enhances satisfaction levels with the entire justice process. While many other types of mediation are largely “settlement driven”, VOM is primarily “dialogue driven”, with the emphasis upon victim healing, offender accountability, and restoration of losses. Contrary to many other applications of mediation in which the mediator first meets the parties during the joint mediation session, most VOM programs use a different process that is based upon a humanistic model of mediation. A humanistic model of mediation involves reframing the role of the mediator from encourager of settlement to facilitator of dialogue and mutual aid. This includes scheduling separate premediation sessions with each party, connecting with the parties through building rapport and trust (though remaining impartial), and identifying the strengths of each party. Within the humanistic model, the mediator uses a nondirective style of mediation that creates a safe space for dialogue and accesses the strengths of participants. Mediators are also trained to recognize and use the power of silence. Mediators using a humanistic approach typically say very little in the mediation session and intentionally try to get out of the way so that the involved parties can speak directly with each other. Most VOM sessions result in a signed restitution agreement. Within VOM theory, however, reaching an agreement is secondary to the importance of the initial dialogue between the parties that addresses emotional and informational needs of victims. The dialogue is central to victim healing and to development of victim empathy in the offender, which can lead to less criminal behavior in the future. Studies have consistently found that the restitution agreement is less important to crime victims than the opportunity to talk directly with the offender about how they felt about the crime. [457] Victim offender mediation is the most widely used and researched form of restorative justice in the world. More than fifteen hundred VOM programs in seventeen countries have been developed in the past three decades, and more than fifty empirical studies of VOM have been conducted in five different countries. The VOM process can be summarized by four distinct phases: (1) referral and intake, (2) preparation for mediation, (3) mediation, and (4) follow-​up.



VICTIM-​OFFENDER MEDIATION IN AUSTRALIA [7.160]  Examples of victim-​offender mediations operate in every jurisdiction in Australia. As

Larsen outlines below, they may be legislative schemes, operate for both juvenile and adult [7.160]  401

Dispute Resolution in Australia: Cases, Commentary and Materials

offenders, may or may not exclude particular offences and can be initiated by a variety of stakeholders within the criminal justice system.

Restorative Justice in the Australian Criminal Justice System [7.165]  J Larsen, Restorative Justice in the Australian Criminal Justice System (2014) Australian Institute of Criminology Report No 127, Table 3, p 19. Table 3 Victim–​offender mediation in Australia Program name

Legislation

Eligible offenders

Excluded offences

Initiated by

Point of referral

New South Wales

Victim–​ offender conferencing (Restorative Justice Unit)

Not governed by specific legislation

Sentenced adult offenders

None, however, offences must have an identifiable victim

Victim or offender (with the exception of sex offenders)

Post-​ sentence

Queensland

Post-​sentence Justice Mediation

Dispute Resolution Centre Act 1990

Adults (17 years and over)

None

Victim or offender

Post-​ sentence

Western Australia

Reparative Meditation

Sentencing Act 1995 Young Offender’s Act 1994

Youth and adults

Murder, sexual assault, kidnapping, deprivation of liberty, and domestic violence involving intimate partners

Victim, offender, magistrate/​judge, police prosecutor, lawyers, victim support counsellors or Community Corrections/​Youth Justice officers

Post-​ conviction and pre-​ sentence

Victim–​ offender Dialogue

Not governed by specific legislation

Youth and adults

Any offence type is referable. Most commonly murder and sexual abuse

Victim only

Post-​ sentence

Northern Territory

Correctional Centre Conferencing and Ponki Mediation

Community Justice Centre Act 2005

Youth and adults

None, however, generally for very serious offences such as murder and manslaughter

Victim, offender, lawyers, reintegration officers, judges, elders, witness assistance or community members

Post-​ sentence

Tasmania

Victim–​ offender Mediation

Youth and adults

None stipulated in legislation, however, most involve indictable offences

Victim or offender

Post-​ sentence

Youth and adults

None stipulated in legislation, however, most involve indictable offences

Court-​ ordered Mediation

Sentencing Act 1997

 402 [7.165]

Pre-​ sentence

Dispute Resolution in Criminal Law  Chapter  7

CONFERENCING [7.170] The Victorian Parliament Law Reform Committee, Final Report:  Inquiry into

Alternative Dispute Resolution and Restorative Justice (at 194), describes conferencing as “where those most affected by the crime, including the victim, offender, family and friends, meet to discuss the harm caused by the offence and how it might be repaired”. The NZ family conference model and the Wagga Wagga model [7.175] There are many conferencing models in use around Australia. In the following

extract, King et al describe the NZ family conference model and “the Wagga Wagga model” that preceded the introduction of the Young Offenders Act 1987 (NSW) and the legislative introduction of Youth Justice Conferencing.

Restorative Justice in Non-​Adversarial Justice [7.180] M King, A Freiberg, B Batagol and R Hyams, Restorative Justice in Non-​Adversarial Justice (Federation Press, Leichhardt, 2009) Ch 3, pp 41-​42. 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. Depending on the parties’ beliefs, the conference may open with a prayer. The coordinator then introduces the process. Usually the police officer will read out an offence summary. The offender will say whether he or she admits the offence and whether there are any differences as to the facts. If there is no admission, the conference ends and the matter is generally referred to the traditional court process for disposition. If the conference proceeds, the victim or supporter then describes the effect of the offence. A general discussion ensues concerning the offence and options for making amends. The offender may also express remorse and given an apology to the victim. The family and offender decide what offer is to be made to make amends in the absence of the other parties. An agreement may then be concluded and the parties may share food together. The context of the development of the Wagga Wagga model in New South Wales in the early 1990s was entirely different to that in New Zealand. Conferencing began in the context of community policing initiatives as a means of improving police cautioning and to promote a collective decision-​making approach to the resolution of offending and its effects. This form of conferencing was influenced by the New Zealand model and by Braithwaite’s (1989) reintegrative shaming theory. Unlike 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. O’Connell (1998) describes the process: The conference protocols were basic: have the offenders talk about what happened, what they were thinking and who was affected; followed by the victims and supporters; and finally, the offenders’ family and supporters. Discussion then focused on what needed to happen to make things right. Refreshments were provided immediately after the conference to provide an informal opportunity for participants to talk while the facilitator prepared the written agreement. This model has become the basis for other police-​led conference programs around the world.

 [7.180]  403

Dispute Resolution in Australia: Cases, Commentary and Materials

Conferencing around Australia [7.185] The following table outlines the various conferencing schemes now operating

around Australia, demonstrating just how widespread they have become. These processes are now described by the Australian Institute of Criminology as “mainstream” in juvenile justice.

Restorative Justice in the Australian Criminal Justice System [7.190]  J Larsen, Restorative Justice in the Australian Criminal Justice System (2014) Australian Institute of Criminology, Report No 127, Table 2, p 9. Table 2 Conferencing for youth and adult offenders currently operating in Australia

New South Wales

Victoria

404 [7.185]

Program name

Legislation

Eligible participants

Eligible participants

Victim participation

Point of referral

Youth Justice Conferences

Young Offenders Act 1997

Youth (10 to under 18 years)

Sexual assault, drug and traffic offences, offences causing death and breaches of apprehended violence orders

Conference can proceed without a victim present

Police and court (pre-​ sentence)

Forum Sentencing

Criminal Procedure Regulation 2010 NSW (Part 7)

Adults  –​ 18 years and older

Murder, manslaughter and serious violent and sexual offences, offences of stalking and intimidation, drug supply, cultivation and manufacture, firearms offences

Conference can proceed without a victim present

Court (pre-​ sentence)

Youth Justice Group Conferencing

Children, Youth and Families Act 2005

Youth (10 to under 18 years) and young adults (10 to 20 years)

None stipulated in the legislation but in practice, homicide, manslaughter, sex offences or serious crimes of violence are excluded

Conference can proceed without a victim present

Court (pre-​ sentence)

Youth Justice Conferencing

Youth Justice Act 1992

Youth (10 to under 17 years), although some adults may be referred by police

None stipulated in the legislation

Conference can proceed without a victim present

Police and court (pre-​ sentence)

Dispute Resolution in Criminal Law  Chapter  7

Restorative Justice in the Australian Criminal Justice System cont. Program name

Legislation

Eligible participants

Eligible participants

Victim participation

Point of referral

Queensland

Justice Mediation Program

Dispute Resolution Centre Act 1990

Adults (17 years and over)

None stipulated in the legislation

Conference can proceed without a victim present

Mostly diversionary but can come at all stages of the criminal justice process

South Australia

Family Conferencing

Young Offenders Act 1993

Youth (10 to under 18 years)

Legislation stipulates youth who admit to committing a ‘minor’ offence may be referred by police, however no offences are specifically prohibited.

Conference can proceed without a victim present

Police and court (pre-​ sentence)

Port Lincoln Aboriginal Conferencing

Criminal Law Sentencing Act 1988

Adults  –​ 18 years and older

Conference can proceed without a victim present

Court (pre-​ sentence)

Western Australia

Family Group Conferencing

Young Offenders Act 1994

Youth (10 to under 18 years)

Schedule 1 and 2 offences, which include homicide offences, sexual offences, some drug offences, arson and offences against justice procedures

Conference can proceed without a victim present

Police and court (pre-​ sentence)

Northern Territory

Youth Justice Conference

Youth Justice Act

Youth (10 to under 18 years)

Murder, attempted murder, manslaughter, terrorism offences, threats to kill, a range of other violent offences (eg robbery), sexual offences, some property offences and a range of drugs offences

Conference can proceed without a victim present

Police and court (pre-​ sentence)

[7.190]  405

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Restorative Justice in the Australian Criminal Justice System cont. Program name

Legislation

Eligible participants

Eligible participants

Victim participation

Point of referral

Tasmania

Community Conference

Youth Justice Act 1997

Youth (10 to under 18 years)

Murder, attempted murder, manslaughter, aggravated sexual assault, rape, armed robbery, aggravated armed robbery and being armed with a dangerous or offensive weapon

Conference can proceed without a victim present

Police and court (sentencing option)

Australian Capital Territory

Restorative Justice Unit

Crimes (Restorative Justice) Act 2004 –​operating in phase one

Youth (10 to 17 years)

Serious property offences (over 14 years’ imprisonment); serious offences against the person (over 10 years’ imprisonment), all domestic violence offences, all sexual assault offences

Conferences cannot proceed without a victim (or their nominated substitutes) participation

From apprehension to post-​ sentence

 Circle sentencing [7.195]  Circle methods of dispute resolution are, as the name suggests, processes that occur

with the participants sitting in a circle. The Victorian Parliament Law Reform Committee, Final Report:  Inquiry into Alternative Dispute Resolution and Restorative Justice (p  194), describes circle sentencing as “a meeting of victims, offenders, friends and family and community elders to discuss the crime and identify the actions required to heal all affected parties and prevent re-​offending”. These kinds of processes stem from traditional dispute resolution processes, but have been adopted into the traditional justice system in Australia, particularly in relation to indigenous offenders. Two different uses of circle processes are described in the following extracts –​one in relation to incest and sexual assault problems in a community, and the other in indigenous sentencing courts.

Restorative Justice in Non-​Adversarial Justice [7.200]  M King, A Freiberg, B Batagol and R Hyams, “Restorative Justice” in Non-​Adversarial Justice (Federation Press, Leichhardt, 2009) Ch 3, p 42. 406 [7.195]

Dispute Resolution in Criminal Law  Chapter  7

Restorative Justice in Non-​Adversarial Justice cont. Circle methods are, or are adapted from, methods of dispute resolution that have been practiced by Indigenous peoples around the world. They involve similar participants to family group conferences and usually also include community representatives. Participants sit in a circle to promote respectful discussion. A prayer may be used to start the process and, in some cases, a talking token is passed around the circle designating who is to talk at a particular time. In some cases, circles are used as part of the court system –​as in Indigenous sentencing courts that seek to promote a court-​community collaborative approach to sentencing –​as stand alone methods to resolve community disputes or in combination. For example, in Manitoba the Hollow Water community’s Community Holistic Circle Healing was developed as a means of addressing incest and sexual assault problems in the community. It involves individual meetings with victims and offenders that prepare them for the circle process and then the conduct of a series of circles, starting with separate victim and offender circles, then proceeding to larger circles that bring in victim and offender, followed by a sentencing circle involving the court, and finally review and cleansing circles.



Restoring Justice in Criminal Process in Queensland and Western Australia [7.205]  H Douglas, K Everton-​Moore, S Harbidge and L Levy, “Restoring Justice” in Criminal Process in Queensland and Western Australia (Lawbook Co, Pyrmont, 2010) Ch 15, pp 452-​453. In New South Wales, circle sentencing provides a good example of the principles of restorative justice in practice. Circle sentencing affords local Indigenous persons a key role in the sentencing of Indigenous offenders who plead guilty or are found guilty of an offence. The term “circle sentencing” stems from the fact that the presiding magistrate sits in a circle with Indigenous representatives from the community, the offender, and, commonly, the offender’s family, together with the victim of the offence, to discuss the offence and an appropriate sentence. In Queensland, a similar process of sentencing has been adopted through the establishment of the Murri Court. In the Murri Court, Indigenous elders assist the presiding magistrate to communicate with the [453] offender and arrive at a sentence that is both culturally and legally appropriate. The aim of both of these strategies is to assist the offender to reintegrate into the community. A similar process is followed in Western Australia in the Aboriginal courts, including the Norseman Aboriginal Sentencing Court and the Kalgoorlie Aboriginal Sentencing Court.



HISTORY OF RESTORATIVE JUSTICE IN AUSTRALIA [7.210]  The following extracts describe the history of the use of restorative justice processes

in Australia. The first review demonstrates the range of uses and adaptations of various processes in different jurisdictions and contexts.

National Guidelines or Principles for Restorative Justice Programs and Processes for Criminal Matters [7.215]  National Justice CEOs Group, National Guidelines or Principles for Restorative Justice Programs and Processes for Criminal Matters, Discussion Paper (Department of Justice and Attorney General NSW, March 2011) pp 5-​6. [7.215]  407

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National Guidelines or Principles for Restorative Justice Programs and Processes for Criminal Matters cont. The development of restorative justice processes in Australia has been greatly influenced by the conferencing model in New Zealand. The first restorative justice program in Australia was set up in 1991, located within the police service and was introduced to provide a cautioning scheme for young offenders. Since the 1990s, all states and territories have developed conferencing programs for young offenders. Today there are restorative justice programs and processes for adult and juvenile offenders, and these occur at different stages of the criminal justice system. These include at arrest, pre-​sentence, sentence, and actions that may occur in parallel with court decisions, during incarceration, and at the point of release from prison. There is considerable variation in restorative justice practices and programs used in Australia. Examples include conferencing, victim-​offender mediation, circle sentencing, and meetings between offenders in correctional institutions and victims. Conferencing is the most common type of restorative justice process currently used in Australia. Forms of contact between victim and offender include: • Face-​to-​face meetings • Exchange of written or emailed statements between participants • Exchange of pre-​recorded videos between participants • Teleconferencing and videoconferencing • A representative speaking on behalf of a victim (family member, friend, community representative) to the offender. Restorative justice practices are applied to a range of offences from minor property damage to burglary and assault. Restorative justice practices have also been used with offences involving death or serious injury, sexual assault and family violence. To view further information on restorative justice initiatives in criminal matters that occur in each of the states and territories, please visit the following website: http://​www.scag.gov.au/​lawlink/​SCAG/​ll_​scag.nsf/​pages/​scag_​restorativejustice.

 [7.220]  The second extract highlights some controversy about the origins of restorative pro-

cesses and the justification for their adoption in more traditional justice systems. It also identifies some of the driving forces behind the emergence of restorative justice in modern criminal justice processes in Australia.

Inquiry into Alternative Dispute Resolution and Restorative Justice [7.225] Victorian Parliament Law Reform Committee, Final Report: Inquiry into Alternative Dispute Resolution and Restorative Justice (Melbourne, 2009) Part III Restorative Justice, pp 187-​190. The principles of restorative justice can be traced back to early civilisations which responded to wrongdoing by focusing on forgiveness, reparation and healing, rather than on punishment. Australian academic John Braithwaite has argued that, historically, restorative justice has been a common approach to addressing conflict in most societies. Restorative justice approaches have been observed in cultures as diverse as the Maori of New Zealand, the Celtic of Ireland and the Navajo of North America. However, the notion that modern restorative justice revives Indigenous or folk approaches to conflict resolution has not been universally accepted. For example, Declan Roache of the London School

408 [7.220]

Dispute Resolution in Criminal Law  Chapter  7

Inquiry into Alternative Dispute Resolution and Restorative Justice cont. of Economics has argued that the primitive origins of restorative justice have been exaggerated to promote and give credibility to the contemporary use of restorative justice. The concept of restorative justice was “re-​discovered” in the 1970s and 1980s when restorative justice principles began to be applied to resolve conflicts and respond to criminal behaviour as part of victim-​offender mediation programs in North America and group conferencing in New Zealand. The emergence of restorative justice as a modern, alternative form of conflict resolution was driven by a number of factors, including the rise of the victims’ rights movement, concern about the social and [188] economic costs of increasing incarceration rates and growing awareness of the failure of the traditional justice system to address the underlying causes of offending and re-​offending. The development of restorative justice processes in Australia has been heavily influenced by the pioneering experiences of New Zealand. … [189] … 7.1.2 The Development of Restorative Justice in Australia The New South Wales Police Service commenced the first Australian restorative justice program in Wagga Wagga in 1991. Under the pilot program, police facilitators held group conferences with juvenile offenders who had committed minor offences and had accepted responsibility for the offence. Successful conferences resulted in the offender being cautioned rather than charged with an offence. The police-​run model was subsequently replaced by a program administered by the New South Wales Department of Juvenile Justice. Early restorative justice initiatives in Australia, including the Wagga Wagga program, drew heavily on New Zealand’s family group conferencing model. In addition, the development of restorative justice in Australia was informed by the work of Australian academic John Braithwaite. According to Braithwaite’s reintegrative shaming theory, traditional responses to crime serve only to stigmatise, shame and further alienate offenders, whereas shame can be used constructively to reintegrate offenders into the community. This theory formed the basis of the Reintegrative Shaming Experiments (RISE) –​a conferencing program operated by the Australian Federal Police based on the “Wagga” model –​which commenced in the Australian Capital Territory in 1994. RISE is significant because it was the first comprehensively evaluated restorative justice program in Australia. … [190] Since the 1990s all Australian states and territories have developed conferencing programs for young offenders, principally with the aim of diverting offenders from entering or being drawn further into the criminal justice system. The conferences typically involve the offender, victim and communities of concern, including family members. The scope of restorative justice programs in Australia is being increasingly broadened to include young adult and adult offenders, as well as interventions at a variety of stages throughout the criminal justice process, for example, at the postsentence stage, while an offender is serving a sentence in a correctional institution.

 [7.230]  The following extract focuses particularly on the use of restorative justice pro-

cesses in Queensland and Western Australia:  the growing institutionalisation of victim offender mediation and conferencing in the criminal justice system through legislative frameworks and government-​run services. As we will see later in the chapter (see [7.310]-​ [7.345]) the integration of restorative justice processes in the traditional criminal justice system has been criticised as failing to fully promote the underlying values of restorative justice.

[7.230]  409

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Restoring Justice in Criminal Process in Queensland and Western Australia [7.235]  H Douglas, K Everton-​Moore, S Harbidge and L Levy, “Restoring Justice” in Criminal Process in Queensland and Western Australia (Lawbook Co, Pyrmont, 2010) Ch 15, pp 454-​456. In 1997, the Queensland Department of Justice initiated amendments to the Youth Justice Act 1992 (Qld) enabling the diversionary option of community conferences for juvenile offenders and their victims. Similarly, in 1994 the Young Offenders Act 1994 (WA) was introduced to enable juvenile offenders to be referred to a juvenile justice team for conferencing. Before the police can refer a matter for conferencing, the juvenile offender must admit the offence. It is a further prerequisite in Queensland that they victim consents to the matter being conferenced. Alternatively, on a finding of “guilt”, a court may make a referral to a conference instead of passing a sentence, or make a pre-​sentence referral to a conference. Prior to the conference, discussions are held with the offender, their parents and the victim to outline what will occur and the possible outcomes. The conference is usually attended by the offender, a family member or care-​giver, the victim or their representative, a support person for the victim, the referring police [455] officer and conference convenors or members of the juvenile justice team. Legal representatives are permitted to attend, but are limited to the role of support person, rather than as a legal adviser. Participants in the conference are encouraged to discuss the consequences of the offence and the most suitable outcome of the conference. More particularly, the offender is given an opportunity to explain the background and circumstances of the offence. The offender’s supporters and, importantly, the victim, are also given an opportunity to discuss how the offence has affected or influenced them. Participants then consider an appropriate outcome, which may include: • a verbal or written apology from the offender; • a commitment to monetary restitution; • the performance of work for the victim or the community; or • an agreement that the offender will attend counselling. The aim of the legislated conferencing option is to divert juveniles away from the formal court processes of the juvenile justice system. Consequently, the restorative justice process is now a credible alternative when dealing with criminal behavior. In Queensland, there are no restrictions placed on the offences that can be referred. However, consideration has to be given to the person’s prior history and to the nature of the offence before a conferencing referral is made. In Western Australia, conferencing is not permitted for most serious, violent and sexual offences. Justice Mediation is also available for adult offenders in Queensland through the Dispute Resolution Branch (DRB) of the Department of Justice and Attorney-​General. In a similar vein to youth conferencing, Justice Mediation provides an alternative to court proceedings. The process for both adult and youth mediation is essentially the same. The parties are brought together to discuss the criminal behavior and its effects, with a view to reaching a workable agreement. A successful mediation is one in which all the terms of the agreement are complied with. It must be noted, however, that matters can only proceed to Justice Mediation if the parties consent and if the accused accepts responsibility for their wrongdoing. Matters can be referred to mediation by the police, the ODPP, or the court. The final consequences of a successful mediation are dependent upon which authority referred the matter to the DRB: [456] • If the matter was a police referral or a referral from the ODPP, the matter can be finalized without further prosecution in court. • If the matter was a court referral, the court may decide to not take any further action against the offender, or it may take the successful mediation into account during sentencing. 410 [7.235]

Dispute Resolution in Criminal Law  Chapter  7

Restoring Justice in Criminal Process in Queensland and Western Australia cont. Justice mediation can also occur post-​conviction on the application of either the offender or the victim. In Western Australia, the Victim-​offender Mediation Unit (VOMU) is operated by the Department of Corrective Services. The unit provides a mediation service between victims and offenders and forms part of the Department’s community corrections program. As it is run by corrective services, it is part of the court process rather than an alternative to it. All parties entering into a mediation must do so voluntarily. The process offers: • Reparative mediation, where a victim of a non-​violent offence meets with the offender to discuss forms of compensation, including written apologies; and • Protective conditions, where victims and offenders of more serious offences who are expected to be in contact, reach an agreement about the level and nature of any contact (if any) between them. The mediation system is not available to all offenders in Western Australia. Generally offenders on parole or community-​based orders are not permitted contact with their victim(s), even if the parties are related. Nevertheless, in some cases, contact may be approved by the VOMU and, in the event that a victim does agree to have contact with the offender, all contact is monitored by the VOMU for as long as necessary. The mediation process may be commenced prior to sentencing. Usually this occurs after the offender has entered a plea of guilty. A magistrate may take into account the fact that an offender has begun to participate in the program as a mitigating factor demonstrating remorse and rehabilitation.

 Potential outcomes of restorative justice processes [7.240]  The possible outcomes of restorative justice processes vary across different processes

and jurisdictions. They can also vary according to the wishes of the participants in a particular process. The main difference from traditional criminal justice outcomes is that the “normal” outcome for an offender is not punishment (although this may still be possible, instead of or in conjunction with a restorative outcome), and that there are additional outcomes for victims and the community that may not be available otherwise. The national Guidelines provide that the primary goal of a restorative process is to reach a restorative outcome. They also set out the characteristics of a restorative outcome in Guideline 27. The Guidelines for Restorative Justice Processes in Criminal Cases provide that: 26. The primary goal of Participants and the Restorative Justice Facilitator is to reach a Restorative Outcome. 27. A Restorative Outcome must be:

a) voluntarily made;

b) fair

c) reasonably able to be performed by the offender within a defined timeframe;



d) proportionate and relevant to the offence caused and/​or harm caused;

e) realistic;

f) supported where necessary; and



g) written using clear language.

[7.240]  411

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The national Guidelines, p 6, provides examples of restorative outcomes that may be achieved in a restorative justice process. A number of outcomes are associated with restorative justice for offenders, victims, the state and the community more generally, although it has been acknowledged that there are inherent difficulties in effectively measuring such outcomes. Possible positive outcomes include: • Participant satisfaction • A reduction in recidivism • Diverting offenders from entering or being drawn further into the criminal justice system • Making offenders accountable for their offending • Empowering victims, offenders and other participants in the process • Increasing satisfaction for victims with both processes and outcomes • Promoting outcome plans that address the underlying causes of offending • Increasing the likelihood of apologies and reparations • Restoring relationships and healing harms • Promoting confidence in the justice system as a whole.

Restorative justice for serious crimes [7.245]  One of the contested areas for restorative justice involves questions about which types

of crime are suitable for a restorative approach. In March 2016, Jane Bolitho and Karen Freeman published a report on “The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harm”, prepared for the Royal Commission into Institutional Responses to Child Sexual Abuse. This report canvassed the extent and effectiveness of restorative justice projects around Australia that may be used in cases of child sexual abuse or arguably comparable areas “such as adult sexual or personal violence offences, or child-​related crimes”. In this first extract, Bolitho and Freeman address the debate around suitability.

The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harms [7.250] J Bolitho and K Freeman, The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harms, 2016, Royal Commission into Institutional Responses to Child Sexual Abuse, Sydney. [11] That we are even having a debate about the applicability of restorative approaches to something as serious as institutional child sexual abuse stems largely from the reality that while child sexual abuse is one of the most serious crimes in terms of offence severity, for a range of reasons very few cases reach the court (Parkinson et al. 2002), and of those that do, there are few convictions (Fitzgerald 2006). This means that for many survivors of child sexual abuse (in any form) justice is simply not achieved. One of the key debates in the criminal (and restorative) justice spheres is whether and how we can improve the conventional adversarial, court-​based criminal justice system to make justice more achievable, or whether, either instead of or (as is more commonly argued) in conjunction with committing to this task, we begin to explore what alternative avenues to justice might offer victims, offenders, their families and communities. Attempting to, concomitantly, better address the needs of victim-​survivors as well as offenders and communities in the aftermath of child sexual abuse is a contemporary challenge for all conventional 412 [7.245]

Dispute Resolution in Criminal Law  Chapter  7

The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harms cont. Western criminal justice systems. While practitioners and academics in this field are united in a vision for attaining better access to justice for survivors of child sexual abuse, whether or not to invest in restorative justice as a mechanism to achieve this justice is still contested. In addition, even if restorative approaches were found to be useful as a mechanism for addressing harm after sexual abuse, there is debate about how, if at all, these approaches would intersect with existing criminal justice systems, as technically, they may operate within, alongside or independent of formal justice processes (Daly 2011, Centre for Innovative Justice 2014).

 Restorative approaches to serious crime world-​wide [7.255]  Bolitho and Freeman continue their report by providing an overview of restorative

processes in criminal law and an explanation of the diversity of practices and programs. The authors then outline programs that address sexual abuse and serious crime and provide the following summary of the approaches in the field.

The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harms [7.260] J Bolitho and K Freeman, The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harms, 2016, Royal Commission into Institutional Responses to Child Sexual Abuse, Sydney. [28] Worldwide, there are few restorative justice programs within criminal justice systems that have been designed to address sexual abuse. However, there are numerous practices working with victims and offenders in the aftermath of serious and violent crime such as murder, manslaughter and armed robbery and these programs have completed a small number of sexual abuse cases. Overall, this review found five main approaches to working in this area: 1.

victim-​focused, specialist sexual violence programs (such as RESTORE in the US and Project Restore in New Zealand). These are designed to attend to the inherent power dynamics of all forms of sexual violence and use a victim needs model to drive the process

2.

victim-​focused, specialist post-​sentencing programs for violent crimes (such as Victim Offender Sensitive Dialogue in the US, Community Justice Initiatives Association’s VOMP in Canada and Victim Offender Conferencing in NSW Australia). These are designed to attend to the trauma of violent crimes like murder and armed robbery but also complete a small number of sexual abuse cases. The processes tend to be driven by the needs of the victim, take many months to prepare and use advanced facilitators

[29] 3.

offender-​focused pre-​sentencing programs (such as South Australian Family Conferencing, the Northern Ireland Youth Conferencing Scheme and Australian Capital Territory police youth diversion). These programs focus on diverting young people from court

4.

community-​focused programs that have been initiated from within a community in an attempt to heal victims, help offenders desist from crime and strengthen community bonds (such as the Community Holistic Circle Healing Program in Canada)

5.

offender-​focused programs (that encourage victim participation where it is desired) with clear goals of treatment via the use of professional/​clinical staff and regular reporting [7.260]  413

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The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harms cont. over lengthy periods (such as the Cedar Cottage Pre-​Trial Diversion Program in Australia, Circles of Peace in the US and the Family Group Decision Making Demonstration Project in Canada).

 [7.265]  Bolitho and Freeman also report on research on the effectiveness of such schemes.

After noting that there has been no research on programs that address institutional abuse, the authors report on programs dealing with other forms of sexual abuse and comparable serious crimes.

The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harms [7.270] J Bolitho and K Freeman, The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harms, 2016, Royal Commission into Institutional Responses to Child Sexual Abuse, Sydney. [31] A number of programs have used restorative justice approaches following (non-​institutional) child sexual abuse or adult sexual abuse. For both Project Restore in New Zealand and RESTORE in the US, the research documented in detail the experiences of victims and offenders using a range of measures, though, for both, the studies were based on small sample sizes. Both studies, though small, present good-​quality and valuable data suggesting that under specific conditions, participation improves victim wellbeing, and is perceived as satisfying, worthwhile and procedurally fair. There was only one documented case, in RESTORE, of a conference being halted because of concern of re-​ traumatising a victim-​survivor (Koss 2014). There is strong evidence on the Cedar Cottage Pre-​Trial Diversion Program in New South Wales, which operated for many years. Numerous studies using a range of quantitative measures with good sample sizes were conducted on this program, with consistently positive findings across a range of offender-​oriented outcomes, including re-​offending (Butler et al. 2012, Butler et al. 2011, Goodman-​ Delahunty & O’Brien 2014, Goodman-​Delahunty 2009). The conditions for success described in this research included intensive case management and a holistic approach where, though victims were not a focus or mandated to attend the program, many victims did take part in a range of therapeutic services. In addition, the program was tailor-​made to meet the needs of perpetrators of sex offences within the family. [32] The research on Victim Offender Conferencing in New South Wales concerned a well-​ established (15-​year-​old) program, using data from 13 years of practice. While this study was based on a census of cases completed in the Restorative Justice Unit, the results were mostly concerned with murder, manslaughter and armed robbery cases and the findings were not disaggregated by offence type. The evidence from this study suggested that under strict conditions, the specific justice needs identified by victims and offenders (including for sexual abuse cases) before taking part in restorative justice were consistently met through participation in the process. The 95 per cent success rate (based on matching the pre VOC stated justice needs to post VOC experience) documented in this program is comparable to the similarly long-​established post-​sentencing programs in the US (Victim Offender Sensitive Dialogue, studied by Umbreit et al. 2006) and Canada (the Community Justice Initiatives Association Victim Offender Mediation Program, studied by Roberts 1995 and Gustafson 2005). Internationally, good evidence supports using restorative justice post-​sentencing. 414 [7.265]

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The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harms cont. For the purposes of this review, perhaps the most useful research (based on rigour, relevance and sample size) relates to the South Australian Family Conferencing model studied by Daly (2002, 2006, 2007 and 2013) over a number of years. This research is important because it is the only work to compare restorative outcomes to court outcomes, in this way offering a unique perspective on the justice options available for those affected by child and youth sexual abuse. Daly (2006) found, comparing cases proven at court (n=115) to conference cases (n = 111) that victims were: more likely to receive a verbal and written apology than at court (77 compared to zero, 32 compared to 1, respectively), and more likely to achieve an agreement from the young offender to stay away from them (documented in 23 compared to 10 cases). In addition, offenders were more likely to attend counselling (79 versus 49 counts) and specifically specialist sex offender counselling (52 versus 37 counts). Conference cases were finalised more quickly from report to finalisation (a median of 2.5 months in conference compared to 5.7 months at court). One of the key differences emphasised by Daly (2006) is the much higher admission of sexual abuse that occurred as part of the family conference (94%) compared to court where only 51% were finalised with a sexual component proven. Daly (2006) argues based on these findings, that a primary benefit of court diversion to restorative conference is the early admission of guilt that a survivor gains when an offender takes part in this program. An admission of the crime is beneficial in validating a victim-​survivor’s experience. In addition, the findings suggest that matters are dealt with more quickly through conferencing than court (as, in many youth diversion programs, legislation stipulates the completion of conferences within a set time frame), and there are more agreements to stay away from victims and apologies offered by offenders. In addition, it is more likely that an offender will take part in a treatment program tailored to address the reasons for sex offending. In terms of reoffending, the data is complex; Daly concluded that future reoffending was predicted by offence history rather than experiences of court or conference. Furthermore, the sample size precluded analysis of conference inclusive of participation in Mary Street (the specialist sex offender treatment centre) versus conference alone, which would further tease out intervention effects. In another study, Daly (with Curtis-​Fawley 2006) explored qualitatively the experiences of victim-​survivors of child sexual abuse. In the two case studies presented responses were mixed, reflecting the complexities of this kind of crime. [33] 4.3 Findings on comparable areas of harm Two programs were identified that addressed domestic violence: the Family Group Decision Making Demonstration Project in Canada (Pennell & Burford 2002), Circles of Peace in the US (Mills et al. 2013) and the Mana Restorative Justice program (McMaster 2014). Each program was found to have positive effects (albeit based on small sample sizes), though in the case of Circles of Peace, reoffending rates did not differ significantly compared to other existing treatments (Mills et al. 2013). The evidence on restorative justice following other forms of serious crime is in contrast very strong. Over the last two decades, numerous studies have been completed using large sample sizes and a variety of qualitative and quantitative measures including satisfaction, reoffending, and most recently, post-​traumatic stress (Angel et al. 2014). Overall, the findings suggest that there is a very high degree of participant satisfaction, and sense of procedural justice (fairness) that comes from taking part in a restorative approach. Two studies reported mixed outcomes. In a detailed analysis of cases where the victim was a young person in the Reintegrative Shaming Experiment data (based on the Australian Capital Territory police diversion scheme), Gal & Moyal (2011) found lower levels of satisfaction among youth victims participating in restorative justice compared to youth victims attending court. The authors posited, based on qualitative responses, that this may relate to perceptions of adult domination and non–​ child friendly processes. Another study that found mixed outcomes examined the Collaborative Justice Program in Canada (Rugge et al. 2005). While the victims were highly satisfied with the process, there were few changes in attitude (such as fear for victims and attitudes to offending for perpetrators) using a pre-​and post-​program design. Overall, the studies on restorative justice after serious crime presented a fairly consistent, though not universal, range of outcomes that improve wellbeing.

 [7.270]  415

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[7.275]  In the final extract from the report, Bolitho and Freeman report on the elements that

are common to those restorative justice programs deemed to be successful. The common features of those programs were identified as being; a specialised approach to working with complex power dynamics; high levels of skill amongst specialist facilitators; effective screening; appropriate timing and the completion of specialist sex offender treatment programs. These findings are outlined below.

The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harms [7.280] J Bolitho and K Freeman, The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harms, 2016, Royal Commission into Institutional Responses to Child Sexual Abuse, Sydney. [44] The most distinctive feature of the well-​established and evaluated practices identified in the research is a specialised approach to working with crimes that have complex power dynamics. Facilitators are both more experienced and knowledgeable than standard restorative justice facilitators and are specifically aware of the complex dynamics of sexual abuse. In New Zealand, this is formalised so that practitioners must gain additional accreditation to work in this area. In addition, as distinct from general restorative justice processes, in a number of programs the knowledge bases of specialists in sexual violence were drawn upon routinely in the preparation phase, with specialist “advocates” actually attending in Project Restore in New Zealand. Supporting the evidence for specialism are the mixed findings reported by Lajeunesse (1996) concerning the Community Holistic Circle Healing Program model used in Hollow Water, Canada. The author reported concerns within the community that some Elders and other stakeholders participating in circles were not adequately equipped with appropriate knowledge bases across all of the potential issues facing the participants (including drug and alcohol abuse), and that this was a potential impediment to the consistency of the program. Where restorative justice has been extended to addressing sexual violence, it would seem that specialism is a key condition for positive outcomes. Program staff members must also have an integral role in assessing suitable participants. The screening phase of restorative programs was identified as a condition for success. Indeed, the majority of potential participants are screened out of participation (whether through lack of interest or suitability). In regard to the Community Justice Initiatives Association VOMP model practised in Canada, Roberts (1995) reported that 65 per cent of cases were screened out. Similarly, in regards to Victim Offender Conferencing in New South Wales, Bolitho (2015) reports that of all cases referred to the program, 8 per cent completed a face-​to-​face conference. Likewise, of those cases referred to Project Restore in New Zealand during the period of study, nine of 29 (31 per cent) led to a completed face-​ to-​face meeting (Jülich et al. 2010). Making good decisions about who is suitable for participation may be a crucial component of ensuring safety for participants, and this is tantamount to success. The timing of conferences is also important. Another core condition for success research authors identified was a program’s flexibility and responsiveness to participants. In general, this reflected the capacity for a program to be timed to suit a victim-​survivor’s need (rather than being driven by the need for efficiency in court). It is worth noting that in post-​sentencing programs, it can be a long time between the crime and the restorative meeting –​for example, Umbreit et al. (2006) report that on average, meetings are held 9.5 years after the crime. In Victim Offender Conferencing in New South Wales, the average time from sentencing to referral is 3.5 years, and the average time from referral to conferencing is 11 months (Bolitho, 2015). A core feature shaping success seems to be that program timing is not rigidly enforced, but flexible and tailored to the context. The final common condition for success authors identified was the completion of specialist sex offender treatment programs. In all of the specialised and many of the most well-​established programs, sex offender treatment is completed either as a precursor to participation in restorative 416 [7.275]

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The Use and Effectiveness of Restorative Justice in Criminal Justice Systems Following Child Sexual Abuse or Comparable Harms cont. justice (to meet eligibility [45] requirements) or as part of the restorative approach. In both the Restore programs, treatment may begin before the restorative meeting and may extend past this date (Koss 2014, Jülich et al. 2010). In Victim Offender Conferencing in New South Wales, an offender must have completed the Corrective Services NSW sex offender program before being assessed as suitable to participate (Bolitho 2015). In the South Australian Family Conferencing model, more than half of the offenders undertake a specialist sex offender program as part of the outcome plan. In the aftermath of this kind of crime, restorative justice is not conceived as a panacea, but a space for identifying and addressing a variety of needs that will subsequently be attended to by relevant professionals. Other features research authors purported as framing success were programs that were victim-​ initiated (Umbreit et al. 2006); ongoing accountability mechanisms for offenders, such as being required to report back regularly to circle processes (Koss 2014); and the use of “advocates” who attend the circle in addition to the victim and offender –​this is part of a “three-​cornered stool” philosophy that emphasises the use of experts in shaping safe practice (Jülich & Landon 2014). One notable feature that authors did not explicitly identify, perhaps because it is taken for granted in restorative approaches, is voluntary participation. The only program identified that has mandatory participation (for offenders) is Circles of Peace in the US, where the program is the core “sentence” for offenders. Perhaps related, this program reported a high attrition rate for offenders with only 51 per cent completing the “treatment” plan. Though, the completion rate of treatment in this program was actually higher than the standard treatment model in that jurisdiction (the “Batterers Intervention Program”) which was just 40 per cent.

 [7.285]  The following extract reviews a restorative justice project that has run within the NSW

prison system and asks a critical question: Does it work? The study used a mixed-​methods approach to examine 74 victim offender conferences run by the Restorative Justice Unit for victims and offenders involved in serious crimes. The study reported a 95% “success” rate.

Putting Justice Needs First: A Case Study of Best Practice in Restorative Justice [7.290]  J Bolitho, “Putting Justice Needs First: A Case Study of Best Practice in Restorative Justice” (2015) 3(2) Restorative Justice, An International Journal 256 at 270-​281. [270] All of the available data were explored to look for evidence that the encounter “worked”, this included how participants felt about their overall decision to take part, whether they found it useful, whether they would do it again if given the chance, and whether they would recommend it to others in similar situations. We also looked for evidence of counter-​stories –​doubt about an outcome, concern about a dynamic and/​or outright statement of regret or critique. Where possible, participants’ own words were used to code data; where not available, the facilitators’ interviews were important. In all cases, the documents kept in the case files were used to cross-​check these accounts; for example debriefing notes sometimes included short verbatim descriptions of a victim’s statement about well-​ being, or a letter from correctional staff commenting on the VOC experience. Across the 74 cases that eventuated in a VOC, 95 per cent were described as positive experiences (n = 70/​74 cases). A positive experience was defined as one where the participant was comfortable with their decision to take part, was satisfied with the process, would recommend it to others in akin situations, and had their expectations met (or exceeded). Where emotional disappointments were noted, these were weighed against these other statements about the worth of participating to make an overall judgment about the “positive experience”. [7.290]  417

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Putting Justice Needs First: A Case Study of Best Practice in Restorative Justice cont. Furthermore, using Toews’s needs framework we matched the unmet justice needs of each victim as articulated before the VOC to those articulated after the VOC. For the 60 cases on file the documentary material and facilitator interview (reconstructing the event) as well as five-​year follow-​up data (where relevant) were used to code victims’ unmet justice needs. For the current cases, victim interviews were coded for unmet justice need before, and then after, the VOC. In the case where a victim interview was not conducted, the facilitator’s perception was used. For each victim there were a different number of needs articulated, each of these were documented. Overall we found evidence that the majority of articulated unmet justice needs as identified before the VOC were met in 95 per cent of all cases (70/​74). This meant in each case, that there had to be more “met” than “unmet” needs documented. Care was taken to reflect on the meaning individuals had around their pre-​and post-​needs, with many participants being reflexive of their experience. For example, in one case a parent of a victim of sexual assault expressed a need to ask the offender why it had happened, to express abhorrence of the crime, and to (re)establish a [271] relationship with a family member that had fallen apart. While the first two unmet justice needs were achieved via the VOC, the third was not (and this is how the matter was coded), but commenting on this afterwards, the participant noted that to restore the fractured relationship had not been a “realistic” goal. For this participant the VOC was worthwhile, though she intuitively understood that it could not be a panacea. In two cases there was evidence of some victim and other participant dissatisfaction, and in two cases the facilitator expressed concern about the overall outcome. The less positive cases highlighted some early learning for the RJU: to meet the needs of victims, facilitators would need to balance workplace goals of (for example) efficiency with the complexity of serious crime. Taking more time to assess offenders’ accounts of the crime; being comfortable in VOCs where there were numerous individuals displaying intense emotion including grief, and/​or with mental health issues; and being aware of the effect of language around the crime event (for example not using words like “accidental” to describe manslaughter) were all found to be important in leading to good practice. On a practical level, VOC agreements had to be feasible, and given the lengthy sentences for many offenders, financial components were made redundant very early in the life of the RJU. The RJU also quickly realised the utility of having other Corrective Services staff sit within (not outside) the circle, participating fully, though a continuing challenge for some correctional psychologists was navigating their role: while attending officially as the offender “support” (in many cases families long having given up on the offender), they were not personally supportive or necessarily an advocate for their client. In a few cases participants expressed concern around the perceived vulnerabilities of participants such as more elderly individuals, or in one case where a disability affected the participant’s ability to lift their head (so the participant who was used to gauging body language via the face was less sure of the emotional dynamic), noting it inhibited their capacity to fully vent their emotion. To date, the RJU has focused on the preparation of victims and offenders in terms of the potential content of the meeting and the face-​to-​face experience. While more peripheral, other issues can affect perceptions of the experience, and preparation for meeting all parties could easily be added to the pre-​VOC preparation. The data from the five-​year follow-​up study suggested that whatever the “intervention effect” was that occurred in the VOC, the effect remained the same five years later. In thirteen out of fourteen cases where the experience was positive and where there were positive shifts in emotional and behavioural well-​being (measured by reference to renewed ability to participate in all forms of life including work, relationships with partners, children and friends, and recreational activities), this remained the same five years later. For the one case that was described more variably, all participants interviewed expressed similarly mixed views about the experience five years on.

 [7.295]  The Bolitho review of the NSW Prisons victim-​offender program focused on the justice

needs of the victims as a measure of success. However, reduced recidivism amongst offenders

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involved in restorative justice is another key success indicator. Whether or not restorative justice leads to a reduction in recidivism is a controversial topic and has led to some empirical research, as this next extract explains. However, conclusive proof of the impact of restorative justice processes is still elusive.

Restoring Justice in Criminal Process in Queensland and Western Australia [7.300]  H Douglas, K Everton-​Moore, S Harbidge and L Levy, Restoring Justice in Criminal Process in Queensland and Western Australia (Lawbook Co, Pyrmont, 2010) Ch 15, pp 456-​458. There is some evidence that participation by offenders in restorative justice conferencing programs leads to desistance from criminal behavior, although there is still a lack of thorough and conclusive empirical research on recidivism as a measure of success. In New South Wales, research by Luke and Lind on several thousand first-​time offenders found that conferencing resulted in a 15-​20% reduction in the risk of [457] reoffending. Researchers have also found that in the Australian Capital Territory’s Reintegrative Shaming Experiments (RISE) program, young violent offenders who were assigned to conferencing were significantly less likely to reoffend, compared to similar offenders who went through the court system. However, the came comparative study found that young property offenders and drink-​drivers were no less likely to reoffend if they were referred to the conferencing process, as opposed to going to court. No doubt law enforcers and the government would like concrete evidence that resources put into funding conference programs is “paying off” by reducing recidivism and reducing costs to the criminal justice system in the long term. However, inevitably there are limitations on the amount that the conferencing process can achieve. It is well known that individual circumstances, such as poverty, unemployment, unstable living arrangements, as well as mental health and drug-​related problems also play a role in the likelihood of recidivism. Similarly, age, gender and any history of prior offending are significant factors in the risks of reoffending. Evidence shows that recidivism is more likely to occur in males, where offending began at an early age, and where previous offences have been committed. Local research by Hayes and Daly indicates that of 200 juveniles who were referred to conferencing in south-​east Queensland under the pilot [458] program in 1997-​1999, just over half later committed further offences. They found the reoffending is less likely to occur among the youngest offenders (10-​12 years old) who had no prior offences, compared to the youngest offenders whose first experience with the criminal justice system had been a police caution or the court process. This finding is important as it suggests that a restorative justice process, rather than a “traditional” authority-​centred process, may have a significant effect on reversing the trend of very young offenders reoffending, all things being equal. While the results of this study are particularly encouraging, again the complex range of variables in relation to the risk of recidivism needs to be given due recognition. All efforts to divert young offenders from the traditional criminal justice processes are to be commended, but young offenders cannot be perceived devoid of their social circumstances. As final examples, Hayes’ and Daly’s research on the South Australia Juvenile Justice (SAJJ) project indicates that a significantly higher proportion of reoffending occurs among the Indigenous population. Approximately 64% of Indigenous youths involved in the SAJJ project reoffended compared to 47% for non-​Indigenous youth. A further factor that may increase the risk of recidivism is residential instability, or homelessness. As a group, the homeless are much more visible to police and are therefore more likely to have contact with them and to be arrested.

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Critiques of restorative justice [7.305] There is a significant amount of critical analysis of restorative justice as a concept

and how it is applied in practice. The following extracts discuss some critical perspectives on restorative justice, including questions about its reported benefits, potential human rights issues and the failure of its implementation to actually promote some of its fundamental values in more than a tokenistic way. Johnstone notes that much of the writing in the field of restorative justice is by its proponents, implying a level of bias in current analyses.

Critical Perspectives on Restorative Justice [7.310]  G Johnstone, “Critical Perspectives on Restorative Justice” in G Johnstone and D Van Ness (eds), Handbook of Restorative Justice (Willan Publishing, Portland, 2007) Ch 28, p 598. Much of the literature of restorative justice is written by proponents, ranging from fervent enthusiasts to more cautious sympathizers. They portray it as an approach to wrongdoing which is both ethically better and more effective than conventional methods used to respond when someone “has harmed another, namely, methods based in punishment”. However, alongside the literature of proponents, there are other writings which provide more critical perspectives. These raise doubts about the credibility of proponents’ claims about restorative justice and about the ethics and effectiveness of the approach itself … The critical perspectives introduced here can be summarized as follows: 1.

Proponents’ descriptions of restorative justice are vague and incoherent.

2.

Proponents make exaggerated claims about what restorative justice can achieve.

3.

A significant move away from punishment towards restorative justice will undermine the policy of deterrence.

4.

A significant move away from punishment towards restorative “justice” will result in a failure to do justice.

5.

A significant move away from punishment towards restorative justice will result in systematic departures from axiomatic principles of justice.

6.

While presented as a radical alternative to conventional approaches to wrongdoing, restorative justice actually shares a great deal with conventional approaches and its introduction will simply extend the reach of conventional systems of penal control.

 [7.315]  Lemonne (in the following extract) discusses the criticisms of restorative justice pro-

grams that have been implemented as add-​ons to the traditional criminal justice system, and the tensions in combining restorative and traditional criminal justice values.

Alternative Conflict Resolution and Restorative Justice: A Discussion [7.320] A Lemonne, “Alternative Conflict Resolution and Restorative Justice: A Discussion” in L Walgrave, Repositioning Restorative Justice (Taylor and Francis, Hoboken, 2012) Ch 3, pp 44-​45. Evaluations of programs in various European countries have often illustrated the gap between theoretical ambition and its practical implementation. For instance, restorative justice programmes have often been criticised for being implemented unilaterally (ie, focusing only on the offender or on the

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Alternative Conflict Resolution and Restorative Justice: A Discussion cont. victim), in the framework of the previous aims of the penal justice system (ie, diversion, education and rehabilitation) and in an authoritarian way, without giving the conflict back to the people. Moreover, victim-​offender mediation programmes in particular, have been criticised for occupying a peripheral position within the field of criminal justice. Indeed, during the 1980s and 1990s, the programmes implemented were usually small scale, targeting young first offenders who had committed petty crimes to divert them from the penal justice system. The minor influence these programmes had on the general functioning of the traditional system and their net-​widening effects were often denounced. Indeed, such mediation programmes were regularly used in cases where penal prosecution would not have arisen. The partial implementation of restorative justice in general, and of [45] victim-​offender mediation programmes in particular, has often been considered the result of a tension emerging from attempts to reconcile the programmes with the formal apparatus of penal justice. The decision to refer a case to mediation has regularly been made with little regard for the needs of the victims, the system being orientated towards the offender. Moreover, mediation programmes were often dependent on the criminal justice system for their funding and, hence, were inevitably subject to the goal of the traditional penal justice system. In this respect it is important to stress that this gradual growth in implementation has given birth to different typologies of the restorative justice model. The one recently propose by Wright (2000) –​which distinguishes among unilateral, authoritarian and democratic versions of restorative justice –​is one such example of this trend.

 [7.325]  Lemonne goes on to highlight the tensions that have arisen in the restorative justice

field between proponents of the diversionary and the fully-​fledged approaches.

Alternative Conflict Resolution and Restorative Justice: A Discussion [7.330] A Lemonne, “Alternative Conflict Resolution and Restorative Justice: A Discussion” in L Walgrave, Repositioning Restorative Justice (Taylor and Francis, Hoboken, 2012) Ch 3, pp 46-​48. As discussed previously, the first restorative justice programmes –​often victim-​offender mediation programmes –​tended to develop as “diversionist” measures with respect to the penal justice system … Examples of this kind are such programmes as community-​based mediation and some diversion mediation programmes developed at the police stage or before prosecution. Within this framework, some adherents of the restorative justice approach continue to favour the development of voluntary settlements by all parties to a conflict and to limit as much as possible the state’s intervention in the resolution of conflicts in order to retain the benefits of informal settlements. They recommend diverting as many cases as possible from the penal justice system and propose the development of programmes parallel to the traditional justice system … However, at a theoretical level, the definition of restorative justice (as well as the most appropriate techniques, the actors and the procedures) is still being widely debated. According to Walgrave (2000a), these debates illustrate a tension between two fundamentally diverging trends that coexist within the restorative movement: the communitarian-​diversionist model and the maximalist or fully fledged model. In opposition to the diversionist model, a new trend has recently emerged within the restorative justice movement … This trend questions the current core values of both the restorative and traditional justice systems and attempts to discover some of the essential principles that will allow the development of a fully fledged model … The adherents of this approach are concerned with the potential risks associated with diversionist techniques. They believe that such an approach will lead [7.330]  421

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Alternative Conflict Resolution and Restorative Justice: A Discussion cont. to a “two-​track system”: victim-​offender mediation programmes will be accepted on a large scale for minor offences or social conflict, whereas violent or more serious crimes will continue to [47] be dealt with exclusively in the traditional system in a harsher and more punitive way –​despite the fact that this is precisely the place where the victims are most in need of these programmes … The development of a real alternative to the penal justice system (replacing rather than complementing the existing one over the long term) is the main concern of this model. Adherents to the fully fledged model also believe that the handling of conflict through voluntary settlements between the victim (sometimes extended to the community) and the offender is not appropriate for all situations. Indeed, the value of mediation-​orientated programmes is limited by the voluntary nature of these programmes, as well as by the ability of the parties concerned to arrive at an agreement. Hence, if one wants to develop a real alternative to the penal justice system, it is necessary to propose a model that takes into account all the cases that might need to be dealt with. When situations arise where the victim, offender and community cannot agree to a reparative solution to the problem, the state (reintroduced here as an actor in the process) should propose constructive solutions rather than react in a punitive manner, with the use of coercion if necessary. This should obviously be done with the guarantee of the due process of the law. In order to facilitate the implementation of this alternative to the penal justice system, the adherents of this model have proposed other measures than mediation as means of achieving restorative justice (eg, community service orders, the offender working for a victim compensation fund and so on). These measures could be used when a voluntary settlement could not be reached. They also argue for the necessity of reconsidering the role of society in this process (which is acknowledged as an actor potentially suffering harm as a result of an offence) and of the state’s interventionist role (including coercion) in the restorative justice model. As an example, Walgrave suggests that some offences are so serious the transcend their impact on local communities: “Here, a coercive public intervention and sanction by the formal justice system may be considered necessary, possibly even on top of the settlement with the actual victims and the community” … He goes on to suggest that the restorative justice aspect of the intervention in this example is not entirely lost –​there is an opportunity to suggest voluntary restorative settlements, parallel to the judicial intervention. Further, the content of the imposed sanction could be restorative, and the prisons themselves could be reformed: “If concerns for security necessitate it, the offender could be incapacitated through a forced stay in a closed facility, but restorative justice actions should be attempted from within the facility” … [48] As shown by these examples, the adherents of this approach want to abandon the idea of a purely communitarian-​diversionist model of restorative justice in favour of a fully fledged, and maximalist model that would impact on the core of the penal justice system. As proposed by Walgrave …, this change would necessitate opting for a definition of restorative justice more concerned with restorative outcomes (the restoration of the harm caused by the offender) than with the restorative process (whereby the parties to a particular offence try to deal collectively with the outcome of the offence). In this respect, it is worth noting that the adherents of maximalist restorative justice still believe that the process of conflict resolution by the parties involved should be prioritised because of its greater potential for restoration. However, they also believe that one important element of the restorative justice approach is its ability to counteract the negative effects of the traditional penal justice system on victims and offenders …

 [7.335] The following two extracts critically consider how restorative justice applies to

Indigenous participants. Cook and Powell emphasise how the restorative nature of the process can be undermined by the fact that the process is controlled by the state. 422 [7.335]

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Unfinished Business: Aboriginal Reconciliation and Restorative Justice in Australia [7.340]  K Cook and C Powell, “Unfinished Business: Aboriginal Reconciliation and Restorative Justice in Australia” (2003) 6(3) Contemporary Justice Review 279 at 288. There are other important questions here such as who decides that restorative events should take place, and on whose terms, and what are the possible consequences for the various parties? In normal restorative justice events, despite ideological messages which sometimes seek to promote them as win/​win situations for all parties, the bottom line is not difficult to identify. The events take place almost entirely at the behest of the state. It is the state which decides that someone needs to be held accountable for his or her actions, the state which offers a restorative justice alternative, the state which arranges for the participants to be there, and the state which overwhelmingly defines the parameters of the event. Admittedly, the person to be held accountable can decline the relatively softly spoken invitation but, if they do so, they will simply be transferred to a traditionally punitive courtroom scenario. On a macro level, such as that considered in this paper, the people and institutions to be held accountable are able to minimize their exposure to censure by exercising their power to control the setting (such as when the aboriginal man shouted for the government to face its demons and was asked to observe the rules and take his seat). Because the powerless don’t set the rules, they will not experience a venue where their injuries will be a topic for reparation. Contracts agreed to by the accountee are only contracts in Cohen’s (1985) sense: that is, they are not really contracts and they cannot really be agreements because they’re phony choices. The power differentials in place determine that such is the case irrespective of the promises of support offered by the well-​intentioned people who don’t have to be there. As the state determines both the offense and the offender, the terms of the typical engagement are manifestly obvious.

 [7.345]  Deen Potter, the author of the following article, is a Magistrate in the Perth Children’s

Court in Western Australia. He argues that, for many Indigenous youth in Western Australia, restorative justice can only have a limited application because their life circumstances and realities are often far removed from a process which seeks to restore participants to the position that they occupied pre-​offence. He argues for a much broader holistic approach to support restorative justice efforts.

Indigenous Youth and Restorative Justice in Western Australia [7.350]  D Potter, “Indigenous Youth and Restorative Justice in Western Australia” (2010) 20 Journal of Judicial Administration 92 at 101-​104. The practical application of restorative justice in its current forms can only have limited relevance to a sector of the community that has become used to a lack of economic and educational opportunity, over-​policing, alienating court and corrective processes, incarceration and which is further generally disenfranchised and disengaged from the mainstream culture within which it uncomfortably sits. For restorative justice to have real meaning for Indigenous youth there must be a recognition that the paradigm from which they operate does not necessarily match that of the broader community. Blagg speaks of a broader “restorative vision” that envisages systemic and structural decolonisation of existing political and justice systems. Faith highlights the problematic assumptions forming the basis of restorative justice models and asserts that: Restorative justice suggests returning a person to a former condition and it was often that former condition and a dysfunctional community that induced the illegal behaviour. [7.350]  423

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Indigenous Youth and Restorative Justice in Western Australia cont. Transformative justice affirms that mindful, collective work … may incrementally transform social conditions and human relations, and build or strengthen communities. While Goulding and Steels’ research suggests that there is some scope within existing structures to marry notions of restorative and transformative justice with some success, the limitations upon the existing restorative justice models in use in Western Australia are easily identified. These models are limited to less serious offences committed by offenders who would not be categorised as repeat offenders. Therefore, if the statistics bear out the truth that Indigenous youth enter the criminal justice system at an early age without the benefit of early and comprehensive diversion strategies, that they re-​enter the system often and engage in serious risk-​taking behaviours modelled on the reality of their immediate life experience leading to serious offending, then they will be excluded from the potentially powerful benefits of an expanded restorative justice philosophy. The basic conferencing model that is currently operative simply does not have the time and resource capacity to delve sufficiently deep to attack root causes. The moral code that is seeking to be enforced within the present models does not align with and cannot be reinforced by the external reality of the young, hardened, Indigenous offender. The starting point for restorative justice to be genuinely effective with this cohort of offenders is to design and deliver integrated, holistic approaches that involve direction from and coordination by Aboriginal people themselves. Community-​up approaches are essential. Courts can provide assistance by providing their support in a variety of ways for the rehabilitative and transformative process. Community courts have been held out to the Indigenous community as being one vehicle with the potential to deliver transformative justice, these courts are not simply an example of restorative [102] justice. Despite the strong development of these forms of courts elsewhere, in Western Australia there are only two formalised examples, the Kalgoorlie-​Boulder Community Court (extending to Norseman) and the Geraldton Family Violence Court. Taking justice back to the community allows those communities to be more involved in the justice process and adjust it to cater for that community’s specific needs. The potential for community courts to build skills capacity and act as a conduit for more grass-​roots action within the community itself, bringing about transformative justice, should not be underestimated. However, is there a danger that community courts could merely come to represent an “Indigenisation” of the bureaucratic and justice structures with little attention to the underlying issues and no attention to comprehensive structural change? Unless the community court is properly resourced across all levels of its functioning to enable it to tackle the broad, deep and complex issues that will confront it in its daily work then there is a real danger that the community court will simply be placed in exactly the same position as existing court structures. Further, there is clearly a need within the Aboriginal community for internal reconciliation. If these courts are going to achieve long-​term success then concerted efforts must be made to comprehensively address the intra-​and inter-​family feuding that occurs within the Indigenous community. This has an impact on the sourcing of Elders or Respected Persons who can sit as panel members in these specialist courts. There is also the issue of relevance of unrelated Elders to a particular child. The complexity of familial and power relationships in Western Australia Indigenous communities cannot be underestimated. Within this context restorative justice must be given the broadest possible meaning so as to encompass the whole of a child’s community and circumstances if the process is to have any impact and relevance. Bureaucracies, when engaging with Indigenous communities to develop and deliver restorative processes, need to take a back seat and be supportive rather than directive. Further, because government agencies have become particularly risk averse they often lack the innovation and responsiveness required to meet the changing needs of the modern Indigenous community and as a result Indigenous communities must increasingly look within and elsewhere for support in transformation. The government sector funding model has become process driven. As the Productivity Commission notes, many government departments are captive to headline benchmarks, such benchmarks often

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Indigenous Youth and Restorative Justice in Western Australia cont. either distorting or simply failing to capture the underlying statistics which are more relevant and informative. In comparison the non-​government welfare and private sectors are often better placed to respond to the demands of family groups by devising comprehensive and innovative programs. The reporting and funding models that apply to NGOs are very much outcomes-​driven, requiring them to continually explore the most effective and constructive methods of addressing the issues that have brought them, as organisations, into existence. [103] However, there are government sector tools yet to be utilised to their fullest potential within a broader philosophy of restorative justice The Aboriginal Family Supervision Program was one example of a community-​driven mentoring program built within existing justice frameworks. Unfortunately, the program no longer operates due to a variety of factors but it had real capacity to be one that provided children and their families with the intensive and culturally appropriate one-​on-​one support they required. Notwithstanding, bureaucratic processes were still noted as a significant impediment to caseworkers being able to focus on outcomes. In its stead the Family Intensive Treatment (FIT) program (formerly known as the Intensive Supervision Program –​ISP) is one tool that could now be more widely employed. The FIT program is a local adaptation of the Multi-​Systemic Therapy (MST) model 70 and is located within the confines of the juvenile justice system. It requires voluntary participation by families. As this program develops and expands, its capacity to take up Indigenous caseworkers acting as family mentors and FIT “clinicians” also increases. Importantly, FIT recognises that it takes time to build a rapport with children and a family, that the itinerant nature and level of dysfunction in some families is high and that a “go slow” approach is the best way to, firstly engage, and then retain, these families in order to achieve holistic outcomes. It is clear that one-​on-​one intensive mentoring programs are an absolute necessity in order to provide young Indigenous people with stability and allow them to develop self-​esteem and a vision beyond their usual negative measures of success. To that extent the Department of Sport and Recreation has the capacity to capture the Indigenous community’s love of sport and work much more closely with the Department of Education to invigorate young Indigenous people’s desire to learn and participate more fully within the community, thereby feeling less marginalised. Victim support services should be made available to the offender when clear issues are raised before, during or after the conferencing component of the process. In addition, the potential of a restructured and re-​focused Department of Indigenous Affairs must be fully explored. A further very practical and community-​focused initiative would be to elevate the role of Police and Citizens Youth Clubs (PCYCs). This is community policing at its best if properly resourced and coordinated by a dedicated team of officers with a true appreciation of the issues facing Indigenous youth and their families. Despite the history and often fractious and antagonistic relationship between Indigenous youth and police these venues can provide a safe environment with relevant and structured activities for young people. They can act as a potent symbol of a community coming together to address its specific needs while breaking down barriers between youth and those holding positions of authority. Unfortunately, in Western Australia, the role of PCYCs and their police coordinators is often undermined by the Police Service itself. Building capacity and producing innovation within local communities through local government is another opportunity that should be fully explored. If each [104] and every one of these avenues was genuinely open to a restorative justice process that allows the time to coordinate resources and implement comprehensive action plans then the process of transformation could commence.

 [7.355]  Kathy Daly argues that there are a number of myths about restorative justice that are not

supported by evidence: (1) restorative justice is the opposite of retributive justice; (2) restorative justice uses indigenous practices and was the dominant form of pre-​modern justice; (3) restorative justice is a “care” (or feminine) response to crime in comparison to a “justice” (or masculine) response; and (4) restorative justice can be expected to produce major changes in people.

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Restorative Justice: The Real Story [7.360]  K Daly, “Restorative Justice: The Real Story” (2002) 4(1) Punishment and Society 55 at 71-​73. Advocates want to tell a particular kind of story, the mythical true story of restorative justice. This story asks people to develop their “caring” sides and to “resist tyranny with [72] compassion” (Braithwaite, 1999: 2). It suggests that amidst adversity, there is great potential “for doing good” for self and others (Braithwaite, 1999: 2, paraphrasing Eckel, 1997). It rewrites the history of justice practices by celebrating a return to pre-​modern forms, and it re-​colonizes indigenous practices by identifying them as exemplars of restorative justice. The true story offers some hope, not only for a better way to do justice, but also for strengthening mechanisms of informal social control, and consequently, to minimize reliance on formal social control, the machinery and institutions of criminal justice. In order to sell the idea of restorative justice to a wide audience, advocates have painted a dichotomous, oppositional picture of different justice forms, with restorative justice trumping retributive justice as the superior one. There is a certain appeal to this framing of justice: it offers two choices, and it tells us which side is right. With this framing, who could possibly be on the side of retribution and retributive justice? Only the bad guys, of course. When we move from the metaphors and slogans to the hard work of establishing the philosophical, legal and organizational bases of this idea, and of documenting what actually occurs in these practices, the true story fails us. It lets us down because simple oppositional dualisms are inadequate in depicting criminal justice, even an ideal justice system. With respect to youth justice conferencing, extraordinary tales of repair and goodwill may occur, but we should not expect them to occur as frequently as the advocates would have us think. The real story of restorative justice is a more qualified one. Empirical evidence of conferencing in Australia and New Zealand suggests that very high proportions of people find the process fair; on many measures of procedural justice, it succeeds. However, I am finding from the SAJJ project that it is relatively more difficult for victims and offenders to find common ground and to hear each other’s stories, or for offenders to give sincere apologies and victims to understand that apologies are sincere. There appear to be limits on “repairing the harm” for offenders and victims, in part because the idea is novel and unfamiliar for most ordinary citizens. For youthful lawbreakers, the limits also inhere in the salience of any legal process or adult exhortations to “stay out of trouble”, and the problems that adolescents may have in “recognizing the other”, an empathetic orientation that is assumed to be central to a restorative process. For victims, the limits reside in the capacity to be generous to lawbreakers and to see lawbreakers as capable of change. A variety of observational and interview items from the SAJJ project suggests that a minority of conferences have the necessary raw material for restorativeness to occur. (One needs to be careful in generalizing: the frequency of restorativeness would depend greatly on whether a jurisdiction uses conferences selectively or routinely and what kinds of cases are in the sample, that is, the mix of violence and property, the degree of seriousness and victim–​offender relations.) Overall, the real story of restorative justice has many positives and has much to commend, but the evidence is mixed. Conferencing, or any new justice practice, is not nirvana and ought not to be sold in those terms. In the political arena, telling the mythical true story of restorative justice may be an effective means of reforming parts of the justice system. It may inspire legislatures to pass new laws and it may provide openings to experiment with alternative justice forms. All of this can be a good thing. Perhaps, in fact, the politics of selling justice ideas may require people to tell mythical true stories. The real story attends to the murk and constraints of justice organizations, of people’s experiences as offenders and victims and their [73] capacities and desires to “repair the harm”. It reveals a picture that is less sharp-​edged and more equivocal. My reading of the evidence is that face-​to-​face encounters between victims and offenders and their supporters is a practice worth maintaining, and perhaps enlarging, although we should not expect it to deliver strong stories of repair and goodwill most of the time. If we want to avoid the cycle of optimism and pessimism (Matthews, 1988) that so often attaches to any justice innovation, then we should be courageous and tell the real story of restorative justice. But, in telling the real story, there is some risk that a promising, fledgling idea will meet a premature death.

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National and international guidelines for restorative justice [7.365]  With the growing use of restorative justice processes, there has also been the devel-

opment of national and international guidelines for their use. In Australia, national guidelines were developed to provide direction for the use of restorative justice processes in the Australian criminal justice system. These took account of both the UN principles and the New Zealand government principles, extracted below.

National Guidelines or Principles for Restorative Justice Programs and Processes for Criminal Matters [7.370]  National Justice CEOs Group, National Guidelines or Principles for Restorative Justice Programs and Processes for Criminal Matters, Discussion Paper (Department of Justice and Attorney General NSW, March 2011) pp 7-​8. In August 2002, the United Nations Economic and Social Council adopted a resolution calling upon Member States that are implementing restorative justice programs, to draw on a set of Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (UN Basic Principles), which was developed by a group of experts … Principle 12 of the UN Basic Principles states: Member States should consider establishing guidelines and standards, with legislative authority when necessary, that govern the use of restorative justice programmes. Such guidelines and standards should respect the basic principles set forth in the present instrument and should address, inter alia: (a)

The conditions for the referral of cases to restorative justice programmes;

(b)

The handling of cases following a restorative process;

(c)

The qualifications, training and assessment of facilitators;

(d)

The administration of restorative justice programmes;

(e)

Standards of competence and rules of conduct governing the operation of restorative justice programmes.

The New Zealand Ministry of Justice has developed Principles of Best Practice for Restorative Justice Processes in Criminal Cases. The New Zealand principles focus on the use of restorative justice processes pre-​sentence and do not apply to the use of these processes after sentencing. However, it is acknowledged that the principles are likely to be broadly applicable to the use of restorative justice processes at any point in the criminal justice process, as well as in other sectors … In Canada, the Department of Justice has developed Basic Principles and Procedural Safeguards relating to the Use of Restorative Justice, which consist of 11 principles … The United Kingdom’s Restorative Justice Consortium, which is a membership organisation that works with those practising restorative justice to meet the needs of victims and to reduce offending, has developed Principles of Restorative Processes. These 28 principles cover: processes; equalities/​ diversity/​non-​discrimination; information, choice and safety; agreements/​outcomes; and organisation/​policies. The South African Restorative Justice Centre has identified three core restorative justice principles: justice requires that we work to restore those who have been injured by crime; those most directly involved and affected by crime should have the opportunity to participate fully in the response should they wish; and the government’s role is to preserve a just public order, and the community’s is to build and maintain a just peace. In Australia, work has been done to develop standards for restorative justice practitioners. For example, in 2009, the Victorian Association for Restorative Justice released Best Practice Standards for Restorative Justice Facilitators, as well as an Accreditation Scheme for Restorative Justice Practitioners. The best practice standards apply to a quality assurance framework for restorative justice practitioners. This framework consists of training and support structure (case supervision, line management and [7.370]  427

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National Guidelines or Principles for Restorative Justice Programs and Processes for Criminal Matters cont. co-​facilitation) elements. There are also standards that apply to the facilitation of restorative justice processes. Given the diversity of restorative justice processes and practices in criminal matters in Australia, national guidelines may provide clarity and guidance on some key concepts relevant to restorative justice, and may also assist practices to be delivered in a safe and appropriate way.



Handbook on Restorative Justice Programmes [7.375] United Nations Office on Drugs and Crime, Handbook on Restorative Justice Programmes (2006) pp 33-​36. Preamble Recalling that there has been, worldwide, a significant growth of restorative justice initiatives, Recognizing that those initiatives often draw upon traditional and indigenous forms of justice which view crime as fundamentally harmful to people, Emphasizing that restorative justice is an evolving response to crime that respects the dignity and equality of each person, builds understanding, and promotes social harmony through the healing of victims, offenders and communities, Stressing that this approach enables those affected by crime to share openly their feelings and experiences, and aims at addressing their needs, Aware that this approach provides an opportunity for victims to obtain reparation, feel safer and seek closure; allows offenders to gain insight into the causes and effects of their behaviour and to take responsibility in a meaningful way; and enables communities to understand the underlying causes of crime, to promote community well-​being and to prevent crime, Noting that restorative justice gives rise to a range of measures that are flexible in their adaptation to established criminal justice systems and that complement those systems, taking into account legal, social and cultural circumstances, Recognizing that the use of restorative justice does not prejudice the right of States to prosecute alleged offenders, I. Use of terms 1.

Restorative justice programme. means any programme that uses restorative processes and seeks to achieve restorative outcomes.

2.

Restorative process. means any process in which the victim and the offender, and, where appropriate, any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator. Restorative processes may include mediation, conciliation, conferencing and sentencing circles.

3.

Restorative outcome. means an agreement reached as a result of a restorative process. Restorative outcomes include responses and programmes such as reparation, restitution and community service, aimed at meeting the individual and collective needs and responsibilities of the parties and achieving the reintegration of the victim and the offender.

4.

Parties. means the victim, the offender and any other individuals or community members affected by a crime who may be involved in a restorative process.

5.

Facilitator. means a person whose role is to facilitate, in a fair and impartial manner, the participation of the parties in a restorative process.

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Handbook on Restorative Justice Programmes cont. II. Use of restorative justice programmes 6.

Restorative justice programmes may be used at any stage of the criminal justice system, subject to national law.

7.

Restorative processes should be used only where there is sufficient evidence to charge the offender and with the free and voluntary consent of the victim and the offender. The victim and the offender should be able to withdraw such consent at any time during the process. Agreements should be arrived at voluntarily and should contain only reasonable and proportionate obligations.

8.

The victim and the offender should normally agree on the basic facts of a case as the basis for their participation in a restorative process. Participation of the offender shall not be used as evidence of admission of guilt in subsequent legal proceedings.

9.

Disparities leading to power imbalances, as well as cultural differences among the parties, should be taken into consideration in referring a case to, and in conducting, a restorative process.

10.

The safety of the parties shall be considered in referring any case to, and in conducting, a restorative process.

11.

Where restorative processes are not suitable or possible, the case should be referred to the criminal justice authorities and a decision should be taken as to how to proceed without delay. In such cases, criminal justice officials should endeavour to encourage the offender to take responsibility vis-​à-​vis the victim and affected communities, and support the reintegration of the victim and the offender into the community.

III. Operation of restorative justice programmes 12.

Member States should consider establishing guidelines and standards, with legislative authority when necessary, that govern the use of restorative justice programmes. Such guidelines and standards should respect the basic principles set forth in the present instrument and should address, inter alia:



(a)

The conditions for the referral of cases to restorative justice programmes;



(b)

The handling of cases following a restorative process;



(c)

The qualifications, training and assessment of facilitators;



(d)

The administration of restorative justice programmes;



(e)

Standards of competence and rules of conduct governing the operation of restorative justice programmes.

13.

Fundamental procedural safeguards guaranteeing fairness to the offender and the victim should be applied to restorative justice programmes and in particular to restorative processes:



(a)

Subject to national law, the victim and the offender should have the right to consult with legal counsel concerning the restorative process and, where necessary, to translation and/​or interpretation. Minors should, in addition, have the right to the assistance of a parent or guardian;



(b)

Before agreeing to participate in restorative processes, the parties should be fully informed of their rights, the nature of the process and the possible consequences of their decision;



(c)

Neither the victim nor the offender should be coerced, or induced by unfair means, to participate in restorative processes or to accept restorative outcomes.

14.

Discussions in restorative processes that are not conducted in public should be confidential, and should not be disclosed subsequently, except with the agreement of the parties or as required by national law. [7.375]  429

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Handbook on Restorative Justice Programmes cont. 15.

The results of agreements arising out of restorative justice programmes should, where appropriate, be judicially supervised or incorporated into judicial decisions or judgments. Where that occurs, the outcome should have the same status as any other judicial decision or judgment and should preclude prosecution in respect of the same facts.

16.

Where no agreement is reached among the parties, the case should be referred back to the established criminal justice process and a decision as to how to proceed should be taken without delay. Failure to reach an agreement alone shall not be used in subsequent criminal justice proceedings.

17.

Failure to implement an agreement made in the course of a restorative process should be referred back to the restorative programme or, where required by national law, to the established criminal justice process and a decision as to how to proceed should be taken without delay. Failure to implement an agreement, other than a judicial decision or judgment, should not be used as justification for a more severe sentence in subsequent criminal justice proceedings.

18.

Facilitators should perform their duties in an impartial manner, with due respect to the dignity of the parties. In that capacity, facilitators should ensure that the parties act with respect towards each other and enable the parties to find relevant solution among themselves.

19.

Facilitators shall possess a good understanding of local cultures and communities and, where appropriate, receive initial training before taking up facilitation duties.

IV. Continuing development of restorative justice programmes 20.

Member States should consider the formulation of national strategies and policies aimed at the development of restorative justice and at the promotion of a culture favourable to the use of restorative justice among law enforcement, judicial and social authorities, as well as local communities.

21.

There should be regular consultation between criminal justice authorities and administrators of restorative justice programmes to develop a common understanding and enhance the effectiveness of restorative processes and outcomes, to increase the extent to which restorative programmes are used, and to explore ways in which restorative approaches might be incorporated into criminal justice practices.

22.

Member States, in cooperation with civil society where appropriate, should promote research on and evaluation of restorative justice programmes to assess the extent to which they result in restorative outcomes, serve as a complement or alternative to the criminal justice process and provide positive outcomes for all parties. Restorative justice processes may need to undergo change in concrete form over time. Member States should therefore encourage regular evaluation and modification of such programmes. The results of research and evaluation should guide further policy and programme development.

V. Saving clause 23. Nothing in these basic principles shall affect any rights of an offender or a victim which are established in national law or applicable international law.



Principles of Best Practice: Restorative Justice in Criminal Cases in NZ [7.380]  New Zealand Ministry of Justice, “Principles of Best Practice for Restorative Justice Processes in Criminal Cases” in Restorative Justice: Best Practice in New Zealand (2004) pp 12-​26. 430 [7.380]

Dispute Resolution in Criminal Law  Chapter  7

Principles of Best Practice: Restorative Justice in Criminal Cases in NZ cont. 1.

Restorative justice processes are underpinned by voluntariness.

2.

Full participation of the victim and offender should be encouraged.

3.

Effective participation requires that participants, particularly the victim and offender, are well-​informed.

4.

Restorative justice processes must hold the offender accountable.

5.

Flexibility and responsiveness are inherent characteristics of restorative justice processes.

6.

Emotional and physical safety of participants is an over-​riding concern.

7.

Restorative justice providers (and facilitators) must ensure the delivery of an effective process.

8.

Restorative justice processes should only be undertaken in appropriate cases.

Further information on the New Zealand Principles can be found at the following website: http://​ w ww.justice.govt.nz/ ​ p ublications/​ g lobal-​ p ublications/​ r /​ r estorative-​ j ustice-​ i nnew-​ zealand-​best-​practice.



PLEA BARGAINS IN CRIMINAL LAW [7.385]  While restorative justice has a formal role to play in the criminal law, by far the most

common form of alternatives to court adjudication in the criminal justice system is the use of plea bargains. The final part of this chapter provides an overview of a recent empirical study of plea bargaining in the Victorian Courts. As Flynn and Freiberg note, these processes are not well understood outside of the courts and legal profession. The article commences with an overview of the aims and methods in which the authors outline the three-​phase qualitative and quantitative methodology that they employed. Phase 1 of the study included analysis of 50 de-​identified Victorian Legal Aid cases that led to a guilty plea. Phase 2 comprised in-​depth interviews with legal professionals and judicial officers, and phase 3, a roundtable discussion. In the following extract, the authors outline the findings that emerged.

Plea Negotiations: An Empirical Analysis [7.390]  A Flynn and A Freiberg, Plea Negotiations: An Empirical Analysis (2018) Australian Institute of Criminology. Results Frequency [4]‌The study found that between 87 and 100 percent of guilty pleas entered at all levels of Victorian courts were the result of a negotiated agreement between the prosecutor and the defence. As reflected in the following comments, the interview data produced higher estimates of the rate of plea negotiations, sitting at between 90 and 100 percent of guilty pleas entered by an accused: “Every case is negotiated”. (Judge02MR) “I don’t think there’s a file that you wouldn’t negotiate on”. (Defence02F) “There’s always room for a discussion in any case”. (Defence15M) “Every case”. (Defence18M) [7.390]  431

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Plea Negotiations: An Empirical Analysis cont. “Occurs in every single case –​9.5 out of 10”. (Defence11M) “I can’t think of any situation where you can’t really engage in negotiations”. (Defence12FR) Eighty-​seven percent of the de-​identified case files (n = 41 of 47) that had sufficient information to determine the charges before and after the entering of a guilty plea involved some form of negotiation leading to a withdrawal of charges and usually a reduction in both the number and seriousness of the remaining charges. Of these cases, 89 percent (n = 42) had charges withdrawn, which usually resulted in the accused pleading guilty to fewer, and less serious, offences than those originally charged. The mean number of charges per case prior to a resolution was 6.42. The mean number of charges to which an accused pleaded guilty post resolution was 3.18. The mean number of charges withdrawn was 3.24. The highest number of charges withdrawn in an individual case was 11 (the accused had originally been charged with almost 30 offences). Fifty-​one percent of the de-​identified case files with sufficient details to determine charges before and after resolution (n = 24 of 47) also included specific details of the case facts (the agreed summary) being negotiated to present a particular version of events, although it is worth noting that discussions alluding to the amendment of the agreed summary were evident in the majority of the files. The process The study found that the negotiation process is quite extensive, often with multiple interactions between the parties before an agreement is reached. In cases where the plea offer presented by the defence was not immediately accepted by the prosecution, the response generally addressed the defence arguments and outlined reasons why the offer was rejected. In addition, the majority of these responses included the OPP proposing a counteroffer. It was rare for the prosecution to simply dismiss a plea offer out of hand without explanation, although it did occur in at least three of the case files. [5]‌The interactions between the negotiating parties occurred by phone, email, letter and face to face, with the most common communication method being email (74% of files). There were four main considerations framing the plea negotiation process for prosecutors and defence practitioners which affected the likelihood of engaging in discussions, the likelihood of agreeing to a resolution, and the type of resolution agreement reached. These included: (1) the strength of the evidence, (2) the public interest (for prosecutors), (3) the personality of the opposing party, and (4) the client’s interests (for defence practitioners). Timing Across the de-​identified case file data, all guilty pleas were entered prior to trial, with the majority (81%) entered prior to the pre-​trial committal hearing. It was clear from the files and interviews that both the prosecution and defence were actively engaging in plea negotiations, and generally resolved matters to a plea of guilty at the earliest opportunity. The interview and de-​identified case file data confirmed that the defence are more likely to initiate discussions (91% of files), although it is becoming more common for prosecutors to commence discussions, and this is encouraged through internal policy (OPP Victoria nd). There are various levels of internal authorising and accountability mechanisms operating within the OPP and Victoria Police in relation to accepting a guilty plea to lesser charges, suggesting that while plea negotiations are not officially recognised in legislation, they are part of the legal process and a widely accepted criminal justice procedure. This study found that a strong early resolution culture has permeated the courts, VLA, Victoria Police and the OPP, which may in part contribute to the high rate of guilty pleas entered in Victorian courts each year. Summary and indictable courts There are significant differences in the way plea negotiations are conducted in the summary jurisdiction, compared to the manner with which indictable cases are handled. This is partly due to the nature of the offences heard in the summary stream, the fast pace of the Magistrates’ Court compared to 432 [7.390]

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Plea Negotiations: An Empirical Analysis cont. the higher courts, and the different approaches defence practitioners adopt when dealing with police prosecutors, as opposed to when negotiating with OPP solicitors and Crown prosecutors. The study found that the early resolution focused pre-​contest hearings that operate in the summary jurisdiction (the summary case conference and the contest mention hearing) strongly facilitate plea negotiations at an early stage. However, the success of the contest mention is highly dependent on the magistrate involved, which can lead to inconsistencies in the effectiveness of this hearing: “The problem with contest mentions is it’s very dependent on the magistrate”. (Judge02MR) “It comes down to practicality and different magistrates”. (Defence05M) “It depends upon the magistrate who you’ve got and how open they are to resolution”. (Defence13FR) “If they put someone in there that has no interest in resolving matters, they do not care and so everyone ends up going off to [a]‌contest[ed hearing], because there’s no incentive and for that process to work there really has to be incentive”. (Defence03F) [6]‌The study also identified some limitations to the out-​of-​court summary case conference process which arise from the lack of resourcing, the high workload of police prosecutors, and the absence of specific funding for VLA practitioners to prepare and engage in summary case conference work: “The police prosecutors aren’t properly resourced to prepare for them [summary case conferences]. I feel sorry for those prosecutors, because their loads are so high”. (Defence16F) “They [prosecutors] can’t be answering any phone calls or negotiating things out of court, so you’ve just got a whole lot of wasted adjournments which is just unnecessary churn through the court system which is the most expensive bit”. (Judge04FR) “You can end up sending things to contest mention maybe prematurely, because you’re funded then to turn up for that one appearance”. (Defence03F) “Opportunities for negotiation, genuine negotiation are lost as part of the regrettable way that Legal Aid’s [funding is] structured”. (Defence06MR) These limitations hinder the effectiveness of what could potentially be a highly successful early resolution focused process. Offences The most common offences negotiated are those where there are multiple alternative charges available, such as intentionally or recklessly causing serious injury or intentionally or recklessly causing injury. This includes gross violence offences (which carry a mandatory minimum non-​parole period) and aggravated burglary. Assault offences are also commonly the subject of plea negotiations, and these offences featured in the data partly due to police charging offenders with multiple offences covering the same course of conduct (sometimes referred to as “overcharging”) which provides a foundation for negotiations. Armed robbery and drug offences were also common subjects of negotiations. The offences least likely to be negotiated included sexual offences, family violence and homicide. Homicide offences were identified as difficult primarily due to the seriousness of the crime and the high level of public interest in the prosecution. This reflects the findings of the Sentencing Advisory Council’s (2015: 19) analysis of guilty plea outcomes between 2004 and 2014, where they found that murder had the lowest guilty plea rate of all proven offences (48%) during the reporting period. The study found that sex offences were considered the most difficult to resolve, with 66 percent of participants identifying these as the most challenging offences to negotiate. This is supported by data obtained from the County Court which show that between 2008 and 2015 there was a noticeable difference between the guilty plea rate in general offences, which averaged to 72 percent over seven years, and the guilty plea rate in sex offences, which averaged to 45 percent. It is perhaps unsurprising that sex offences do not commonly feature in plea negotiations, given the number of sex offence

[7.390]  433

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Plea Negotiations: An Empirical Analysis cont. matters that proceed to trial in the County Court and the high acquittal rate, which participants said provided an incentive to “risk” a trial. The study also found that the sex offender registration scheme is a key limitation in encouraging guilty pleas and negotiations in sex offence cases, with participants describing it as “one of the biggest hurdles to successful negotiations” (Defence21M) and “a significant impediment to any kind of resolution” (Defence20M). For more information on the effect of the sex offender registry on guilty pleas, please see the project’s final report (Flynn & Freiberg 2018). [7]‌Interestingly, and perhaps as an unexpected consequence of the recent focus on family violence in Victoria (and Australia more generally), the study found there are minimal negotiations in family violence matters because there is a perceived “public interest” in the matters being seen to be treated with the utmost seriousness. As a result, there has been a change in police charging practices and approaches to prosecuting family violence cases. The study also found that participants were generally concerned about the potential for the escalation of violence in these cases (which may even lead to a fatality), and the repercussions for Victoria Police if this were to occur. Such concerns are supported by the report of the Royal Commission into Family Violence (2016: 41), which states “There is a demonstrable link between family violence [and] homicide”, noting that of the 250 murder cases prosecuted by the Victorian OPP in the last three reporting years, approximately 10 percent (n = 23) “were related to family violence” (Royal Commission into Family Violence 2016: 55).

 [7.395]  In the next extract, Flynn and Freiberg outline the most common forms of plea bar-

gaining identified by the study. Case studies provide examples of each form of negotiation and demonstrate the imperative for those involved in criminal justice to understand and demonstrate skills in dispute resolution.

Plea Negotiations: An Empirical Analysis [7.400]  A Flynn and A Freiberg, Plea Negotiations: An Empirical Analysis (2018) Australian Institute of Criminology. [8]‌Across the interview and de-​identified case file data, there were three forms of plea negotiation that emerged as “most common”. Informed by the interview data and stakeholder consultations, a fourth “most common” form also emerged. Based on the data, the study determined that the most common forms of plea negotiation in Victoria (in no particular order) include the following. 1. Withdrawing and substituting charges In almost every file, the accused faced multiple charges arising from the one incident which were either: alternative charges (eg armed robbery and robbery; intentionally causing serious injury and recklessly causing serious injury); or duplicitous, lesser included charges (eg armed robbery and possession of a controlled weapon). In each of these circumstances, the plea offer always involved identifying which charge(s) the accused would plead guilty to and which charges would be withdrawn. The interview participants identified withdrawing charges as being somewhat of an administrative task, as a way to “simplify” and “clarify” matters moving forward. As Prosecutor03F noted, “Most cases you would probably withdraw some charges, just purely for simplifying matters in the end”. Similarly, Prosecutor01F observed that the criminality of the offending conduct can be represented in fewer counts, or even less serious charges: “You don’t need 10 charges when two of the more serious ones may reflect the criminality”. [9]‌It was also very common for the accused to plead guilty to a substituted charge, whereby the OPP or police prosecutor would accept a guilty plea to an alternative charge, usually one that reduced the severity and aggravation of the original charge/​s. In the interviews, participants referred to the 434 [7.395]

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Plea Negotiations: An Empirical Analysis cont. substituting of charges as “very common” (Defence19M; Defence22M) and “a matter of course” (Defence02F). In fact, Judge09M described it as “the most common form of plea negotiations”, while Defence11M suggested, “You’d be negligent if you didn’t pursue it”. Case study 1 The accused was charged with burglary with intent to assault, intentionally causing serious injury, intentionally causing injury and recklessly causing serious injury. The accused offered to plead guilty to recklessly causing serious injury on the basis that there were reliability issues with the victim’s evidence. The OPP initially rejected this offer but eventually accepted the guilty plea, on the condition that the accused also plead guilty to criminal damage. This was accepted by the defence and guilty pleas were entered to recklessly causing serious injury and criminal damage, as a substitute for intentionally causing serious injury and intentionally causing injury. It also resulted in the burglary with intent to assault being withdrawn (case 019-​TD). 2. Rolled up and representative counts A rolled up charge can comprise: … a number of separate offences against the same statutory provision, even where they do not amount to a ‘single transaction’ (eg where the acts occurred on different occasions). (Victorian Government Solicitor’s Office 2014) Many participants described rolled up charges as being “extremely sensible” (Judge05M). As Judge01M maintained, “Rolling up charges is a perfectly sensible way of resolving a number of matters”. Judge13F identified the rationale for this form of negotiation as being “to avoid having what is often described as an overloaded presentment or an overloaded indictment”. In this regard, the rolling up of charges was commonly identified as a way to “simplify everything” (Defence07M). One of the main reasons participants identified this form of negotiation as “administrative” is that, while the number of charges an accused pleads guilty to is reduced when the counts are rolled up, the agreed summary of facts presented to the court to inform the sentence should explain that the charge encompasses a number of distinct offences, so the sentence takes into account there has been more than one offence committed. This means that the sentence is likely to be similar, regardless of the fact the accused is pleading guilty to fewer charges and having fewer convictions recorded. For this reason, participants tended to identify this form of negotiation as a “tool” (Prosecutor08M) or “technique” (Judge08M) used by the prosecutor in acquiring a guilty plea, which may not necessarily have the same level of benefit for the accused. Case study 2 The accused faced almost 30 charges of obtaining financial advantage by deception arising from his fraudulent use of money owned by various investors to conduct trades. The resolution included the prosecution withdrawing charges which were not supported by evidence and, where there were multiple instances of fraud using money owned by one investor, rolling up these multiple incidents into one charge (case 009-​SA). Representative counts are used to reduce the number of charges to which an accused will plead guilty, purportedly without reducing the criminality of their conduct. For example, the accused may plead guilty to one count of rape that is representative of several charges of rape against the same individual. Participants pointed to historical sexual offences as commonly being charged as representative counts, usually because it can be difficult for the victim to identify exact dates and times, making the prosecution complex. Prosecutor05M identified these difficulties, noting: Often you have statements that say ‘he did this to me once a week’, or something, but we don’t have exact dates and so it may be appropriate to have a representative count on the base. In these circumstances, the offender can still be sentenced on a history of misconduct, and the punishment will be “on the basis that this is not an isolated event” (Prosecutor05M). [7.400]  435

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Plea Negotiations: An Empirical Analysis cont. Similar to rolled up counts, the fact the offence is representative should be specified in the summary of facts presented to the court to inform the sentence, to ensure that the penalty acknowledges the offence is representative of a course of conduct, not simply one offence. However, unlike rolled up counts where participants suggested it “doesn’t make a lot of difference” to the sentence (Judge05M), representative counts were identified as both a “tool to minimise the number of charges on the indictment” (Judge08M) and a way to generate a “lesser sentencing outcome than if you have specified charges for each of the alleged forms of behaviour” (Judge08M). While Defence02F stated that “The sentence itself does not actually change; the client is still being sentenced on, for example, a 10 year period of offending”, most judicial participants said the sentence would be lower, because “There’s a particular way the court looks at representative counts and it generally would result in a lesser sentencing outcome” (Judge08M). For these reasons, Defence05M identified representative counts as being “more advantageous to an accused than a rolled up count, because it will get rid of a number of different offences that would be used for accumulation”. [11] 3. Negotiating the agreed summary of facts (“fact bargaining”) There were 24 files where the negotiated outcome included a specific agreement on the entirety or part of the facts to be put before the court at the plea and sentencing hearing. Even in the absence of a specific written agreement, the facts were almost always discussed during plea negotiations in the case files as part of the process, whereby one or both parties contended that certain charges were supported (or not) by the evidence. All interview participants identified the agreed summary as a key element of negotiations. As Judge02MR observed: That happens in every case, that there is a form of agreement, there is always some form of negotiation, particularly when you’ve got an offence against the person and in terms of words perhaps spoken, or actions pre or post the offence. Judge13F maintained that “The settled summary is very significant and it’s a very major part of whether a case resolves or not”. Case study 3 The accused was charged with armed robbery on the basis that he was armed with both an imitation firearm and a knife. The defence offered to plead guilty to armed robbery if the reference to the knife was removed from the summary of facts. This was agreed to by the prosecution (case 010-​CD). 4. Agreements on the prosecution’s sentencing submission Prosecutors in Victoria cannot enter into agreements relating to a specific quantum or type of punishment in exchange for a guilty plea because the sentencing decision is that of the court, which is not bound by any agreement. As Flynn (2016: 565) explains, prosecutors can: … agree to present case facts to fit a particular sentence range, based on standard sentencing practices and outcomes, and/​or recommend a sentence type … to the court. Such recommendations are not binding, but generally influential. In 2008, in R v MacNeil-​Brown [2008] VSCA 190, the Court of Appeal of the Supreme Court of Victoria obliged prosecutors to make a submission on sentencing range if: (a)

the court requests such assistance; or (b) even though no such request has been made, the prosecutor perceives a significant risk that the court will fall into error regarding the applicable range unless such a submission is made. [at 3]

In 2014, this decision was overruled by the High Court of Australia in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2, where the court stated: Contrary to the view of the majority in MacNeil-​Brown, the prosecution’s conclusion about the bounds of the available range of sentences is a statement of opinion, not a submission of law. … [at 42] 436 [7.400]

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Plea Negotiations: An Empirical Analysis cont. To the extent to which MacNeil-​Brown stands as authority supporting the practice of counsel for the prosecution providing a submission about the bounds of the available range of sentences, the decision should be overruled. The practice to which MacNeil-​Brown has given rise should cease. The practice is wrong in principle. [at 23] [12] The de-​identified case file data and interviews indicate that prosecution sentence recommendations still form part of the negotiation process, even post Barbaro, although they are less specific as a result of the High Court’s decision. While the plea negotiation process in Victoria in no way resembles that of the United States, where prosecutors can offer specific sentences in exchange for a guilty plea, it appears that when MacNeil-​Brown was operating, discussions ventured into this area for a period of time, at least until the Director of Public Prosecutions formally prohibited this type of discussion (although a few defence practitioner participants indicated it occurred beyond MacNeil-​Brown). Ultimately, the study found that the High Court’s decision in Barbaro has changed, but not eliminated, negotiations on sentence submissions. While the decision has appeared to halt negotiations on the length of the prison sentence that the prosecutor may submit to the court, they still occur in relation to the prosecutor’s sentencing submission about the amount of time already served in custody that should be taken into account by the court in sentencing, and the appropriateness of a community correction order or its combination with a prison sentence. Case study 4 The defence offered to plead guilty to one aggravated burglary charge and one assault in exchange for the withdrawal of two aggravated burglary charges and an agreement that the Crown’s position on sentence would be for a partially suspended sentence (case 025-​NS).

 [7.405]  As Flynn and Freiberg conclude, plea bargaining is ubiquitous within our justice sys-

tem and essential to the running of system that aims to be smooth and efficient.

Plea Negotiations: An Empirical Analysis [7.410]  A Flynn and A Freiberg, Plea Negotiations: An Empirical Analysis (2018) Australian Institute of Criminology. Conclusion [12] Plea negotiations in Victoria are a fact of life, and have been so for many years. These negotiations are not of the kind depicted in fictionalised American television dramas, in which plea deals are done and presented as fait accompli to the court, but are part of everyday legal life in a semi-​adversarial criminal justice system. The stark reality is that the majority of convictions in Victoria are the result of a guilty plea and a majority of those pleas are the product of some form of negotiation between the prosecution and defence. Guilty pleas and the associated negotiation processes have long been recognised as being essential to the effective and efficient functioning of the criminal justice system. All parties –​courts, prosecution, defence and police –​work within legal, administrative and ethical guidelines. This is not a lawless system, but nor is it perfect.



APPLICATIONS OF DISPUTE RESOLUTION: INTERNATIONAL CRIMINAL LAW [7.415]  It is also important to note that dispute resolution is a fundamental part of international

criminal law, and a brief introduction to this context is provided in the following extract by Hauss. [7.415]  437

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International Conflict Resolution [7.420]  C Hauss, International Conflict Resolution (2nd ed, The Continuum International Publishing Group Inc, New York, 2010) p 6. Over the last 30 years, somewhere between 20 and 35 wars were being fought at any one time. During most years, 40 million people flee their countries as refugees. Ethnic cleansing in the former Yugoslavia brought genocide back onto the political agenda. The first war crimes tribunals since the end of World War Two were created, which in turn led to the creation of a permanent international criminal court to deal with crimes against humanity … Although the media tend to focus on the violence, there are thousands of people who have dedicated their intellectual and political lives to finding a better way of settling international disputes. Especially since the end of the Cold War, there has been an upsurge of interest in positive-​sum or win-​win conflict resolution that leaves all parties satisfied and open to cooperative problem-​solving in general. In time, that kind of dispute resolution can lead to what Kenneth Boulding called stable peace, a state in which war is all but impossible because the parties to past violence have learned to settle their differences without considering the use of force. Such prominent politicians as former US President Jimmy Carter and senator George Mitchell have built new careers as mediators in international disputes. Similarly, Bernard Kouchner moved on from his post as head of Medecins sans frontieres to become first a socialist cabinet minister in France, then head of the UN’s reconstruction efforts in Kosovo, and now foreign minister in a conservative government. Even more impressive is the new group of former national heads of state and other eminent persons, The Elders, who have pledged to spend their retirement years to work for world peace (http://​www.theelders.org). Attempts to resolve conflict non-​violently often come from previously unexpected sources –​and with unexpected enthusiasm. Peacekeeping and peace-​building are now part of the training of all senior officers in the Canadian and Scandinavian militaries. The US is following suit, though it will take time for such changes to ripple through such a huge organization. A decade ago, one European think tank identified more than 500 NGSs (nongovernmental organizations) that devote all or part of their efforts to international conflict resolution. Now, there are tens of thousands of people who have full-​ time careers in governments, NGOs and consulting firms specializing in conflict resolution.



CONCLUSION [7.425] In Australia, dispute resolution in the criminal context is a developing field.

Restorative justice processes are now utilised in most jurisdictions with mixed results. Like many government-​driven dispute resolution initiatives, the purpose of implementing many criminal dispute resolution processes is to divert matters from the formal court system. In criminal matters, this can be particularly controversial and develop into a political issue. The privatisation of criminal justice is a challenging concept and the subject of heated debate. However, as various restorative justice programs are implemented and reviewed, more evidence will be available to evaluate their benefits over the long term. [7.430] QUESTIONS

1.

What difference do you think the timing of dispute resolution interventions in criminal matters makes to their success?

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2.

Compare and contrast the elements of the “traditional” and the “restorative” approach to criminal justice.

3.

What are the benefits of restorative justice for offenders?

4.

What are the benefits of restorative justice for victims?

5.

What are the benefits of restorative justice for the community?

6.

What are the benefits of restorative justice for the State?

7.

In what kinds of criminal matters do you think victim-​offender mediation/​conferencing would be most useful?

8.

In what kinds of criminal matters do you think victim-​offender mediation/​conferencing is NOT suitable?

9.

What are some of the challenges of restorative justice interventions with respect to Indigenous Australians?

10. If you were the victim of a crime, would you be willing to participate in a restorative justice process? Why/​why not? 11. Restorative justice has been criticised on the basis that it can undermine the human rights of participants (particularly offenders). What kinds of human rights challenges potentially arise in restorative justice processes? 12. Plea bargaining is a common form of negotiation in criminal law matters. What key skills do lawyers need to effectively negotiate a charge or sentence? 13. Are there criminal charges or sentences that should never be the subject of negotiation? Why/​why  not?   

[7.430]  439

CHAPTER 8

Dispute Resolution in Family Law [8.05] [8.10]

INTRODUCTION......................................................................................................... 442 UNDERSTANDING FAMILY CONFLICT......................................................................... 443 [8.15] Understanding Family Conflict............................................................ 443 [8.20] DISPUTE RESOLUTION PROCESSES IN FAMILY MATTERS............................................. 444 [8.25] FLA, s 13C...................................................................................... 445 [8.35] LEGISLATIVE FRAMEWORK IN THE FAMILY LAW SYSTEM............................................. 446 [8.40] FLA, s 13A...................................................................................... 446 [8.45] FAMILY DISPUTE RESOLUTION.................................................................................... 446 [8.50] Key Social Issues in the Development of Australian Family Law................... 447 [8.55] The Child’s Voice in FDR: Mediation and Child-​Informed Practice................ 450 [8.60] The Child’s Voice in FDR: Mediation and Child-​Informed Practice................ 450 [8.65] REQUIREMENT TO MAKE A GENUINE EFFORT............................................................. 452 [8.70] Family Law Rules 2004 (Cth), Sch 1, r 1............................................... 452 [8.80] FLA, s 60I(1)-​(3), (7)........................................................................ 453 [8.90] FLA, s 60I(9)................................................................................... 454 [8.100] FLA, s 60I(10)................................................................................. 455 [8.110] FLA, s 60I(8)................................................................................... 455 [8.120] Making a “Genuine Effort” in FDR....................................................... 456 [8.130] Making a “Genuine Effort” in FDR....................................................... 457 [8.140] Certifying Mediation: A Study of s 60I Certificates................................... 461 [8.145] LEGAL EFFECT OF AGREEMENTS REACHED DURING FDR............................................ 464 [8.150] THE BEST INTERESTS OF THE CHILD PARAMOUNT IN PARENTING ORDERS................ 464 [8.155] FLA, s 60CC.................................................................................... 464 [8.165] OBLIGATIONS OF PROFESSIONALS WORKING IN FDR................................................ 466 [8.165] Duty to inform about range of dispute resolution services........................... 466 [8.170] FLA, ss 12A, 12B.............................................................................. 466 [8.180] FLA, s 62B...................................................................................... 467 [8.185] Family Law Rules 2004 (Cth), Sch 1, r 6............................................... 468 [8.190] Duty to provide information about best interests of the child...................... 468 [8.195] FLA, s 60D..................................................................................... 468 [8.200] Family dispute resolution practitioners........................................................ 469 [8.205] FLA, s 10G..................................................................................... 469 [8.215]

Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth), reg 25................................................................................... 470

[8.220] The lawyer’s role in FDR.............................................................................. 470 [8.230] [8.240]

How Can Family Lawyers Effectively Represent Their Clients in Mediation and Conciliation Processes.................................................... 472 Lawyers’ Role Options in FDR.............................................................. 480

[8.245] The counsellor’s role in FDR......................................................................... 485 [8.250] FLA, s 10B...................................................................................... 485 [8.260] The Role of Counselling in the FDR....................................................... 486 [8.270] Bargaining in the Shadow of the Law................................................... 487 [8.280] Divorce Bargaining: The Limits on Private Ordering................................. 489 [8.290] [8.300]

How Can Family Lawyers Effectively Represent Their Clients in Mediation and Conciliation Processes?................................................... 490 Family Mediation and the Legal Process................................................ 491

[8.310] Power......................................................................................................... 493 [8.315] [8.325]

The Handbook of Family Dispute Resolution: Mediation Theory and Practice.................................................................................... 493 Power Imbalance in Divorce and Interpersonal Mediation......................... 494  

441

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[8.335] [8.345]

Family Mediation: Friend or Foe for Women?.......................................... 497 Family Mediation: A Matter of Informed Personal Choice.......................... 499

[8.350] Family violence........................................................................................... 502 [8.355] FLA, s 4AB...................................................................................... 502 [8.365] FDR and Victims of Family Violence...................................................... 503 [8.375] Family Violence –​A National Legal Response.......................................... 507 [8.385] Changes to Family Law From 7 June 2012............................................. 508 [8.395] FDR and Family Violence in the New Family Law System........................... 509 [8.400] “Inappropriate for FDR” certificates and “No Longer Appropriate for FDR” certificates..................................................................................... 511 [8.405] Certifying Mediation: A Study of s 60I Certificates................................... 512 [8.415] Certifying Mediation: A Study of s 60I Certificates................................... 513 [8.420] Coordinated family dispute resolution......................................................... 515 [8.425] FDR in Family Violence Cases.............................................................. 515 [8.430] OTHER FDR PROCESSES.............................................................................................. 518 [8.435] Arbitration................................................................................................... 518 [8.440] FLA, s 10L...................................................................................... 518 [8.450] The Family Law Dispute Resolution Spectrum......................................... 519 [8.455] Conciliation conference............................................................................... 519 [8.460] The Conciliation Process.................................................................... 520 [8.465] Family law/​legal aid conferences................................................................. 520 [8.470] Dispute Resolution Choices................................................................. 520 [8.475] Magellan program...................................................................................... 521 [8.480] The Family Law Dispute Resolution Spectrum......................................... 521 [8.485] Collaborative law........................................................................................ 521 [8.490] Evaluating Collaborative Law in the Australian Context............................ 522 [8.500] Australian Collaborative Practice Guidelines........................................... 524 [8.505] Collaborative Practice in Family Law Matters with Coercive Control-​type Family Violence....................................................................... 525 [8.510] [8.520] [8.530] [8.540]

Collaborative Practice in Family Law Matters With Coercive Control-​type Family Violence: Preliminary Thoughts From the Practitioner Coalface.................... 525 Why Look at Collaborative Practice for Victims of Family Violence................ 526 Collaborative Practice in Family Law Matters With Coercive Control-​type Family Violence: Preliminary Thoughts From the Practitioner Coalface.................... 528 Collaborative Law: An (un)Ethical Process for Lawyers?............................. 530

[8.550] Child Responsive Program........................................................................... 534 [8.555] The Child Responsive Program............................................................ 534 [8.560] QUESTIONS................................................................................................................ 536

INTRODUCTION [8.05] The strong emphasis on alternative dispute resolution (ADR) in contemporary

Australian family law, and the sheer volume of usage of ADR in family law, justifies the treatment of this topic in a discrete chapter. As the topic is so broad, however, dispute resolution in family law will be examined only in the context of disputes under the Family Law Act 1975 (Cth) (FLA). Of course family law dispute resolution is much broader than that and includes disputes between de facto, cohabiting and same sex partners, adolescent and care proceeding disputes, inter-​generational disputes and so forth. Indeed, the context of family law disputes is as broad as the concept of family is diverse. This chapter begins with a discussion on the phenomenon of family conflict and the impact of parental conflict on children. The authors consider the history of family dispute resolution (FDR) in Australia and introduce the main federal legislation regulating FDR, including recent amendments. The most common form of dispute resolution in the family context in Australia, family mediation (now known as “family dispute resolution”) is 442 [8.05]

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then discussed in detail, including its application to both property/​financial and parenting-​ related conflict. The genuine effort requirement and the overall success of FDR is questioned. Various professionals’ roles in FDR are also considered. Some of the challenges in FDR are explored, in particular the issues of private ordering, power and family violence. Finally, a brief overview of the range of other dispute resolution processes being used in the family context is provided.

UNDERSTANDING FAMILY CONFLICT [8.10]  Managing conflict of any kind can be challenging and stressful for all involved, but

family conflict is particularly difficult. In the following extract, Taylor explores the particular characteristics of family conflict, and stresses the importance of family mediators having a good understanding of the dynamics of family systems and family conflict.

Understanding Family Conflict [8.15]  A Taylor, “Understanding Family Conflict” in The Handbook of Family Dispute Resolution: Mediation Theory and Practice (Wiley, Hoboken, 2012) Ch 2, pp 58-​60. The dynamics of family conflict operate in some ways as all other conflicts do, and yet there is a vital difference. Family conflicts are perhaps the most personal of all conflicts. Although people spend lots of time in their workplaces and communities and have many disputes with others in the normal course of living, they live in their families. Family disputes therefore affect a person’s social and personal identity in a way that no other type of conflict can. The level of self-​involvement in the conflict and the impact of its outcome are huge. Family conflict is not only about the self-​identity of the disputants, but also about the identity of all the others affected by the dispute, such as children, grandparents, and other relatives. A dispute in a family affects not only the identity of the individuals but the identity of the family as a social, economic, and interpersonal system: To creatively manage a conflict when individual and group identity is at stake, core concerns –​survival, recognition, dignity –​must be surfaced and addressed. When conflict is rooted in the protection of identity needs, the stakes are greater than in interest-​based conflict born out of competition over resources. In identity conflict, groups struggle for their basic physical and moral survival. Accordingly, the potential for destruction is strong. [Rothman, 1997, pp 8-​9] Family conflict is not only about tangible items but the intangibles of what makes the family unique and special in their own and others’ eyes. It is about the intrinsic qualities that make them distinctive and bonded to each other. It is about each person’s level of inclusion or exclusion from the family system. [59] The Multiple Levels of Family Conflicts Any family dispute can have simultaneous elements of all four levels of conflict described by Lewicki, Saunders, and Minton (2001, pp 12-​13): • Intrapersonal conflict –​they are of two minds in themselves • Interpersonal conflict –​they are in dispute with one or more members of the family • Intragroup conflict –​factions within the family have formed • Intergroup conflict –​the family is in dispute with other outside groups or entities A termination of parental rights case that is being mediated might have component parts for each of the participants as follows: • Intrapersonal level: The internal struggle of “what kind of parent gives up her child?” versus “I know I cannot handle the child and it is best for her to go to a good home” [8.15]  443

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Understanding Family Conflict cont. • Interpersonal level: The father who wants the termination so his new wife can adopt the children versus the mother who is not relinquishing parental rights • Intragroup level: The grandmother who wants the mother to fight to retain her parental rights as well as her grandparental contacts versus the mother’s new spouse, who is counseling her to let go • Intergroup level: The protective services agency worker and the probation officer who are making a recommendation for termination based on the past abuse versus the mother and her current therapist, who are recommending family reunification based on the mother’s capacities after treatment Family mediators need to map out all the layers of conflict for each person in the conflict, since family systems are complex and family conflicts are even more so. A family mediator who knows all of these levels of conflict for each member who is mediating will understand the conflict situation much more fully. Each person in the family may have a different context for understanding and relating to the conflict. And yet family conflict is uniquely painful because it is not just about the self against outside forces, that is, “me against them” but about “us against us” or even “me against us”. It is less easy to distance one-​self from the conflict and achieve a level of dispassionate reason about issues that touch so deeply. It is particularly wounding when the people with whom we have been so close and so intimate, on whom we have based our lives, start [60] doing the adversarial framing of blaming, polarizing, attributing negative characteristics, and projecting unacceptable traits from themselves to the others in the conflict. It creates intense loyalty and betrayal issues for those caught in the conflict. Family conflicts have the potential for constructive or destructive processes and outcomes. They are opportunities for positive change for individuals and the entire system, or destruction of what is most important. As Kreisberg (1998) points out, any social conflict can be characterized by the sequences of constructive to destructive qualities in the way in which they are dealt with or waged, how long they last or how prolonged the conflict is, and what the outcome ultimately is. A family conflict that finally has a positive outcome after many years of dispute may have been very destructive in the way in which it was handled, and so leaves a legacy of distrust, indignation, or avoidance even though the outcome seems fair, workable, and positive. In family conflict, the way in which the conflict is discussed and handled will be at least as important to the family members as the specific terms and agreements listed in the outcome document of the mediation process. This is one of the factors that makes family mediation a very different context for those used to standard distributive negotiation in business, commercial, or other forms of mediation and conflict resolution. Family mediation is messy business, dealing with self-​concept, face-​ saving, high emotions, crisis, past background, and identity issues for all participants.



DISPUTE RESOLUTION PROCESSES IN FAMILY MATTERS [8.20]  Those involved in family conflict have a broad range of dispute resolution processes

available to them. These include dispute resolution options that: • Are conducted inside or outside court; • Are facilitative, advisory, or determinative; • Allow parties to be represented or unrepresented; • Are court reportable or non-​reportable; • Are voluntary or compulsory; • Are private or public. 444 [8.20]

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Parties in conflict may voluntarily choose to use a particular dispute resolution process option, or they may be referred to a service by the Court. Section 13C of the FLA provides that the Court may refer parties to family counselling, FDR and other family services.

FLA, s 13C [8.25]  13C Court may refer parties to family counselling, family dispute resolution and other family services (1)

A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders:



(a)

that one or more of the parties to the proceedings attend family counselling;



(b)

that the parties to the proceedings attend family dispute resolution;



(c)

that one or more of the parties to the proceedings participate in an appropriate course, program or other service. Note 1: Before making an order under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E). Note 2: The court can also order parties to attend, or arrange for a child to attend, appointments with a family consultant (see section 11F).

(2)

The court may suggest a particular purpose for the attendance or participation.

(3)

The order may require the party or parties to encourage the participation of specified other persons who are likely to be affected by the proceedings.

 [8.30]  Some of the processes available to people involved in family conflict include:

• Negotiation (directly between the parties, or through lawyer-​representatives); • Mediation/​FDR (through a community-​based organisation, a private family dispute resolution practitioner or lawyer, a legal aid service, or a Family Relationship Centre); • Collaborative law (through a specialist collaborative lawyer); • Arbitration (usually conducted by a private barrister or retired judge), either voluntarily or ordered by the court under s 10L of the FLA (for property and financial matters); • Family Court provided services, including – Case assessment conference (in financial disputes, conducted by a Registrar); – Conciliation conference (in financial disputes, conducted by a Registrar); – Procedural hearing (in financial and parenting disputes, conducted by a Registrar) – Child responsive program (run by a family consultant in parenting disputes); – Trial or a “less adversarial trial” (conducted by a Judge); – Magellan program (for parenting cases). Each of these processes is discussed further below, although the focus of this chapter will be primarily FDR. Many family conflicts are resolved, without any intervention by professionals, by the family members themselves. Other family conflicts are negotiated by lawyers representing the individual family members, either directly or through processes such as collaborative law [8.30]  445

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negotiations. FDR also generally involves facilitated negotiations between the family members, supported by the FDRP.

LEGISLATIVE FRAMEWORK IN THE FAMILY LAW SYSTEM [8.35]  The main pieces of legislation relevant to FDR in Australia are:

• Family Law Act 1975 (Cth) (“FLA”); • Family Law Regulations 1984 (Cth) (“the Regulations”); • Family Law Rules 2004 (Cth) (“the Rules”). Two recent pieces of amending legislation are also important, in the discussion that follows, as they have had a significant impact on the practice of FDR in Australia: • Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth); • Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth). Section 13A of the FLA emphasises the Family Court’s role in encouraging people to settle their family conflicts outside of the court system, and, in particular, by using FDR services.

FLA, s 13A [8.40]  13A Objects of this Part (1)

The objects of this Part are:



(a)



to facilitate access to family counselling: (i)

to help married couples considering separation or divorce to reconcile; and



(ii)

to help people adjust to separation or divorce; and



(iii)

to help people adjust to court orders under this Act; and



(b)

to encourage people to use dispute resolution mechanisms (other than judicial ones) to resolve matters in which a court order might otherwise be made under this Act, provided the mechanisms are appropriate in the circumstances and proper procedures are followed; and



(c)

to encourage people to use, in appropriate circumstances, arbitration to resolve matters in which a court order might otherwise be made, and to provide ways of facilitating that use; and



(d)

to give the court the power to require parties to proceedings under this Act to make use of court or non-​court based family services appropriate to the needs of the parties.



FAMILY DISPUTE RESOLUTION [8.45]  FDR is now a key part of the Australian family law system. The legislation provides

a very broad definition, leaving room for quite diverse practices to fall within its scope. Section 10F of the FLA defines FDR in the following way. “Family dispute resolution” is a process (other than a judicial 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.

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In a comprehensive article outlining the historic antecedents for amendments to the FLA, Moloney, Weston and Hayes from the Australian Institute of Family Studies (AIFS), describe four main social factors that have influenced developments in the family law field:  women’s increased participation in the workforce; changing understandings of the role of fathers; understandings about the impact of violence and abuse; and an increasing emphasis on the rights of the child. In part 2 of their article, the authors outline how these social factors have impacted the FLA, arguing that an increased emphasis on the use of ADR in family law disputes has been a positive feature of recent times.

Key Social Issues in the Development of Australian Family Law [8.50]  L Moloney, R Weston and A Hayes, “Key Social Issues in the Development of Australian Family Law: Research and Its Impact on Policy and Practice” (2013) 19(2) Journal of Family Studies 110, pp 124-​127. Blame, justice and the best interests of the child From 1976 onwards, the principle of blame for the marriage breakdown could no longer be relied upon as an argument in favour of a particular outcome. Almost at the same time however, cracks began to appear in the alternative principle that had stood courts in good stead for many years, that of a maternal preference. We consider these issues briefly in turn. For many years, awarding custody to the “blameless” parent had been an important decision-​ making principle used by courts dealing with parenting disputes. As Friedman (1995) put it: “There were a variety of mechanisms available to the state to encourage marital solidarity. One was to tie blame in divorce suits to custody of children. (p. 56)” Although it was not a necessary outcome of the 1975 “no fault” legislation, many commentators have over the years reflected Fogarty’s (2001) concerns that the granting of a dissolution of marriage without needing to consider questions of blame, tended to have the practical consequence of unhinging questions of behaviour from questions of post-​separation parenting arrangements. As the data on family violence and child abuse noted in Part 1 became more widely confirmed, this was increasingly seen as an especially problematic consequence of the legislation (e.g., Graycar, 1995). But if blame was no longer a relevant concept in many post-​1975 cases, what “custody” decision-​making criteria were informing Australian judicial responses, and informing negotiations taking place in the shadow of the law’ (Mnookin & Kornhauser, 1979). Alongside the sense of children as a reward for being blameless in the marriage, the maternal preference principle had also operated in many courts, including Australian courts, for much of the 20th Century. Sociolegal historians generally agree that in the late 19th and early 20th Centuries, the principle governing the disposition of children in most of those Western countries that permitted divorce, shifted from a presumption of paternal control to one of maternal care. According to Friedman (1995), in countries as diverse as Belgium, France, England, Germany, the Netherlands, Sweden and Switzerland, the speed of the transition was variable and the manner in which it came about reflected different political realities. Yet the beginning and the end point were the same everywhere. Paternal custody had been the norm; maternal custody became the norm. (p. 17) It could be argued that with concepts of blame largely removed from decisions about parenting disputes, and with an emerging sense of the role of fathers as being more than that of mere breadwinning, the stage would be set for intensifying the debate about the key functions of parenthood and about who, when a dispute arises, is better equipped to perform them. These debates did indeed take place (see Bordow, 1994; Horwill & Bordow, 1983). But the evidence strongly suggests [125] that in practice the Family Court of Australia continued to “favour” mothers as the principal [8.50]  447

Dispute Resolution in Australia: Cases, Commentary and Materials

Key Social Issues in the Development of Australian Family Law cont. carers in post-​separation parenting disputes, whilst simultaneously asserting, as it did in the case of Raby (see Part 1) that “maternal preference” was “not a principle, a presumption, a preference or even a norm”. We have noted that the timing of Australia’s 1975 Family Law Act coincided with changes that were already taking place with respect to paid work practices and corresponding patterns of childcare. Though these changes were being documented in the social science literature, a clear appreciation of their significance with respect to post-​separation parenting arrangements developed more slowly. It is hardly surprising that the law, which is generally constrained by the need to strike a balance between being seen to be too responsive and not responsive enough, was also advancing cautiously when it came to moving beyond traditional gender-​based parenting arrangements. Fogarty (2006) has suggested that society’s values and attitudes, rather than the legislation itself, have been the key drivers of change during the lifetime of the Family Court. But as noted below, recent legislation has also consciously set out to bring about cultural changes regarding matters such as attitudes to post-​separation parenting. It is likely that the law will continue to be seen by some to be inadequate in its responses and by others to be not responsive enough. Either way, we are probably faced with the prospect of continued changes to legislation and practice, hopefully informed by good-​quality research that at a minimum keeps pace with family forms and changing social attitudes. As the Deputy Chief Justice of the Court (Faulks, 2008) put it: “We live under an Act, which is ever changing, both in its legislative provisions and in its interpretation, and that fact is not likely to change”. Competing understanding of the rights of the child Space does not permit a detailed examination of the multiple amendments to the Family Law Act 1975 (Cth) noted above. But it is clear that the principal foci of two of the three most recent major legislative changes, the Family Law Reform Act 1995, and the Family Law Amendment (Shared Parental Responsibility) Act 2006 have at their core, aspirations aimed at the elevation of the status of children (reflecting children’s rights), reinforcement of the legitimate place of both mothers and fathers in the lives of their children (reflecting changing patterns of parental care in dual income families), and the protection of children and former spouses from family violence (reflecting the steadily growing evidence of this phenomenon in Australian family life). Rhoades, Graycar, and Harrison (2000) have noted that the objectives of the first of these pieces of legislation, the Family Law Reform Act 1995 were to effect an attitudinal shift by encouraging [126] both parents to remain involved in the care of their children after separation; to reduce disputes by removing the proprietary notion of children inherent in terms such as “custody battle”; to place emphasis on the rights of children rather than the rights of parents; to encourage private arrangements rather than litigated solutions; and to ensure that evidence of violence was taken into account when making what were now to be called “contact” orders. These authors concluded that the 1995 reform did not achieve its aims and that it left women and children more vulnerable to exploitation by violent and abusive fathers. The Family Law Amendment (Shared Parental Responsibility) Act 2006 was both bolder in its aims and much better resourced with respect to achieving them. Again, a central aim of these reforms was to bring about “generational change in family law” and a “cultural shift” in the management of parental separation, “away from litigation and towards co-​operative parenting”. By now, the legislative focus had shifted far away from “no fault” divorce, which was simply taken as a given, and towards the consequences of separation and how to deal with them. Indeed the 2006 changes were partly shaped by the recognition that for parents and family members, many post-​separation disputes over children are driven by complex motivations, most of which are only peripherally linked to questions of law. Thus although the eventual shape of the 2006 reforms differed somewhat to the changes envisaged them, it could be argued that its aim to generally move away from legal processes as the

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Dispute Resolution in Family Law  Chapter  8

Key Social Issues in the Development of Australian Family Law cont. starting point of deliberations, was reflected in parliament’s decision to create an extensive network of community-​based services staffed mainly by family relationship practitioners and family mediators. In practice, the main systemic change associated with Australia’s 2006 reforms was the establishment of 65 community-​based family relationship centres (FRCs) that were placed strategically around the country (Moloney, 2013; Parkinson, 2013). The main function of these Centres has become that of providing a triage function for (mainly but not exclusively) separating families; an information service (especially information on the significant impacts on children of ongoing high conflict, violence and other dysfunctional adult behaviours); and family mediation (known as family dispute resolution –​ FDR) as the default processes for parents in dispute about arrangements for their children. Consistent with the aims of elevating the status of children, reinforcement of the legitimate place of both mothers and fathers in the lives of their children, and the protection of children and former spouses from family violence, key policy objectives of the legislation included: (1) Encouraging greater involvement by both spouses in their children’s lives after separation, and also protect children from violence and abuse; by the parliamentary report that had preceded [127] projects comprised a number of sub-​studies, with 17 separate studies contributing to the evaluation overall (see summary text box in Kaspiew et al., 2011, for further details). The research design focussed on examining the extent to which key aspects of the objectives underpinning the reforms were being achieved. The evaluation involved the collection of data from 28,000 people involved in the family law system, including parents, grandparents, family relationship services staff, clients of family relationship services, lawyers, court professionals and judicial officers. It also involved the analysis of administrative data and court files. Amongst other things, the evaluation has provided some key data about the characteristics of Australian separated families that will prove useful in the formulation of future policy and legislative responses. It was found for example, that 62% of parents describe the relationship with their former partners as “friendly” or “cooperative” approximately 15 months after separation. Many in this group are unlikely to require much in the way of ongoing legal support or post-​separation services. On the other hand, a significant proportion of families who actively engage with the family law system had complex needs, involving issues such as family violence, child abuse, mental health problems and substance abuse. Thus 26% of separated mothers and 18% of separated fathers reported experiencing physical hurt prior to separation and 39% of separated mothers and 47% of separated fathers reported experiencing emotional abuse before or during separation. Families with complex needs were the predominant clients both of post-​separation family relationship services (such as FRCs) and the legal sector. This evidence has implications for the findings across all of the evaluation questions. The full evaluation (Kaspiew et al., 2009) can be downloaded from the AIFS website. What follows below are selected findings with regard to: (1) Reducing the amount of litigation over children and replacing this where possible with child-​focussed family mediation and family relationship (2) Helping separated parents agree on what is best for their children (rather than litigating) through the provision of useful information and advice, and effective dispute resolution services; and (3) Establishing a highly visible entry point that operates as a doorway to other services and helps families to access other services. (Kaspiew et al., 2009 p. 1). The legislation also required courts to conduct what were called “less adversarial trials” in those children’s cases that proceeded to litigation. The form of these trials, described by Harrison (2007) in the title of her report as a “bold departure from the common law approach to the conduct of legal proceedings”, had the aim of reducing the destructive and alienating consequences of traditional adversarial processes on parents and their children. How successful these initiatives have been in responding to the considerable social changes impacting on Australian families, and in meeting the more specific aims of the legislation, has (and will continue to be) the subject of ongoing research and debate.

 [8.50]  449

Dispute Resolution in Australia: Cases, Commentary and Materials

The Child’s Voice in FDR: Mediation and Child-​Informed Practice [8.55]  Providing FDR services in parenting disputes can include a variety of methods for giv-

ing children a voice. As Moloney, Weston and Hayes outlined at [8.50], Australian family law has increasingly emphasised the importance of child-​rights and this has meant focusing attention on how children participate in decision-​making about their own families. Mieke Brandon and Linda Kochanski discuss different methods of child-​inclusive practice in the following article which begins with an outline of the importance of respecting the rights of children and assessing the best methods of incorporating their views.

The Child’s Voice in FDR: Mediation and Child-​Informed Practice [8.60]  M Brandon and L Kochanski, “The Child’s Voice in FDR: Mediation and Child-​Informed Practice” (2015) 26 Australasian Dispute Resolution Journal 168, pp 168-​171. Children’s Rights In light of the rights of the child to be heard in family dispute resolution (FDR) processes, the purpose of FDR is for separating or divorced parents to settle their dispute because they are unable to do so by themselves. Some of these parents might benefit from hearing from their children, who might be reluctant to voice their concerns, making it difficult for parents to make decisions as to the children’s welfare. While the majority of the Australian research has demonstrated that children who participated in the various studies acknowledged that they wanted to have a say about arrangements being made for them post separation, they rarely wanted to be the decision-​makers. Cashmore and Parkinson express concerns about children experiencing “loyalty conflicts or be subjected to pressure and manipulation by one or both parents”. The opportunity for children to have a voice in FDR, prior to potential legal proceedings if the parents cannot come to agreement, must be appropriately considered, so that children do not feel marginalised and any special needs are identified. Models of family mediation vary and there is “no one correct” model, but those “that exclude children who have been exposed to family violence, without appraising suitability of including them in the process disadvantage and further disempower the children”. Including Children Child-​informed practice (CIP), previously called “child-​inclusive practice”, is a process that actively includes children in the dispute resolution process so that separating parents can gain insight into their welfare. It is also important to explore the benefits and risks for mediation. Mediators need to remember “to do no harm” and that “each family and each child is unique”, and that in practice not one size fits all. [169] Before CIP can be contemplated, a thorough assessment (which is independent and different in focus from a suitability assessment for mediation) needs to be conducted to ascertain that both parents fully agree to the benefits for their children, and that they to respect the feedback by the child consultant; and that they are genuinely committed to making the best arrangements for their child’s psychological and physical needs. Fitzgerald and Graham highlight concerns about suitability assessments and the difficulties in establishing “parental readiness”. They suggest that this “could be a factor considered in assessing how best to support children to understand the events and processes taking place around them and in identifying with children, their needs, desires and willingness to express their views in decision making processes”. Children must be able to share what they think and feel in a range of ways such as by drawing, writing, and telling stories of their experiences, in a child friendly environment. Accordingly, both parents need to be assessed as to how they may react to their child’s opinions and/​or accepting from their child’s experience of the situation. They must have an open mind about how the child’s “separation story” may be very different from their own perceptions. 450 [8.55]

Dispute Resolution in Family Law  Chapter  8

The Child’s Voice in FDR: Mediation and Child-Informed Practice cont. When children are excluded and have no opportunity to express their own wishes in parenting arrangements, this can make them feel powerless. Additionally, Cashmore and Parkinson suggested that there is also a great need “for children exposed to domestic violence to be heard”. CIP “provides a voice for the child; and we know from a large range of research findings that most children find this extremely valuable while being simultaneously able to appreciate the difference between ‘voice’ and ‘choice’ ”. The criteria influencing whether children have a direct say in FDR mediation must be considered and are dependent on each individual situation. How Does the Child’s Voice Inform Mediation? To address the diverse practices that make up CIP, one needs to consider which practices are part of the mediation, and which practices are rather a pre-​cursor to mediation to inform parents of the needs and best interests of their children via feedback from a child consultant. In Australia, McIntosh has gone some way to defining a process and the parameters of child inclusion in family dispute resolution. She describes it as a process in which “parents are assisted to understand how they are both struggling to focus clearly [on their children’s needs] amidst the emotional debris of the ongoing disputes”. This may mean that parents need additional support to manage their ability to re-​negotiate their family structure so that they are more capable of monitoring their children’s coping strategies and can listen to how their children experience their own emotional transitions. In mediation, the mediator could bring the children “symbolically” into the room by asking each parent to focus on each child, describe them, and explore how that child is managing. There are multiple ways in which sources of conflict between parents can be managed and hearing from their children during mediation can be one of them. McIntosh and Long suggested that “through a sharpened focus on each of their children’s emotional and stage specific needs in the [CIP] treatment, parents’ agreements tended to favour [170] stability of residence, and improved attachment relationships”. They also found such a process “assisted parents to create ‘developmentally correct’ agreements, tailored to the core experiences of their children, and made it easier to resist arrangements tailored to any sense of adult entitlement”. Professionals who have specialist training and experience working with children (pre-​schoolers and school age) undertake the role of child consultant. When the child consultant interviews the parents, he or she has several objectives in mind before making a final decision on whether to proceed with a child consultation. McIntosh and Long, in their description of a model for CIP, recommended that the mediator be different from the child-​consultant who is seeing the children because the role of facilitating parents in a child-​inclusive process also requires a good deal of skill. They suggest that when cases are complex, this division of roles becomes even more important in order to maintain neutrality and to achieve a level of meta-​analysis that can be very difficult for a solo practitioner. McIntosh and Long have also set out various recommendations to help ascertain the appropriateness of involving children in mediation, including: • screening the family situation and assessing the age of the children; • a joint session with the parents, conducted by the mediator; and • an assessment by a child consultant of parental capacity: some empathy for the interest of the other parent, and a concern for the needs of the child. Saposnek suggests mediators must consider first if and when to bring children’s input into a mediation: before, during, or after. He states that “each entry point presents different degrees of how much input children ultimately have”. While he always considers safety as the most important criteria, his suitability assessment includes the following: • When meeting the parents first, ascertaining whether there is an impasse between the parents regarding their decision-​making and whether the parents are knowledgeable about their child and can use the information about what their child says. [8.60]  451

Dispute Resolution in Australia: Cases, Commentary and Materials

The Child’s Voice in FDR: Mediation and Child-​Informed Practice cont. • In exploring the background of the dispute, assessing the levels of conflict and whether a child is telling each parent something different, as well as if a child asks to speak to the mediator. • Excluding the involvement of children when parents cannot use feedback constructively or where they may use the information against the child, or if there is high conflict in the family. The authors, based on their training and experience, recommend that after careful screening of the parents, ideally face-​to-​face, it is preferable to see both parents together first in a joint mediation session before discussing the option of interviewing their children. How parents currently communicate with each other in making decisions for their children should establish the motivation and capacity of parents to negotiate in their children’s best interests. Practitioners must find out whether the parenting style is predominantly authoritarian, permissive, uninvolved or generally [171] authoritative, since these are often a source of conflict. Parental methods of post-​separation communication needs to be established, which Stahl identified as co-​operative, parallel or disengaged parenting arrangements. Individual interviews with each parent to establish their suitability for CIP, especially if this is done on the phone, do not provide an insight into the problem-​solving competencies and the conflict dynamics and communication methods between the parents. When a parent has not seen their child for a significant length of time, or does not spend regular time with their children, the reasons for such disengagement must also be explored. Adequate preparation may help parents to gain insight into their ongoing responsibilities and obligations as co-​parents, despite some parents never having been in a co-​habitation relationship with each other. For married couples, their children “form a continuing tie between former spouses, who remain parents throughout their lives”. According to Emery it is therefore vital that separating parents “disentangle their continuing role as parents from the past role as partners”. It becomes paramount for parents to gain some shared capacity and mutual understanding of how to discuss the potential interview with their children as well as how they will manage the feedback. For the sake of the children, the parental relationship ideally must move towards a more harmonious place. Additional complexities become apparent when a parent is re-​partnered and the children’s establish a positive or negative relationship with the new partner. Parents must have some familiarity of the concepts of bonding and attachment to be able to understand children’s loss and grief as separation disrupts their relationship with their primary attachment figures. McIntosh et al summarise this point: “The impact of separation or divorce on parents and their children is far-​reaching and complex. It impacts on all aspects of family life and the process of adjustment is important for individuals, their families and our society”.



REQUIREMENT TO MAKE A GENUINE EFFORT [8.65]  In both financial matters and matters involving children, the legislation requires par-

ties to make a genuine effort to resolve the dispute prior to commencing proceedings in the Family Court.

Family Law Rules 2004 (Cth), Sch 1, r 1 [8.70]  Family Law Rules 2004 (Cth), Sch 1, r 1 Schedule 1 –​Pre-​action procedures Part 1 –​Financial cases (property settlement and maintenance) 1 General (1)

Each 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:

452 [8.65]

Dispute Resolution in Family Law  Chapter  8

Family Law Rules 2004 (Cth), Sch 1, r 1 cont.

(a)

Participating in dispute resolution, such as negotiation, conciliation, arbitration and counseling;



(b)

Exchanging a notice of intention to claim and exploring options for settlement by correspondence; and



(c)

Complying, as far as practicable, with the duty of disclosure.

(2)

Unless there are good reasons for not doing so, all parties are expected to have followed these pre-​action procedures before filing an application to start a case.

(3)

There may be serious consequences, including costs penalties, for non-​compliance with these requirements.

… 3 Pre-​action procedures (1)

A person who is considering filing an application to start a case must, before filing the application:

…

(a)

give a copy of these pre-​action procedures to the other prospective parties to the case;



(b)

make inquiries about the dispute resolution services available;



(c)

invite the other parties to participate in dispute resolution with an identified person or organisation or other person or organisation to be agreed.

… (2)

Each prospective party must:



(a)

cooperate for the purpose of agreeing on an appropriate dispute resolution service; and



(b)

make a genuine effort to resolve the dispute by participating in dispute resolution.

 [8.75]  In parenting matters, Pt 2 of Sch 1 of the Family Law Rules provides that parents

who have not been able to resolve their conflict over parenting arrangements for children are required to make a genuine effort to resolve their dispute before starting a case. Section 60I of the FLA also requires parents to attend FDR (and provide a certificate issued by the FDRP to this effect) prior to making an application to the court for a parenting order.

FLA, s 60I(1)-​(3), (7) [8.80]  Family Law Act 1975 (Cth), s 60I(1)-​(3), (7) Subdivision E –​Family dispute resolution 60I Attending family dispute resolution before applying for Part VII order (1)

The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order) make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for.

(2)

The dispute resolution provisions of the Family Law Rules 2004 impose the requirements for dispute resolution that must be complied with before an application is made to the Family Court of Australia for a parenting order. [8.80]  453

Dispute Resolution in Australia: Cases, Commentary and Materials

FLA, s 60I(1)-​(3), (7) cont. (3)

By force of this subsection, the dispute resolution provisions of the Family Law Rules 2004 also apply to an application to a court (other than the Family Court of Australia) for a parenting order. Those provisions apply to the application with such modifications as are necessary.

… Requirement to attempt to resolve dispute by family dispute resolution before applying for a parenting order (7)

Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.

 [8.85]  Section  13A(2) notes that the object behind the requirement for parents to attend

FDR under s 60I is to encourage people to use dispute resolution mechanisms (where appropriate) rather than a use of power to compel participation. There are some exceptions to the requirement that parents attend FDR, set out in s 60I(9).

FLA, s 60I(9) [8.90]  Family Law Act 1975 (Cth), s 60I(9) 60I Attending family dispute resolution before applying for Part VII order Exception (9)

Subsection (7) does not apply to an application for a Part VII order in relation to a child if:



(a)

the applicant is applying for the order:



(i)

to be made with the consent of all the parties to the proceedings; or



(ii)

in response to an application that another party to the proceedings has made for a Part VII order; or



(b)

the court is satisfied that there are reasonable grounds to believe that:



(i)

there has been abuse of the child by one of the parties to the proceedings; or



(ii)

there would be a risk of abuse of the child if there were to be a delay in applying for the order; or



(iii)

there has been family violence by one of the parties to the proceedings; or

(iv)

there is a risk of family violence by one of the parties to the proceedings; or



(c)

all the following conditions are satisfied:



(i)

the application is made in relation to a particular issue;



(ii)

a Part VII order has been made in relation to that issue within the period of 12 months before the application is made;



(iii)

the application is made in relation to a contravention of the order by a person;



(iv)

the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order; or



(d)

454 [8.85]

the application is made in circumstances of urgency; or

Dispute Resolution in Family Law  Chapter  8

FLA, s 60I(9) cont.

(e)

one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or



(f)

other circumstances specified in the regulations are satisfied.

 [8.95]  However, even where one of the exceptions applies, the court may still refer the parties

to FDR under s 60I(10).

FLA, s 60I(10) [8.100]  (10) If: (a)

a person applies for a Part VII order; and

(b)

the person does not, before applying for the order, attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with; and

(c)

subsection (7) does not apply to the application because of subsection (9);

the court must consider making an order that the person attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to that issue or those issues.

 [8.105]  As mentioned at [8.75], parents must obtain a certificate from a FDRP prior to mak-

ing an application to the court for a parenting order. The certificate may explain the reasons why the parties did not attend FDR, or state that the parties attended FDR and whether or not the parties made a “genuine effort” to resolve the issues in dispute, or state that in the FDRP’s opinion FDR is not appropriate.

FLA, s 60I(8) [8.110]  Family Law Act 1975 (Cth), s 60I(8) 60I Attending family dispute resolution before applying for Part VII order Certificate by family dispute resolution practitioner (8)

A family dispute resolution practitioner may give one of these kinds of certificates to a person:



(a)

a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but the person’s failure to do so was due to the refusal, or the failure, of the other party or parties to the proceedings to attend



(aa)

a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, because the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to conduct the proposed family dispute resolution; [8.110]  455

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FLA, s 60I(8) cont.

(b)

a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, and that all attendees made a genuine effort to resolve the issue or issues;



(c)

a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the person, the other party or another of the parties did not make a genuine effort to resolve the issue or issues;



(d)

a certificate to the effect that the person began attending family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to continue the family dispute resolution.

 [8.115]  The “genuine effort” requirement has been the subject of much criticism, largely

because it is incredibly difficult to define what is and is not “genuine”, and that FDRPs can potentially expose their clients to financial and other consequences if they do not certify that a party has made a genuine effort. In a 2008 article, Hilary Astor discusses some of the problems with the genuine effort requirement in the following extract.

Making a “Genuine Effort” in FDR [8.120]  H Astor, “Making a ‘Genuine Effort’ in Family Dispute Resolution: What Does It Mean?” (2008) 22 Australian Journal of Family Law 102 at 102-​103. The Family Law Act 1975 (Cth) (the Act) now strongly encourages and, in some cases, mandates people who have a dispute about parenting to go to family dispute resolution. Before they can litigate they must make a “genuine effort” to resolve the issues in family dispute resolution. Family dispute resolution practitioners are responsible for providing certificates to the court about whether or not a genuine effort has been made, and there are potential costs consequences of a “no genuine effort” certificate. However, genuine effort is not defined in the Act. There are so many difficulties in defining it and giving it meaning in practice that there must be some doubt about whether the genuine effort provisions of the Act will be implemented or will be avoided by family dispute resolution practitioners. Consistency in the meaning given to genuine effort is important to ensure fairness, discourage forum shopping and prevent conflict about genuine effort certificates from arising. However family dispute resolution is carried out by a large number of agencies and individuals across Australia, they have varied approaches to resolving disputes and there has been recent significant expansion of the sector. Inconsistent, inappropriate or contested decision-​making about genuine effort could open family dispute resolution practitioners to criticism. Providing genuine effort certificates requires family dispute resolution practitioners to make judgments with significant financial and other [103] consequences, when their traditional role is facilitative and impartial. Making decisions about genuine effort involves difficult value judgments and concerns have already been expressed that these value judgments may be made to the detriment of women in family dispute resolution, in particular where violence is involved.

 456 [8.115]

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[8.125]  Astor argues that we need a definition of “genuine effort” to ensure consistency in

decision-​making, and so that clients clearly understand what is expected of them. In the following extract, Astor looks at some precedents and suggests a definition for “genuine effort” in FDR.

Making a “Genuine Effort” in FDR [8.130]  H Astor, “Making a ‘Genuine Effort’ in Family Dispute Resolution: What Does It Mean?” (2008) 22 Australian Journal of Family Law 102 at 109-​116. The obvious place (at least for a lawyer) to look for assistance in defining genuine effort is where the same phrase, or a cognate phrase, has previously been used and interpreted. The meaning of genuine effort in s 60I has not yet been elaborated by case law. In addition to s 60I of the Family Law Act 1975 the phrase “genuine effort” is also used in s 65DAC(3)(b) of that Act. Section 65DAC provides that if two or more persons share parental responsibility for a child, and a decision is to be made about a major long term issue in relation to the child, the decision is to be made jointly and the persons are to consult and make a genuine effort to come to a joint decision about that issue. Numerous cases have cited this provision, but so far none have elaborated the meaning of the term “genuine effort”. The term has also been used by the court when making orders and by parties in proposing orders but again without any elaboration of its meaning. “Genuine effort” is also used in the Family Law Rules 2004. Rule 12.06 relates to conciliation conferences, where attempts to settle property disputes are made, and it requires: “Each party … [to] make a genuine effort to reach agreement on the matters in issue between them”. Again “genuine effort” has not yet been interpreted in this context. “Genuine effort” is also used in numerous other pieces of legislation and is used descriptively in numerous cases –​used but not defined or elaborated. However, as Altobelli has pointed out, “genuine effort” is used in the Migration Act 1958 (Cth) and in this context it has been further defined. The Migration Act 1958 makes the test for retaining certain visas that the holder has made a “genuine effort” to commence employment or engage in business and it provides a list of factors relevant to assessing genuine effort. However these [110] are not helpful to family dispute resolution practitioners as they are particular to the context of migration matters and consist of lists of activities that might show genuine effort in that context, such as developing business proposals or establishing or buying into a business. Departmental policy guidelines provide further detail about such activities but do not explain the meaning of genuine effort, beyond saying that the decision-​maker must decide “on the ordinary meaning of the words”. However, some of the decisions of the Administrative Appeals Tribunal have interpreted genuine effort. Because the words are to be given their ordinary meaning tribunal members have generally looked for guidance by consulting dictionaries. It has been held to mean “a real and sincere endeavour or strenuous attempt”, “a level of effort beyond that which is purely superficial or token” “efforts [which are] … vigorous and determined”, “endeavour or exertion which is sincere and real … and not in the nature of a pretence or sham … substantial activities … a sincere endeavour …”. Possibly as a result of legal advice drawing on these sources, these interpretations are consistent with the advice of the department about genuine effort in s 60I. But these authorities do not go very far. Nor are they entirely consistent. There is some distance between efforts which go beyond the purely superficial or token and efforts which are vigorous and determined. The difficulty in interpreting genuine effort is its highly contextual nature. Assessing whether a person’s actions are genuine or not requires a judgment to be made in context. Section 60I requires a focus on genuine effort in the context of negotiation or mediation. The expression most often used in this context, either contractually or in legislation, to ensure that disputing parties make a real attempt to negotiate an agreement is a requirement to negotiate or mediate “in good faith”. Altobelli has suggested that such good faith provisions could be a fruitful source of guidance about the meaning of genuine effort. However, the Attorney-​General’s Department rejects the analogy of genuine effort and good faith. In training material provided to family dispute resolution practitioners it has said that they should not rely on interpretations [111] of legislation, such as the Native Title Act 1993, that require good faith negotiation. [8.130]  457

Dispute Resolution in Australia: Cases, Commentary and Materials

Making a “Genuine Effort” in FDR cont. The department gives no reason for its opposition to analogising genuine effort and good faith. However, there are some sound reasons for opposing it. First, it was open to the drafters of the legislation to use the term good faith and they chose not to. Second, the jurisprudence and scholarly writing on good faith is complex and extensive, and analogising the two expressions would make relevant a very significant amount of case law, statutory provision and commentary. While this has potential benefits, providing a resource of discussion and authority, it also has the potential to confuse and mislead. It could divert the resources of family dispute resolution practitioners on what may well be a wild goose chase since a great deal of the case law and commentary on good faith proves, on analysis, not to be relevant or helpful in the family context. Discussion about what good faith in negotiations means is frequently embedded in complex exegeses about what good faith requires when carrying out an existing agreement rather than negotiating a new one, or whether good faith is enforceable as a contractual term. The writing and authorities on good faith are also substantially situated in a commercial context that has little in common with the particular challenges of family disputes. Further, the definitions adopted in the commercial context are themselves variable, so that good faith means different things, for example, in the context of contract law, insurance and international arbitration. Transporting it into family law would bring a fresh set of challenges. However, the scholarship and law on good faith has a number of important lessons for the task of defining genuine effort. It reinforces the lesson that it is very hard to find an agreed core meaning. The complexity of the path followed by those seeking to define good faith should alert us to the possible mazes into which the search for a definition of genuine effort may lead. Further, assessing whether or not there has been good faith, or genuine effort, in negotiations involves judging behaviour in context. Behaviour that looks like a lack of genuine effort in one context may have a quite different appearance in another. For example, in the family law context, a determined and intransigent refusal to consider allowing the other parent to have [112] unsupervised access to a child may look like a lack of genuine effort in one context; in another context it may be a reasonable position taken to protect the child from physical and emotional abuse. This example also illustrates another definitional problem –​attempts to define good faith or genuine effort frequently import terms, such as reasonableness, that are just as indeterminate as they are themselves. In the context of family disputes Cooper and Brandon have said that declining a reasonable proposal would not result in a no genuine effort certificate –​but who decides what is a reasonable proposal? According to what values would a family dispute resolution practitioner make a judgment about what is a reasonable proposal, and whether a refusal to budge is reasonable or intransigent? Such difficulties have led some authorities to take the view that defining good faith should not be attempted. However, given the arguments above about the importance of definition we cannot take this easy route. A statutory requirement of genuine engagement with dispute resolution processes is not unusual. The genuine effort provisions in the Family Law Act 1975, like many cognate provisions in other statutes, are there to ensure that the participation of clients in family dispute resolution is real and not tokenistic. However, given the difficulties associated with defining genuine effort, the potential disputes that may arise and their possible consequences, it may be that family dispute resolution practitioners will avoid ever giving a certificate that a party did not make a genuine effort. Several informal reports that this is what is happening, have reached the author. If this is the case, the genuine effort provisions of the Act are presently ineffective. A clearer definition of genuine effort could assist to make these provisions work. I would argue that the definition of genuine effort in the context of Pt VII of the Family Law Act 1975 should have two basic qualities. First, it should be expressed in terms of positive behaviours. Family dispute resolution practitioners can therefore say to clients “this is what is required of you” and, if practitioners are challenged after issuing a no genuine effort certificate, they can say “this is what was required –​but was not done”. Second, it should require only those behaviours that are 458 [8.130]

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Making a “Genuine Effort” in FDR cont. absolutely necessary if family dispute resolution is to have a chance of success. To be workable and to promote consistency a definition should be confined to what is essential behaviour, not elaborated to include all that is desirable. Otherwise there is a risk of producing a definition which consists of many micro-​rules for behaviour in family dispute resolution –​and spawns many possible debates about whether or not they have been complied with. No definition could cover all possible challenges that will face family dispute resolution practitioners and the parents with whom they work. Therefore I suggest that a practice framework should be developed which will [113] elaborate the definition and provide guidance for practitioners. Let us begin with the definition. Genuine effort should have four components, which I will consider in turn. Genuine effort means: (a)

attending family dispute resolution, and

(b)

willingness to consider options put forward by the other party or the family dispute resolution practitioner, and

(c)

willingness to consider putting forward options for the resolution of the dispute, and

(d)

willingness to focus on the needs and interests of the children, to the best of the parties’ ability.

(a) Attending Family Dispute Resolution Section 60I requires family dispute resolution practitioners to certify that “the person attended … and that all attendees made a genuine effort to resolve the issue or issues” (emphasis added.) Therefore what the Act requires is attendance plus genuine effort, but it is convenient to include attendance in our definition. Family dispute resolution services will clearly have to set limits on the number of excuses, postponements, failures to respond and failures to attend that will be accepted before a certificate of “no genuine effort” is appropriate (as is required by the Family Law Regulations 1984). (b) Willingness to Consider Options Put Forward by the Other Party and (c) Willingness to Consider Putting Forward Options to Resolve the Dispute This element of the definition is derived from the definition of good faith in mediation of Justice Einstein in Aiton v Transfield [1999] NSWSC 996. Justice Einstein holds that, in addition to attendance, good faith requires that the parties have an open mind in the sense of a willingness to consider options put forward by the other party or the mediator, and a willingness to give consideration to putting forward options for the resolution of the dispute. These elements of the definition require the practitioner to assess if each party demonstrated a willingness to consider options put forward by the other parent, or by the family dispute resolution practitioner, and whether they were willing to consider putting forward options on their own behalf. This requires family dispute resolution practitioners to make contextual judgments –​did this mother really consider the options the father put forward or was she actually intransigent? Did this father show a willingness to put forward options for the care of the children, or did he simply object to attending and resist all the options presented by the mother? Such judgments are unavoidable. The definition helps us to understand what is being judged and to focus on those behaviours that are fundamentally necessary to a negotiated agreement. It gives us a core set of required behaviours that are essential if family dispute resolution is to succeed. They are positive requirements that [114] can be explained to the parties and their lawyers and a standard against which to justify whether or not the appropriate certificate has been granted. Note that this basic definition does not require that the parties always make compromises, but it does require that they are willing to consider making compromises. Typically both parties come to family dispute resolution with a position, and it is fundamental to facilitative mediation that they are prepared to move from that position. They are not required to act against their interests, but [8.130]  459

Dispute Resolution in Australia: Cases, Commentary and Materials

Making a “Genuine Effort” in FDR cont. agreement generally depends on their moving from their initial positions. It is tempting to require willingness to compromise, but I would argue that the temptation is better resisted. Of course family dispute resolution practitioners will try to bring the parties to an agreement that involves them moving from their initial positions –​by looking instead at their interests and seeing if these can be served in another way; by helping the parties look at the needs and interests of the children and whether their proposals take those interests into account; and, by using any of the myriad techniques used by mediators to help the parties move towards an agreement. In some cases a parent will arrive at family dispute resolution with an offer, sometimes described as an “insult offer”, which is so far outside the “ball park” that compromise is essential if family dispute resolution is to produce an agreement. But the issue here is whether genuine effort should always require compromise and I argue that it should not. Consider the following example. A parent goes to family dispute resolution having carefully thought out a proposal about parenting that takes into account the interests and needs of the children and the interests and needs of the other parent. The parent refuses to move from that proposal in the mediation –​she or he has already built compromises into her or his position. The parent considers the proposals put by the other side and by the family dispute resolution practitioner, but has good reasons to reject them. The other party, however, arrives at the mediation with a highly inflated sense of entitlement and a very different position based mainly on their own needs and interests rather than those of the children, but she or he is prepared to, and does, make some movement from their original position. If genuine effort always requires compromise, rather than a willingness to consider compromise, the result could potentially be unfair. It could mean that the parent who has (in fact, if not in the family dispute resolution session) made the most compromises could be the one who has not made a genuine effort. (d) Willingness to Focus on the Needs and Interests of the Children, to the Best of the Parties’ Ability The context of family law means that there is an obvious further element that must be considered for our core definition –​a willingness to focus on the welfare of the children. Family dispute resolution always involves making decisions about vulnerable third parties who are directly impacted by any agreement, so that a focus on the children’s needs is an ethical issue for family dispute resolution practitioners. Family dispute resolution occurs in the shadow of legislation that requires that the best interests of the child are paramount and that parenting plans must be made in the best interests of [115] children. A child focused approach is strongly associated with family dispute resolution practitioners and it seems unlikely that family dispute resolution practitioners would accept a working definition of genuine effort that did not require a willingness to focus on the interests of the children. I would argue, however, that if this is to be a component of genuine effort, the parties should only be required to demonstrate a willingness to focus on the needs and interests of their children to the best of their ability. Why this qualification? There are many cases where failure to focus on the needs and interests of the children is a product of the emotional situation of one of the parties. Some parents are so affected by the breakdown of their relationship that they cannot see beyond their conflict with their ex-​partner to the interests of the children because, for example, they are enmeshed in grief and/​or anger or are depressed. A parent may be narcissistic or extremely needy and unable to see beyond their own needs. It would seem punitive, and more importantly not supportive of the interests of the children, to refuse to find genuine effort in these circumstances. Of course decisions about the children must be made, but sometimes they need to be made by impartial third parties because either or both parents cannot agree. Enthusiasm for family dispute resolution, and the hurdle of genuine effort, should not stand in the way of disputants who cannot focus on the needs of their children and need a third party decision-​maker who can do so. A certificate of “no genuine effort” adds potential extra costs when these parents go to a court for what they and their children need. The implication of the definition above is that the conduct that would justify the granting of a no genuine effort certificate becomes clearer. Refusal to attend is a requirement, and practitioners are likely already using the threat of a no genuine effort certificate to induce unwilling 460 [8.130]

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Making a “Genuine Effort” in FDR cont. parties to engage in family dispute resolution. Beyond the issue of attendance, refusal to consider putting forward options to resolve the dispute would justify a no genuine effort certificate. For example, a party who attended, protested that they did not want to be there and made critical comments about the other parent before leaving would not have made a genuine effort. Any party who refused to show that they had at least given consideration to putting forward parenting proposals would attract a no genuine effort certificate. Giving consideration would mean that that parent would at least need to explain their position by reference to the interests of the children. Refusing to consider options put forward by the other side would similarly justify a no genuine effort certificate. Again, giving consideration to options clearly means more than refusing the proposals of the other parent. Reasons for not accepting them would need to be given and would have to be based on a focus on the best interests of the child. A parent who made demands or put proposals that were based solely on their own needs and wishes, and was intransigent in refusing to consider the interests of the [116] children, would not have made a genuine effort. For example a parent who demanded equal time because it is “their right”, or who demanded contact solely because they were paying child support and were thus entitled to it, and who did not respond to requests to focus on the needs and interests of the children, would not be making a genuine effort. It will be clear to practitioners in this field that the definition above does not resolve all of the challenges they face. Family dispute resolution is complex and difficult and fraught with emotional issues. The challenges of genuine effort cannot all be resolved by a definition. Some of the challenges are discussed further below. However, what the definition does achieve is to make clear the behaviour that is required of the parties. Practitioners are not saying to parents “make a genuine effort” which is inherently unclear and might justifiably provoke the response: “But what must I do to make a genuine effort?” Instead practitioners would be saying: “These are the behaviours which are required of you if I am to grant a certificate of genuine effort”. It may be that it would be useful to include the definition in the Family Law Act 1975, so that (amongst other things) the basis on which family dispute resolution practitioners are judging genuine effort is clear to the legal profession and to judges and federal magistrates who receive certificates and who must adjudicate any attempt to challenge a certificate of no genuine effort.

 [8.135]  Despite the passage of time since Astor’s article, there is still a lack of consensus

about the meaning of “genuine effort” that underpins some s 60I certificates. In 2017, Smyth et al released the findings of a comprehensive research project into mediator attitudes to these certificates. This research, commissioned by Interrelate, a major provider of FDR services in New South Wales, demonstrated some of the ethical and practical dilemmas that confront family mediators called upon to attest to the “genuine effort” of parties to family mediation and to make assessments about factors such as family violence and child abuse. The study sought to examine not just how many certificates were issued, but the characteristics of clients who received them and importantly, mediator attitudes and understandings about the circumstances of issuance. In the following extract, mediators describe their approach to “genuine effort”.

Certifying Mediation: A Study of s 60I Certificates [8.140]  B Smyth, W Bonython, B Rodgers, E Keogh, R Chisholm, R Butler, R Parker, M Stubbs, J Temple and M Vnuk, Certifying Mediation: A Study of s 60I Certificates (2017) Centre for Social Research Methods, Working Paper No 2/​2017. [8.140]  461

Dispute Resolution in Australia: Cases, Commentary and Materials

Certifying Mediation: A Study of s 60I Certificates cont. “Genuine effort” certificates and “not genuine effort” certificates [29] As discussed in Chapter 1, where FDR has been able to proceed because it has been deemed appropriate by the FDRP and both –​or all –​parties have participated, an FDRP is able to provide either of two certificates, specifying that all parties made a genuine effort, or that one or more parties did not make a genuine effort. For either certificate to be issued requires a determination as to whether each of the parties has made a “genuine effort” and hence the decision-​making about these certificates is inextricably interconnected. As mentioned in Chapter 1, there is no legislative guidance as to the meaning of “genuine effort”, although some guidance is provided in the Fact Sheet available on the Attorney–​General Department’s website. Overall, FDRPs perceive that “not genuine effort” certificates are very rarely issued. This view is supported by the administrative data covered in Chapter 2. From the comments made by the FDRPs, the greater incidence of issuing “genuine effort certificates”, rather than “not genuine effort certificates” is attributable to a range of reasons. Impact of the four-​step process For some FDRPs, the decision to issue a “genuine effort certificate” appears straight-​forward. One stated: If they turn up they get a “genuine effort” [certificate’]. This initially appears to be a fairly low threshold for issuing a “genuine effort” certificate. However, when set in the context of Interrelate’s four-​step intake process (see Chapter 2) it becomes apparent that rather than merely “turning up”, parties have actively engaged in a sustained, intrusive program with the FDRPs prior to attending the joint session, which arguably justifies the finding that they have made a “genuine effort”. [30] One FDRP stated: “Well basically [they’ve] turned up to the mediation, but then it’s taken for granted that they’ve been through the prior process –​the previous process, and arrived at that point, so they turn up and they are reasonably proactive in the mediation”. Similar to an earlier observation concerning the likelihood of “inappropriate” cases being identified during the first three stages of the four-​step process, some FDRPs observed that a person unwilling to make a genuine effort would be unlikely to reach the final joint-​mediation stage, and hence it is unlikely that a situation would arise in which a “not genuine effort” certificate would be warranted. One FDRP commented: “…it’s just never happened that people did make it to mediation and then, for example, walked out straight away or just refused to participate then and there. So I think for those cases where it would be question-​marked, that you should get picked up before the actual mediation session”. Many FDRPs described a minimum level of engagement and/​or flexibility as a pre-​condition to the issue of a “not genuine effort” certificate. For example: “If they just show up and they’re not willing to at least think about it, or engage with what the other parent is talking about, they have this miscommunication, they’re not willing to communicate at all with them, then that’s not genuine in my mind”. Another FDRP was specifically concerned with motivation: “…it’s to do with the intent and whether there is a degree of malevolence or intent to subvert the process or undermine the process or the other party, then to me it’s a pretty clear line once it’s stepped over”. In describing minimum engagement, others took into consideration the limitations of the client: “… they’ve made some attempt to actually negotiate, within their capacity”. Belief that “genuine effort” cannot (or should not) be judged Some FDRPs expressed the view that it was inappropriate, or impossible, for them to judge whether an individual is making a genuine effort. In some instances, the reason given was the divergence in behaviours evincing “genuine effort” determined by the varied capacities of clients to participate effectively: “I don’t think I’d ever issue a ‘not genuine effort’ ” certificate. I find it very difficult to. 462 [8.140]

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Certifying Mediation: A Study of s 60I Certificates cont. I think that every person’s ability to mediate is different, and it’s very difficult to say what a genuine effort is for each individual person. I don’t feel comfortable to actually make that decision, so I have never issued a certificate that said ‘not genuine effort’ ”. A few FDRPs similarly felt that assessing ‘genuine effort’ is a subjective value judgement outside the scope of an FDRPs role –​that it compromises the FDRP’s independence and the FDR process as a whole: “I think it actually undermines my mediator role for me to be placing that judgement on a person that somebody didn’t make a genuine effort. Because it could come down to me having had a bias or a really bad connection with one of the parties. I’m really careful of that, but I think you can never be absolutely certain that the reason I’d issued a ‘non genuine effort’ certificate didn’t come down to some of those factors –​I think he was making a genuine effort now that I think about it, it was just in my opinion a poor effort. But for him it was genuine. … It was genuinely poor but it was still genuine”. Notably, the FDRPs who considered it difficult or inappropriate to assess “genuineness” resolved this difficulty by erring on the side of assessing “genuineness” in a positive way, and issuing a “genuine effort” certificate, rather than erring on the side of a negative assessment of “genuineness”. Fear of complaints A common reason for not providing “not genuine effort” certificates was the fear of complaints from clients: “[I]‌t just throws open the door for parents who are quite litigious to make complaints, and it can really stir up –​you know really poke the ‘ants nest’ even in terms of the potential impact on that other parent”. Organisational policy Many FDRPs also cited their understanding of Interrelate practice as a primary reason for not issuing these certificates, with some indicating that the fear of complaints from clients is believed to underlie organisational policy: “Making that decision is hard because we are not supported to do those, to give that reason. It’s always been –​the fear of the complaint I think. … I could’ve done a lot more, I’m always advised, even though I know it’s my decision, advised that it’s not sort of kosher with Interrelate … instead of just saying ‘it’s up to you, it’s your decision and we’ll support you’, it’s [a]‌‘well it’s your decision and you know we don’t want complaints’ attitude…” Another FDRP suggested that Interrelate’s practice is not unusual: “[I]‌t’s not to do with this organisation –​it’s every organisation I’ve worked with. All have said ‘Don’t issue those’, because there’s possible legal fallout and how do you prove it’s true? How do you prove that somebody hasn’t put in a ‘genuine’ effort or has put in a ‘non-​genuine’ effort?” Circumstances when “Not genuine effort” certificates have been issued Where FDRPs spoke of issuing a “not genuine effort” certificate the circumstances have involved a very clear lack of engagement in the process. For example: “I remember one case in particular where Dad wasn’t interested in negotiating, he told me that he came particularly to get a section 60I certificate to give to his solicitor, and he really wasn’t interested in negotiating in any way”. Another FDRP said: “I’m thinking of one case in particular and one of the parties blew up straight away, didn’t engage like they said that they were going to, got totally off-​track –​they were in there to have an argument. They weren’t in there to mediate”. Issuing “inappropriate for FDR” certificates instead of “not genuine effort” certificates A few FDRPs described cases in which they had issued “inappropriate for FDR” certificates where, arguably, a “not genuine effort” certificate would have better described the FDR session. For one FDRP, this possible variation was the result of organisational practice: “It’s not really a decision because we don’t issue ‘non-​genuine effort’. I would be more likely to go ‘genuine effort’ or if I’ve called the mediation because one party just doesn’t want to play ball, I just say ‘not suitable to proceed’ –​I use that one”. [8.140]  463

Dispute Resolution in Australia: Cases, Commentary and Materials

Certifying Mediation: A Study of s 60I Certificates cont. Another FDRP’s decision was motivated by the interests of the clients: “What I do remember was thinking I really should issue a ‘non-​genuine effort’, but that would just bring them back here, or back through the mediation process somewhere, so I think I made it ‘inappropriate’. … For some people you can send them around that roundabout over and over again –​it doesn’t make any difference. In fact, it’ll make the conflict worse”.



LEGAL EFFECT OF AGREEMENTS REACHED DURING FDR [8.145]  It is important to note that agreements reached at FDR are not in and of themselves

enforceable. For financial matters, parties can make a binding financial agreement without court approval if it complies with FLA, s 90G. Parties must get a parenting order (ss 64A-​ 64D), or parenting plan approved by the court (ss 63A-​63H).

THE BEST INTERESTS OF THE CHILD PARAMOUNT IN PARENTING ORDERS [8.150]  The FLA requires that when parents are in conflict over parenting issues, decisions

must be made in the “best interests of the child”. There are special provisions about how a court decides what is in the best interests of the child, and also advisers are required to provide parents with information about this prior to FDR. As any parenting plans made by parents in FDR have to be subsequently approved by the court, if they are not found to be in the best interests of the child, the court may overrule them. 60CA Child’s best interests paramount consideration in making a parenting order In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

The “best interests” of the child is defined by reference to what are known as the “twin pillars”, set out in s 60CC(2) of the FLA (at [8.155]). Particular consideration is also given to the cultural needs of Aboriginal and Torres Strait Islander children.

FLA, s 60CC [8.155]  Family Law Act 1975 (Cth), s 60CC 60CC How a court determines what is in a child’s best interests Determining child’s best interests (1)

Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3). Primary considerations (2)

The primary considerations are:



(a)

the benefit to the child of having a meaningful relationship with both of the child’s parents; and



(b)

the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b). 464 [8.145]

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FLA, s 60CC cont. (2A)

In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b). Additional considerations (3)

Additional considerations are:



(a)

any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;



(b)

the nature of the relationship of the child with:



(c)



(i)

each of the child’s parents; and

(ii)

other persons (including any grandparent or other relative of the child);

the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i)

to participate in making decisions about major long-​term issues in relation to the child; and



(ii)

to spend time with the child; and



(iii)

to communicate with the child



(ca)

the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;



(d)

the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:



(i)

either of his or her parents; or



(ii)

any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;



(e)

the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;



(f)

the capacity of:



(i)

each of the child’s parents; and

(ii)

any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g)

the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;



(h)

if the child is an Aboriginal child or a Torres Strait Islander child:



(i)

the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and



(ii)

the likely impact any proposed parenting order under this Part will have on that right;



(i)

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;



(j)

any family violence involving the child or a member of the child’s family;



(k)

if a family violence order applies, or has applied, to the child or a member of the child’s family –​any relevant inferences that can be drawn from the order, taking into account the following: [8.155]  465

Dispute Resolution in Australia: Cases, Commentary and Materials

FLA, s 60CC cont.

(i)

the nature of the order;



(ii)

the circumstances in which the order was made;



(iii)

any evidence admitted in proceedings for the order;



(iv)

any findings made by the court in, or in proceedings for, the order;



(v)

any other relevant matter;



(l)

whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m) any other fact or circumstance that the court thinks is relevant. Consent orders (5)

If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

Right to enjoy Aboriginal or Torres Strait Islander culture (6)

For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:



(a)

to maintain a connection with that culture; and



(b)

to have the support, opportunity and encouragement necessary:



(i)

to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and



(ii)

to develop a positive appreciation of that culture.

 [8.160]  Sections  61A-​ 61F set out the presumption of joint parental responsibility. It is

important to note that this presumption requires parents to be able to work together to make decisions for their children in the future –​it does NOT necessarily mean that parents should have equal time with their children.

OBLIGATIONS OF PROFESSIONALS WORKING IN FDR Duty to inform about range of dispute resolution services [8.165]  The legislation imposes obligations on professionals working in FDR to do certain

things, including the obligation to give advice and information about FDR methods and associated services.

FLA, ss 12A, 12B [8.170]  Family Law Act 1975 (Cth), ss 12A, 12B Part IIIA –​Obligations to inform people about non-​court based family services and about court’s processes and services Division 1 –​Introduction 12A Objects of this Part The objects of this Part are: 466 [8.160]

Dispute Resolution in Family Law  Chapter  8

FLA, ss 12A, 12B cont. (a)

to ensure that married couples considering separation or divorce are informed about the services available to help with a possible reconciliation, in situations where a reconciliation between the couple seems a reasonable possibility; and

(b)

to ensure that people affected, or likely to be affected, by separation or divorce are informed about the services available to help them adjust to:



(i)

separation or divorce; and



(ii)

orders made under this Act; and

(c)

to ensure that people affected, or likely to be affected, by separation or divorce are informed about ways of resolving disputes other than by applying for orders under this Act.

Division 2 –​Kind of information to be provided 12B Prescribed information about non-​court based family services and court’s processes and services (1)

The regulations may prescribe information that is to be included in documents provided to persons under this Part, relating to non-​court based family services and court’s processes and services.

(2)

Without limitation, information prescribed under this section must include information about:



(a)

the legal and possible social effects of the proposed proceedings (including the consequences for children whose care, welfare or development is likely to be affected by the proceedings); and



(b)

the services provided by family counsellors and family dispute resolution practitioners to help people affected by separation or divorce; and



(c)

the steps involved in the proposed proceedings; and



(d)

the role of family consultants; and



(e)

the arbitration facilities available to arbitrate disputes in relation to separation and divorce.

 [8.175]  Division 3 explains who must provide information about family services and when

that information must be provided. Section  12E details obligations of legal practitioners, s 12F on principal executive officers of courts, and s 12G on family counselors, family dispute resolution practitioners and arbitrators. There are particular requirements on the court and lawyers to inform parents about family counseling, FDR and other family services.

FLA, s 62B [8.180]  Family Law Act 1975 (Cth), s 62B Part VII –​Children 62B Court’s obligation to inform people to whom Part VII orders apply about family counselling, family dispute resolution and other family services If a court makes an order in proceedings under this Part, the court must inform the parties to the proceedings about the family counselling services, family dispute resolution services and other courses, programs and services available to help the parties adjust to the consequences of that order.

 [8.180]  467

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Family Law Rules 2004 (Cth), Sch 1, r 6 [8.185]  Family Law Rules 2004 (Cth), Sch 1, r 6 Schedule 1 of the Rules 6 Lawyers’ obligations (1)

Lawyers must, as early as practicable:



(a)

advise clients of ways of resolving the dispute without starting legal action;



(b)

advise clients of their duty to make full and frank disclosure, and of the possible consequences of breaching that duty;



(c)

subject to it being in the best interests of the client and any child, endeavor to reach a solution by settlement rather than start or continue legal action;



(d)

notify the client if, in the lawyer’s opinion, it is in the client’s best interests to accept a compromise or settlement if, in the lawyer’s opinion, the compromise or settlement is a reasonable one;

(e) … (f) … (g) …

(h)

give clients documents prepared by the court (if applicable) about:



(i)

the legal aid services and dispute resolution services available to them; and



(ii)

the legal and social effects and the possible consequences for children of proposed litigation; and



(i)

actively discourage clients from making ambit claims or seeking orders that the evidence and established principle, including recent case law, indicates is not reasonably achievable.

 Duty to provide information about best interests of the child [8.190]  Advisers working with parents in dispute about parenting arrangements are obliged

to give the parent information about what is in the best interests of the child pursuant to s 60D.

FLA, s 60D [8.195]  Family Law Act 1975 (Cth), s 60D 60D Adviser’s obligations in relation to best interests of the child (1)

If an adviser gives advice or assistance to a person about matters concerning a child and this Part, the adviser must:



(a)

inform the person that the person should regard the best interests of the child as the paramount consideration; and



(b)

encourage the person to act on the basis that the child’s best interests are best met:



(i)

by the child having a meaningful relationship with both of the child’s parents; and



(ii)

by the child being protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

468 [8.185]

Dispute Resolution in Family Law  Chapter  8

FLA, s 60D cont. (2)

(iii)

in applying the considerations set out in subparagraphs (i) and (ii)–​by giving greater weight to the consideration set out in subparagraph (ii).

In this section: adviser means a person who is:



(a)

a legal practitioner; or



(b) a family counsellor; or



(c)



(d) a family consultant.

a family dispute resolution practitioner; or

 Family dispute resolution practitioners [8.200]  The definition of FDR refers to a process facilitated by a “family dispute resolution

practitioner”. The term family dispute resolution practitioner is defined in s 10G.

FLA, s 10G [8.205]  Family Law Act 1975 (Cth), s 10G 10G Definition of family dispute resolution practitioner (1)

A family dispute resolution practitioner is:



(a)

a person who is accredited as a family dispute resolution practitioner under the Accreditation Rules; or



(b)

a person who is authorised to act on behalf of an organisation designated by the Minister for the purposes of this paragraph; or



(c)

a person who is authorised to act under section 38BD as a family dispute resolution practitioner; or



(d)

a person who is authorised to act under section 93D of the Federal Magistrates Act 1999 as a family dispute resolution practitioner; or



(da)

a person who is engaged under subsection 18ZI(2) of the Federal Court of Australia Act 1976 as a family dispute resolution practitioner; or



(e)

a person who is authorised by a Family Court of a State to act as a family dispute resolution practitioner.

 [8.210]  Registered FDRPs may work as private individuals, with government or

community-​based organisations, or be employed by Family Relationship Centres. In 2008 the Commonwealth Attorney-​General introduced new accreditation rules for FDRPs, and many practising family mediators were required to upgrade their qualifications to achieve this accreditation. For more about accreditation requirements and ethical considerations for FDRPs, see Chapter 14, Ethics, Standards and Dispute Resolution. FDRPs are responsible for assessing whether FDR is appropriate. Part 7 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth), sets out the requirements for assessing the suitability and appropriateness of FDR. [8.210]  469

Dispute Resolution in Australia: Cases, Commentary and Materials

Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth), reg 25 [8.215]  Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth), reg 25. Part 7 Family Dispute Resolution Practitioners 25 Family dispute resolution practitioners –​assessment of family dispute resolution suitability (1)

Before providing family dispute resolution under the Act, the family dispute resolution practitioner to whom a dispute is referred must be satisfied that:



(a)

an assessment has been conducted of the parties to the dispute; and



(b)

family dispute resolution is appropriate.

(2)

In determining whether family dispute resolution is appropriate, the family dispute resolution practitioner must be satisfied that consideration has been given to whether the ability of any party to negotiate freely in the dispute is affected by any of the following matters:



(a)

a history of family violence (if any) among the parties;



(b)

the likely safety of the parties;



(c)

the equality of bargaining power among the parties;



(d)

the risk that a child may suffer abuse;



(e)

the emotional, psychological and physical health of the parties;



(f)

any other matter that the family dispute resolution practitioner considers relevant to the proposed family dispute resolution.

(3)

If, after considering the matters set out in subregulation (2), the family dispute resolution practitioner is satisfied that family dispute resolution is appropriate then, subject to regulations 28 and 30, the family dispute resolution practitioner may provide family dispute resolution.

(4)

If, after considering the matters set out in subregulation (2), the family dispute resolution practitioner is not satisfied that family dispute resolution is appropriate, the family dispute resolution practitioner must not provide family dispute resolution.

 The lawyer’s role in FDR [8.220]  The lawyer’s role in FDR can be as diverse as the various FDR methods that are avail-

able. At one end of the spectrum the lawyer’s role in, for example, reconciliation counselling, or counselling which is mainly therapeutic, may be to merely act as the referrer. At the other end of the spectrum, for example in arbitration, the lawyer’s role may be no different from litigation. In essence, the lawyer’s role in FDR depends upon the particular FDR process used by the client. Part of the lawyer’s skill, however, is to properly diagnose the client’s problem, and to make an appropriate referral or intervention. Lawyers experienced in family law know that sometimes the problem presenting with a particular client is not primarily a legal one. Thus, for example, the client who has not yet decided whether to end a relationship, or perhaps has not yet come to accept the breakdown of a relationship, may need referral to reconciliation or therapeutic counselling. In these types of situations there may not be a dispute, or the dispute is in its genesis. Where a dispute has crystallised, however, different interventions are needed. Thus, a post-​separation dispute as to parenting issues may require some form of conciliation 470 [8.215]

Dispute Resolution in Family Law  Chapter  8

counselling, or mediation may be equally appropriate. A  dispute as to property settlement and maintenance may require conciliation or may benefit by referral to mediation. A dispute about a specific issue, for example the value of a business or the extent of s 75(2) factors, may be assisted by conciliation, mediation or arbitration. Negotiation may assist in any type of problem. The lawyer’s skill is in matching the dispute to the appropriate FDR method. Lawyers should have regard to the definitions and descriptions of the FDR processes set out above, as an examination of these will clearly indicate when and how they best apply. Lawyers should also consider the issue of whether any or a specific FDR process is appropriate in the circumstances, having regard to the issues discussed above. In order for practitioners to successfully match a dispute to the most appropriate FDR process, it is necessary to give consideration to the nature of the dispute and its underlying causes. It may be that the different causes of conflict predicate different responses or interventions. Conflict can arise for any number of reasons, as is discussed in Chapter 2. Thus, a dispute may really be about the value of an item of matrimonial property, or the extent of FLA, s 75(2) factors, or whether a child’s wish is to reside with one parent. This sort of information conflict may be best resolved by bringing in an objective third party who can, for example, value the matrimonial property, assess the s 75(2) factors, or interview the child and report on his or her wishes. In this type of conflict, practitioners may well conclude that conciliation or arbitration are preferred processes rather than counselling or mediation. A dispute may be about differing belief systems. For instance, one parent in a parenting dispute may strongly believe that children should never see or hear another parent drinking alcohol or swearing. The other parent may be just as fervent in believing that drinking alcohol and swearing are relatively minor issues in the overall life of a child. Disputes about differing belief systems may be even more intense when one parent’s beliefs have changed after separation. In these types of disputes it may well be that arbitration (if it were available for parenting disputes) would either not be suitable, or would be considered as the last resort. The issue of reconciling different belief systems does not readily lend itself to a form of adjudication except as a last resort. It may well be that counselling or mediation are more appropriate, perhaps even preferable to conciliation. [8.225]  Disputes in family law may often present as having primarily an emotional agenda or context. Relationships generate a range of emotions and responses to those emotions. A breakdown of the relationship may intensify some of those emotions while subduing others. Thus, a post-​separation property dispute about which partner gets the dog may have nothing to do with the value of, or even attachment to, an animal –​it may simply be the manifestation of an intense emotional response to what may have occurred prior to separation. It could be anger or the desire for retribution. In this emotional context, the best FDR method may well be one that acknowledges the presence of emotion, facilitates its expression, and manages it constructively. This may well indicate the need for counselling, perhaps even mediation or conciliation, but arbitration or other forms of adjudication may not be ideal for this type of dispute. Some disputes in family law have as their cause the issue of power. One party may well have had a measure of control, during the relationship, over the other party. This control or power may have manifested itself in emotional, financial or even physical terms. One party is dominant, the other subservient. The power roles adopted by parties may be influenced by background factors such as culture, gender, race, education, religion, personality, upbringing etc. When the relationship ends in separation, it is not necessarily the case that the relationship [8.225]  471

Dispute Resolution in Australia: Cases, Commentary and Materials

of power has ended. The dominant partner may well seek to continue to dominate post-​ separation, for example by controlling financial support, or withholding information, or by psychological or emotional control. It is very difficult to stop this power being exerted in certain FDR processes, and this may well indicate against processes such as counselling or mediation where the role of the counsellor or mediator may be that of a non-​interventionist third party, or where, despite the best efforts of the third party, the power is still manifested. Disputes that are really about power perhaps do need arbitration where a third-​party adjudicator can impose and enforce procedural guidelines and a decision. Conciliation may well be another option for these cases, provided the conciliator is made aware of the nature and extent of the power issue. Some disputes occur simply because the parties want the same thing, often for similar reasons, but they cannot both have it. Thus, for example, both parents want the children to live with them and they are both capable of providing for them. Both parents want to be able to live in the former matrimonial home after separation, because it is least disruptive to them and the family. This type of conflict lends itself to most forms of FDR. Counselling and mediation can help the parties identify precisely why they want the same thing and to analyse the merits of their own and the other party’s reasons. Conciliation may also achieve this while giving to the parties the benefit of the views of a third party as to the likely outcomes of adjudication. Arbitration will provide the adjudication for disputants who are unable to make a decision through consensus. It should be recognised, of course, that family law disputes rarely lend themselves to such neat characterisation as being disputes about information, or belief systems, or emotions, or power, or because both parties want the same thing. The reality is that most family law disputes probably have elements of some or all of these factors, as well as other factors not explored here. The practitioner must still carefully craft an intervention by referral to the most appropriate FDR method under the circumstances. Once a practitioner has made the referral to the most appropriate FDR method, the practitioner’s role becomes that of preparation. Depending on the FDR method being utilised, the preparation may be limited to the client only, or the client and the practitioner, or perhaps even the client, practitioner and third parties, such as experts, witnesses, counsel etc. In the following extract, Cooper and Brandon consider how family lawyers can most effectively represent their clients in mediation and conciliation processes.

How Can Family Lawyers Effectively Represent Their Clients in Mediation and Conciliation Processes [8.230]  D Cooper and M Brandon, “How Can Family Lawyers Effectively Represent Their Clients in Mediation and Conciliation Processes?” (2007) 21 Australian Journal of Family Law 288 at 294-​307. There are many common elements between the roles of lawyers in advisory and facilitative processes and there are some key distinctions, which we will seek to further highlight in the following discussion. In examining the roles of lawyers in such processes we have drawn upon the existing guidelines in the various jurisdictions. For family lawyers there are Federal best practice guidelines both general and specific to family law, together with legislative requirements as to the information and advice which must be offered in certain [295] contexts. In some state jurisdictions there are also clear requirements for lawyers when representing clients in mediations. In analysing further how family lawyers can play an effective non-​adversarial role, we have found it helpful to follow the approach taken by Boulle and break down the role into three different time zones, that is, before, during and after the dispute resolution process. 472 [8.230]

Dispute Resolution in Family Law  Chapter  8

How Can Family Lawyers Effectively Represent Their Clients in Mediation and Conciliation Processes cont. Before the Process Legal Advice At the outset a family lawyer needs to take detailed instructions from the client in order to become fully appraised [sic] of both the client’s legal issues and personal situation. In parenting cases, there are now legislative requirements as to the issues which should be canvassed with clients to determine whether shared parenting or arrangements where parents spend substantial and significant time with their children will be appropriate. After taking full instructions, legal advice can then be provided as to the range of likely judicial outcomes if the case proceeded to court. Such initial advice provides the client with an honest assessment of his or her legal rights and encourages realistic expectations as to the settlement outcome that can be achieved. If the client is seeking a settlement well outside of the expected range, the lawyer can at that point begin a process of readjustment. Such advice also provides the client with a comfortable foundation upon which to make an informed decision about settlement at the conclusion of the mediation or conciliation. At this stage, options regarding legal aid should also be canvassed if the client may be financially and otherwise eligible. Dispute Resolution Process Advice After providing legal advice, the lawyer can then turn to what we will call dispute resolution “process advice”, which initially includes a discussion of the general role of litigation in family law as an option of last resort. This is now clearly reflected in the legislative requirements which provide that, unless the case falls within certain exceptions, dispute resolution must generally be attempted before any parenting or property application can be heard in a [296] family court. Available options and the advantages and disadvantages of suitable processes should be canvassed with the client. In parenting disputes, a key advantage of an option such as mediation may be the preservation of a continuing relationship as parents. In all types of disputes, such an option may provide the client with a more cost-​effective and affordable way of resolving the dispute. An assessment then needs to be made as to what type of process may be suitable for the client and case in question. In this regard the lawyer must become familiar not only with the client’s legal case but with his or her personality and family situation. Firstly an assessment needs to be made as to whether there are issues which mean that a process such as mediation or conciliation is completely inappropriate. For example, where there are urgent issues, such as threats to remove a child from Australia, participation in such a process may clearly jeopardise a client’s legal rights. In addition, in matters where there are serious issues relating to the welfare of children, such as allegations of child abuse, a process such as mediation may be inappropriate, particularly where there are state or territory investigations which have not yet been finalised. Other cases that may be inappropriate include where one party has refused to make full disclosure of financial information. Secondly, a discussion needs to take place with the client as to whether there are any factors which could lead to an inequality of bargaining power and will mean that he or she will not be able to negotiate assertively and effectively with a former partner. Circumstances that can impact upon the capacity of a client to negotiate include a history of or current family violence. In such cases safety considerations may be relevant when determining the suitability of a process. Other issues which may impact upon the client’s ability to negotiate include whether they are affected by a psychiatric or psychological disorder or physical disability, and where there are cultural issues and language difficulties. In some cases overriding concerns as to safety and the level of assertiveness that a client could achieve with a former partner will mean that a process such as mediation is clearly inappropriate. In such cases, negotiation between [297] lawyers and litigation may be the only suitable options. In other cases, it will be appropriate to go on to assess whether any power imbalances will be so overwhelming that they cannot be rectified by structuring the dispute resolution process in an appropriate way or by the use of certain strategies. For example, the lawyer can inform the facilitator of [8.230]  473

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How Can Family Lawyers Effectively Represent Their Clients in Mediation and Conciliation Processes cont. the relevant issues and history. In turn, the facilitator can structure the process in such a way that the power imbalances may be minimised. For example, by way of shuttle or telephone link-​up so that the parties have no face to face contact. The mediator or conciliator can also use techniques during the course of the process to assist the weaker party to negotiate effectively, for example, ensuring that he or she has equal time to speak, controlling any interruptions and providing adequate breaks so that the less powerful party is not worn down by the process. Another option is for the client to participate in a private mediation where he or she can be legally represented throughout the process. Such representation may be able to assist the client to negotiate assertively and ensure that he or she does not agree to a final settlement that would be outside of a reasonable range. For clients from non-​English speaking backgrounds, the use of interpreters may ensure that the process is more suitable. It is important to note that during a process such as mediation there are many different types of power which can impact upon the parties, power being a fluid concept. In practice, often at different points in a mediation session one party may be in a more powerful position and at other points in the session the other party may become more powerful. It is therefore important, at the outset, when trying to assess power imbalances, to take a holistic approach. If a process such as mediation is considered appropriate the lawyer must then discuss timing and what would need to be organised for it to have the greatest chance of success. If a private mediation is being organised, the lawyer should appraise any agreement to mediate and explain its terms. For any mediation or conciliation process the client must also be briefed on the limitations of concepts such as confidentiality. When organising mediations where there are parenting issues, lawyers must now be careful to engage registered Family Dispute Resolution [298] Practitioners. This ensures that, in the event the dispute does not settle, a Family Law Act 1975 s 60I certificate can be supplied. Such certificate is now required to be filed with any application for a parenting order, unless the case falls within the relevant exceptions. The lawyer needs to explain the concept of “genuine effort” to the client as different Family Law Act 1975 s 60I certificates can be issued by the mediator at the conclusion of the session. A certificate indicating that a “genuine effort” was not made to resolve issues can have possible future costs implications, which must be explained to the client. Although a certificate is not required in financial disputes, the concept of “genuine effort” is also relevant and should be explained to the client. At present the meaning of “genuine effort” needs to be further defined. We would think that “genuine effort” could not be compromised by a client failing to accept an unreasonable proposal. It could perhaps be demonstrated when a client is obstructive and uncooperative during the course of the session. Educating the Client about the Process In addition to educating the client about the law and assisting the client to choose a suitable dispute resolution process, the lawyer must educate the client about how to participate in the particular mediation or conciliation process. The client should understand the objectives of the process, the steps that will be followed and, perhaps most importantly, what role each participant (facilitator, client and lawyer) will be expected to play. For example, in a facilitative process where the client will be expected to make an opening statement, participate in interest-​based negotiations and generate settlement options, he or she should be adequately prepared. Unlike a court hearing, parties have the option at the conclusion of a mediation or conciliation as to whether to reach agreement and, if so, on what terms. The lawyer therefore needs to make clear, prior to the client participating in such a process, the importance of taking an active role during [299] the session and of the role of party self-​determination. In fact, it is the party’s active participation in the content and outcome of a process which is usually the key to client satisfaction. In addition the client should be encouraged to enter the session with an open mind and to take a non-​adversarial and collaborative approach. The advantages of a mediation or conciliation process 474 [8.230]

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How Can Family Lawyers Effectively Represent Their Clients in Mediation and Conciliation Processes cont. can be highlighted, particularly when contrasted with litigation, as can the possibilities of improving the future relationship with a former partner through his or her participation. The Lawyer’s Role in Preparation for Mediation or Conciliation Gathering Appropriate Information and Documentation The role of the lawyer in preparation, particularly for the negotiation phases of a mediation or conciliation, cannot be underestimated. As the negotiations will take place in “the shadow of the law” it is important that both lawyer and client have completed the necessary groundwork to have all relevant information available. This is particularly important in an advisory process so that the facilitator make an accurate assessment of the “boundaries for resolution”. The lawyer can ensure that expert reports, quotations and valuations for a financial dispute are available. For a child-​related dispute, a lawyer can assist by gathering or having the client organise relevant information such as school holiday information, public transport timetables, options for age-​ appropriate parenting schedules, suitable appropriate supervisors and information about the availability and suitability of contact centres. The legal practitioner should also encourage the other side to bring along all relevant information. For example, a client will be unable to reach agreement about financial issues if a valuation of the former matrimonial home or of a former spouse’s superannuation entitlements are not made available. Assisting the Client to Identify Concerns, Needs and Interests When preparing for a process such as mediation, clients often seek to focus on their positions. Lawyers can prepare clients to participate in interest-​based negotiations by encouraging them to think about their underlying concerns, needs and interests and some of the possible causes of conflict. [300] For example, one parent’s position may be to seek an equal time shared parenting arrangement. Underlying interests may include maintaining a good relationship with the children and to be valued in the parenting role, even after separation. Identifying these interests may assist later with the option generation stage of the process as interests can create a wider range of acceptable options than positions. Also helpful is the provision of relevant information such as the circumstances in which shared parenting arrangements have been shown to be most successful. This information can in turn be used to reality test whether such an arrangement would be practical for the family. It can also assist to have the client think about why certain difficulties have arisen in the past and in what ways they could be resolved in the future. For example, if the parties have experienced conflict about contact arrangements, what have the problems been and what are some possible ways to overcome them in the future? In such cases an assessment of the underlying causes of conflict can be useful. For example, where communication has been an issue, the lawyer could discuss with the client whether having a structured way in which both parents will communicate could assist in the future. The client can be encouraged to consider some suitable options which lie outside his or her legal positions, as remaining entrenched in positions once the session has commenced will usually mean that settlement cannot be achieved. The lawyer can also assist the client to prepare a strategic negotiation plan. As adversarial and distributive negotiation techniques are also employed in family law dispute resolution processes, it is important to consider what the client’s opening offer and bottom line will be when the process reaches the negotiation phase. Clients’ initial offers and their bottom lines can influence the “boundaries of resolution”. If the client has a clear idea of his or her bottom line, this will assist in determining at what point he or she may have to walk away from settlement. This can help the client to remain assertive, particularly in a facilitative process where he or she is unrepresented, and to ensure that any settlement reached is fair. In advisory processes the client may feel pressured to go below this bottom line by a lawyer, mediator or conciliator. In facilitative processes there may be pressure from the other party. Therefore an assessment of the client’s bottom line and discussions about ending negotiations [8.230]  475

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How Can Family Lawyers Effectively Represent Their Clients in Mediation and Conciliation Processes cont. if that point is reached without resolution, may assist in achieving a settlement that is within the range of what a court may award. When creating a negotiation plan discussions should also include the benefits of reaching agreement and the possible risks of not reaching an [301] agreement. For example, there may be benefits in reaching agreement in cost and time savings and a reduction in the overall stress levels and conflict within the separating family. The risks of not reaching agreement may include the future expense of any legal proceedings, managing finances in the interim and a further period of time without contact with children. An analysis should also be made of the best, worst and other possible outcomes that the client could hope to achieve. The best result may be that the children reside with the client half-​time, the worst possible outcome may be that no agreement is reached and the client does not have any time with children for a further period. Other possible outcomes are the variety of parenting arrangements that could be considered appropriate for the family, apart from equal shared time. Assisting the Client to Prepare the Opening Statement If the client will be required to make an opening statement the lawyer can assist in its preparation. Often this will consist of condensing a potentially lengthy story into a summary of the main information and concerns to be addressed, which is logical and coherent, with a clear structure and that can be easily understood. This is particularly important in a process in which the lawyer will not be present to assist the client. Since it may be difficult for a client to view his or her own case objectively, the lawyer’s input is invaluable in assisting him or her to make as good an initial impression as possible on the facilitator. The client may need to be coached in effective communication strategies such as use of eye contact and open and assertive body language. Summary Checklist In summary, the following checklist of questions can be used by lawyers to assist their clients prepare for dispute resolution processes: • What are the key issues? • What are your main objectives of the session? • What are your positions and underlying interests? • What are the other party’s positions and what are their possible underlying interests? • What are the possible causes of conflict? • What further information do we need to gather? • What further information do we need from the other side? • What questions do we need to ask the other side? • What are some possible options that both parties may be able to live with? • What further information do we need to gather to work out the suitability of these options? • Are these options realistic and practical? • What overall negotiation strategy will we adopt and where should we start when the negotiation phase of the process commences? • [302] An analysis of the best, worst and other possible results that the client can hope to achieve from the process (ie, BATNA, WATNA and PATNA). • What are your highest and lowest priorities? • What is your bottom line? • What are the risks and costs if the case doesn’t settle? • What further enquiries do we need to make before we participate in the process? 476 [8.230]

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How Can Family Lawyers Effectively Represent Their Clients in Mediation and Conciliation Processes cont. • If we reach agreement at the conclusion of the session, should we take the further steps to make it legally binding? If so, what information/​precedents do we need to have available to prepare a draft of this agreement at the conclusion of the session? Preparing answers to these questions will assist in setting reasonable expectations for the client as to the outcome of the session. Also relevant at this point, is a discussion of the legal costs incurred to date, the costs involved in the dispute resolution process, and an estimation of the potential costs if the case doesn’t settle and has to proceed to court. The Lawyer’s Role during the Process The New South Wales guidelines set out a clear approach for lawyers when representing clients during mediation sessions. These guidelines can also provide assistance to lawyers attending conciliation processes. The guidelines relevant to family law processes can be summarised as follows: • To assist the client during the process; • To maintain dispute resolution standards, a legal representative should: • cooperate with the facilitator; • extend professional courtesies to the facilitator, clients and other legal representatives; • To discuss with the facilitator, with the other party’s legal representative and with clients, relevant legal and evidentiary, practical and personal matters; • To participate in a non-​adversarial manner; • Maintain confidentiality and advise the client of the limits of confidentiality under the family law legislation; • Advise the client of the requirement to make a “genuine effort” to resolve the issues and of the possible costs implications if such requirement is not met; and • [303] To write up the agreement and to take instructions from the client as to whether to convert it into a parenting plan or consent order. If the agreement is drawn up as a consent order to file this document in court. The next section sets out more detailed guidance for family lawyers in their role when representing clients during mediation and conciliation processes. Assisting during the Opening Statement The beginning of any dispute resolution process is an information gathering and exploration phase and, in facilitative processes and in some advisory models, an opportunity for the parties to provide their own perspectives of the dispute. In processes where parties make opening statements, it is important that the facilitator is permitted enough time to understand the full range of their concerns and that the lawyers do not attempt to fast-​track to the solutions phase of the process. Legal representatives should refrain from the temptation of making offers during this exploratory stage, particularly as positional offers can serve to entrench both parties in their legal positions. In a process such as a facilitative mediation or a legal aid conference in which the parties are expected to make opening statements in their own words, it is often best for lawyers to remain silent and actively listen to the information presented. During this phase, lawyers should model cooperative and respectful behaviour when others are speaking. If the clients omit any important details, their lawyers can then assist by adding to and explaining the relevance of further information. Only when a client does not feel confident enough to make an opening statement should the lawyer take on this role. Hearing a former partner explain their perspective of the dispute, in their own words, can be invaluable in assisting the other party to understand the underlying interests and causes of conflict. Hearing personal accounts from both clients can also assist the facilitator and lawyers to further understand the dynamics of the dispute. The other party’s concerns may reveal valuable information that can assist later, both in private meetings with the client and in the negotiation phase of the session. It is this dimension which may be lost in a shuttle process, where the parties are in separate rooms. [8.230]  477

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How Can Family Lawyers Effectively Represent Their Clients in Mediation and Conciliation Processes cont. Assisting with the Negotiations A practitioner has a key role in the negotiation phase of the session, particularly in promoting interest-​ based, in contrast to, positional bargaining. Boulle suggests that lawyers can assist clients to “negotiate constructively and productively”. When making settlement proposals, lawyers can provide justification for proposals made and further relevant information. They can [304] actively assist their clients to consider offers and make counter-​offers. When encouraging clients to consider possible options, compromises and trade-​offs, lawyers should continue to provide advice about the legal outcome range that a client may be entitled to if the case proceeds to court. This assists the client to determine the acceptability and fairness of particular proposals. Private meetings, between a lawyer and client, without the mediator present, can be particularly helpful to the progress of the negotiations. A lawyer, experienced and competent in dispute resolution, can assist the client to gain some perspective of the dispute, particularly as to whether a certain proposal is reasonable, realistic and practical. In a private meeting the client’s stance can be reality-​ tested, particularly if it is perceived as being unrealistic. In such cases, the client can be encouraged to be more responsive and collaborative when going back into the joint session so that the process can progress forward to a fair and equitable agreement. The lawyer can also assist the client to maintain an assertive stance. For example, if one party is successfully utilising hard bargaining and refusing to make concessions or making fewer concessions than the other party, the lawyer representing the softer bargainer can advise the client not to accept an unreasonable proposal. The lawyer can ensure that the less assertive client insists on further concessions to reach a more reasonable settlement point or refuses to negotiate further and walks away. In this way a legal representative can assist to balance the power dynamics in the mediation or conciliation process. For some clients having an assertive spokesperson is an invaluable negotiating tool, particularly in family disputes which involve strong emotions and often unresolved conflict. It should also be noted that the power dynamics in a mediation or conciliation are extremely complex and are not just between the parties, particularly where there are lawyers present representing clients. For example, there will be power dynamics present between both lawyers and the facilitator, between the two lawyers, and between the lawyers and their clients. The participants will all come to the process with their own agendas which may impact on the process and the outcome. One of the risks of a process such as mediation is that “one party will make too many concessions to reach resolution”. This may happen in some advisory processes where a great deal of pressure has been exerted upon the parties to settle. It may also happen in a facilitative process where one party does not maintain an assertive stance. A lawyer representing a client can assist [305] the client to maintain an assertive approach and to continually assess the point that the negotiations have reached in terms of the client’s bottom line. If, after a series of compromises, the client is considering agreeing to a settlement below this bottom line, the lawyer can weigh up with the client whether the advantages of settling outweigh the benefits of a possibly more generous outcome if the case progresses to court. A key role of the legal representative is that of consultant to their client, offering legal and dispute resolution process advice and negotiation support, while leaving the final decision-​making responsibility to the client. The lawyer’s role is to ensure that the client makes an informed decision based on the legal and procedural advice given. It is also to ensure that the client does not feel unduly pressured to accept a settlement. Research suggests that family lawyers tend to push their clients towards settlement rather than towards litigation. It has also highlighted that settlement outcomes can be influenced by the lawyer’s own “values, ideologies and financial interests”. It is therefore important that lawyers maintain some professional distance from their clients and their disputes to allow clients some space to make final decisions that they can adhere to. Some clients struggle to come to terms with decision-​ making and ultimately need to hand over the responsibility to a third party, such as a judicial officer. In such cases, practitioners will need to be respectful of the client’s wishes and not exert undue settlement pressure. 478 [8.230]

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How Can Family Lawyers Effectively Represent Their Clients in Mediation and Conciliation Processes cont. At Conclusion of the Process Drafting the Final Agreement It is in relation to agreements reached at the conclusion of mediations or conciliations that we could argue that lawyers play the most valuable role in dispute resolution. Lawyers can draft an agreement that accurately reflects the resolution reached in a form that will be acceptable to the court if it is intended to become legally binding. They can also ensure that the agreement is immediately signed and filed. Clients also have the benefit of legal advice as to the terms of their agreement while there is still time to negotiate any required changes or seek any necessary clarification. It is important that lawyers ensure that their clients remain at the session until the agreement is finalised and then take them, step by step, through the terms of the agreement before they sign it. It may be tempting for clients to leave the session early, however, legal representatives have obligations to [306] ensure that clients understand all of the terms of the agreement and the implications of any future non-​compliance. If lawyers were present at the session they will be also be fully conversant with the details of the agreement and of the negotiation dynamics which led to the final terms of settlement. This places them in an ideal position to debrief their clients at the end of the process to attempt to alleviate any anxieties and ensure that they fully understand what they have agreed to. It clients were unrepresented during a mediation or conciliation they can take their agreements to lawyers for advice and assistance with the drafting of parenting plans or consent orders. Particularly in facilitative processes such as community mediations, where clients have not been legally represented, the opportunity for them to seek legal advice in relation to final agreements is important. In some community settings, such as Family Relationship Centres, parents may be assisted by mediators to draft parenting plans. However, it is still important for them to understand the legal implications of such agreements. In some settings, the mediator may not perceive that his or her role is one of ensuring that the final agreement is fair to both parties. In addition, the mediator may not have the expertise to assess whether the agreement is equitable in a legal sense. Providing the Client with the Support to Carry through with the Agreement A lawyer can also perform an important function after the mediation or conciliation in providing support and reassurance to the client to carry through with the agreement reached. Successful family law dispute resolution processes often combine interest-​based, distributive and integrative negotiation strategies. A settlement outcome is often achieved by a series of compromises and trade-​offs which can sometimes leave both parties feeling that they have conceded too much and that they have been “let down” by the process. If the lawyer had assisted the client to assertively ask for trade-​offs from the other party for each concession sought, he or she can reinforce this with the client to bring some perspective to the client’s perception of the fairness of the process and outcome. Legal representatives can also provide clients with support during this post-​settlement phase by reminding them of the emotional and financial costs if the matter had proceeded to court. The value of “settling now” as compared to the costs of “settling later” is usually a significant factor in mediation and [307] conciliation. Reflecting on these aspects can assist clients to fully understand and accept the many compromises that may have to be made in order to reach an early resolution. The family lawyer can also reinforce the value of adhering to the agreement, and remind the client of the possible consequences of any breaches. This is particularly relevant now in parenting disputes where the court, when making decisions about parenting orders in the best interests of children, can take into account the extent to which each parent had facilitated or failed to facilitate the children spending time with the other parent.

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[8.235]  In this more recently published article, Cooper and Brandon specifically consider the

lawyer’s role in FDR, drawing on Rundle’s work on the different roles of lawyers in mediation.

Lawyers’ Role Options in FDR [8.240]  D Cooper and M Brandon, “Lawyers’ Role Options in Family Dispute Resolution” (2011) 22 Australasian Dispute Resolution Journal 198 at 198-​206. Reforms made to the family law system in 2006 introduced the requirement for compulsory dispute resolution in parenting matters. They also led to the establishment of family relationship centres (FRCs), providing clients with increased access to information, assistance and family dispute resolution (FDR). These changes were intended “to bring about a cultural shift in how family separation is managed: away from litigation and towards cooperative parenting”. Recent research provides some evidence of this “cultural shift”, with a slight increase in the percentage of parents surveyed resolving their disputes via counselling, mediation or FDR and a substantial drop in those sorting out arrangements with the assistance of lawyers and courts. It also revealed that, while many clients are now accessing dispute resolution, a significant proportion continue to consult lawyers. The study showed that 65% of the parents in question who had used counselling, FDR or mediation services had also contacted or used a lawyer. As a result of these reforms, family lawyers and family dispute resolution practitioners (FDRPs) are now joint “gatekeepers” to the family law system and, as such, must establish effective, co-​operative relationships. Successful interdisciplinary collaboration between these two groups of professionals, whose task is to assist separating couples, will be necessary to meet their clients’ substantive, practical and psychological needs. Previous overseas research has intimated that inter-​professional relationships within legal settings “can be fraught with tension and misunderstanding, role conflict and role confusion”. More recent Australian research has identified a need for lawyers and FDRPs to have a greater understanding of each other’s roles and responsibilities. [199] In this article, the authors explore the characteristics shown to be present in successful collaborative relationships between family lawyers and FDRPs. They also describe role options for family lawyers in FDR, applying Rundle’s “spectrum of contributions that lawyers can make to mediation”, while taking into account the complex and diverse interests separating couples bring to any dispute resolution process. Characteristics of Successful Collaborative Relationships Between Family Lawyers and FDRPs There have been several Australian studies that have examined the characteristics of successful collaborative relationships between FDRPs and family lawyers. Rhodes and colleagues surveyed a sample of family lawyers and FDRPs associated with community organisations, Victoria Legal Aid and the Family Court. Later research conducted by Dimopoulos surveyed lawyers, court staff, FRC staff and representatives of community organisations. This later study focused on the success of a pilot project being conducted between FRCs and the Federal Magistrates Court, but also made general observations about the relationships between lawyers and FDRPs. The Australian Institute of Family Studies (AIFS) has recently conducted a major evaluation of the 2006 amendments to the Family Law Act 1975 (Cth). This research has also touched on some aspects of how lawyers and FDRPs are working together. Collectively, this research shows that their role as joint “gatekeepers” has created some tensions between lawyers and FDRPs14, while also providing an insight into the characteristics that have assisted them to establish successful working relationships. The research by Rhodes and colleagues highlighted the notion of lawyers and FDRPs having “a complementary services approach to their relationship, in which each group saw themselves and the other profession as contributing different but equally valuable complementary skills and expertise to the dispute resolution process”. Lawyers and FDRPs co-​operated effectively where they both “had a shared expectation of the dispute resolution process and a shared understanding of the particular family dispute resolution program’s aims and approach to working with family law clients”. 480 [8.235]

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Lawyers’ Role Options in FDR cont. A key finding was that both groups worked well together when they “understood and respected the nature of each other’s roles, responsibilities and ways of working with family law clients”. This included family lawyers trusting FDRPs to have the knowledge and expertise to conduct screening and assessment for family violence. It also required lawyers to understand how issues of family violence may render FDR inappropriate and to refrain from referring inappropriate cases. FDRPs raised the importance of family lawyers appreciating the need for pre-​mediation or intake suitability assessment screening, particularly when family violence and safety was a concern. This [200] was consistent with the AIFS research where it was found that family lawyers could be critical of the time it took dispute resolution practitioners in FRCs to conduct intake, convene mediation and issue certificates, when lawyers did not understand or value the intake process. In turn, a proportion of FDRPs complained that lawyers exerted undue pressure to produce certificates and did not appreciate the need to conduct a proper intake assessment. These same themes were reflected in the Dimopoulos research. Rhodes and colleagues also found that inter-​professional relationships were most effective when family lawyers “engaged in ‘positive’ advocacy practices”. The researchers related that “good” advocacy practice required “lawyers to ‘reality test’ their client’s instructions where these were ‘unreasonable’ or unmanageable or contrary to a child’s interests”. Where working relationships were positive, both groups behaved respectfully towards each other, extended professional courtesies and provided timely feedback about clients. To foster further co-​operation, family lawyers and FDRPs need to have a clear understanding of each other’s role and responsibilities. This can be fostered by obtaining some insight into the range of roles that family lawyers may choose to play in FDR. Applying Rundle’s Spectrum of Contributions: Role Options for Family Lawyers Rundle has explored the multitude of roles that lawyers can play in dispute resolution processes. She describes a “spectrum of contributions that lawyers can make to mediation” and offers five possible roles options: absent advisor, advisor observer, expert contributor, supportive professional participant or spokesperson. Rundle illustrates them in the form of a continuum based on the level of involvement of lawyers in the process, as shown below: Absent advisor

Advisor observer

Expert contributor

Supportive professional participant

Spokesperson

⇐

⇒

Less involvement

More involvement

These role options will now be examined in the context of family law disputes. However, although they are described in terms of discrete role options, one would expect that, in practice, a lawyer acting in particular “role” may incorporate aspects of other roles along the continuum either in different FDR sessions or during the same session. In turn, lawyers representing parties in the same dispute resolution session may play different “roles” depending on the needs of their clients. Family lawyer as “absent advisor” Rundle explains this role as follows: The absent advisor assists the client to prepare for the mediation but does not attend the mediation session itself. The absent advisor’s role is to support the client to participate effectively in the process. For family lawyers, the role of “absent advisor” is a traditional one that continues to be of great importance. It requires lawyers to provide legal advice to clients and to prepare them to participate in [201] FDR processes. Before attending dispute resolution, it is highly recommended that separating [8.240]  481

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Lawyers’ Role Options in FDR cont. parties consult family lawyers for legal advice. Whether or not lawyers are supportive of their clients attending dispute resolution is now not as significant because the legislative framework requires pre-​ filing dispute resolution. There is a great deal of information that lawyers can provide to their clients, depending on the issues in dispute. If clients are parents, they will need to acquire an understanding of how to negotiate parenting arrangements in the “best interests” of their children and of the factors that may indicate whether shared care arrangements may work for their family. Parents also require information on how to provide financial support for children and how they can formalise their arrangements in the form of parenting plans or consent orders. Parents seeking to relocate with their children, or grandparents wanting to continue or establish relationships with grandchildren need legal advice about their potential prospects of success if their cases proceed to court, before attending family dispute resolution. Ideally lawyers will comply with their legislative obligations and requirements and explain to clients how family dispute resolution works in addition to considering issues of safety and whether referrals to dispute resolution are appropriate. They should provide clients with adequate written information about how to prepare themselves for a process in which they have to discuss their concerns, explore options for settlement and negotiate interest-​based negotiated agreements with their former partners. Family lawyers familiar with the pre-​mediation or intake processes can assist clients for whom family violence has been an individual or mutual pattern of dealing with conflict within their relationships, to determine whether FDR may be appropriate. They should also discuss whether current violence, as a result of the separation, is an immediate concern. In this respect, legal practitioners can play an important role in preventing both victims and perpetrators of family violence from choosing FDR when this may clearly be an inappropriate option. Despite the changes introduced for Australian FDRPs since July 2006, their primary role as facilitators of the mediation process has not significantly altered. It continues to be important that FDRPs do not give legal advice. Accordingly, their role is made easier if parties have had the benefit of lawyers assisting them to plan negotiation strategies, including considering the possible “boundaries of resolution”. In other words, lawyers can assist parties to appreciate what the possible range of outcomes may be in court and help them to plan realistic settlement offers that fall within this anticipated range. [202] Separating or separated parents also need relevant information to arrive at an understanding of what they should include in their parenting arrangements. Any parenting plans must relate to individual family circumstances and be suitable for children’s ages and developmental needs. Married or de-​facto couples with children seeking to negotiate property settlements must also discuss with lawyers an appropriate range of settlement possibilities to negotiate within, to achieve satisfactory settlements. FDRPs must be respectful of the “advocacy” role of family lawyers and appreciate that lawyers are required to act in their clients’ best interests, as opposed to FDRPs who are independent of both parties. In turn, family lawyers must become conversant with the concept of being “child-​focused”, steering clients towards living and time arrangements that will promote their children’s wellbeing. While some family lawyers may not have the same level of understanding about child developmental issues as FDRPs, both work within the context of their professional understandings and interpretations of the concept “the best interests of the child”. FDRPs must also be child-​focused and can encourage parents, where appropriate, to consider taking the views of children into account, when making parenting decisions. One way of achieving this is for parents to be involved in family dispute resolution that incorporates “child-​inclusive practice”. This involves parental decision-​making being informed by feedback from a child consultant who has interviewed the children prior to the session. Family lawyer as “advisor observer” Rundle described the “advisor observer” role as being: restricted to that of legal advisor, but the lawyer attends the mediation. The lawyer observes but does not contribute directly to the joint mediation sessions or private sessions with the mediator. The 482 [8.240]

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Lawyers’ Role Options in FDR cont. advisor observer does not interact directly with the mediator, other party or other lawyer. The mediation process may be suspended at various stages to enable the lawyer to have private sessions with the client. During those sessions legal advice may be updated or expanded upon. Family lawyers taking on this role will attend FDR sessions but, in the main, will not actively participate and will only “observe” their clients. A benefit of this approach is that lawyers will be promoting the philosophy of party self-​determination and allowing clients to make their own decisions within the process. For this approach to work effectively, lawyers will need to have some knowledge about how FDRPs plans to work with the parties during sessions. Lawyers need to be prepared to stand back and observe, respecting the dispute resolution practitioner’s role and the process approach they are using. There are many accredited FDRPs from diverse backgrounds, with various levels of expertise and experience. [203] Family lawyer as “expert contributor” In the “expert contributor” role as defined by Rundle, the family lawyer’s task is “restricted to that of expert in the law”. Lawyers attend family dispute resolution to provide legal advice to their clients and to share legal opinions with the other participants during the process. This open exchange of legal opinion is “to expose parties to the contrasting advice that may be given, as a means of narrowing the issues and pursuing settlement”. Rundle proposed that in this model, lawyers again do not negotiate on behalf of clients, contribute to the agenda or assist in the drafting of agreements. However, this approach differs from that of the “advisor observer” because when taking on this function, lawyers interact with each other and the mediator during the session, although only to the extent of providing views about legal advice. In the authors’ view, the role of “expert contributor” should delve beyond the provision of purely legal advice and also include providing clients with information about relevant social science research to assist them make age-​appropriate parenting arrangements that will suit family circumstances. This is particularly significant when dealing with parents considering equal care-​time arrangements. In law, equal shared parental responsibility for the physical and emotional wellbeing of the children is the assumed starting point, except in a range of circumstances, such as entrenched conflict, child abuse, and violence. This means that both parents generally contribute equally to long-​term decision-​making in relation to their children. A recent evaluation of the 2006 amendments to the Family Law Act 1975 (Cth) suggests that the concept of “equal shared parental responsibility” has “overwhelming” support from parents and legal and other service providers. However, this concept has created significant confusion for many parents who are under the misapprehension that general entitlements to “equal shared parental responsibility” equate to rights to equal care-​time arrangements. This has led to such arrangements being entered into where it may not suit the particular family situation, for example, where there are very young children, high conflict or issues of family violence and safety concerns. In an Australian study of a group of self-​selected parents who were able to maintain shared care arrangements for their children, Smyth and colleagues demonstrated that this was based on a number of conditions including the following: geographical proximity; the ability of parents to get along sufficiently well to develop a businesslike working relationship as parents; child-​focused arrangements (with children kept “out of the middle” and with children’s activities forming an integral part of the way in which the parenting schedule is developed); a commitment by everyone to make shared care work; family-​friendly work practices for both mothers and fathers; a degree of financial independence, especially for mothers; and a degree of paternal competence. These findings and the results of subsequent research provides useful independent information about the factors often present where shared care arrangements have worked well. Such information can be constructively used in family dispute resolution to assist parents negotiate child-​focused arrangements. [204] [8.240]  483

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Lawyers’ Role Options in FDR cont. Family lawyer as “supportive professional participant” Legal representatives participating as “supportive professional participants” play a role in guiding and supporting their clients before, during and after FDR. They actively assist clients during the mediation, supporting and encouraging them to speak their minds, subject to the confidentiality requirements. When adopting this role, lawyers can use both their legal and dispute resolution knowledge to not only provide legal advice, but participate in negotiations, contribute to agendas, or assist with reality-​ testing and the drafting of any final agreements. Legal representatives then do not simply act as “spokespersons”, but work as a consultative team with clients, supporting and encouraging them to actively participate and negotiate assertively. For FDRPs and lawyers to work together well in this model, legal representatives must demonstrate trust in the process and respect FDRPs as the facilitators of the process. FDRPs must be allowed to maintain control over the dispute resolution process, while lawyers remain in the role of advisor, educator and support person, assisting their clients by clearly outlining their interests. Lawyers must also be aware of their own particular assumptions and biases, that may based on generalisations, stereotypes or prejudices. For example, they should not regard FDRPs as being inferior in terms of professional standing. Similarly, FDRPs must respect lawyer-​client relationships and not behave antagonistically towards legal representatives, in either an overt or covert way. They need to allow lawyers to act as advocates on behalf of their clients, assisting them to make “wise” decisions. Power struggles need to be avoided and all professionals must have an understanding that “power” is a positive force that “ebbs and flows through the fabric of mediation”. These power dynamics are present, not only between the parties, but also between the professionals. Both lawyers and FDRPs must be mindful not only of the “fluidity” of the changing power dimensions between the parties but also of such dynamics between the legal representatives and the mediator. While legal representatives or FDRPs can support less articulate or more vulnerable parties, they must not dominate and lead the substance of discussions because parties need to retain some procedural control and have the opportunity to consider each other’s perspectives. Bush and Folger suggested that “parties become more empowered when they make their own decisions about how they want to handle their dispute”. Similarly to the parties, the professionals should demonstrate collaborative and co-​operative behaviours and avoid competing or acting defensively. Stimec and Poitras suggest that the more parties trust their mediators and feel safe “the more they will speak out, move forward, converge and commit”. This is particularly important in facilitative processes where mediators may keep parties in joint sessions for significant periods of time so that parties and lawyers can talk to each other directly, face-​to-​face. Some lawyers may find this often overt conflict confronting and have to overcome their [205] anxiety and “fear of uncertainty and lack of control that comes from people in dispute being in the same room at the same time”. Other experienced lawyers may welcome the challenge of working with the parties’ “behavioural dynamics” in joint sessions as well as with their own clients in private sessions. All professionals need to appreciate that the relationship dynamics will change during the process from joint to private sessions and back again, and that these changes may influence and impact upon negotiations. To ensure that the role of legal representative remains meaningful throughout the process, Caputo states that lawyers “must discriminate between the adversarial and mediation realms” and focus on assisting clients to speak for themselves and make their own choices and decisions within the process and in this way, promoting the philosophy of party self-​determination. Both prior to and during dispute resolution, lawyers should encourage clients to engage in interest-​based negotiations, and steer them away from adversarial positional bargaining that focuses on legal rights and entitlements. Since the facilitative mediation model often used revolves around assisting with communication, being alert to differences in communication styles and how these may impact on problem-​solving is also important. In many cases, lawyers and FDRPs are likely to use different listening styles. Coburn 484 [8.240]

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Lawyers’ Role Options in FDR cont. and Edge maintain that FDRPs may frequently use therapeutic and empathic listening techniques. In contrast, legal representatives may be inclined to use more critical, discriminative, and evaluative listening techniques because these would be often used in their everyday work with individual clients. It can assist for both professionals to be aware of these differences in styles and techniques and that any perceived differences in background, both professionally and culturally (including ethnicity, colour, sexuality, spirituality or religion) are handled constructively. Family lawyer as “spokesperson” The final dispute resolution advocacy role that Rundle suggests is that of lawyers as “spokespersons” for their clients. In this regard a lawyer acts as an advocate who “speaks on behalf of her or his client throughout the mediation”, that is, the client has a very limited role in the process. Lawyers conduct all the discussions to negotiate a settlement for clients and act as the “mouthpiece” for their clients. The parties themselves do not express their views and interests in joint sessions; however, they are able to obtain legal advice and provide instructions to their lawyers when in private meetings. For some clients, this will allow them to participate in mediation processes where they otherwise would not feel comfortable. However, it will be up to legal representatives to accurately act on instructions while in joint sessions. In this way the philosophy of party self-​determination may be said to be compromised, as the parties do not actively contribute to open discussions. There is a risk that, at times, lawyers may misinterpret their clients’ instructions, and that some parties may not feel confident enough to speak up and make corrections. [206] Adopting the role of “spokespersons”, family lawyers will bring the benefit of their expert knowledge, not only of the Family Law Act and relevant case law, but also the intimate details of the unique needs and fears of the clients they represent. They can also have input into the negotiations and the agreement. The relationship between a lawyer and client in this model can be described as that of a “substantive expert” and a “naïf”, in that the lawyer takes on a very directive role. For this model to be successful, legal representatives and FDRPs must maintain respectful relationships with each other and lawyers should refrain from using adversarial tactics. Instead, they must be committed to advancing co-​operative negotiations that lead to mutual gain. Witkin has said: “Cooperative moves involve openness with individual preferences, acceptance of the genuineness of the expressed preferences of the other side, and joint problem solving with this shared information”. In such a process, all professionals need to work together in the interests of preserving their future relationships and in acting as role models of respectful behaviour for clients.

 The counsellor’s role in FDR [8.245]  There are different forms of counseling that are available to support families in conflict.

These include counseling to try to resolve issues in dispute (eg, child dispute conferences), counseling to help couples in conflict try to reconcile, and counseling as a therapeutic process aimed at helping people cope with the impact of conflict or to identify underlying issues that might be contributing to the conflict. The FLA provides a definition of “family counselling” in s 10B:

FLA, s 10B [8.250]  Family counselling is a process in which a family counsellor helps: (a)

one or more persons to deal with personal and interpersonal issues in relation to marriage; or

(b)

one or more persons (including children) who are affected, or likely to be affected, by separation or divorce to deal with either or both of the following: [8.250]  485

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FLA, s 10B cont.

(i)

personal and interpersonal issues;



(ii)

issues relating to the care of children.

 [8.255]  In the following article the authors consider some of the issues that arise when coun-

selors are working with clients involved in FDR. In particular, they note that the role of the counselor is different to that of the FDRP in that the counselor explicitly supports and takes the side of one of the parties in conflict. They also emphasise that counselors, like FDRPs, encourage parents to think about what is in the best interests of their children.

The Role of Counselling in the FDR [8.260]  K Hamilton and P Henry, The Role of Counselling in FDR: Re-​drawing Professional Boundaries (2011) 22 Australasian Dispute Resolution Journal 166 at 166, 168. Since the recent reforms to the Australian family law system, both family dispute resolution practitioners (FDRPs) and counsellors have been thrust into the frontline of family separation services. The evaluation of family law reforms conducted in 2009 by the Australian Institute of Family Studies (AIFS) showed that, prior to the introduction of the reforms in 2006, “the most commonly contacted separation-​related services in order of frequency were lawyers, followed by counselling and dispute resolution support, legal services and then the courts”. In contrast, after 2006, the order of frequency showed counselling and dispute resolution support at the head of the list, followed by lawyers, the courts and then legal services. Interestingly, the AIFS evaluation demonstrated that only a small portion of parents who had used counselling services nominated it as the primary avenue for their dispute resolution or for arriving at a post-​separation parenting arrangement. Hence, counselling and family dispute resolution (FDR) services are being used by an increasing number of separating parents as a result of the 2006 reforms, but counselling is used more as a supplementary aid to FDR in the management of family conflict. … [168] Counselling Families Undergoing FDR Both FDRPs and counsellors work with clients who are families undergoing separation, which is a challenging job and involves dealing with conflict and intense emotional stresses. As Fletcher and Visser explain: the affective burden carried by parents seeking assistance from mediation, counselling and related services presents a challenge for staff since, most commonly, their task is simultaneously to acknowledge the difficulties faced by each parent, while focusing on the goal of developing satisfactory child-​ focused parenting arrangements. In addition, both professionals working within FRCs often handle family disputes that are complex due to the high proportion of clients who approach their services with significantly diminished abilities to mediate because of the presence of family violence or other dysfunctional attributes. However, unlike FDRPs who approach each party to FDR through a position of impartiality, counsellors are actively involved in supporting or taking the side of one of the FDR parties. For example, counsellors frequently talked about approaching women undergoing FDR in terms of “empowerment” because female clients lacked confidence that they could represent themselves in joint mediation sessions with their ex-​partner present. One counsellor described her role in these cases as close to “coaching” (that is, providing reassurance, building self-​esteem and giving suggestions of what they can do if they feel out of depth during mediation and need to approach the FDRP). Another counsellor described focusing on relaxation techniques with clients and developing assertiveness skills such as learning how to say “no”. One of the counsellors clarified that they avoided giving clients direct 486 [8.255]

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The Role of Counselling in the FDR cont. “advice” about how to structure their parenting plans but that they did emphasise to their clients [169] the importance of considering several things. These suggestions were: to remember that their children’s needs change over time; to think about how to arrange for significant celebrations; and to take/​bring notes to mediation (especially women who find it challenging to remember their wishes because of the intimidation they feel during mediation). One point of common ground shared by the counsellors and the FDRPs was the counsellors’ child-​ focused concerns with reorientating their clients toward better considering the interests of their children through the various stages of separation. For example, one counsellor explained that in his/​her counselling experience, parents regularly conveyed concerns about the welfare of their children when in the care of the other parent, but this concern was often a disguised element of the adult dispute and the common dynamics of the “blame game”. This counsellor reassured parents that children are adaptable and that their main parenting task was to develop a nurturing (that is, non-​materialistic) relationship with their children instead of focusing on the other parent. Another counsellor described his/​her role as shifting parents from seeing and highlighting the negatives about their children to focusing on the positives instead. Overall, the counsellors shared the key objectives of child focused/​inclusive FDR, which was to help parents to realise that their actions, such as offloading their turmoil onto their children, are harmful and the cause of their children’s emotional or behavioural issues. As one counsellor explained, the main emphasis for his/​her sessions with children was to enable them to realise that their family’s separation was not their fault. This counsellor promoted the best interests of children by targeting interventions “on” parents and advocating for children by helping parents acknowledge their perspective by asking them to consider their children’s point of view: “Would you like to have to move between homes every few days?” or “How would you feel if you had to miss out on seeing your friends every second weekend?” Another counsellor described his/​her role with children in a similar manner to child consultants, that is, they assured children that their sessions were private but if a counsellor thought that something a child raised should be heard by a parent then he/​she would say “I really think that Mummy needs to know that; can I help you tell her that?”.

 [8.265]  The benefits of private ordering in the family law context, and thus the avoidance of

traditional litigation, together with some perceived concerns, are examined by Mnookin and Kornhauser in an article entitled Bargaining in the Shadow of the Law: The Case of Divorce, extracted below.

Bargaining in the Shadow of the Law [8.270]  R Mnookin and L Kornhauser, “Bargaining in the Shadow of the Law: The Case of Divorce” (1979) 88 Yale Law Journal 950 at 956-​958. Before proceeding further, we should make clear the reasons why we think the law should give divorcing spouses broad powers to make their own agreement. There are obvious and substantial savings when a couple can resolve distributional consequences of divorce without resort to courtroom adjudication. The financial cost of litigation, both private and public, is minimised. The pain of a formal adversary proceeding is avoided. Recent psychological studies indicate that children benefit when parents agree on custodial arrangements. Moreover, a negotiated agreement allows the parties to avoid the risks and uncertainties of litigation, which may involve all or nothing consequences. Given the substantial delays that often characterise contested judicial proceedings, agreement can often save time and allow each spouse to proceed with his or her life. Finally, a consensual solution is by definition more likely to be consistent with the preferences [957] of each spouse, and acceptable over time, than would a result imposed by a court. [8.270]  487

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Bargaining in the Shadow of the Law cont. In divorces that involve no minor children, divorcing couples should have very broad powers to make their own arrangements; significant limitations are inconsistent with the premises of no-​fault divorce. After all, who can better evaluate the comparative advantages of alternative arrangements than the parties themselves? Courts should not, of course, enforce agreements that reflect fraud or over-​reaching. Nor do we wish to minimise the importance of appropriate standards for alimony and marital property, for, as will be discussed, these very much affect negotiated outcomes. Nonetheless, against a backdrop of fair standards, parties should be encouraged to settle these economic issues for themselves. The state should provide an efficient and fair mechanism for enforcing such agreements and for settling disputes when the parties are unable to agree. When there are minor children, the state obviously has broader interests than simple dispute settlement. The state also has a responsibility for child protection. To acknowledge this responsibility, however, is not to define its limits. Indeed, the critical questions concern the proper scope of the child protection function at the time of divorce and the mechanisms that best perform this function. For reasons one of us has spelled out at length elsewhere, the actual determination of what is in fact in a child’s best interest is ordinarily quite indeterminate. It requires predictions beyond the capacity of the behavioral sciences and involves imposition of values about which there is little consensus in our society. Thus, the fundamental question is: who gets to decide on behalf of the child? To what extent should the child’s parents be given the freedom to decide between themselves how responsibility for their children is to be allocated following divorce? We believe divorcing parents should be given considerable freedom to decide custody matters –​ subject only to the same minimum standards for protecting the child from neglect and abuse that the state imposes on all families. A negotiated resolution is desirable from the child’s [958] perspective for several reasons. First, a child’s social and psychological relationships with both parents ordinarily continue after the divorce. A process that leads to agreement between the parents is preferable to one that necessarily has a winner and a loser. A child’s future relationship with each of his parents is better ensured and his existing relationship less damaged by a negotiated settlement than by one imposed by a court after an adversary proceeding. Notions of child protection hardly justify general judicial suspicion of parental agreements; the state’s interest in the child’s well being in fact implies a concomitant interest in facilitating parental agreement. Second, the parents will know more about the child than will the judge, since they have better access to information about the child’s circumstances and desires. Indeed, a custody decision privately negotiated by those who will be responsible for care after the divorce seems much more likely than a judicial decision to match the parents’ capacities and desires with the child’s needs. If parents have the authority to decide custodial arrangements, there is no doubt that parents may make mistakes. But so may judges. More fundamentally, given the epistemological problems inherent in knowing what is best for a child, there is reason to doubt our capacity to know whether any given decision is a mistake. Therefore, the possibility that negotiated agreements may not be optimal for the child hardly can be a sufficient argument against a preference for private ordering. Moreover, because parents, not state officials, are primarily responsible for the day to day child rearing decisions both before and after divorce, parents, not judges, should have primary authority to agree on custodial, arrangements. This means that courts should not second-​ guess parental agreements unless judicial intervention is required by the narrow child protection standard implicit in neglect laws. This is not to suggest that the state does not have an important responsibility to inform parents concerning the child’s needs during and after divorce; nor does it mean that the state does not have an important interest in facilitating parental agreement. Nonetheless, the law in action, which acknowledges substantial parental power, seems preferable to existing doctrine, which imposes substantial restrictions on the parents’ power to decide for themselves.

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[8.275]  However, there must, of necessity, be limits to private ordering, and Mnookin himself

acknowledges at least two such limits in another important article, Divorce Bargaining: The Limits on Private Ordering (1985) 18 Journal of Law Reform 1015. The following extract [8.280] deals with issues which arise because of the emotional state of the parties.

Divorce Bargaining: The Limits on Private Ordering [8.280]  R Mnookin, “Divorce Bargaining: The Limits on Private Ordering” (1985) 18 Journal of Law Reform 1015 at 1019-​1022 and 1031-​1035. On an abstract level, I find the general defence of private ordering both appealing and persuasive. But it is premised on the notion that divorce bargaining involves rational, self-​interested individuals –​that the average adult has the intelligence and experience to make a well informed judgment concerning the desirability of entering into a particular divorce settlement. Given the tasks facing an individual at the time of divorce, and the characteristics of the relationship between divorcing spouses, there are reasons to fear that this may not always be the case. Informed bargaining requires a divorcing spouse to assess his or her own preferences concerning alternative arrangements. Radical changes in life circumstances complicate such assessments. Within a short period of time, separation and divorce often subject spouses to the stresses of many changes … [1020] It may be particularly difficult for a parent to assess custodial alternatives. The past will supply a very incomplete guide to the future. Preferences may stem from past experiences in which child rearing tasks were performed in an ongoing two parent family, and dissolution or divorce inevitably alters this division of responsibilities. Child rearing may now have new advantages or disadvantages for the parents’ own needs … Because children and parents both change, and changes occur unpredictably, projecting parental preferences for custody into the future presents a formidable task. Nevertheless, most parents have some self-​awareness, however imperfect, and no third party (such as a judge) is likely to have better information about a parent’s tastes, present or future. Separation often brings in its wake psychological turmoil and substantial emotional distress that can make deliberative and well informed judgments unlikely. It can arouse “feelings about the (former) spouse, such as love, hate, bitterness, guilt, anger, envy, concern and attachment; feelings about the marriage, such as regret, disappointment, bitterness, sadness and failure; and more general feelings such as failure, depression, euphoria, relief, lowered self-​esteem, and lowered self-​confidence”. Isolini Ricci has suggested that for many individuals “the emotions of ending a marriage” characteristically go through five stages during a two or three year period. She claims that during the first three stages, an otherwise competent person may occasionally have seriously impaired judgment. She suggests the pre-​separation stage is often marked by “anxiety, depression, hostility, and recurring illness”. The separation stage can bring with it three dangerous side effects: “poor judgment; accident and illness-​proneness, poor reflex action and depression”. The third stage, which follows the separation, arouses strong emotions that are “both natural and nasty”. “Emotional roller-​coasters are [1021] common at this stage, causing many people to feel permanent emotional instability”. According to Ricci, “this is the worst possible time to make any permanent decisions-​especially legal ones. Thinking and believing the worst about each other is one of the chief hazards of this stage, and such thoughts, exaggerated and extended, can lead to serious complications”. Such emotional turmoil may prevent for a time any negotiated settlement. Or it may lead to a settlement that a party later regrets. … Some might think that the stresses and emotional turmoil of separation and divorce undermine the essential premise of private ordering –​individuals’ capacity to make deliberate judgments. I disagree. For most persons the emotional upheaval is transitory, and the stresses are an inevitable consequence of having to make a new life. Temporary incapacity does not justify state paternalism for an extended period of time. Nonetheless, safeguards may be necessary, and the wooden application of the traditional contract defense of “incompetence”, (which is extremely [1022] limited), may provide insufficient protection. … [1031] Third party effects provide the last set of reasons that justify limiting private ordering. A legal system that gives divorcing couples freedom to determine for themselves their post-​dissolution [8.280]  489

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Divorce Bargaining: The Limits on Private Ordering cont. rights and responsibilities may lead to settlements that reflect the spouses’ interests. But negotiated agreements can also have important consequences for third parties, and affect social interests that private negotiations fail to consider adequately … In negotiating divorce settlements, the spouses may make decisions that have consequences for [1032] third parties, which, if taken into account, would suggest some more socially desirable settlement. A divorce settlement may affect any number of interests not taken into account in the spouses’ negotiations. The state’s fiscal interests can be affected, for example … The most important third party effects concern the children, although externalities can exist with respect to other family members as well. At a conceptual level, one can easily see how a negotiated settlement may reflect parental preferences but not the child’s desires or needs. From the perspective of spouses who negotiate their own settlements, marital property, alimony, and child support issues all basically present problems of money, and distinctions among them become very blurred. Each translates into present dollar values. Moreover, custodial arrangements can often be divided in a wide variety of ways. From a bargaining perspective, the money and custody issues inextricably link together. Negotiated settlements will certainly reflect parental preferences with regard to these money and custody issues. Generally, self-​interested judgments will not solely determine these preferences. One hopes that parental preferences reflect a desire for their children’s happiness and well being, quite apart from any parental advantage. Nevertheless, some parents may engage in divorce bargaining on the basis of preferences that narrowly reflect their selfish interests, and ignore their children’s needs. For example, a father may threaten a custody fight over the child, not because he wants custody, [p 1034] but because he wants to push his wife into accepting less support, even though this will have a detrimental effect on the child. A custodial parent, eager to escape an unhappy marriage, may offer to settle for a small amount in order to sever relations soon. A custodial parent may negotiate to eliminate largely the child’s contact with the other parent, not because of the child’s wants or needs, but because the custodial parent despises his ex-​spouse and wants nothing more to do with her. Concerns about the effects of divorce on children underlie many of the formal limitations on private ordering, for example, the requirement of court review of private agreements relating to custody and child support; the legal rules prohibiting parents from making non-​modifiable and binding agreements concerning these elements. In addition, the potential conflict of interest between divorcing parents and their children has led many to advocate the appointment of counsel for children, so that the children’s interests can be represented in divorce proceedings.

 [8.285]  While settlement itself is not mandated in FDR processes, there are circumstances

in which parties may feel coerced into settling. FDRPs and family lawyers have a particular role in ensuring that parties consider carefully the consequences of agreeing to any particular settlement proposal. Cooper and Brandon in the following extract explain how family lawyers should address the potential issue of coerced settlement in family mediation.

How Can Family Lawyers Effectively Represent Their Clients in Mediation and Conciliation Processes? [8.290]  D Cooper and M Brandon, “How Can Family Lawyers Effectively Represent Their Clients in Mediation and Conciliation Processes?” (2007) 21 Australian Journal of Family Law 288 at 304-​305. One of the risks of a process such as mediation is that “one party will make too many concessions to reach resolution”. This may happen in some advisory processes where a great deal of pressure has been exerted upon the parties to settle. It may also happen in a facilitative process where one party does not maintain an assertive stance. A lawyer representing a client can assist the [305] client to

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How Can Family Lawyers Effectively Represent Their Clients in Mediation and Conciliation Processes? cont. maintain an assertive approach and to continually assess the point that the negotiations have reached in terms of the client’s bottom line. If, after a series of compromises, the client is considering agreeing to a settlement below this bottom line, the lawyer can weigh up with the client whether the advantages of settling outweigh the benefits of a possibly more generous outcome if the case progresses to court. A key role of the legal representative is that of consultant to their client, offering legal and dispute resolution process advice and negotiation support, while leaving the final decision-​making responsibility to the client. The lawyer’s role is to ensure that the client makes an informed decision based on the legal and procedural advice given. It is also to ensure that the client does not feel unduly pressured to accept a settlement. Research suggests that family lawyers tend to push their clients towards settlement rather than towards litigation. It has also highlighted that settlement outcomes can be influenced by the lawyer’s own “values, ideologies and financial interests”. It is therefore important that lawyers maintain some professional distance from their clients and their disputes to allow clients some space to make final decisions that they can adhere to. Some clients struggle to come to terms with decision-​making and ultimately need to hand over the responsibility to a third party, such as a judicial officer. In such cases, practitioners will need to be respectful of the client’s wishes and not exert undue settlement pressure.

 [8.295]  Some have expressed concerns about whether mediation is fundamentally appropri-

ate in the family court context. Indeed, the question is asked (below) whether family mediation can amount to a denial of justice.

Family Mediation and the Legal Process [8.300]  C Bridge, “Family Mediation and the Legal Process: An Unresolved Dilemma” (1997) 17 New Zealand Universities Law Review 231 at 242-​247. In theory, the mediator has no stake in the dispute, is not charged with a particular agenda, is not identified with any of the competing interests, and has no power to impose a settlement. Neither is the mediator charged with relieving the emotional burdens of the parties. Instead, the role is purely one of management of process. By skilful use of interactional techniques the mediator supposedly enables the parties to feel empowered and autonomous, [243] to the extent that they are able to reach a mutual and collaborative agreement. Self-​determination is the supposed virtue of mediation. However, it is submitted here that this is an ideal, unlikely to be fully realised in practice. The reasons are twofold: (i)

The process of mediation is informal, private, unregulated, and may be dependent on the agenda of the individual mediator.

(ii)

The context in which it occurs, particularly where attendance and participation are mandatory, has the potential to be highly determinative of outcomes.

Mediation is essentially a process orchestrated by the mediator. If done well it may result in the process actually being handed back to the parties. If done badly the process may become coercive with the parties feeling obliged to reach agreement to please the mediator rather than reaching a genuine agreement. The mediator is in the driving seat despite recurrent claims that mediation empowers the participants. The long-​standing research programme of Dingwall and Greatbach demonstrated that, in practice, very few participants in family mediation actually determine the outcome themselves. Instead, control of the process gives mediators “great resources to influence outcomes”. Mediators devise their own preferred strategy for the mediation session, are influential in defining the conflict, may actively seek to balance up the power relationship between the parties, and may seek to influence [8.300]  491

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Family Mediation and the Legal Process cont. the substance in a way that accords with their own perception of how the dispute should be resolved. For example, they may seek to protect the interests of children or be induced to advocate on behalf of one of the parties. Not only might this influence the direction taken in the negotiation, but it may jeopardise the chances of reaching agreement. Advocacy violates a professional norm. Arguably, any third party intervention is likely to alter the nature of the interaction between two people, and in this sense a mediator can never aspire to be entirely neutral. What is essential is impartiality. Without it, the disputants in unregulated private ordering have no protection from [244] professional exercise of power. There is no accountability flowing from what has been described, simply, as “mundane” or “round-​table” conversation. The danger is, according to Dingwall and Greatbach, that both parties and mediators “assume that the consensual, self-​regulatory procedures of ordinary conversation will be sufficient to ensure a just and equitable process and outcome. Analysis of what is achieved by formality arguably highlights the shortcomings of informality”. In contrast to parties in mediation, the players in the courtroom are compelled both to listen and talk. “Turn allocation” is both visible and highly structured and the whole event circumscribed by both an explicit body of procedural and evidential rules and an acknowledgement of opposing interests. The parties can plan their strategies knowing the rules. The most fundamental result of this is that the source of power and authority is highly evident. The rule of law is visible and acknowledged. Ingleby takes the contrast between formality and informality a step further. His view is that the challenge mediation poses to the concept of the rule of law is heightened by the attitude that it promulgates. Mediation, he claims, engenders a habit of settlement which in turn engenders a “rule in favour of settlement”. This becomes favoured over litigation to the extent that rules against litigation are created. In other words settlement becomes the norm and litigation becomes “deviant”. Any member of the New Zealand Family Court personnel will be able to concretise this view: the disputant who refuses to agree at counselling, refuses to assent to a settlement proposed at judicial mediation, and insists on litigating his or her claim, is likely to enter the courtroom with a “reputation”. The disputant is likely to become a “known” person, possibly labeled “rigid” or “obsessional” and to be regarded in Ingelby’s terms as “deviant”. Yet such a person may be asserting a legal entitlement, standing by his or her legal rights. A mediated settlement, on the other hand, is not defined by, or is concerned with asserting, those legal rights. It is about personal readjustment within the family and a restructuring of lives that have changed. It may call for a subordination of perceived rights in the interests of others. … [246] Mediation in the context of divorce or separation disputes often concerns children. Their welfare is always the paramount consideration of the Court whenever an issue of upbringing is in question. However, it may not necessarily be the paramount consideration of parents negotiating an agreement about custody at mediation. Mnookin argues that because parents know more about the child than anyone else their decision about his or her welfare must be the best one. A “privately regulated solution [he says] by those who will be responsible for care after the divorce seems much more likely to match the parents’ capabilities and desires with the child’s own”. That view is enhanced by the presumption that parents are more likely to abide by a decision they themselves have made. However, in the author’s view the child’s welfare can easily be overlooked in the heat of parental conflict. Parents may well have an agenda of their own, despite their belief that they are seeking the very best for the child. Henaghan has commented that the “private ordering system is totally parent focused”, and a small study by Opie revealed that, although parents who had agreed on child arrangements had considered the effects on the children, such parents were primarily driven by self-​interest. In other words, when parents in dispute over children (and in the context of the Boshier Report scheme this is what will have brought them to mediation) are charged with resolving that same dispute, the desired outcome is likely to be determined by what they themselves want. For example, the women in Opie’s study of shared parenting had invariably been keen to avoid sole responsibility for children in the interests of addressing their own personal needs. Other recognisable 492 [8.300]

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Family Mediation and the Legal Process cont. factors like the need to lessen loss and guilt, or the desire to retain a form of equality with the other parent, all contributed to the making of the agreement. However, why should this type of parental agenda dominate decision-​making in respect of children when it is their welfare that ought to be of paramount concern? The reason is that informal decision-​making processes like mediation are devoid of a framework within which to consider the interests of others. For example, legal norms which support the welfare principle in the courtroom, may or may not be present in the mediation room. In the informal arena the issues focus on what the disputants perceive [247] to be significant for themselves. The concept of fairness springs from common interests which may have little relevance to legal principles and precedents. All the legal, evidential, and procedural safeguards which support the child’s interests in the courtroom are absent in the mediation room.

 [8.305]  Bridge’s arguments are thought provoking, but her criticisms of family mediation

apply with equal force to all forms of private ordering, including negotiated agreements between parents, whether with or without the assistance of an expert such as a counsellor or lawyer. Some of the criticisms also apply to public ordering in the guise of adjudication. In any event, dispute resolution is about private justice not public justice, and justice is such a subjective norm in family law that it is not always a useful benchmark in any discussion about legal processes. The coercion which Bridge fears will take place in mediation occurs just as often in the courtroom. The fact remains that most family law disputes are resolved by way of negotiated agreements, between parents, whether with or without the assistance of an expert such as a counsellor or lawyer. Moreover, formal adjudication carries with it many adverse impacts on both the parents and the children. Power [8.310]  Much of the debate about power in FDR has been in the context of the appropri-

ateness of mediation where issues of power imbalance are present. Power is often linked to gender, but need not always be so. There is no reason to limit the debate just to mediation, however. Power issues may be present in any FDR process. The extracts below deal predominantly with mediation, but the comments have wider applications. At [8.315], Taylor considers how power might impact on family dynamics.

The Handbook of Family Dispute Resolution: Mediation Theory and Practice [8.315]  A Taylor, Understanding Family Conflict in the Handbook of Family Dispute Resolution: Mediation Theory and Practice (Wiley, Hoboken, 2012) Ch 2, pp 61-​62. Methods for Balancing Power. Rummel identified three major processes through which individuals attempt to balance their power: • Coercive force: Physical, social, financial, or legal intervention where the decision is made by parties other than the disputants or the disputants themselves. It can be socially acceptable, as in an appeal to courts, restraining orders, and other social and legal processes, or not socially acceptable, such as manipulation, persuasion, intimidation, threat, or actual abuse or violence. • Accommodation: Mutual behavioral change done by agreement between the disputants by means of direct dialogue and negotiation. [8.315]  493

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The Handbook of Family Dispute Resolution: Mediation Theory and Practice cont. • Noncoercive processes: Mediation, facilitated dialogue, and other conflict management processes where disputants make their own decisions In family situations, it is common for disputants to start with direct negotiation and resort to noncoercive methods like mediation because it is required prior to the institution of judicial and other coercive processes. Partners having difficulty may try to talk to each other but resort to restraining orders and other redress of law when they will not or cannot converse without harming each other or without violating the restraining order or judicial order of no contact that has been imposed. Sometimes they resort to the coercive system before any harm (or threat of harm) has been made in order to secure a tactical upper hand in the balancing of their relative power. This brings up the questions as to whether mandatory mediation efforts become just another coercive force and do not retain the noncoercive methodology they are meant to embody and [62] whether mediation can maintain its status as a true alternative dispute resolution method when it becomes the required response. Families in dispute often use all three methods, sequentially or randomly. They try direct negotiation and accommodation, switch to coercive methods by filing legal documents, then try noncoercive mediation, then get court orders that coerce and require certain things, then return to mediation efforts, which may return them to a status of direct negotiation and accommodation. Whichever methods are used, a new balance of power is created that rests on the interests, capability, and credibility of the disputants to enact it. Over time, there is often a gap that widens between the newly created expectations of the disputants and the reality that follows. This expectation gap leads to a continuing cycle of conflict, which then reemerges as another conflict situation or a trigger event. The goal is to create a new balance of power that is truly anchored to the interests and capabilities of the parties. In this view of conflict, each set of relationships between the disputants and others in the family is viewed as a socially constructed group of negotiated agreements or an interpersonal con-​tract between the parties that must seem fair to each disputant in order for each one to want to implement and continue the agreements.

 [8.320]  Kelly, in the following extract, considers power and power imbalance in family medi-

ation. She suggests some interventions that family mediators (FDRPs) might use to balance power in a mediation, but acknowledges that these will not be sufficient in all situations, and that sometimes mediation is simply not appropriate.

Power Imbalance in Divorce and Interpersonal Mediation [8.325]  J B Kelly, “Power Imbalance in Divorce and Interpersonal Mediation: Assessment and Intervention” (1995) 13(2) Mediation Quarterly 85 at 85-​97. As the interpersonal and family mediation field has developed, voices of dissent have questioned the fairness of the mediation process and resultant outcomes for “weaker” parties to disputes. Underlying the debate has been the assumption that women are unable to participate as powerfully as men in the process. The rationale for this assumption is the observation that historically women have had less access to positions of power, and fewer external resources, including wealth. Distinct from the perceived inability to negotiate arising from historical inequities, women’s advocates state that women have not been socialized to ask for what they need and thus cannot bring an appropriate sense of entitlement to negotiations. Women are believed to be further disadvantaged because they prefer relational harmony to conflict. These perspectives lead some women’s advocates to reject mediation as a dispute settlement process for women, despite a growing body of literature that points to high levels of satisfaction among women with both the mediation process and its results. Contrary to the concerns expressed by advocates for women, women in custody and divorce mediation have reported that mediation enabled them to have a voice and express their views, and they perceived 494 [8.320]

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Power Imbalance in Divorce and Interpersonal Mediation cont. that they had equal influence over the terms of the agreements. The few studies comparing mediated custody and divorce settlements [86] to those outcomes obtained through the adversarial process have not found that the agreements were disadvantageous to women using mediation; in fact, these studies found that the costs were significantly less. The debate focusing on power and weakness in mediation has relied heavily on personal anecdotes, theoretical assumptions, and feminist rhetoric; to date it has not been particularly illuminating. One of the impediments to advancing the discussion has been the simplistic and naive manner in which power and power dynamics have been defined and discussed. Men have power, women do not. This rigid dichotomy may also account for the failure of women’s advocates to acknowledge that men, too, may be less powerful or disadvantaged in a particular dispute or mediation. Nevertheless, the concerns raised by advocates for women about inequities in power in a mediation setting are legitimate. They have led to significant change in the thinking and practice of mediators regarding the appropriateness of mediation between partners with a history of domestic violence. Issues of power inequities and empowerment in mediation are deserving of more thoughtful discussion and study by theoreticians and practitioners. [87] Power and Power Imbalance The concept of power is indispensable in analysing conflict and its resolution, yet it and related concepts of empowerment and power imbalance are rather slippery to pin down. Power is not a characteristic of a person, exercised in a vacuum, but is instead an attribute of a relationship. Within the mediation context, power can be defined as the ability of a person in a relationship to influence or modify an outcome. Power is the measure of the degree to which one can get one’s needs or goals satisfied. An imbalance in power is present in mediation when a disputant has taken the advantage (or been given the advantage) so that he or she can influence the outcome adversely for the other party. It is important to note that having greater power in a relationship does not automatically lead to an exercise of that power to the other party’s disadvantage. There is a useful distinction between power potential and power in its action form. The more powerful party may not recognize his or her position, may believe in a fair and equitable result, or may see benefits to the self in a mutually satisfactory outcome for both parties. To benefit from a power position, one must be willing to assert it. Conversely, the absence of power may not, in itself, affect the outcome unless the other party exercises power for personal advantage. To ensure a mutually satisfactory or equitable result in mediation, both disputants must feel that they are able to construct and shape the dialogue, express their interests and needs, influence the process, present and explore options, evaluate consequences of potential settlements, and participate in reaching outcomes. Empowerment in mediation comes about from interactive participation. When disputants cannot engage in the mediation process in this manner, the factors or conditions interfering with such participation must be assessed. A party’s inability to have an effective presence may arise from psychological, relational, or external situations. An understanding of these factors will enable the mediator to make appropriate interventions to affect the imbalance. The nature of the power relationship between disputants is idiosyncratic to each dyad or group, and thus each mediation presents fresh opportunities and challenges for assessment and intervention. There are no simplistic or universal patterns; defining women as less powerful than men fails to account for the complexity of interpersonal, and particularly marital, dynamics. It is important as well to understand that power is not a static entity but is instead fluid, fluctuating across different issues, and between and within sessions. Such fluidity, the claiming and relinquishing of power for different reasons, at different times, is more the norm in mediation than is the stereotype of one party taking advantage throughout the mediation around every issue. Being powerful in one role, for example, as an economic provider, does not automatically transfer power to a different role, for example, as a parent. [88] Factors that Can Create Power Inequities in Mediation It is apparent that multiple factors or conditions may create the potential for power inequities in the course of a mediation. These may operate separately or in combination, and they may appear [8.325]  495

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Power Imbalance in Divorce and Interpersonal Mediation cont. selectively with respect to the content of the dispute. Some factors may be present early in mediation but become minimized through mediative interventions. Other factors may be salient throughout the mediation and require the continuous attention of the mediator to ensure a fair outcome. Figure [below] presents a schematic of factors that create imbalances in parties’ abilities to negotiate equitable agreements. The group of factors is not exhaustive [89] but does reflect common situations or sources of power observed to lead to power imbalances. The inner circle, the content of the dispute, is shown as a permeable line, representing the possibility that one or more factors may be adversely operative in the discussion and settling of one type of dispute but may not function to create disadvantage in negotiations around a different content area. Thus, for example, a party’s lack of knowledge about how a commercial building is valued may enable the other spouse to assume a more powerful role in determining the value, which, absent effective mediator intervention, may lead to an unfavorable valuation for the less knowledgeable party. However, the first party’s high sense of entitlement may create a very different power relationship when spousal support is being negotiated, leading the previously powerful spouse to be at a potential disadvantage. With two disputants, [90] the same or different factors may create power inequities with respect to the same dispute.

Figure 1 Factors creating potential power inequities in mediation

INSTITUTIONALIZED HIERARCHIES

PERSONALITY AND CHARACTER TRAITS

COGNITIVE STYLE AND CAPABILITIES

CONTENT OF DISPUTE

KNOWLEDGE BASE ECONOMIC SELF-SUFFICIENCY

MO D ELI NG

GENDER AND AGE DIFFERENCES

BE HA V

S UR IO /FUTURE FOCUS SENT PRE

ON ATI C I N MU M CO

CULTURAL AND SOCIETAL STEREOTYPES AND TRAINING

HISTORY AND DYNAMICS OF DISPUTANT RELATIONSHIP

UCATION G ED MIN FRA RE

OPTION G ENE RAT ION

INTERVENTIO IATOR NS MED

RE SP E C TF UL

The outer ring in Figure 1, mediator interventions, demonstrates that an array of techniques can be used to create and maintain a level playing field on which disputants can participate and negotiate. Some mediator interventions are specific to the factor or factors creating the imbalance, whereas other, more general empowering techniques, such as in Figure 1, can be applied whenever a power 496 [8.325]

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Power Imbalance in Divorce and Interpersonal Mediation cont. differential threatens equitable outcomes. Enforcing the principle that both parties identify and express their own needs, for example, and reframing client communications are empowerment techniques utilized throughout the mediation process. In contrast, asking a spouse who is not sufficiently knowledgeable about finances to talk with a loan officer about refinancing the family residence is a specific technique used to empower when it is one party’s lack of knowledge that tempts the other party to adversely control the outcome. Conclusion [96] In an effort to provide a framework for analysing power issues in mediation in a more differentiated way, eight different potential sources of power imbalance are described in this article. These factors may lead to power inequities between the parties around a single issue, or across multiple issues, and the more powerful party may shift from issue to issue. Examples of mediator interventions are provided for specific sources of power imbalance, as well as more general interventions useful throughout the process. When mediators have been able to assess factors creating power inequities in mediation as they arise around different disputes and have intervened in appropriate ways to provide parties with an opportunity to fully participate in shaping the mediation process and outcomes, the chances of reaching settlement are greatly enhanced. It is important to recognize, however, that despite mediators’ best efforts, such empowering techniques sometimes fall short of the psychological or relational needs of the parties. Angry, unreasonable disputants, intent on punishment or revenge, are often not affected by either the remonstrances of the other party or the interventions of the mediator. In such cases, it is appropriate for [97] mediators to “let go”, to suggest that mediation does not appear to be the best forum for meeting either of the parties’ needs and to recommend termination. Similarly, depressed and confused clients may be overwhelmed by the demands of the mediation, or of the other spouse, and may not feel sufficiently empowered by mediators to feel secure in continuing. Again, it is important that the mediator not continue to participate in a process that is further disempowering to a party. It is not a failure when mediation is terminated by either a client or the mediator; rather, it is an acknowledgment that for this dispute and these parties, the process is not appropriate. Many clients, including women, are capable of terminating mediation when they perceive that the process is not working for them. And some clients terminate mediation for reasons that have nothing to do with the mediation. Among those parties who reach settlement of their disputed issues in mediation (between 60 to 80% of those entering mediation), the mediator’s assessment of power inequities and judicious use of effective empowering interventions can increase the probability that the agreement reached will be equitable and satisfactory for both parties.

 [8.330]  Power is a very sophisticated concept which is not always where, or in the form, one

expects it to be, and it is constantly shifting. The Australian writer, Renata Alexander, raises the power issue and a number of other concerns related to power in the extract below.

Family Mediation: Friend or Foe for Women? [8.335]  R Alexander, “Family Mediation: Friend or Foe for Women?” (1997) 8 Australian Dispute Resolution Journal 255 at 256-​265. Voluntariness and Consent … Most mediation commences soon after separation when financial and parental pressures weigh heavily. The parties may have physically parted but perhaps have not emotionally disengaged. The consent of both parties to participating in mediation and agreeing to any outcomes reached may therefore be compromised. [8.335]  497

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Family Mediation: Friend or Foe for Women? cont. Women may be particularly vulnerable for research suggests that women react to separation and divorce in a highly personal manner whereas men cope in non-​personal and non-​emotional ways. Recently divorced or separated women express much higher levels of subjective distress, depression, tension, [257] life stress and anxiety than do men, who feel angry, dumped and blameless. These differentials may mean that women are less able to cope with negotiations in a mediation setting and may “consent” to a settlement, even forfeiting their entitlement, simply to avoid further stress and anxiety. Economic Pressures Economic pressure is a reality for separated women with the care of children. Many face sheer poverty. … On marriage breakdown women are therefore often more vulnerable, financially dependent, fearful of a bleak future and desperate to keep the children in their care. Systemic disadvantage and discrimination preclude equal access to justice for women. Legal representation is expensive and legal aid is increasingly difficult to obtain. Mediation comes to the rescue as a cheap (or even free), speedy and accessible alternative to litigation. Real Consent? In theory, mediation is voluntary and consensual. In practice, however, the social, psychological and economic vulnerability of women blurs the distinction between consensual and coerced participation and agreement. Pressures as to potential legal costs, emotional stress, on-​going disputes about children, fear of retribution and financial insecurity may mean that women have no other viable option and through mediation, they forfeit or compromise their legal entitlements. Mediation also does not question motivation. Mediators do not inquire into the apparent willingness of women to reach an agreement, sometimes at personal expense. Mediation does nothing to allay fears that they may lose the care of children if they pursue a maintenance or property claim. [258] Equality of Bargaining Power and Skills Mediation is based upon a presumption of equality of bargaining power between the parties and a presumption that each has equal capacity, communication skills, knowledge of each other’s financial position, self-​confidence, bargaining ability and insight into what each person wants and needs. However, these presumptions are naive and in practice parties do not come to mediation as equals nor with similar expectations and world views. Power Most male-​female intimate relationships involve an imbalance of power ranging from one extreme of emotional abuse or physical force being perpetrated by one partner upon the other to the more common and less visible manifestations of power such as control over money, decision-​making, social activities, children and household chores. It is most commonly the male partner who has a higher income and associated control over finances, assets and household decision-​making. The scales of marital power are typically tipped in the male’s favour and the female is more likely to be dependent and subordinate in terms of her financial and familial status. … Formal justice, too, in terms of litigation and adjudication must be seen within a particular power structure where the powerful can exploit the weak. Both in the courtroom and in mediation, the male is more likely to have better financial and legal advice, higher income and benefits, greater self confidence, more experience with negotiating and maybe a history of abusing or harassing the female. From this perspective, mediation is simply another form of patriarchal combat but in a private arena, without public or court scrutiny. Different World Views Mediation ignores social and cultural differences between men and women. Many women are taught to be emotional, personal, private, passive, “other-​oriented” and self-​sacrificing. They are generally 498 [8.335]

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Family Mediation: Friend or Foe for Women? cont. less aggressive, more likely to feel anxiety, have lower self-​confidence in their own abilities and likely to be more conforming and subject to persuasion. Many women, too, would sacrifice their own needs and interests as individuals for the sake of others, especially their children. They may therefore be persuaded in mediation to agree to settlements just to keep the peace, keep the children and not to appear selfish and antagonistic. [259] Mediation takes advantage of women’s different interests and attributes to the benefit of men. There is evidence in Britain and Canada of women in pre-​court and out-​of-​court negotiations agreeing to inadequate maintenance and property settlements rather than risking costly and emotional contests over custody of children. Similarly in Australia, a study shows that where women utilised a “low” legal process such as reaching agreements with some or no legal advice, they were more likely to receive a smaller percentage of the matrimonial property pool than those involved in “high” legal process such as court-​approved agreements and court hearings. Mediation certainly involves a “low” level of legal process. … Conclusion It is contended in this article that mediation is inappropriate in all family law matters and should be abandoned as a viable socio-​legal response to marital breakdown and family disputes. Parties do not come to mediation as equals and “the more powerful party is likely to end up with a more favourable agreement”. Mediation therefore favours those with greater financial resources and social control and disadvantages the less powerful. Women are generally less powerful and mediation exploits that inequality. My all-​encompassing opposition to mediation stems from an analysis and recognition of the bias against women and the erosion of women’s rights and entitlements which mediation promotes and engenders. This article attempts to support that proposition by demonstrating the fundamental inequities and irremediable flaws of mediation theory and practice.

 [8.340]  Tony Gee, a Family and Child Mediator with Relationships Australia (Victoria),

responds to Renate Alexander in the following article.

Family Mediation: A Matter of Informed Personal Choice [8.345]  T Gee, “Family Mediation: A Matter of Informed Personal Choice” (1998) 9 Australian Dispute Resolution Journal 179 at 179-​186. While recognising the complexity of the separation dynamics between parties, and that one party’s preferred choice of resolution forum may not be the other’s, the contention of this article is that, following separation, the decision-​making avenue that parties decide to enter should be a matter of informed personal choice. Whether this be a court application, lawyer-​assisted negotiation or family mediation, “the appropriate question is not whether mediation is better than advocacy, but for what types of disputes and for which kinds of outcomes what mode of intervention is most suitable”. Therefore, when Renata Alexander concludes that “mediation is inappropriate in all family law matters and should be abandoned as a viable socio-​legal response to marital breakdown and family disputes”, this writer feels compelled to respond. This response is prompted by the misleading impression about family mediation that “Friend or Foe” conveys, and by a further concern that, in advocating a reduction of dispute resolution choices for separating couples, the author may disadvantage many members of the population she aims to protect. First, “Friend or Foe” appears to assume that mediators are unaware of the issues it raises, when in reality, the situation is quite the contrary. “Friend or Foe” raises nothing new. It is these very issues that mediators have for many years debated, grappled with and attempted constructively to address. [8.345]  499

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Family Mediation: A Matter of Informed Personal Choice cont. In fact, most family mediators would agree with many of the concerns raised by the article, but take umbrage at the interpretations and conclusions that are drawn. It is interesting to note that a number of the author’s quoted sources, which raise issues about the mediation process, are taken from books by mediation proponents aimed at raising the awareness of mediation practitioners. Secondly, the benefits of healthy debate and discussion about various aspects of mediation theory and practice should be acknowledged. It is always possible for mediation to get too “cozy” and to become so comfortable with its practices that it loses the ability to self-​examine and to condemn instantly any negative comments as somehow sacrilegious. The concern with “Friend or Foe” is not in the raising and generation of discussion but that it demonstrates some misunderstandings of current mediation practice, selectively quotes and misinterprets several cited research reports and uses these to confirm what appears to be an already strongly held position. It appears that family mediation has been condemned as guilty, but the trial evidence is incomplete and somewhat tarnished! [180] Discussion Framework … [181] When the author therefore asserts her “all-​encompassing opposition to mediation” as well as recognising that “[s]‌ystemic disadvantage and discrimination preclude equal access to justice for women. Legal representation is expensive and legal aid is increasingly difficult to obtain” and further that “[f]ormal justice, too, in terms of litigation and adjudication must be seen within a particular power structure where the powerful can exploit the weak. Both in the courtroom and in mediation, the male is more likely to have better financial and legal advice, higher income and benefits, greater self-​confidence, more experience with negotiating and maybe a history of abusing or harassing the female”, is she therefore denouncing all forums of family dispute resolution as –​simply –​unjust? How are any disputed decisions to be made concerning children and/​or property when parents separate? And how are any decisions to be made justly? To (liberally) use the words of Cat Stevens, “where will the children (in dispute) play”? The author offers some support to a litigated or adjudicated outcome, as opposed to a mediated one, on the sole criterion that the formal justice system is at least subject to “public or court scrutiny”. However, is the author seriously saying that in all cases, whatever the circumstances, whatever the “type” of relationship, where property issues and/​or children’s issues are in dispute, all separating couples should go through the litigation process because this, at least, is open to public scrutiny? Does this mean that any or all decisions concerning children and/​or property should he subject to public scrutiny? The Right and Capacity to Choose Does the author contend that all women, including future prime ministers, female lawyers, service station attendants, home duty mothers, are unable to represent their own interests and will be disadvantaged in any mediation/​negotiation setting? Does the author not believe that these women have the capacity as well as the right to make informed personal choices about how they wish to manage their separation, their parenting, their financial resources and their future lives? Revisionary conceptions may [182] belong in an “ivory tower” but do little to assist a separated women [sic] who, as the article states itself, may find equal or greater disadvantages with litigation and even the ability to access that system. The drawbacks of litigation are well documented, especially as they relate to children. This article further questions the position put by “Friend or Foe” that where litigation is inaccessible, “Mediation comes to the rescue as a cheap (even free), speedy and accessible alternative to litigation”. The author appears to misunderstand that many people choose family mediation, not simply because they cannot access litigation, or as an alternative to litigation, but because they do not wish to participate in a litigated form of intervention. They choose to work out financial and parenting arrangements 500 [8.345]

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Family Mediation: A Matter of Informed Personal Choice cont. in a forum and atmosphere where they retain control over the decision-​making. A high proportion manage to do this successfully and in the Australian context, the research is quite clear in its support. In making this statement, the present writer does not wish to simplify the debate. The quality of the mediation practice, the experience of the mediators, the adequacy of the assessment process and so on are all factors in the discussions. At stake, however, are some fundamental principles that are dismissed by “Friend or Foe” in what appears to be cursory fashion. Issues about a party’s right to choose, issues about informed choice and self-​determination, issues about public scrutiny and issues about suitability should not be treated lightly. “Friend or Foe” raises these issues, then unfortunately dismisses them with little or no sound research support. Public Scrutiny –​The Reality It appears to be a critical element in “Friend or Foe’s” [sic] argument for litigation that litigation is open to “public or court scrutiny”. Even assuming that “justice” will always be done in a court hearing, the author must be well aware of the much-​quoted statistic that approximately 95 per cent of cases in the Family Court are settled without a judicial hearing. This statistic includes those that are settled at court counselling, at conciliation conferences, at lawyer negotiations in the hallways, at the door of the court due to legal advice (or lack of legal advice), where there is a lack of funds, or simply fear by one or both parties and an ultimate unwillingness to go on with the battle. These figures do not include all those matters that are settled without a court application being made, which is estimated to be approximately half of all divorces. These are settled by lawyers, by counsellors, by mediators, by relatives, by friends and by the parties themselves with or without formal advice. If this is a true picture of family law settlements, and this writer believes it is a far more accurate representation than the simple dichotomy suggested in “Friend or Foe”, one could ask: why is the criticism so readily directed toward family mediation? [183] … [T]‌he assertion made by “Friend or Foe”, that the shift in the Act from the use of “alternative dispute resolution” to “primary dispute resolution” elevates family mediation to becoming “dangerously close to mandatory”, is simply ludicrous. Family mediation under the Family Law Act 1975 is voluntary. The legislation is clear and unequivocal. The literature provided to clients prior to entry, about its voluntary nature, makes this impossible to misinterpret. What “Friend or Foe” appears unable to grasp is that many people, including women, choose mediation “primarily”. The article appears to see all forms of dispute resolution tainted with the brush of “patriarchial combat” and is unable to consider that, for many, mediation is not simply an alternative, but the first choice –​the resolution forum that resonates with their own views of the world and the way in which they wish to finalise arrangements (parenting and property) with their former partner and the basis on which to build a long-​term co-​operative parenting relationship. … [185] Bargaining Power and Motivation In raising the issue of bargaining power, the article states: Mediation is based upon a presumption of equality of bargaining power … However, these presumptions are naive and in practice parties do not come to mediation as equals nor with similar expectations or world views. This is not correct. In Relationships Australia (Victoria)’s mediation practice we presume that there are inequalities, that the negotiating table is uneven and that this reflects the imbalances inevitable in any relationship and separation. There may be differentials in financial knowledge, negotiating ability, in parenting, in emotionality and so forth. Imbalances may be very complex, shifting from party to party depending upon the particular issue and can change over time or with the separation and subsequent interventions. These differences are assumed, assessed and, if suitable, addressed in mediation. … [8.345]  501

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Family Mediation: A Matter of Informed Personal Choice cont. Consensual Participation In raising the extremely important issue of consent, the article states: In theory, mediation is voluntary and consensual. In practice, however, the social, psychological and economic vulnerability of women blurs the distinction between consensual and coerced participation and agreement. … [186] From this writer’s perspective, this is perhaps the article’s most disturbing assertion, the importance and complexity of which makes it difficult to address in limited space. There is certainly no question that there are enormous pressures, financial and emotional as well as relational, on all parties when a separation takes place; and the reality is that once a decision about separation has been made, it sets into train a whole plethora of decision-​making. Decisions have to be made, that is the reality; they have to be made somewhere, and they are often made against a backdrop of one party not wanting any change at all. Therefore, decisions to mediate or litigate, whether consent is informed or not, whether participants feel coerced by their ex-​spouse, or driven largely by a fear of going to court, or simply by the reality of the situation, are issues which family mediators continually assess and reassess in their face-​to-​face encounters with parties. This is the “hurly-​burly”, the hubbub, the grist of everyday life –​this is where the world is not black and white, where the dilemmas of separation have to be grappled with; this is where there are no simple, prescriptive solutions. And this is, in the words of the philosophers, the human drama; there are no absolutes.

 Family violence [8.350]  In June 2012 the amendments set out in the Family Law Legislation Amendment

(Family Violence and Other Measures) Act 2011 (Cth) came into force. These amendments were aimed at addressing the problem of family violence in separating families, and particularly to protect children exposed to such violence. The new definition of family violence removes the old requirement that a person must “reasonably” fear for their safety, and expands the definition of family violence to include broader examples of coercion and control.

FLA, s 4AB [8.355]  Family Law Act 1975 (Cth), s 4AB 4AB Definition of family violence etc (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

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FLA, s 4AB cont.

(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



(j)

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)

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)

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



(d)

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



(e)

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.

 [8.360]  The amendments also clarified that in considering what was in a child’s “best inter-

ests”, the second of the “twin pillars” (protecting the child from harm) took priority over the first (having a relationship with both parents) (see s 60CC at [8.155]). In the following extract, Rachael Field explains why FDR can be particularly problematic in cases where there is a history of family violence.

FDR and Victims of Family Violence [8.365]  R Field, “FDR and Victims of Family Violence: Ensuring a Safe Process and Outcomes” (2010) 21 Australasian Dispute Resolution Journal 185 at 188-​193. Family Violence in Australia An understanding of the nature and dynamic of family violence is central to appreciating why mediation can be a problematic approach to resolving family disputes where there is a history of family violence. [189] The term “family violence” is used in this article to refer to all forms of violence perpetrated in domestic relationships; for example, physical, emotional, financial, psychological, and social violence. The Family Law Act 1975 (Cth) defines family violence as “conduct, 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 to fear for, or to be apprehensive about, his or her personal well being or safety”. [8.365]  503

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FDR and Victims of Family Violence cont. There is a lot of evidence to support the fact that family violence is gendered violence. That is, whilst some perpetrators of family violence are women and some victims of family violence are men, most commonly it is women who are the victims of family violence. Therefore, it is also women who are most likely to potentially suffer disadvantage in the mediation process due to power imbalances caused by family violence. The Time for Action Background Paper was released in Australia in April 2009 and highlights the prevalence of domestic and family violence and its gendered nature. The Report establishes the following: • One in three Australian women (33%) has experienced physical violence at some stage in her life since the age of 15. • Most cases of family violence involve violence perpetrated by men against women and their children. • Women are mostly assaulted at their home, often repeatedly, by a man they know and with whom they have or had an intimate relationship. • In Australia, intimate partner homicides account for about one in five homicides nationally. • Where violence occurs between current partners, more than a quarter of incidents involve children witnessing the violence. In situations of violence between former partners, children are witnesses to more than a third of cases. • Almost one in four children in Australia have witnessed violence against their mothers or stepmothers. • There is a high co-​occurrence of adult partner violence and child abuse, estimated to be between 30% and 60%. • One in six women has experienced violence by a current or previous partner in their lifetime. Concerns for Victims of Family Violence in Mediation Issues of safety for women and their children are the key concern in mediations that take place where there is a history of family violence. In matters that involve a history of violence between the parties, the positive characteristics of mediation discussed above (relating to self-​determination, party empowerment and party control) are all significantly undermined –​particularly in relation to the victim’s participation. As a result, mediation can become a very dangerous process for victims of violence because its party-​focused nature provides perpetrators of violence with an opportunity to continue to exercise power and control over their victim. In this way, mediation can place victims of violence, and their children, at grave risk of suffering injustice in terms of not only the process, but also its outcomes. [190] In the following paragraphs, some of the main concerns for victims of violence in mediation are discussed in more detail. These issues illustrate how the positive aspects of mediation are difficult to make real in disputes where there is a history of family violence. First, it cannot be assumed that a level playing field can be created for both parties, and that empowerment and party self-​determination can be achieved, when there is a history of family violence between the parties. To do so would ignore the power differences that exist between the parties because of family violence. These power differences can put a victim of violence at a disadvantage in negotiating with the perpetrator in the mediation environment, and can result in her disempowerment rather than empowerment. For example, in mediation it is difficult, if not impossible, for a perpetrator to work in a genuinely co-​operative and consensual way to resolve the dispute. Family violence involves the perpetrator exerting power and control over the victim. Perpetrators of violence do not co-​operate with their victims; rather, they impose their interests on their victims, they coerce and intimidate them, and they monitor and threaten them. Perpetrators of violence devalue their victims and also often deny their own violence. Therefore, co-​operation is an approach that is diametrically opposed to a perpetrator’s 504 [8.365]

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FDR and Victims of Family Violence cont. usual patterns of interaction with their victims. This means that it is very difficult to achieve party self-​ determination in matters where there is a history of family violence. Further, because family violence is about a perpetrator’s use of power and control over the victim, it is very difficult for a victim of violence to confidently represent, and negotiate for, their own interests, or those of the children. A victim of violence is fearful of the perpetrator. The power imbalance created by a history of family violence therefore makes it very difficult for a victim to experience a real sense of empowerment. Therefore, the entrenched pattern of domination, and the priority perpetrators demand to be given to their own interests, will in many cases result in inequitable outcomes from the mediation process. A number of additional assumptions about the positive aspects of mediation need to be avoided if fair and appropriate outcomes are to be possible in this context. The first is an assumption that if there is a history of family violence, a victim will seek a court exemption from the mediation process, or ask to be screened out of mediation at the intake stage. Certainly, it is possible for a victim of violence to apply to the court to be exempted from mediation; and it is also possible for victims to advise the mediator conducting the intake session about the history of violence, and on that basis they can be screened out of mediation. However, many victims of violence will not seek to opt out of the process. For some victims of violence, the prospect of engaging in a formal court procedure to seek an exemption (which might not even be successful) is too daunting and perhaps too expensive. In addition, some victims might choose not to, or feel unable to, identify the history of violence at intake (this is necessary if they are to be screened out of the process). Victims might also choose not to disclose the violence for a range of reasons. For example, they often feel ashamed of the violence, or think that they will not be believed. Another reason why victims of violence might not identify the violence is if they feel that mediation is the only affordable option. [191] That is, if they cannot afford to pay for legal representation, if they cannot get legal aid, or if they do not feel they can represent themselves in court. In such a situation victims might feel that they cannot jeopardise their access to mediation by disclosing the violence, because disclosing the violence might result in being screened out of the process. Further, victims of violence might not disclose the violence because they might want to see if mediation can work. Mediation may be a safer option than negotiating with the perpetrator across the kitchen table. Victims might also hope to achieve some level of empowerment through the process even if they are aware of the possible dangers and disadvantages. Another dangerous assumption in mediation is that mediators are able to redress power imbalances between the parties simply by using aspects of the process that focus on party empowerment. It is problematic to assume that the fear a victim experiences (because of the history of violence) can be addressed through basic process interventions such as giving him or her a fair opportunity to speak, or asking the perpetrator to stop interrupting. The reality is that these interventions, whilst appropriate and positive in supporting constructive negotiations in most other matters, cannot reverse what might be years of violent domination, coercion and control. Another dangerous assumption that is sometimes made in relation to victims of violence in mediation is that they are safe, and the impact of the violence ceases, because they have separated from the perpetrator. This belief inevitably places victims in danger as mediators may not then be alert to the true power and influence the perpetrator holds, and the process may actually exacerbate the dangers presented by post-​separation violence. In truth, the time of separation itself is widely acknowledged as a time of increased danger for victims. Indeed, the impact and effects of violence continue well after separation. The healing process and the journey back to empowerment and confidence can be a very long one. Certainly, true empowerment cannot be achieved in the brief few hours of a mediation session. It can be seen, therefore, that victims of violence suffer some potentially serious disadvantages when negotiating in the mediation environment. For this reason, special precautions are needed to promote their safety, and the safety of the outcomes reached through the process. The next section discusses how the system in Australia could be improved in order to do this. [8.365]  505

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FDR and Victims of Family Violence cont. Possible Improvements to Promote the Safety of Victims of Family Violence There are a number of important improvements to current approaches to mediation in Australia that could promote the safety of victims of family violence. The Round Table Dispute Management process used at Legal Aid Victoria, and the Telephone Dispute Resolution Service operated by Relationships Australia, are two examples of good practice in this context. In addition, a specialist model of mediation for family violence matters could be developed with a more integrated and co-​ordinated approach using professionals from a range of discipline backgrounds. Further, a greater involvement of lawyers in the process could address a range of the disadvantages identified above. Currently, for example, lawyers are not present in the mediation sessions that are conducted in the 65 Family Relationship Centres around Australia. In particular, it is important that we better prepare both victims of violence and perpetrators of violence for their participation in the mediation process. [192] If the positive aspects of mediation are to be made a reality for participants who are victims of violence, then the range of disadvantages they can potentially face must (at least to some extent) be overcome. To achieve this, both victims and perpetrators of violence must be supported in learning how to negotiate in a way that makes real empowerment and self-​determination possible in mediation. One way to do this is to coach victims and perpetrators about the mediation process, how to negotiate effectively in it, and how to communicate and participate positively. In order to be able to engage positively with the process, both victims and perpetrators of violence need to understand, and be able to engage with, the co-​operative and consensus-​based philosophy of mediation. They also need to understand the various stages of the mediation process itself, how each stage in the process is likely to work, and what they need to do to contribute positively to each stage. In explaining the process thoroughly and clearly, a mediation coach can provide critical practical tips to help the parties participate effectively. For example, the parties can be assisted with preparing their opening statements in their own words so that they can clearly and calmly present their perspectives on the dispute, and articulate their concerns, needs and interests. Presenting a well-​considered opening statement is important in terms of enabling the parties to take control of their own role in the process. Even preparing a brief statement can be a critical step in empowering them. Such a preparation strategy can help victims of violence, for example, to experience a boost to their confidence and to feel safe about the framework that is established for the communications and negotiations between the parties. In terms of exploring and negotiating about issues during the mediation, it is important that each party is well prepared by having identified both a firm sense of what it would like the outcome of the process to be, as well as a flexible spectrum of satisfactory options. A mediation coach can help each party to individually work through what his or her bottom line is on each issue, but also to identify a range of options that both parties could live with. A mediation coach can also help the parties to identify issues on which compromise is possible. It is also important to inform the parties’ preparation with legal advice. Legal advice can be provided by the mediation coach if he or she is a lawyer, or by a lawyer brought in to the preparation process for this purpose. Legal advice allows the parties to effectively assess the legal implications of options for resolution. This knowledge can help the parties to “reality check” their own preferred options and to understand the claims of the other party about their legal rights or entitlements. Finally, it is also important for a mediation coach to teach the parties some mediation participation skills. These include abiding by the ground rules of the process, active listening, effective communication and other negotiation skills. A good preparation process will teach the parties to be assertive but rational negotiators. For example, a coach can help the parties with strategies such as asking clarifying questions, summarising what the other party has said to check mutual understanding, and asking for a break to be able to think through an option or issue, or if negotiations are becoming stressful or difficult. 506 [8.365]

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FDR and Victims of Family Violence cont. Conclusion Mediation has the potential to offer women the possibility of empowerment in reaching self-​ determination in family disputes. However, where there is a history of family violence between the parties, there is also a range of disadvantages for victims of violence in mediation. Most particularly, victims of violence find themselves affected by power imbalances that impact on the safety, justice and fairness of outcomes. In order to address the disadvantages that victims of violence encounter in mediation, it is important that a number of improvements are made to the practice of [193] FDR in Australia. A particularly important improvement is to prepare both parties more thoroughly for their participation in the mediation process. This will ensure that victims of violence have the best chance of achieving empowerment and self-​determination in mediation. Providing and resourcing adequate mediation coaching and preparation processes for matters where there is a history of family violence is now a critical challenge in Australia’s family law system.

 [8.370]  The Australian Law Reform Commission conducted an inquiry into family violence

and released its report in 2010. This report was instrumental in the 2012 family law reforms discussed above.

Family Violence –​A National Legal Response [8.375]  Australian Law Reform Commission, Family Violence –​A National Legal Response (Summary Report, October 2010) p 10. Inquiry in Context This Inquiry into family violence by the Australian Law Reform Commission (ALRC) and the New South Wales Law Reform Commission (the Commission) is one of a number of concurrent inquiries on the subject –​reflecting intense and ongoing concern in relation to victims of such violence and the public cost over time. First, the Australian Government Attorney-​General commissioned a review by Professor Richard Chisholm, former Justice of the Family Court of Australia, of the practices, procedures and laws that apply in the federal family law courts in the context of family violence. The review was completed at the end of November 2009, and released on 28 January 2010.2 Secondly, the Family Law Council provided advice to the Attorney-​General on the impact of family violence on children and on parenting, which was released at the same time as the Chisholm’s review. Thirdly, the Australian Institute of Family Studies released its evaluation of the 2006 family law reforms, which provided empirical data about the impact of the 2006 changes to the Family Law Act 1975 (Cth). This Inquiry therefore takes place in the context of very active contemporary scrutiny of the legal system and its engagement with families and family violence. [12] Fragmentation of Laws and Practice As noted in Chapter 2 of the Report, a key element of the challenge of this Inquiry is that, in the area of family law, neither the Commonwealth nor the states and territories have exclusive legislative competence. The result is an especially fragmented system with respect to children. Moreover the boundaries between the various parts of the system are not always clear and jurisdictional intersections and overlaps are “an inevitable, but unintended, consequence”. For example, family violence involving children may arise as a dispute between parents and the state in a children’s court –​where care and protection proceedings are initiated with respect to a child or children –​or as a dispute between parents in a court with jurisdiction under the Family Law Act. There is also a danger that issues concerning violence may fall into the cracks between the systems. The consequence of the division of powers means that: [8.375]  507

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Family Violence –​A National Legal Response cont. neither the Commonwealth nor the States’ jurisdiction provides a family unit with the complete suite of judicial solutions to address all of the legal issues that may impact on a family in respect of their children. The fragmentation of the system has also led to a fragmentation of practice. A number of stakeholders in this Inquiry commented that the different parts of the legal framework dealing with issues of family violence operated in “silos” and that this was the key problem in the system. Although the laws utilised within each “silo” might be perceived to operate effectively, or to require minor refinement and change, the problems faced by victims of violence required engagement with several different parts [13] of the system. Consequently, as discussed particularly in Chapter 2 and Part E, these people could be referred from court to court, and agency to agency, with the risk that they may fall into the gaps in the system and not obtain the legal solutions –​and the protection –​that they require. …

 [8.380]  As a result of the Commission’s recommendations, changes were made to the FLA

in 2011 (which came into effect from 7 June 2012) aimed at better protecting children from harm and to improve the family law system’s response to family violence and abuse. The amendments provide for better information sharing between stakeholders to assist them to identify and respond to cases of violence.

Changes to Family Law From 7 June 2012 [8.385]  Australian Government, Fact Sheet, Changes to Family Law From 7 June 2012. From 7 June 2012, changes to Family Law will take effect that will place children and their safety front and centre in family law matters. The Australian Government strongly supports happy, healthy relationships between children and their parents and supports shared care where this is safe for the child. Unfortunately, more than half of the parenting cases that come to courts involve allegations by one or both parties that the other has been violent. Family violence and child abuse cannot be tolerated under any circumstances. This is why the Australian Government has amended the Family Law Act to: • Prioritise the safety of children in parenting matters by giving greater weight to the protection from harm when determining what is in a child’s best interests. • Change the definition of “family violence” and “abuse” to reflect a contemporary understanding of what family violence and abuse is by clearly setting out what behaviour is unacceptable, including physical and emotional abuse and the exposure of children to family violence. • Better target what a court can consider in relation to family violence orders as part of considering a child’s best interests. • Strengthen advisers obligations by requiring family consultants, family counsellors, family dispute resolution practitioners and legal practitioners to prioritise the safety of children. • Ensure the courts have better access to evidence of family violence and abuse by improving reporting requirements. • Make it easier for state and territory child protection authorities to participate in family law proceedings. These changes will help people within the family law system to better understand, disclose and act where there are family violence and child abuse concerns.

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Changes to Family Law From 7 June 2012 cont. Family courts will be able to access better information on which to assess risk to families and the best interests of children, helping to improve the appropriateness of parenting orders. The Family Law Act will continue to promote a child’s right to a meaningful relationship with both parents where this is safe for the child. What the Family Violence Act does not do The Family Violence Act does not “roll back” the 2006 shared parenting reforms. Parenting arrangements will continue to be made in a way that promotes a child’s right to have a meaningful relationship with both parents where this is safe. The Family Violence Act will not impact outcomes for separating families where there are no family violence or child abuse concerns. For those cases where there is no risk of violence or abuse and it is in the child’s best interests, the courts will continue to apply the presumption of equal shared parental responsibility and consider equal time or, as the case requires, substantial and significant time. The family courts will not lose the ability to award costs where a party knowingly makes false statements. The family courts will retain a broad power to make costs orders. In addition, it remains a criminal offence to knowingly make a false statement during court proceedings.

 [8.390]  The authors at [8.395] note that, while there is an exemption from the compulsory

nature of FDR for family violence, there are still several reasons why many victims of violence will undertake FDR.

FDR and Family Violence in the New Family Law System [8.395]  D Kirkwood and M McKenzie, “Family Dispute Resolution and Family Violence in the New Family Law System” (2008) 19 Australasian Dispute Resolution Journal 170 at 170-​173. Many couples attending dispute resolution are affected by violence. Family violence is a widespread social problem, which is frequently the cause of, or a contributing factor to, relationship breakdown. In fact, the proportion of separating couples experiencing family violence is likely to be higher than in non-​separating couples, given that violence increases at the time of separation. Studies of family law disputes show that a large proportion of cases involve family violence. For instance, the recent study by the Australian Institute of Family Studies found that 79% of cases determined in the Family Court contained allegations of violence. For the parties to be able to bypass FDR, the court must be satisfied that there are reasonable grounds to believe the violence occurred. However, due to the hidden nature of family violence, victims may be fearful that they will not be able to “prove” to the court the family violence occurred. This is particularly concerning because the new legislation includes penalties for false allegations. Victims may also fear being viewed as a “hostile parent” who is trying to restrict their ex-​partners’ access to the children. Such fears may result in victims being reluctant to raise the issue of family violence. It is possible for FDR practitioners to determine that FDR is not suitable due to family violence or child abuse and to provide a certificate for the court stating as such. Screening is undertaken by [171] practitioners to determine if family violence has occurred. However, family violence is not always detected through screening, and practitioners have discretion to determine whether parties affected by violence have the capacity to participate and whether it is appropriate to proceed with dispute resolution.

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FDR and Family Violence in the New Family Law System cont. Thus, there is no automatic exclusion from FDR for family violence cases. It is also the case that some victims may wish to engage in dispute resolution, because of the difficulties with litigation and the cost of obtaining legal representatives. Similarly, FDR may be viewed as a better alternative than attempting to negotiate directly with an ex-​partner without assistance. FDR and Family Violence FDR has potential advantages as a cheaper, faster and less adversarial way of resolving family disputes than litigation. FDR may be empowering for the parties by giving them more control over the process and because they get to have their own say in the dispute. Some writers have argued that this can be particularly useful for family violence victims. However, currently there is some consensus amongst many dispute resolution practitioners, family violence workers, and academics that dispute resolution is inappropriate in cases involving family violence and requires special treatment. The following outlines some key issues from a large body of literature on the potential problems with dispute resolution in family violence cases. This material is also informed by a study of women’s experiences of FDR, undertaken by DVIRC (now the Domestic Violence Resource Centre Victoria, or DVRCV) and Relationships Australia Victoria (RAV). Quotes from women interviewed for the study are used to illustrate points throughout this article. FDR Practitioners May Not Identify Family Violence He [ex-​partner] can be very charming, so I guess I was pretty scared that even if I said anything … that when [the mediator] met him then my story would be negated. It’s been very difficult because of the history of abuse to trust whether someone’s going to believe me anyway … Even my family didn’t believe me until they discovered the abuse for themselves when my ex turned on them (Kate). It is dangerous for dispute resolution to take place without the practitioner’s knowledge that family violence has occurred. Due to barriers to disclosing and the fallibility of screening techniques, FDR practitioners may not identify family violence. The majority of victims do not report the violence to police or other services. There are many reasons why women may not disclose family violence, including fear for their safety and that of their children or other family members, denial, embarrassment, concern about their children knowing about the abuse, and a lack of faith in other people’s ability to help them. Mediators are often unaware that family violence is affecting their clients. A study commissioned by the Attorney-​General’s Department (AGD) found that mediators estimated that 30% of mediated cases involved family violence. However, when the women who participated in these mediations [172] were surveyed, 75% reported that they had experienced family violence. Nevertheless, a study by Kaye, Stubbs and Tolmie found that professionals believe that their clients will disclose to them. Family Violence May Not Be Responded to Appropriately Even when family violence is identified, dispute resolution practitioners may not respond adequately. The DVIRC and RAV study found that some dispute resolution practitioners are dismissive of women’s experiences of violence. For instance one woman said, They did not want to know and they didn’t believe anything I said and constantly referred to the violence as “allegations” (Sue). Many professionals, like people in the general community, do not understand family violence or the importance of believing and supporting the victim. A recent survey of community attitudes in Victoria found that almost half of the respondents believed that “women going through custody battles often make up claims of domestic violence to improve their case”. However, research consistently shows that women and children rarely make false allegations. A study by Rendell et al shows that, while

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FDR and Family Violence in the New Family Law System cont. women find it difficult to disclose violence to professionals in the family law process, they were unprepared for the negative attitudes they encountered when they did so. FDR May Exacerbate Risks to Safety Even with the FDR practitioner’s knowledge that family violence has occurred, dispute resolution can be unsafe. The fact that FDR often occurs soon after separation may pose significant risks because it is the most dangerous time for women and children experiencing family violence. The process of dispute resolution “may in fact exacerbate the dangers presented by post-​separation violence” because it provides perpetrators with the opportunity to come into contact with victims. It may also precipitate retaliatory violence in response to issues raised during the dispute resolution process such as disclosures of violence. Perpetrators may take the opportunity to continue to exercise control over their victims and to extend that control into future interactions through parenting arrangements reached through FDR. Family Violence Affects Capacity to Participate I wanted to be really strong and focused, but when it came to actually voicing what I wanted and his [ex-​partner] response, I felt crushed and unsupported (Annie). Perpetrators of family violence are unlikely to be willing to co-​operate and negotiate with their ex-​ partner in dispute resolution. Perpetrators frequently coerce, intimidate, threaten and deny the interests of their victims. However, they may present to FDR practitioners as fair, reasonable and charming, while victims may appear angry, obstructionist and unwilling to compromise. For [173] instance, a woman’s reluctance to agree to their ex-​partner having unsupervised contact with their children may be viewed as obstructing the dispute resolution process; however, the woman may be seeking to protect the children. Family violence has severe, wide-​ranging and persistent effects on physical and mental health. Even if the violence is not current at the time dispute resolution occurs, it continues to impact on the victims. Research shows that many women leaving violent relationships experience fear while negotiating parenting arrangements. The DVIRC and RAV research shows that some women found FDR was a difficult process to enter into when they were still traumatised by, or recovering from, family violence. Another study found that women can experience escalating levels of fear, intimidation and coercion during mediation. Family Violence Affects Children Child abuse has been found to co-​exist in a significant proportion of families where intimate partner abuse occurs. Children are affected by family violence both as victims and as witnesses. Exposure to family violence may result in a range of physical, psychological and behavioural problems with adverse effects on child development. If family violence is not detected and effectively responding [sic] to, arrangements made through FDR may have an ongoing negative impact on children.

 “Inappropriate for FDR” certificates and “No Longer Appropriate for FDR” certificates [8.400]  As our understanding of the impact of family violence grows, mediator decisions about screening parties for FDR will increasingly come under scrutiny. As Kirkwood and McKenzie have discussed at [8.355], mediators must be alert not only to the personal

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impact of violence on families and children, but also the possible consequences of screening families out of FDR. In the following extract from the study conducted by the Centre for Social Research and Methods referred to at [8.140] mediators outline the reasoning behind some of their screening decisions related to family violence, as well as to other factors such as mental health and parental drug abuse. This research highlights the difficult decisions facing mediators in these situations and the need for further research into the impact of FDR where family violence is a factor. What is also clear is the contextual nature of these decisions, because the screening takes place as part of the intake process unique to each organisation. In the case of this research, that intake process is the four-​step process utilised by Interrelate.

Certifying Mediation: A Study of s 60I Certificates [8.405]  B Smyth, W Bonython, B Rodgers, E Keogh, R Chisholm, R Butler, R Parker, M Stubbs, J Temple and M Vnuk, Certifying Mediation: A Study of s 60I Certificates (2017) Centre for Social Research Methods, Working Paper No 2/​2017, pp 23-​25. “Inappropriate for FDR” Certificates and “No Longer Appropriate for FDR” Certificates In Chapter 1 we explained that prior to commencing FDR, an FDRP must determine if FDR is appropriate; the factors that must be taken into account in making that determination are set out in subregulation 25(2) of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth). That chapter also explained that FDRPs must not provide FDR if it is determined to be inappropriate and that they must terminate FDR if, after commencing FDR, they are no longer satisfied that FDR is appropriate. Chapter 1 further explained that where an FDRP has made a determination that FDR is not appropriate, they may issue a certificate evidencing this. There are two different certificates –​one to be issued when the determination of inappropriateness is made prior to the commencement of FDR, and one to be issued when the determination is made after FDR has started. The distinction between these two certificates is not as clear-​cut as one might think, because of uncertainty about whether “FDR” incorporates the first three steps of the four-​step process, or just the joint mediation session which occurs at Step Four. As one FDRP explained: “…it is not clear whether it is the FDR process or the FDR session, so in fact if I were to issue a not-​appropriate certificate I would have to do it after the process had begun and after assessment of the parents”. A number of FDRPs commented about the ongoing nature of the assessment of the appropriateness of FDR. One candidly articulated this: “Because there are three steps before they go to the actual mediation. So all of those are an assessment and that is quite normal to kind of think ‘oh, I’m not sure if it’s appropriate’ but then you see through the various steps and then make a decision”. [24] “No longer appropriate certificates” are unusual Overall, Interrelate FDRPs perceive that they issue very few “no longer appropriate certificates”. The administrative and survey data support this perception (see Chapters 2 and 4). Indeed, a number of the FDRPs interviewed stated that they had never issued a “no longer appropriate” certificate. Where FDRPs had issued this certificate, they described the impetus for this decision as the surfacing of significant problematic information during the joint session, a significant change in the behaviour of one of the parties during the joint session, or a new awareness of the relational dynamics between the parties that they had not seen before the joint session. One FDRP provided this example: “It became very apparent to me that as we progressed Dad was becoming more and more agitated, and he actually erupted, so I thought that’s enough, no more, we’re not going any further”. Another example related to a decline in the mental health of one of the parties. The FDRP stated: “The mother had schizophrenia and she had been fairly stable right through the assessment 512 [8.405]

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Certifying Mediation: A Study of s 60I Certificates cont. process, but the day of the mediation obviously was stressful for her and she wasn’t capable of proceeding”. Another FDRP stated: “… most commonly it’s that the balance of power is lost because when we actually get people in tandem, there’s one party that’s actually a real bully that we haven’t been able to pick up prior to that”. Another FDRP stated: “… there was one where a child safety issue came up in the mediation that was quite serious and I hadn’t actually been aware of that”. “Inappropriate for FDR” Certificates Becoming More Common When asked about the frequency with which “not appropriate for FDR” certificates are issued, most FDRPs reported that they are a frequently-​issued, if not the most frequently issued category of certificate. (This observation is consistent with the administrative and survey data.) Some practitioners perceived that the volume of “not appropriate” certificates issued has increased substantially in recent years, and a number of FDRPs attributed this to an increasingly complex caseload. This FDRP’s statement was typical: “[T]‌he people that we are getting are presenting with much more complexities now than ever before –​so we’re getting a lot more ICE in this particular area, an epidemic which you know severely impacts on people’s capacity to negotiate… also the levels of domestic violence in the [location] is quite high –​we have a high rate of removal of children from Family Community Services here too”. Emphasis on Ability to Negotiate and Safety of Clients When asked what generally informs their decision to issue a certificate, most FDRPs identified specific factual matters such as family violence, substance abuse issues, mental health concerns, and child abuse. However, these matters were almost always raised in the context of overarching statements about assessing both the ability of the parties to negotiate freely, and the safety of the parties and children. One FDRP stated that she: “Makes sure that people are safe. I have to look to see that there is some kind of level playing field in terms of people’s ability to say what they want to say without fear or that they’re not railroaded by the other person”. Another stated: “If the parties are confident in being able to have a discussion with assistance at the same level then I am all for giving it a go”. [25] Another practitioner emphasised safety in particular, stating: “I have to make sure that I’m not putting them in any more harm than when they came in”.

 [8.410]  The study highlights some of the competing concerns that face FDRPs aiming to pre-

vent harm to clients, while at the same time ensure that parties are not screened out of mediation unnecessarily. This tension is also exemplified in the extract at [8.415] where FDRPs discuss their experience of mediation with families where there is a history of violence.

Certifying Mediation: A Study of s 60I Certificates [8.415]  B Smyth, W Bonython, B Rodgers, E Keogh, R Chisholm, R Butler, R Parker, M Stubbs, J Temple and M Vnuk, Certifying Mediation: A Study of s 60I Certificates (2017) Centre for Social Research Methods, Working Paper No 2/​2017, pp 26-​27. Some FDRPs spoke of the challenge of making a decision that FDR would be inappropriate when the families wanted to participate. One stated: “It is hard when parents are disappointed about us saying ‘Sorry, we can’t give you the service’. But that didn’t lead me to change my decision so it [8.415]  513

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Certifying Mediation: A Study of s 60I Certificates cont. wasn’t agonising, sometimes it’s difficult to communicate with parents about the ‘not-​appropriate [for FDR]’ certificate”. For another FDRP the client’s desire to participate caused making the decision itself challenging. She said: “…especially around domestic violence and the party that is the victim is usually saying ‘I really don’t want to go to court. I want to try and do something. I want to try and make a parenting plan with them, I don’t want to go to court, I can’t afford to go to court’. That makes it very hard to try and make that decision because you know that they don’t have any other options”. Some FDRPs saw the decision about appropriateness of FDR as more a case of determining what would be the best process for the particular family. One FDRP stated: “My view is that we are here to make an assessment about the best dispute resolution process for the clients when they are sitting in front of us, what is the best way that these people can resolve their dispute in the best interests of their child. … I don’t see us as a be-​all-​and end-​all, and I just think there are lots of occasions where it’s not suitable. [27] Another practitioner stated: “I’m not comfortable with the court’s response to DV but I don’t think that we have the resources or the screening that a court process has to deal with significant domestic violence perpetrators. Because we don’t have any decision-​making authority or power as well, the most that we can do is get legally-​assisted mediation to occur and hope it will assist –​but the court has so much more resources available to it that we have to hope that if we set them up with a Community Legal Centre Advocate or we set them up with a Victims’ Group, or something like that, that they’ll be able to have someone assist them to get those other resources”. Or as one FDRP simply put it: “Sometimes it’s beyond us. We can’t tell people what to do. Some people need to be told by a judge that this is how they have to do it”. Family Violence and Apprehended Violence Orders Almost all the FDRPs in the study spoke of conducting FDR with families where there is a history of family violence. As one practitioner stated: “Ninety per cent of the clients if not more that I see will always tell me that there is violence in the relationship, and so then it’s a case of weeding out what level of violence, how long, and whether or not the person’s capable of coming to mediation”. For some practitioners it appeared that the threshold was very high for determining that family violence warranted the issue of an inappropriate certificate. As one FDRP explained: “I issue them rarely but it would be in the case of severe, really severe domestic violence and I mean really severe domestic violence or child abuse. That’s kind of entrenched stuff”. Another FDRP emphasised the preference of a family violence victim, stating: “Where there’s domestic violence it’s borderline as to whether it would be suitable but the woman informs me that she doesn’t feel okay about mediation then I would issue not appropriate, I wouldn’t ever force somebody who’s been in a DV situation to enter into mediation”. A few practitioners raised concerns about issuing “inappropriate for FDR” certificates without being sure of the truth of the family violence allegations. As one FDRP explained: “What made it difficult is that I’ve listened to a story from one party and not believed it 100% … but I’ve acted on what I’ve been told about perhaps domestic violence in the past so I have said it’s not appropriate to mediate, but I’m not 100% convinced that that story was actually real”. Apprehended violence orders (“AVO”) were raised by a number of FDRPs as a significant factor in their decision-​making in relation to whether FDR could be provided. It was clear from some FDRPs’ comments that, even in the presence of an AVO, the question of the appropriateness of FDR is sometimes a discretionary matter. As one FDRP stated: “I think that you can still do a parenting agreement when there’s an AVO depending on the things that are on the AVO and supervised visits, so something 514 [8.415]

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Certifying Mediation: A Study of s 60I Certificates cont. that’s supervised –​contact often happens in those circumstances. It would be when there’s no level playing field, when the person who’s the victim is so traumatised that they’re not, no matter what you did in terms of trying to level the playing field in the mediation process that that person would have no power”. Some practitioners explained, however, that the matter is more clear-​cut where children are included on the AVO, with one practitioner stating: “Interrelate’s policy in general, if the children are named on the AVO, is we don’t normally proceed”.

 Coordinated family dispute resolution [8.420]  One initiative in supporting families with a history of family violence to resolve par-

enting issues, was the development of a legally assisted and supported FDR process, known as Coordinated Family Dispute Resolution. Extracts from the evaluation of the pilot are set out below, including a brief overview of the context in which this model was developed, and a description of how it works in practice.

FDR in Family Violence Cases [8.425]  R Kaspiew, J De Maio, J Deblaquiere and B Horsfall, Evaluation of a Pilot of Legally Assisted and Supported Family Dispute Resolution in Family Violence Cases, Final Report (Australian Institute of Family Studies, Canberra, 2012) pp ix-​x. Evidence of the prevalence of a history of past and/​or current family violence among separated parents, and the presence of ongoing safety concerns for themselves and their children as a result of ongoing contact with the other parent, has created an impetus for the family law system to find more effective ways of dealing with families affected by family violence. In July 2009, the Federal Government announced funding for a pilot program to provide assistance, including family dispute resolution (FDR), to such families. Subsequently, Women’s Legal Service Brisbane (and other consultants) were funded by the Attorney-​General’s Department (AGD) to develop a model for coordinated family dispute resolution (CFDR). CFDR is a service for separated families who need assistance to resolve parenting disputes where there has been a history of past and/​or current family violence. It is being implemented in five sites/​lead agencies across Australia: Perth (Legal Aid Western Australia), Brisbane (Telephone Dispute Resolution Service [TDRS], run by Relationships Australia Queensland), Newcastle (Interrelate), Western Sydney (Unifam) and Hobart (Relationships Australia Tasmania). TDRS made adaptations to the model to accommodate its telephone-​based service. The pilot commenced operation at most sites in the final quarter of 2010. Implementation in one location (Brisbane) was delayed until mid-​2011 to allow time to finalise the composition of the partnership. CFDR is a process where parents are assisted with post-​separation parenting arrangements where family violence has occurred in the relationship. The process involves a case manager/​family dispute resolution practitioner (FDRP), a specialist family violence professional (SFVP) for the person assessed to be the “predominant victim” in the language of the model, a men’s support professional (MSP) for the person assessed to be the “predominant aggressor” (when they are male), a legal advisor for each party and a second FDRP. Child consultants are part of the professional team and may be called upon to feed into case management decisions. Child-​inclusive practice may be applied in particular cases, but only one location applied it frequently and a second infrequently. Specialised risk assessment and [8.425]  515

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FDR in Family Violence Cases cont. management takes place throughout the process, which unfolds over several steps involving screening, intake and assessment, preparation for mediation, mediation (up to four or more sessions) and post-​mediation follow-​up. The process is applied in a multi-​agency, multidisciplinary setting and it aims to provide a safe, non-​adversarial and child-​sensitive means for parents to sort out their post-​separation parenting disputes. The level of support provided to parents is intensive, and this is a key means by which the process attempts to keep children and parties safe and ensure that power imbalances resulting from family violence do not impede parents’ ability to participate effectively. … The CFDR process implemented in the pilot is at the cutting edge of family law practice for a number of reasons. It involves the conscious application of mediation where there has been a history of past and/​or current family violence. It also involves collaborative multidisciplinary practice in a multi-​ agency setting, with the nature of the collaboration being clinical rather than at the level of referral and support. The evaluation findings underline the complexities involved in practice in this context. These complexities are evident in several ways, including the logistics of coordinating contact between clients and multiple professionals in several locations. The client group is also very complex, with substantial proportions of the cases involving not only family violence, but mental health issues and substance addiction also. The challenges associated with interdisciplinary practice in family law are also well-​ recognised (Moloney, Kaspiew, De Maio, Deblaquiere, & Horsfall, 2011; Rhoades, Astor, Sanson, & O’Connor, 2008) and these are heightened when family violence is a uniform feature of the caseload. …  [2-​4] 1.2 The CFDR Model 1.2.1 Overview The CFDR model is intended to ensure that both processes and outcomes of dispute resolution respond appropriately to any alleged past and/​or current family violence (WLS, 2010). The model is being piloted in five locations across Australia. One organisation in each location is responsible for coordinating a partnership involving other organisations with particular expertise: Legal Aid Western Australia (Perth), Telephone Dispute Resolution Service (TDRS) run by Relationships Australia Queensland (Brisbane), Interrelate (Newcastle), Unifam (Western Sydney) and Relationships Australia Tasmania (Hobart). The organisations in each partnership include: • a service providing FDR (including professionals who are accredited FDR practitioners and, if appropriate, qualified “child practitioners”); • a specialist domestic violence service; • a men’s service; and • legal services able to provide legal assistance and advice to each party. The model is based on the involvement of professionals from different disciplines “working together collaboratively and in a non-​hierarchical manner” (WLS, 2010, 3) in a four-​phase process during which risk assessment and case management are continuously and actively pursued: • Phase 1: Intake, involving specialist risk assessment and the development of a safety plan. • Phase 2: Preparation of the parties for FDR (including each party obtaining legal advice in two separate sessions, attending three communication sessions, and attending a CFDR mediation preparation workshop), and a CFDR-​specific intake process in which the CFDR practitioner (in consultation with the other professionals) assesses the readiness and capacity of the parties to engage in CFDR. • Phase 3: Participation in CFDR, usually applying a co-​mediation model, with a legal and possibly a non-​legal advocate present for each client. • Phase 4: Follow-​up at between 1-​3 and 9-​10 months after completion of CFDR. See Figure for a diagrammatic view of the model (reproduced from WLS, 2010). 516 [8.425]

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FDR in Family Violence Cases cont.

The CFDR Model

PHASE 1

Intake Process I

Case Management (CM) meeting: • Screen-out & refer to appropriate support services; or • Screen-in to pilot – proceed to Phase 2.

Victim or perpetrator identified as possible pilot participant. Specialist risk assessment conducted by DV/MFR service. FDR risk assessment conducted.

• Each party attends legal advice session (one-on-one)

• Each party attends comm’s PHASE 2

sessions at DV or MFR service

Preparation and Intake Process 2

Risk assessment continues throughout ; case management meetings throughout

• CFDR preparation workshop • Intake Process 2 Parties ready / appropriate to participate (CM meeting)?

If No Consider screen out & refer to appropriage support services

If Yes

- Appropriate FDR model selected in conjunction with CM and victim (eg, face to face, shuttle, telephone) - Parties sign Agreement to Participate in CFDR

PHASE 3 Attend CFDR using selected model

CFDR session with FDRP and client legal advocate and/or other advocate

Agreement or partial agreement reached Lawyers file agreement as consent orders

Risk assessment continues throughout; case management meetings throughout

No agreement or partial agreement reached Appropriate referral eg:

• Court • Legal Aid • Post separation support services • Other advice re: safety

• Follow-up by client managers (with consent) to review safety, best interests etc. 1. at 1–3 months

PHASE 4 Follow-up

2. at 9 to 10 months

• Consideration at CM meeting – possible further support.

• Conclude process, feedback

Risk assessment continues throughout’ case management meetings throughout

outcomes to local steering committee.

[8.425]  517

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FDR in Family Violence Cases cont. 1.2.2 Professional responsibilities CFDR is a case-​managed process. FDR practitioners (FDRPs) are responsible for organising the case management meetings, including managing meeting logistics. All the professionals involved in the CFDR process, with the possible exceptions of lawyers, are present at the case management meetings. FDRPs may be involved in a partial intake assessment at Phase 1, which is followed by the specialised risk assessment. The decision as to whether the parties involved in a matter are ready to undertake CFDR at Phase 2 is the responsibility of the FDRP, although this decision is made in consultation with the other professionals involved. In collaboration with the men’s services, the domestic violence (DV) service has primary responsibility for intake and the initial specialist risk assessment, and ongoing risk assessment, noting all professionals will have a role in ongoing risk assessment. Risk assessment is the responsibility of the men’s service when the perpetrator is female. The specialist family violence professional (SFVP) and men’s support professional (MSP) are the liaison point for other professionals who have any concerns about safety. The DV and men’s services are “client managers” for their own clients throughout the process, including the post-​CFDR follow-​up in Phase 4. Key decisions are made collaboratively at weekly case management meetings. These may include: • acceptance into the pilot; • whether child consultants will be involved; • whether reports to child protection authorities or police should be made; • whether families should be referred out of the pilot; • whether the parties in each matter are ready to participate in CFDR and consequent strategies if they are not (ie, further preparation, or referral out of the pilot); • the particular model of CFDR to be applied (eg, co-​mediation, shuttle etc); and • whether agreements should be embodied in parenting plans or consent orders. Case management meetings involve the professional from the DV and men’s services, the FDRPs and the child consultant (where appropriate). The model envisages legal professionals may be involved in case management meetings. However, as the practice evolved, this was not the case. The reason for this practice was a concern to protect confidentiality of the legal professional–​client relationship and to exercise care in information flow.



OTHER FDR PROCESSES [8.430]  While FDR is the most commonly used process in the family law sector in Australia,

there are a range of other processes available. These are introduced below. Arbitration [8.435]  The Court may refer a variety of proceedings and particular questions of law to arbi-

tration (ss 13E, 13F, 13G). Arbitration is defined in s 10L of the FLA.

FLA, s 10L [8.440]  Family Law Act 1975 (Cth), s 10L Division 4 –​Arbitration 10L Definition of arbitration 518 [8.430]

Dispute Resolution in Family Law  Chapter  8

FLA, s 10L cont. (1)

Arbitration is a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.

(2)

Arbitration may be either:

(a) section 13E arbitration –​which is arbitration of Part VIII proceedings, or Part VIIIAB proceedings (other than proceedings relating to a Part VIIIAB financial agreement), carried out as a result of an order made under section 13E; or (b) relevant property or financial arbitration –​which is arbitration (other than section 13E arbitration) of:

(i)

Part VIII proceedings, Part VIIIA proceedings, Part VIIIAB proceedings, Part VIIIB proceedings or section 106A proceedings; or



(ii)

any part of such proceedings; or



(iii)

any matter arising in such proceedings; or



(iv)

a dispute about a matter with respect to which such proceedings could be instituted.

 [8.445]  In the following extract, Cooper describes how the arbitration process works and

some of it advantages and disadvantages.

The Family Law Dispute Resolution Spectrum [8.450]  D Cooper, “The Family Law Dispute Resolution Spectrum” (2007) 18 Australasian Dispute Resolution Journal 234 at 240-​241. The arbitration process is a determinative process and is a private alternative to a judicial decision. Parties voluntarily elect to participate in the process where they pay a private barrister or retired judge to decide their case. It can be a simple process where all relevant information is put in writing and the arbitrator makes a decision based on all of this written information. In this respect, it is similar to an interim hearing in that the arbitrator makes a decision “on the papers”. In the alternative, it can be a more complicated process, similar to a final court hearing, where oral evidence and oral submissions are considered, in addition to the information provided in formal documents. The simplicity or complexity of the process will depend on the extent of the issues involved and how much money and time the parties are prepared to expend. A key advantage of arbitration in family law is that it is a private process and can be more time and cost-​effective. A disadvantage is that the “award” made by the arbitrator is not binding until registered in the court. A party can apply for a review of an award, [241] on questions of law, to a single judge of the Family Court or the Federal Magistrates Court. This award can be set aside in some circumstances, eg where it has been obtained by fraud or where there has been a lack of procedural fairness in the way that the process was conducted.

 Conciliation conference [8.455] Conciliation conferences are conducted in the Family Court by a registrar. Parties are usually referred by the court in circumstances where they cannot agree about financial issues. The Family Court of Australia brochure on the Conciliation Process is extracted below. [8.455]  519

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The Conciliation Process [8.460]  The Family Court of Australia, The Conciliation Process, pp 1-​3. What is a Conciliation Conference? A Conciliation Conference (the conference) provides an opportunity for parties to make a genuine effort to settle their dispute. With that in mind, you should take a spirit of compromise into the conference and adopt a practical approach. Reaching an agreement with your former partner will save the need for further court events, including a trial. The Conciliation Conference usually occurs after a Case Assessment Conference if there is disagreement about financial issues, although sometimes parenting issues can be considered as well… Where an order has been made for a Conciliation Conference in the Family Court, attendance by the parties is compulsory. You are your former partner can be seen separately if you have personal safety concerns. … What can I expect at the Conference? A Conciliation Conference is conducted by a registrar (Court lawyer). At the conference, the registrar will look at the case from both sides and help you explore options for settling your case without any further legal action. A registrar cannot give legal advice, however they can talk with you about the legal principles that are applied when deciding cases. The settlement negotiations during the conference may be privileged. This means that what is said cannot be used in court later. There are some exceptions to this privilege. For example, Court staff are required by law to report a suspicion or risk of child abuse and violence or threats of violence to the relevant child welfare authority. The conference will usually last at least one and a half hours, but may be listed for a longer time in appropriate cases. … If you have not reached final agreement, the registrar will conduct a Procedural Hearing and make procedural orders about what will happen next.

 Family law/​legal aid conferences [8.465]  Where a party has legal aid funding for a family law dispute, a legal aid conference

will usually be conducted. As explained by Caruana and Cooper in the following extracts ([8.470] and [8.480]), the conference varies in format, but is often a combination of evaluative mediation and case appraisal. The process can be used by the parties to reach an agreement about issues in dispute, but if an agreement is not reached, the process is also used to determine whether or not the party should receive further legal aid funding.

Dispute Resolution Choices [8.470]  C Caruana, “Dispute Resolution Choices: A Comparison of Collaborative Law, Family Dispute Resolution and Family Law Conferencing Services” (2010) 15 Family Relationships Quarterly (Australian Institute of Family Studies) 12 at 14. Conferences are conducted by a Conference Chair who is an accredited FDR practitioner. The chair’s role is to facilitate the discussion. S/​he does not provide legal advice to the parties, nor make decisions for anyone. However the chair reports to Legal Aid Queensland about the outcome of the conference, and makes recommendations that may involve further aid for more conferencing, or the drafting of consent orders. Sessions are 4 hours in duration. 520 [8.460]

Dispute Resolution in Family Law  Chapter  8

Dispute Resolution Choices cont. There is a great degree of flexibility as to what form the conference takes. While there is a preference for face-​to-​face meetings, conferences are commonly conducted over the phone, either between the parties with their lawyers present, just between their lawyers, or by shuttle, particularly where there is a high degree of violence. Where both parties attend, the conference can be conducted by shuttle, perhaps bringing the parties together at some stage, or can involve only the lawyers negotiating on their client’s behalf. Conferences are modelled on a child-​focused, but not child inclusive model. Children do not attend conferences. An intake process, involving the completion of assessment sheets, is conducted with both the client and their lawyer to screen for violence and other issues that may affect the parties’ ability to negotiate. Other professionals, such as an independent children’s lawyer may participate in the conference. There is also a follow-​up support service available at Legal Aid Queensland, where clients may be referred to a social worker for assistance in implementing the agreement (Conference Resolution Support Intervention). While clients are encouraged to speak for themselves if they so wish, there is always the option of lawyers negotiating on their client’s behalf. There are no costs involved for parties granted legal aid, however parties using the process to settle property matters may be asked to make a contribution. The grant of aid will often include the filing of consent orders in the family courts.

 Magellan program [8.475]  Where there are allegations of child abuse, a matter may be referred to the Magellan

program, which involves a more inquisitorial style of hearing than the usual adversarial trial. The judge plays a much more active role in this process, as described by Cooper at [8.480].

The Family Law Dispute Resolution Spectrum [8.480]  D Cooper, “The Family Law Dispute Resolution Spectrum” (2007) 18 Australasian Dispute Resolution Journal 234 at 242. The Magellan Program is an example of a dispute resolution process developed for a certain category of family law parenting disputes. It is available for cases where there are serious allegations of physical or sexual abuse of children. The program involves a more inquisitorial approach than used in traditional family court proceedings and the judge has a great deal of control over the way the case progresses through the court system and the information that will be gathered and presented to the court. For example, the judge can order the appointment of an independent child’s lawyer at the outset of the case and can actively seek information relevant to making a determination in the best interests of the child from State and Territory agencies.

 Collaborative law [8.485]  Collaborative law is a process involving specially trained lawyers, who agree to sup-

port disputing parties to negotiate a settlement, rather than going to court. The process has become quite popular, but is not without its critics. The process and some criticisms of it, are explored in the extracts below. [8.485]  521

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This section commences with a history of the development of collaborative law and some of the potential advantages of this model of FDR.

Evaluating Collaborative Law in the Australian Context [8.490]  H Kha, “Evaluating Collaborative Law in the Australian Context” (2015) 26 Australasian Journal of Dispute Resolution 178, pp 178-​181. Background ADR has existed in Australia since the 1980s. Anne Ardagh and Guy Cumes have identified that the evolution of Australian ADR can be divided into three distinct stages. The first stage was its nascent period in the 1980s and early 1990s. The second stage was its growth period in the 1990s and early 2000s. During this period, the legal community was open towards law reform and the process of adapting non-​legal processes to resolve disputes. The third stage can be described as the post-​ADR period running since the 2000s to now, whereby ADR is an institutionalised and normalised part of conflict resolution. In the present stage, ADR has expanded to include the relatively new area of collaborative law in Australia. In 1990, collaborative law was created by Stuart Webb, an American family lawyer from Minnesota. In 2005, collaborative law was introduced to Australia when Justice Robert Benjamin invited Webb to train and educate Australian lawyers in the practice of collaborative law. In 2006, the Family Law Act 1975 (Cth) was amended to make the ADR process [179] compulsory in cases that involved children. Collaborative law in Australia has been driven by legal practitioners rather than by clients, and has grown considerably. There is scant research on collaborative law in Australia, particularly empirical research, but there has been some theoretical and practical research. The 2006 Family Law Council report to the Attorney-​ General provides a comprehensive description of the theory and practice of Australian collaborative law, with some insight on the Commonwealth government’s position. Anne Ardagh has produced considerable literature on the operation of collaborative law in Australia, most notably an empirical research project on the theory and practice of collaborative law in the Australian Capital Territory (ACT). Marilyn Scott has analysed Australian collaborative law in its theoretical context with therapeutic jurisprudence in mind. She is concerned with the evaluation of negotiation theory and practice, collaborative law as a self-​determination model for clients, and the rise of the “new advocacy” of lawyers. Lisa Di Marco presents the most favourable account of collaborative law or “therapeutic divorce”. Her major research concern is synthesising Australian collaborative family law practice and theory in the ideological framework of therapeutic justice. Her positive findings of collaborative law are not primarily reliant on qualitative evidence, but on demonstrating how the theory of collaborative law fits within the discourse of therapeutic justice. Di Marco argues collaborative law promotes self-​determination, and encourages a less litigious and more harmonious divorce process. Is Collaborative Law and Innovative and Effective Method of ADR in Australian Family Law? The advent of collaborative law in Australia was given a largely positive reception by the legal community, and is now accepted as a legitimate form of ADR, where it is currently in the process of development and adaptation amongst legal practitioners. The Family Law Council’s report recommends developing and disseminating information about collaborative practice. The report also advocates the introduction of national guidelines for collaborative law. Moreover, it recommends amendments to the Family Law Act to enforce the confidentiality of collaborative law meetings (similar to ss 10H and 10J), and to recognise the collaborative law process as a form of ADR in considering whether to grant a s 60I certificate. This has yet to be implemented, and appears to be the next step for the development of collaborative practice in Australia. Although collaborative law has generated mixed results, there are various noteworthy advantages. If the process is successful, collaborative law can be faster, less costly, and it can empower parties to make decisions about the future. Di Marco argues that collaborative law can generate creative solutions that otherwise would not be possible in court and provides self-​determination for parties involved, which is particularly important for Indigenous Australians. The underlying rationale behind 522 [8.490]

Dispute Resolution in Family Law  Chapter  8

Evaluating Collaborative Law in the Australian Context cont. this argument is therapeutic jurisprudence. Indeed, collaborative law shifts the dispute resolution process away from the adversarial system of lawyers and towards a greater self-​determined [180] process for clients. Clients are encouraged to make realistic offers, and they feel a sense of empowerment by exercising a degree of control in the process. For lawyers, it is a significantly less stressful process, where the number of “litigations” is reduced. There are three defining features of collaborative law. The first is the collaborative contract, including a disqualification clause that prohibits parties from litigating or threatening to litigate during the collaborative process. The parties agree that their lawyer will not represent them in court if the collaborative process fails. The motivation behind the disqualification clause is to strongly encourage the parties to resolve their issues outside of court, and to get rid of the acrimony associated with protracted family disputes. Moreover, parties agree to negotiate in good faith and participate with integrity. This means the parties are expected to make full disclosure and to respectfully communicate –​this is to discourage parties from engaging in a “fishing expedition” for information. The lawyers are expected to respect client confidentiality throughout the entire collaborative proceedings. The parties also agree to focus on making a resolution that factors in the future wellbeing of themselves and the best interests of the child. According to Pauline Tesler, anecdotal evidence from American collaborative lawyers “report significant improvement in the quality of professional life”. This is largely due to the non-​litigious nature of the collaborative contract. In Australia, the experience has been mixed. Catherine Gale, former President of the Law Council of Australia, provides positive anecdotal accounts of collaborative law that are congruent with the experience expressed in Tesler’s anecdotal American accounts. However, the empirical evidence from the ACT suggests otherwise. Ardagh states that “collaborative law has complicated lawyering in the ACT to the extent that … few cases are being commenced”. The second defining feature is the four-​way meeting, comprised of the two opposing parties and their respective lawyers. The Family Law Council’s report identified three main advantages to the four-​ way meeting process. First, it avoids the arm’s length bargaining dynamic of adversarial negotiations. Second, it creates a co-​operative environment. Third, it encourages parties to produce both legal and fair outcomes. Macfarlane states that collaborative family law “offers a chance for separating spouses to negotiate durable, realistic and creative outcomes that they deem ‘fair’ ”. The four-​way meeting provides an opportunity for disputing parties to work co-​operatively and gives clients a sense of self-​determination. The third defining feature is the philosophy of interest-​based negotiations as the basis of the collaborative process, rather than positional bargaining. This is derived from the negotiation theory in Getting to Yes. Rather than the typical expectation of each party defining their positions as commonly seen in the court process, parties are instead expected to define and identify their interests. By doing so, the parties seek a resolution by using an objective criteria. This is the most effective and innovative feature of the collaborative process. Di Marco notes that this “paradigm shift” towards ADR and the focus on parties’ interests and needs fosters mutually satisfying creative solutions. From the perspective of therapeutic jurisprudence, an interest-​based solution creates a culture of co-​operation rather than combativeness, creativity rather than rigidity, and objectivity rather than [181] subjectivity. From a practical perspective, an interest-​based negotiation fosters a more positive ADR environment and encourages creativity and innovation. According to Ardagh’s interviews of collaborative lawyers in the ACT, all interviewed lawyers strongly supported the interest-​based model and expressed their dislike of the traditional adversarial court process found in family law. In particular, practitioners experienced “added value” to their provision of client service and the ability to do things that would have been impossible to do in court. Although the interest-​based model of collaborative law demonstrates innovation, there are significant problems associated with the disqualification clause and the four-​way meeting. This has marred the overall creativity of collaborative law as a method of family dispute resolution.

 [8.490]  523

Dispute Resolution in Australia: Cases, Commentary and Materials

[8.495]  In 2011, the Law Council of Australia published Practice Guidelines for lawyers

engaged in collaborative practice. The following extract includes a description of a collaborative process and when the guidelines apply.

Australian Collaborative Practice Guidelines [8.500]  Law Council of Australia, Australian Collaborative Practice Guidelines for Lawyers (2011) pp  4-​5. 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.

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.

5.

The collaborative process: (a) assists the participants to define and clarify the issues under consideration; (b) is conducted through a series of face to face discussions with the participants and, where appropriate, other professionals; (c) assists participants to communicate and exchange relevant information; (d) invites the clarification of issues in dispute to increase the range of options to assist resolution; (e) provides opportunities for understanding of the perspectives brought to the table; (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.

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Australian Collaborative Practice Guidelines cont. 9.

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.

10.

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.

11.

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 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.

 Collaborative Practice in Family Law Matters with Coercive Control-​type Family Violence [8.505]  All collaborative law incorporates lawyer-​led negotiations, however there is no single model of collaborative practice. In the extract at [8.510] the authors describe different practice models utilised in collaborative processes. The article then moves on to assess whether collaborative law may offer a suitable process of FDR to address family violence.

Collaborative Practice in Family Law Matters With Coercive Control-​type Family Violence: Preliminary Thoughts From the Practitioner Coalface [8.510]  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(13) Family Law Review 1, p 3. Different Models of Collaborative Practice When the client has decided to engage in collaborative practice, he/​she will meet with their lawyer to prepare for the first meeting with the other party. This usually involves the lawyer explaining to the client the process involved and an in-​depth discussion of the client’s interests and objectives. Discussions might also ensue at this stage, or in consult with the other party’s lawyer prior to the commencement of the collaboration, about what professionals –​if any –​to add to the process. There are theoretically three approaches: a lawyer-​only model, a lawyer referral model and a team model. [8.510]  525

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Collaborative Practice in Family Law Matters With Coercive Control-​type Family Violence: Preliminary Thoughts From the Practitioner Coalface cont. The lawyer-​only model involves clients and their lawyers meeting in a series of four-​way meetings to try to reach a resolution. Any other professionals, such as accountants and mental health providers, are involved only as experts or consultants. The next two models are multidisciplinary and include lawyers and other jointly-​retained neutral professionals. With the lawyer referral model, the lawyer refers his/​her client to additional professionals such as a financial consultant or accountant or mental health professional to assist as necessary at any stage of the process. The strict team model comprises an interdisciplinary group of professionals appointed at the outset of the matter by the parties. They include the two legal professionals, a neutral financial specialist, two mental health coaches (each spouse selects her or his own coach), and a specialist who advocates for the child(ren). The engagement of allied practitioners can provide significant benefit to clients and lawyers within the process and, if necessary, separate meetings with other professionals can explore further issues or concerns the client/​s may have: [L]‌awyers … can concentrate on skills such as problem solving, communication and negotiation, whilst the other professionals look after the client’s emotional, financial and social needs. In Canberra (and throughout Australia), most collaborative practice lawyers tend to practise either the lawyer only model of collaborative practice or, from the survey responses, it seems that most use a referral model. There is mutability as it is not known at the outset whether or not the collaborative practice will be multidisciplinary. Generally, the practice in Canberra is to agree to the collaborative process, determine between the lawyers at the beginning whether there is any obvious need for third party involvement at the first four-​way meeting, and, if not, identify any need for other professionals at the first or subsequent meetings. It might be evident before the first meeting that one or both parties are going to need additional help, such as a mental health support person or coach. This could be discussed with the other lawyer to determine how such a professional could be involved. It may then also become obvious at the initial session, or at subsequent sessions, that some financial or child expert advice is required.

 [8.515]  As the extract at [8.500] suggests, collaborative law involves lawyers and their cli-

ents engaged in interest-​based negotiation. This could pose problems for families with a background of violence and where imbalances of power could suggest unequal negotiating power. In the following extract the authors caution against the assumption that mediation might be the only non-​court option in those situations.

Why Look at Collaborative Practice for Victims of Family Violence [8.520]  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(13) Family Law Review 1, pp 4-​5. Why Look at Collaborative Practice for Victims of Family Violence: Coercive Violence Matters: When and Why Mediation Might Not Be Appropriate. Screening and risk assessment are crucial to identifying specific patterns of control and any psychological and financial impacts of violence. Such assessment must be ongoing to ensure the continual safety of the victim and the family because the dynamics of the relationship or violence may change after separation, possibly increasing in severity. Alcohol and substance abuse, psychological problems, 526 [8.515]

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Why Look at Collaborative Practice for Victims of Family Violence cont. and prior arrests of a victim’s ex-​partner are commonly listed as risk factors in family law matters. These indicators should be considered along with other factors such as past assaults, threats, access to weapons, jealousy or preoccupation with the ex-​partner, and stalking behaviours. The presence of multiple indicators could signal difficult and high-​risk cases, and indicate that measures of protection are needed for the victim and their children. If violence is identified with screening, does that mean that family dispute resolution (FDR) is necessarily inappropriate? In theory, not always. Mediation involves the parties talking about their own perspectives, needs and interests in order to come together to form an agreement on what is supposed to be a level playing field. The mediator acts as the neutral third party and has the power to determine how the matter will be handled and how the parties are best protected during the process. Victims are theoretically empowered because of the primary principle of self-​determination, where parties have the ability to advocate their own resolution in the dispute, without being coerced or having a decision imposed upon them. In addition, mediation: can potentially save costs for parties who cannot afford litigation; has the capacity to preserve relationships between parents for the benefit of children; and has the potential to take into account emotional issues and interests, as opposed to only legal rights and principles. [5]‌For mediation to be effective, however, each person is required to: listen to and understand the other party; communicate effectively; obtain relevant information and advice; absorb new information and advice; put forward proposals and options; and represent their own interests. Often, an impact of coercive control is the diminishment of self-​confidence and, in some cases, victims experience cognitive, emotional and behavioural effects that could impact on their ability to advocate for themselves and obstruct the mediation process. Victims may lose their ability to respond to their partner or ex-​partner effectively and display an essentially passive reaction. They may be in a position of appeasing a violent partner or making compromises to their own safety and well-​being to facilitate a relationship between a perpetrator of violence and the children. Further, participants may not believe they are entitled to a fair deal and might negotiate for what they think they are able to get rather than an outcome which is just or equitable, or which protects them. In such contexts, a perpetrator might still be able to coerce, intimidate, threaten, and deny the victim’s interests. Accordingly, it is argued that FDR could be unsuitable for relationships involving power imbalances when those dynamics are recreated during the dispute process, as power imbalances can serve to undermine self-​determination. There are also other issues in relation to communication in mediation. There may be gender differences that disadvantage females; and these are likely exacerbated when there has been violence. Women, and especially those who have been victims of violence, have been observed to use language associated with powerlessness, speaking in hesitant, indirect and self-​effacing language. Further, women have been identified as soft negotiators with a style more likely to be collaborative and conciliatory. In comparison, it has been suggested that men are generally more competitive and confrontational in their interaction style during negotiations and more likely to interrupt and control the conversational topic. There are also findings that males tend to maximise their interests while females focus their concern on relationships as opposed to their own personal rewards. In theory, mediators neutralise these power imbalances associated with gender and violence. In practice, however, it is dangerous to assume that they are always able to redress these issues satisfactorily. There is evidence that often victims of family violence are not aware that their experiences are not normal, and some perpetrators may be manipulative and highly skilled at presenting positive public images of self. As such, in the absence of information about the history of the relationship, through inappropriate or lack of screening implementation, coupled with their role of impartiality, mediators may fail to detect trigger words or actions and be unable to manage the presence of controlling violence in the mediation process. Indeed, a mediator may find it difficult to adequately protect the disadvantaged party when there is a conflict between the mediator’s commitment to help all parties and a desire to ensure that all can satisfy their interests fairly and effectively. Thus, one respondent in [8.520]  527

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Why Look at Collaborative Practice for Victims of Family Violence cont. the current sample expressed a concern that victims might be alone with their abuser with someone who is attempting to maintain impartiality, when impartiality is not appropriate.

 [8.525]  The authors go on to explain some of the shortfalls of court-​based resolution for

victims of family violence, highlighting in particular the evidentiary burden of proving family violence and the distress associated with giving evidence about family violence in court. Interestingly, after highlighting the importance of screening for family violence, collaborative lawyers in the authors’ study acknowledged that they did not use formal screening tools to detect violence, but relied on their own informal assessment processes. Participants described some of the benefits they felt that collaborative law could offer families with a history of coercive control.

Collaborative Practice in Family Law Matters With Coercive Control-​type Family Violence: Preliminary Thoughts From the Practitioner Coalface [8.530]  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(13) Family Law Review 1, pp 7-​9. A Question of Suitability: Lawyers and Clients Decide As mentioned above, the first meeting between lawyer and client generally involves a dialogue to educate the client about the separation process, dispute resolution and collaborative law, specifically. At that time, practitioners can make additional referrals for clients to assist the clients to determine whether collaborative practice is suitable for them. Collaborative lawyers also make judgments about whether or not, or how, to undertake collaborative practice, and this is often based on information either directly or indirectly acquired in that first meeting with a client. As one respondent stated: It requires a robust conversation with [8]‌the client about their real options. Another noted: If there is violence, [clients] need to understand how the process works, be able to compare it to the court process or other processes available, and make an informed decision to proceed. Further, if there is a solicitor acting for the other party, the victim’s lawyer can ask them whether they think it’s suitable having heard the other party’s story. The client may express the view that collaborative practice is possible, however: [I]‌t is important to have a realistic view about the capacity of the clients to negotiate … For example, some women want to be able to negotiate but with the profile of the other party and the history, an experienced lawyer will know that isn’t going to happen … The impact that the outcome of the screening assessment has on the way that the collaboration is run may differ depending on the issues that need to be addressed. For example, if the matter is a purely financial negotiation and there has been violence in the relationship, it may be that the lawyers take note of this, and understand that there may be a power imbalance that they will have to deal with, but proceed without directly addressing the issue in the collaboration. Alternatively, if the case involves parenting matters, the violence would likely be something that would need to be specifically addressed within the collaboration. These decisions are affected not by whether there was any coercive control-​type of violence in itself, but on its potential effects in the particular matter. For instance, one practitioner believed that it was not just the history but whether the client is able to make decisions with the assistance of legal advice, or if the client: 528 [8.525]

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Collaborative Practice in Family Law Matters With Coercive Control-​type Family Violence: Preliminary Thoughts From the Practitioner Coalface cont. [cannot] cope with the presence of the other party … [or has] some mental health issues that may preclude an equal footing in a four-​way conference. Indeed, the bottom line is the client’s ability to be on a level playing field, their well-​being, and their ability to be in the same room as the perpetrator: The most important issue is whether the client is capable of handling a collaborative process once you fully explain to them about the prospect of meeting directly with the other spouse, etc. Secondly, you should always ensure that the client has received the support they need. Often, the question is their readiness and the contrition of the other spouse. Certainly in making decisions about collaborative practice, as this study has seen, a primary consideration is the clients’ ability to work together. A history of family violence may make that so problematic and irreparable, even with collaborative practice lawyers and other professionals, that collaboration is inappropriate. One lawyer in the current study felt that collaborative practice was an option in these circumstances if the violence and/​or the dynamics of coercion and control [is] acknowledged by the perpetrator. Another agreed, and would assess how much insight the client had into the effect of their behaviour and how the other person might feel. Further, the parties and lawyers need to ascertain if there is sufficient trust. A lack of trust between separating partners could be an issue in collaborative practice, as the parties are required to form a mutually acceptable agreement through a cooperative process. If the client was totally mistrusting of the spouse, or wanting to hide information from them, or want[ing] to teach them a lesson, or something else, I would probably not recommend [collaborative practice]. Ultimately, we are trying to get a win/​win situation, but if the client just wants to pay the other back, they are not entering into the [collaborative practice] with the right mind set and it probably won’t work. If the playing field can be levelled and the legacy of coercive control acknowledged, then with appropriate safeguards and with the client fully understanding collaborative practice could in fact be a good option: The test I think is whether Collaboration is better to the alternative, which is lawyer-​lead negotiation, or court, and the answer, is yes. I’ve had cases involving serious family violence in litigation and it was an entirely horrible experience for my [9]‌client (the victim). Courts and the adversarial process are not designed to help victims and give them the support they need nor have any rehabilitative effect on perpetrators. As a general rule victims of violence do not make good witnesses.

 [8.535]  The authors go on to analyse some of the potential benefits of collaborative law

in dealing with coercive control, arguing that the ability to “morph the process”, including through the participation of third-​party specialists such as financial advisers or psychologists. They also argue that collaborative law can empower clients and provide them with a voice; could balance the power between the parties through the provision of legal advice and support; and was likely to achieve better outcomes than court. However, collaborative law is not universally admired. Critics most often cite the requirement for the lawyers to withdraw and be disqualified from representing the clients in court if they cannot reach an agreement as the most ethically concerning feature of the process. In the following article, Bobette Wolski extrapolates some of these concerns. [8.535]  529

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Collaborative Law: An (un)Ethical Process for Lawyers? [8.540]  B Wolski, “Collaborative Law: An (un)Ethical Process for Lawyers?” (2017) 20(2) Legal Ethics 224, pp 232-​239. CL is creation of contract. Over time, different contractual arrangements have emerged: (1)

The process might be put in place by a Four-​Way PA, that is, one which stipulates that the clients and their lawyers are all parties to the agreement. Some, but not all, Four-​Way Agreements include mandatory lawyer withdrawal language in which case, this may be the only document signed by the parties and their lawyers.

(2)

Sometimes the disqualification provision is found in two separate Limited Retention Agreements which are signed by each lawyer–​client pair, in addition to a Four-​Way Agreement.

(3)

The PA may be a two-​way agreement in which only the clients are designated as “parties”. The lawyers may also sign the agreement but only to indicate that they represent the clients. Each lawyer–​client pair also signs a Limited Retention Agreement. Peppet claims that most Four-​Way PAs (used in the first and second variations listed above) do not deal clearly with the question of privity of contract, that is, they are silent as to whether privity of contract is intended only between the clients, or also between the two lawyers and between each lawyer and the client on the other side. There is a possibility that the Four-​Way Agreement will bring each lawyer into privity of contract with the opposing client. At the time that Peppet made this observation, there had been at least six State Ethics Committee rulings in the US, as well as a Formal Opinion issued by the American Bar Association Standing Committee on Ethics and Professionalism, in relation to CL agreements. The only opinion which held the CL arrangement to be “unethical” in the sense of infringing the applicable Rules of Professional Conduct was the one issued by the Colorado Bar Association’s Ethics Committee66 which assumed that each lawyer was in privity with the opposing client. Such an arrangement –​ which might eventuate in the first and second instances mentioned above, was held to impair the lawyer’s ability to represent his or her own client, that is, it creates a formal conflict of interest. There have been additional state ethics committee rulings issued since Peppet wrote of this matter in 2008. The overwhelming view from the ethics committees in the US and also from leading academics is that, in order for CL to comply with the ethics rules, it is necessary for the lawyer–​client pairs to first execute a separate written Limited Retention Agreement and it is best practice to limit the PA to a “two-​way” agreement, rather than a four-​way agreement, signed by the clients as parties to the agreement with the lawyers playing only a witnessing or affirming role. This means in effect that the third contractual arrangement mentioned above is preferable. At present, this advice has not trickled down to all CL groups. Some CL groups are still using Four-​Way PAs in which the lawyers, as well [234] as the clients, are clearly designated as “parties” to the agreement. Also, some CL groups use Four-​Way PAs which do not make clear whether or not the lawyers are intended to be parties to the Agreement.

Aside from the issue of contractual uncertainty, what is clear from the discussions of the US ethics committees is that some CL arrangements create a conflict of interest between a lawyer and his or her client. This possibility is discussed further below. B. Potential for conflict of interest Broadly speaking, a lawyer has two primary roles to play in our system of justice. These are: (1)

The lawyer’s role as an officer of the court, a role which is derived from the duties owed to the administration of justice.

(2)

The lawyer’s role as an advocate for his or her client, a role which is derived from the duties owed to clients. This role is only limited by the lawyer’s role as an officer of the court. If there is a conflict between the duties owed to a client and those owed to the administration of justice, the latter must prevail.

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Collaborative Law: An (un)Ethical Process for Lawyers? cont. While lawyers owe general duties of fairness and honesty to all persons with whom they deal in the course of legal practice, including “opponents”, they have no specific role to play with respect to third parties unless legislation such as the Family Law Act 1975 (Cth) in Australia creates such a role. In the absence of such legislation, if there is a conflict [235] between the duties owed to a client and the duties owed to a third party, those owed to the client should take precedence. The crux of the problem with (some) CL arrangements and in particular with those that create contractual privity between a legal representative for a party and the opposing client is that they seek to put the interests of the “other party” before, or at least on a par with, the interests of the lawyer’s own client. There arises at least the possibility of a conflict between the interests of one’s own client and those of the opposing party. Put another way, there is concern about the collaborative lawyer’s ability to work within the CL framework and still serve as an advocate for the client’s interests, as he or she should do under current ethical rules. A specific example serves to illustrate the new tensions and conflicts which may confront the CL lawyer. Under most CL PAs, the parties promise to make full and open disclosure of relevant information to each other. If a client raises “relevant” information with his or her lawyer in private, is the lawyer under a contractual obligation to disclose the information at a four-​way meeting if the lawyer is also a party to the PA? Under the existing professional practice rules, the lawyer is bound by a duty of confidence owed to his or her client and should not reveal the information. Under the terms of the PA, the lawyer and the client are obliged to disclose relevant information to the other side. The lawyer would seem to be subject to conflicting duties and values, the values of client loyalty and confidentiality enshrined in the professional conduct rules and the common law, as opposed to the duty to comply with specific contractual obligations created by the PA. The lawyer could terminate the process but what reason would he or she give to the other side for doing so without raising the other party’s suspicion? Even if the lawyer has not signed a PA, he or she may nonetheless feel a sense of loyalty to the process, the lawyer on the other side and the CL unit of which the lawyer is a member. There are no specific ethical guidelines for CL contained in existing professional conduct rules for lawyers There has been discussion in the literature about whether new rules should be developed for CL practice. For instance, Fairman says that we may be able to “shoehorn the process of CL into traditional lawyer ethical codes”, but he argues that it is an unsatisfactory way to proceed. We should not, he maintains, “put old ethical hats on new heads”. Lande takes the view that new rules are not needed. Whatever one’s view on this issue, one of the most controversial questions arising from CL practice is the question of whether or not the collaborative lawyer is still an advocate [236] for his or her client. There has been some debate about the “appropriate” ethical orientation of a collaborative lawyer. While Isaacs claims that the role of a collaborative lawyer is “not solely adversarial”,84 there is no agreement on how “non-​adversarial” a collaborative lawyer should be. Lawrence attempts to distinguish the orientation of traditional lawyers, lawyer mediators and collaborative lawyers as follows: (1)

The “traditional advocate is committed first and foremost to the interests of the individual: the client”.

(2)

Lawyers who serve as mediators are not advocates at all since they are not retained to advance the interest of a particular individual; rather they are retained to mediate a dispute.

(3)

The ethical orientation of the collaborative lawyer lies in between the divergent responsibilities of the advocate and mediator.

In the context of CL, Lawrence claims that an individual client is no longer the lawyer’s sole concern in the traditional sense. The duties of competence and diligence for the collaborative lawyer are similar to those of a neutral dispute resolution facilitator. Although the collaborative lawyer is not actually a neutral, his responsibilities shift away from those associated with “pure” advocacy and towards the creative, flexible representation that characterises neutrality.

[8.540]  531

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Collaborative Law: An (un)Ethical Process for Lawyers? cont. Beckwith and Slovin strongly disagree with the view expressed by Lawrence and they disagree (although not so strongly) that we need new ethical hats. They argue that the collaborative lawyer does not function as a neutral (ie like a mediator), and that separate ethical rules for CL are not necessary. “The collaborative lawyer is, in every sense, an advocate. The ethical considerations applicable to traditional lawyering apply to collaborative lawyering equally, without need for alteration”. The CL format “does not diminish the zeal with which they [collaborative lawyers] represent their client’s interests”. The lawyer-​advocate’s conduct in collaborative law is unlikely to differ significantly from that of the lawyer advocate in mediation. She continues to guard her client’s interest above all else. Her commitment is to her client and, by agreement, to the process. He or she does not represent the interests of the other party, but rather, the interests of his or her client, which might be best served by resolving the case without a court outcome. “The collaborative lawyer has not taken off his advocacy hat or donned the hat of neutrality”. What the collaborative lawyer foregoes is the positioning, posturing and puffing that many lawyers associate with effective advocacy. It seems likely that the debate over the appropriate ethical orientation of the CL lawyer will continue. There [237] are at least three additional concerns about the ethical aspects of CL. These are discussed next. C. Potential for coercion by one client of the other client Most parties in dispute are subject to some pressure to settle. In CL, there are two additional sources of potential pressure –​even coercion –​to reach an agreement, possibly on terms that clients regard as unsatisfactory. The first source of coercion is, not unexpectedly, the other party to the dispute. However, because of the unique features of CL, and in particular, the lawyer disqualification provision, the parties are given an additional tool or device which might be used to brow-​beat “their opponent”. CL is a process which can be unilaterally terminated. One client may deliberately and strategically force a process termination for the sole purpose of triggering the automatic disqualification provision so that both parties will need to engage new lawyers. Simmons states that: CL clients are in a unique position of power, since withdrawing from the CL process means that both parties must retain new counsel. This reciprocation effectively allows one party to fire the other party’s lawyer. Manipulative clients can use this ability to remove an opponent’s counsel strategically, at a critical time of negotiation. While a forced termination by a manipulative client may not be perceived as the “unethical” actions of the client’s lawyer, lawyers must bear some responsibility for encouraging clients to act in the CL process in good faith and they should be aware of the possibility of clients acting contrary to the spirit of the CL agreement. The second source of potential pressure on a client to settle in CL is the client’s own lawyer. This is discussed next. D. Potential for coercion by lawyers of their own client Given the potential for conflict between a lawyer’s interests and those of his or her own client, there arises a danger that the CL lawyer might coerce his or her own client into settlement. (There is potential for coercion in all lawyer–​client relationships but the stakes are higher in CL. As Simmons notes, “[a]‌ll litigation has a corresponding pressure to settle, but the coercive impact of the DA [Disqualification Agreement] creates an unbridled risk”). If a settlement is not reached in CL, the collaborative lawyers are disqualified and each loses a client. In order to avoid having the process fail, a collaborative lawyer might exert undue pressure on a client to settle and he or she might recommend terms of settlement that do not truly represent the best interests of the client. Tesler, who is one of the staunchest proponents for CL, suggests that the ability of lawyers to withdraw from the [238] process gives them “more clout” over their client than say that exercisable by a mediator. 532 [8.540]

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Collaborative Law: An (un)Ethical Process for Lawyers? cont. In other words, lawyers in CL carry a bigger stick with which to wave over clients than mediators do in mediation. The collaborative lawyer may no longer be fully representing the interests of the client but rather he or she may become an advocate for settlement as a matter of self-​interest (eg lawyers may be motivated by the perceived need to enhance their reputation for achieving “successful outcomes” or they may be motivated by the perceived or real need to achieve a quick turnaround on payment of fees). The possibility of lawyers acting out of self-​interest exists regardless of the contractual arrangements supporting the CL process, that is, regardless of whether it is supported by a client-​only two-​way agreement or a four-​way agreement between the clients and the lawyers. Not only might legal representatives in CL put their own interests before those of their client, there is concern that they might put the interests of opposing counsel ahead of the interests of their own clients. Roberson found that there are “varying attitudes amongst collaborative law practitioners about precisely whom they serve”. Some lawyers see their primary relationship to be with the lawyer on the other side, rather than with their client. One becomes a Collaborative lawyer by completing stipulated training and by joining a CL group. There is some research that suggests that CL groups are so tight-​knit that some clients have reported feeling uncomfortable with the apparent friendliness of opposing lawyers. E. Lack of informed consent by clients Lawyers are permitted to enter into “limited purpose retainers”, provided the client gives informed consent. The lawyer must explain the limitations of his or her representation, the material risks involved, and the probable impact of the limitation on the client’s rights and interests. Lawyers are also permitted to withdraw from a representation if they can do so “without material adverse effect on interests of the client”. The point of concern is that clients may not fully understand what is at stake in CL if the process is terminated. A collaborative lawyer should discuss CL with his or her client as one of the many dispute resolution options available to them. If the client is interested, the practitioner can contact the “other party” and suggest CL and invite that party to contact a practitioner from a CL group. One of the ethical issues in CL concerns the level of informed consent required on the part of clients in order to properly choose the process. The contractual [239] framework (and its complexities) supporting CL was discussed above. It is not an easy matter to explain these structures to clients. But clients must be apprised of the lawyer’s stake in the outcome of the CL process. They must be apprised of the nature of the lawyer’s relationship with the “opposing” lawyer and the “opposing” client. Further, clients must understand what they stand to gain, and also what they stand to lose, if the dispute is not resolved through the CL process. In particular, they must understand that if an agreement is not reached, they will effectively have to start from scratch and pay for another lawyer to take over the case. They may also have to pay for new experts, should they be needed. This is not an easy situation for a client to come to grips with. There is likely to be a mismatch between the client’s expectations of the lawyer and the lawyer’s role in CL. Most clients would expect their lawyer to do everything necessary to bring the matter to an end and to continue to act until such time as the matter with regard to which instructions were given is completed. Clients do not expect their lawyers to take on a limited function or to disqualify themselves part way through. CL commits the parties and their lawyers to use of a very strict regime of four-​way meetings. This is a relatively uniform process over which the lawyers have absolute control and like all lawyer-​to-​ lawyer negotiations, the process can be highly ritualised. It is so ritualised that many clients apparently express frustration at the length of time it takes to get to substantive issues. They are also perturbed at the duplication of legal fees if settlement is not reached. In CL, there is real potential for the parties to be trapped –​to be committed to settle “out of necessity”. When a client has sunk as much as $24,000 (US) in professional fees into the process and devoted some nine months to negotiation, it can be hard to call the process a “failure” and to begin [8.540]  533

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Collaborative Law: An (un)Ethical Process for Lawyers? cont. afresh with litigation with a new lawyer. Even if not pressed (or pressured) by one’s own lawyer, the coercion is ever-​present in CL “as clients place on themselves significant pressure to settle. Because of the significant financial burden and added time required to hire new counsel if the CL process fails, parties may agree to settlement terms that would otherwise be considered unacceptable”.

 [8.545]  A number of commentators have expressed concern about the process of collabora-

tive law, particularly that it may be largely a marketing exercise by lawyers whose monopoly on dispute resolution services has been threatened by the developments in FDR. Child Responsive Program [8.550] The Family Court runs the Child Responsive Program for people who are unable

to settle their parenting dispute. The program involves a family consultant and includes the children directly in the process, in order to ensure that their parents understand the children’s needs and experiences of their conflict. The process of the Child Responsive Program is set out in the Family Court Information Brochure below.

The Child Responsive Program [8.555]  Family Court of Australia, The Child Responsive Program, Information Brochure. What is the Child Responsive Program? The Child Responsive Program involves a series of meetings between a family consultant, the parents (or other carers), and the children. The meetings focus on the childrens needs and the aim is to assist parents and the Court to achieve the best outcomes for the children. What is said and any admissions made at all the meetings is admissible in any Court proceedings under the Family Law Act 1975. The family consultant cannot keep private or confidential any information and will report to the Court about the meetings. Why is there a Child Responsive Program? Most parents who come to the Family Court have been unable to agree on decisions about their children. This Program is specifically designed to help parents focus on their children and work together for the benefit of their children. Research has shown that involving children in appropriate ways can help parents to better understand how family separation and family changes impact on their children. By involving children early in the Child Responsive Program, parents are assisted to understand their children’s needs and experiences of the separation and consider the best future arrangements for their children. When parents cannot agree on the best arrangements for their children, the case will proceed to a Less Adversarial Trial (LAT) and the same family consultant will assist the Court with expert opinion and evidence about the children and the family. If you would like to know more about LAT proceedings, please refer to the information brochure on LAT. What is a Family Consultant? A family consultant is either a social worker or psychologist with many years of experience in working with children and families. Family consultants are officers of the Court employed by the Family Court to help parents and judges to achieve the best possible outcomes for children. Communications and meetings with family consultants are not confidential and may be admissible in future court proceedings. 534 [8.545]

Dispute Resolution in Family Law  Chapter  8

The Child Responsive Program cont. What are the steps in the Child Responsive Program? 1.

Intake and Assessment Meeting (for parents/​carers only) The family consultant meets separately with each parent to find out about the child/​ren, any difficulties with parenting arrangements and any risk issues. Before these meetings, parents may separately view a DVD to help them understand how children experience separation. You are welcome to bring a support person for your own comfort, but they will not usually be interviewed. Other significant people, such as a new partner or grandparents, are also not usually interviewed.

2.

Child and Family Meeting (for parents/​carers and children) Child and Family Meetings usually start with the family consultant meeting briefly with the parents and then spending some time with the children, both individually and together if there is more than one child. Children are given an opportunity to talk about their feelings and experiences of their family and what it is like for them now that their parents are not living together. The family consultant then provides feedback to the parents about the children’s experiences and views and gives the parents an opportunity to discuss future arrangements for their children.

3.

Children and Parents Issues Assessment A Children and Parents Issues Assessment is prepared by the family consultant following the Child and Family Meeting. The written assessment will provide a summary of the main issues identified in relation to the children and parents, the feedback provided to the parents about the children and the subsequent discussions. The Children and Parents Issues Assessment will be made available to the parents, the legal representatives and the Court.

4.

Selective Settlement Meeting (Parents and Legal Representatives) After the Child and Family Meeting, the family consultant and the parents may consider that a Settlement Meeting with the family consultant, the parents and their legal representatives, would assist in resolving the arrangements for the children. If this is agreed, the family consultant will convene a Settlement Meeting and provide an opportunity for discussion about the best outcomes for the children. The family consultant will provide a Children and Parents Issues Assessment at the time of the Settlement Meeting. When the family consultant does not consider that a Settlement Meeting would assist in resolving arrangements that would be in the best interests of the children, the case will proceed to a LAT. A Children and Parents Issues Assessment will be provided to the parents, their legal representatives and the Judge before the trial commences.

5.

The Role of the Family Consultant on the First Day of the LAT On the first day of the LAT the family consultant will give evidence to the Court based on the Children and Parents Issues Assessment. This will include an assessment of the children’s needs and the most significant issues for the parents/​carers. The judge may then decide whether any further reports would be of assistance in determining what would be in the children’s best interests. Some reports focus on interim arrangements or specific issues and these are called Specific Issues Reports. Other reports assess all the family relationship dynamics and identified difficulties and these are called Family Assessment Reports. Further meetings with the parents, carers, significant other people in the children’s lives, as well as the children themselves, may be required for the preparation of these further reports. The Court may require the family consultant to have ongoing involvement with the family throughout the trial process to further assist the family and the Court to achieve the best possible outcomes for the children.

[8.555]  535

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The Child Responsive Program cont. 6.

Post-​orders Review and Referral Meetings (Parents/​Carers and/​or Children) In some situations, the judge who has heard the matter may order the parents and/​or children to meet with the family consultant at the conclusion of the trial to make sure everyone understands the orders that have been made and decide how the orders will be implemented. Parents and children may be referred to services in the community for further assistance at this meeting.

 [8.560] Questions

1.

What makes family conflicts so difficult to resolve?

2.

How does parental conflict impact on children? What factors lessen the impact of parental conflict on children?

3.

In what ways does the Family Law legislation encourage people to settle their family conflicts outside the court system?

4.

What kind of information does a lawyer have to provide to clients involved in family conflict?

5.

How are the needs of the children considered in FDR?

6.

How can FDRPs assess whether a parent has made a “genuine effort” in FDR?

7.

How can a lawyer best support his or her client in FDR?

8.

What are some of the main challenges with FDR?

9.

Explain how family violence impacts on FDR, and what steps can be taken to support families with a history of violence to resolve their disputes effectively and safely.

10. Describe the ethical concerns about collaborative law. Can collaborative law address imbalances of power between clients in family law disputes?   

536 [8.560]

CHAPTER 9

Dispute Resolution in the Workplace [9.05]

[9.40]

[9.70]

INTRODUCTION.........................................................................................................  538 [9.10] The cost of workplace conflict.....................................................................  538 [9.15] Conflict Management for Managers..................................................... 539 [9.20] The Role of Mediation in Resolving Workplace Relationship Conflict............. 540 [9.25] Relationship conflict in the workplace.........................................................  541 [9.30] The Role of Mediation in Resolving Workplace Relationship Conflict............. 542 RESPONSES TO WORKPLACE CONFLICT.....................................................................  543 [9.40] Power, rights and interests..........................................................................  543 [9.45] Conflict Management for Managers..................................................... 543 [9.55] Developing Conflict Resilient Workplaces............................................... 543 [9.65] ADR in Work and Employment Disputes................................................ 544 INTERNAL CONFLICT MANAGEMENT/​RESOLUTION PROCESSES................................  547 [9.75] What Are the Features of a Good Dispute Resolution Process?.................... 547 [9.85] Negotiation.................................................................................................  539 [9.90] Open-​door policy........................................................................................  548 [9.95] Managing Workplace Conflict............................................................. 549 [9.100] Performance management..........................................................................  549 [9.105] Managing Workplace Behaviour.......................................................... 550 [9.110] Formal complaint/​grievance........................................................................  550 [9.115] Managing Workplace Behaviour.......................................................... 550 [9.125] Conflict coaching........................................................................................  552 [9.130]

Can Conflict Coaching Make a Difference to Conflict Outcomes in Hierarchical Organisational Structures................................................... 553

[9.135] Mediation...................................................................................................  555 [9.140] The Role of Mediation....................................................................... 555 [9.150] Managing Workplace Conflict: ADR in Australia...................................... 556 [9.155] Investigation/​fact-​finding............................................................................  556 [9.160] Internal or External Investigation......................................................... 557 [9.165] Conciliation/​arbitration...............................................................................  558 [9.170] The Role of Arbitration in Disputes Before the Fair Work Commission........... 558 [9.175] Dispute systems design/​integrated conflict management systems...............  560 [9.180] Conflict Management for Managers..................................................... 560 [9.190] Developing Conflict Resilient Workplaces............................................... 561 [9.195] Potential problems with internal conflict resolution.....................................  563 [9.200] [9.200] [9.215] [9.220]

The Structural Causes of Workplace Conflict: Understanding the Implications for the Mediation of Workplace Disputes............................... 563 (Alternative) Dispute Resolution and Workplace Bullying: Some Pros and Cons from the Coalface.......................................................... 563 The Rhetoric and Reality of Workplace ADR............................................ 570 Managing Neutrality and Impartiality in Workplace Conflict Resolution........ 571

[9.225] EXTERNAL WORKPLACE DISPUTE RESOLUTION PROCESSES........................................  573 [9.230] The Fair Work Commission..........................................................................  573 [9.235] How Can the Fair Work Commission Assist in Dispute Resolution?............... 573 [9.245] FWA, ss 576, 595............................................................................ 574 [9.255] ADR and Industrial Tribunals.............................................................. 575 [9.265] FWA’s Role in Resolving Unfair Dismissal Claims...................................... 576 [9.275] The Pre-​eminence of Conciliation......................................................... 576 [9.285] Workplace Conflict Resolution in Australia............................................. 577 [9.290] Telephone Conciliations..................................................................... 577 [9.300] New Conciliation Model for Unfair Dismissal Applications......................... 579  

537

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[9.305] Dispute resolution clauses required in awards and enterprise agreements...  580 [9.310] Effective Dispute Resolution Guide........................................................ 580 [9.320] Dispute Resolution Under Pt 6-​2 of the Fair Work Act............................... 581 [9.330] Recent Developments in Conciliation and Arbitration Under the FWA........... 583 [9.340] [9.350] [9.360] [9.370] [9.380]

“Promoting Cooperative and Productive Workplace Relations”: Exploring the Fair Work Commission’s New Role....................................... 584 “Promoting Cooperative and Productive Workplace Relations”: Exploring the Fair Work Commission’s New Role....................................... 586 “Promoting Cooperative and Productive Workplace Relations”: Exploring the Fair Work Commission’s New Role....................................... 589 Anti-​bullying Jurisdiction: Summary of the Case Management Model........... 590 Anti-​bullying Jurisdiction: Summary of the Case Management Model........... 591

[9.385] The Fair Work Ombudsman.........................................................................  592 [9.390] FWA, s 682..................................................................................... 593 [9.400] AUSTRALIAN HUMAN RIGHTS COMMISSION.............................................................  593 [9.405] Complaints Information.................................................................... 594 [9.410] About the Commission...................................................................... 594 [9.415] Australian Human Rights Commission Act 1986 (Cth), ss 11, 31, 46PF........ 595 [9.420] International Measures of Effective Conflict Resolution Systems.................. 596 [9.425] Questions....................................................................................................................  597

INTRODUCTION [9.05]  Dispute resolution in the workplace covers a range of conflicts, processes and regula-

tory frameworks. Broadly speaking, there are two main categories of conflicts affecting organisations: internal conflicts, between employees and between employees and management; and external conflicts, between the organisation and/​or its representatives and outsiders such as clients, customers, contractors or regulatory bodies. This chapter will focus on the first category, conflict within the workplace. Conflict is prevalent within workplaces, and recent research has demonstrated that managing conflict is a time-​consuming and costly exercise for organisations and their managers. The types of conflicts that might arise within an organisation include: conflicts between employees (based on differences in personality, work styles, goals, etc); conflicts between an employee and a manager about performance issues; and conflicts between groups of employees (perhaps represented by a union) and management about working conditions and pay. Particular types of workplace conflict might include issues of bullying and harassment, discrimination, and unfair dismissal, as well as more minor conflicts between employees around day-​to-​day workplace activities and personality differences. The chapter begins by outlining some of the features and impacts of workplace conflict and describes some of the most common ways of dealing with it. Next, particular features of the Australian approach to workplace conflict are outlined, with a number of authors commenting on the historical significance of the Constitution in this regard, as well as the impact of party politics on dispute resolution processes. The chapter concludes with examples from recent amendments to the Fair Work Act 2009 (Cth) (FWA) to demonstrate the increasing emphasis on conflict prevention and conflict management in the workplace and the way in which conciliation, mediation and arbitration are applied to conflicts managed by the Fair Work Commission. The cost of workplace conflict [9.10]  Conflict, when it is not prevented or managed effectively, costs workplaces a significant

amount of money each year. Some of these costs are direct expenses in implementing conflict 538 [9.05]

Dispute Resolution in the Workplace  Chapter  9

management and resolution processes, but there are also costs that are more difficult to quantify. Damaged relationships, loss of productivity, the costs of employee turnover, diminished job satisfaction and increasingly, claims for worker’s compensation are just some of the costs alongside the diversion of managers’ time to deal with conflicts instead of progressing the organisation’s mission. In the following extracts the authors provide an overview of the many different costs of conflict in the workplace.

Conflict Management for Managers [9.15] S Raines, Conflict Management for Managers: Resolving Workplace, Client and Policy Disputes (Jossey-​Bass, San Francisco, 2013) pp xxii-​xxiv. In organizations, “the typical manager may spend 25% of his time dealing with conflicts”. The costs of conflict include the obvious expenses of legal fees and settlements but also include the costs of lost customers, employee turnover, and damage to the reputation of the organization and the brand name. Alternative dispute resolution refers to a host of processes that serve as alternatives to costly adversarial litigation, including mediation, arbitration, peer review, the use of an ombudsman, and others. According to Europe’s leading ADR organization, conflicts cost British corporations more than 33 billion pounds per year (52 million US dollars). To give some perspective, if this sum were a country, it would be the fifty-​seventh largest economy in the world. Of this amount, only about 22% comes from legal fees, with 78% stemming from lost business due to customer dissatisfaction. A 2008 study showed that US employees spent an average of 2.8 hours per week dealing with overt conflict, which equals about $359 billion dollars’ worth of average hourly wages. This amount equals approximately 385 million days of work. It is likely that this number is underestimated because many people do not accurately recognize or label conflict when it occurs, preferring not to acknowledge its presence. For managers, conflict takes up even more time, with one survey showing it takes about 42% of the average manager’s day and with Fortune 500 executives devoting 20% of their time explicitly to litigation. Unfortunately, these statistics are not trending in a positive direction. In 2010 the EEOC reported a record high number of lawsuits (Equal Employment Opportunity Commission). Numerous studies detail the costs of high employee turnover. Studies peg the costs of hiring and training a new employee to be between 75% and 150% of the employee’s annual salary. According to the US Bureau of Labor Statistics, 23.7% of Americans voluntarily quit their job in 2006. Let’s do the math for a moment: for an organization with 100 employees, with a relatively low turnover rate of 15% per year and an average salary of $50,000, this turnover rate means costs of $562,000 to [xxiii] $1,125,000 every year! If that much money could be saved by mechanizing or changing a manufacturing process most managers would jump at the chance to reap this much in savings. Unlike changes to the assembly line or cutting back on technology purchases, many managers feel helpless to reduce employee turnover, improve morale, or change company culture. The good news is these can be changed and at relatively low cost. Unfortunately, many managers view employee turnover as inevitable, like the weather –​something that must be endured because it cannot be changed. Yet some organizations and some managers have realized that managing conflict is crucial to retaining employees and thriving as an organization. A growing body of research links high turnover rates to shortfalls in organizational performance and low customer satisfaction. “For example, one nationwide study of nurses at 333 hospitals showed that turnover among registered nurses accounted for 68% of the variability in per-​bed operating costs. Likewise, reducing turnover rates has been shown to improve sales growth and workforce morale”. … Organizations that have high rates of employee turnover have related problems with high levels of absenteeism, low employee commitment to the [xxiv] organization and its mission, employee tardiness, and overall low worker productivity. It is a myth that employees leave primarily for higher paying jobs. The primary drivers of employee turnover include the relationships experienced on the job (between coworkers and [9.15]  539

Dispute Resolution in Australia: Cases, Commentary and Materials

Conflict Management for Managers cont. between employees and managers), the work environment, the quality of communication within an organization, and job characteristics such as the opportunity to advance and develop professionally … Keeping employees happy is closely related to keeping customers and clients happy. Companies with high levels of employee satisfaction consistently produce high levels of customer or client satisfaction. In addition to lost productivity at work and high employee turnover, an organization’s reputation and brand name suffer due to litigation over unresolved conflicts. A study in the Journal of Financial Economics showed that the stock value of large firms drops an average of 1% on the announcement of a lawsuit against the company whereas the stock of the plaintiff’s company does not increase at all. Stock prices tend to rebound when an out-​of-​court settlement is announced. One percent may seem small but for the companies analyzed in this study the overall drop in stock value was equal to $21 million. According to the Centre for Effective Dispute Resolution (CEDR), Europe’s largest dispute resolution organization, the majority of managers state they have not been adequately trained to handle the conflicts they encounter. In CEDR’s survey of conflict among managers, more than one-​third of managers claimed they would rather jump from a plane in a parachute for the first time than address a problem at work! The desire to avoid confronting problems results in wasted opportunities for improved performance on the part of employees and the entire company but apparently it bodes well for the parachute business.



The Role of Mediation in Resolving Workplace Relationship Conflict [9.20]  D McKenzie, “The Role of Mediation in Resolving Workplace Relationship Conflict” (2015) 39 International Journal of Law and Psychiatry 52 at 52-​53. A psychologically healthy and safe workplace has been defined as one in which organisational support exists for the physical, social, personal and developmental needs of employees (Kelloway & Day, 2005). Despite the existence of Occupational Health and Safety legislation designed to protect workers, and the abundance of guidance available to employers and employees on how to combat it, the modern workplace is increasingly characterised by stress. Stress is defined here as the emotional or mental condition experienced by someone in response to a perceived threat (stressor) in their environment. In this instance, the stressor is interpersonal conflict and the environment is the workplace. A number of theories exist for why workers experience stress in the workplace but most recognize that it is to do with either the work environment or job factors rather than individual personalities (Dollard & Knott, 2004). In Australia, workers experiencing ill health as a result of stress to which their workplace or employment has significantly contributed are entitled to submit a claim for workers’ compensation. Although the cost to organisations and workers’ compensation schemes, prevalence of stress claims, and relevant legislation varies between states, nationally the number of claims continues to rise (Dollard & Knott, 2004). These claims are also expensive due to the often lengthy periods of absence and complicated medical care characteristic of this type of injury (Cotton, 2008; Guthrie, Ciccarelli, & Babic, 2010). Such is the increasing number of psychological injury claims in Australia, a range of legislative amendments has been implemented in all jurisdictions (Cotton, 2008; Guthrie et al., 2010). Yet, as Cotton (2008, p.8) notes, the situation has not been able to be legislated away. Moreover, compensable stress-​related claims continue to grow, along with their associated expenses (Guthrie et al., 2010). Research also suggests that available statistics under-​estimate the extent of workplace stress, as many people neither report it nor file a compensation claim (Caulfield, Chang, Dollard, & Elshaug, 2004, p.149). This finding although concerning is 540 [9.20]

Dispute Resolution in the Workplace  Chapter  9

The Role of Mediation in Resolving Workplace Relationship Conflict cont. not unexpected since, as Dollard and Knott (2004, p.355) observe, “workers typically regret making a claim, find the process very stressful, and experience it as a form of social suicide”. What is more, involvement in the compensation process can be an additional stressor for already injured workers (Lippel, 2007; Roberts-​Yates, 2003). The focus of workers’ compensation systems in many jurisdictions is on injury (rather than claim) management with an emphasis on a return to work (King& Guthrie, 2007). This is in keeping with a recent systematic review that found that in a variety of populations, times and settings, there are health benefits for injured workers in returning to work (Rueda et al., 2012). However, as Roberts-​ Yates (2003) notes, recovery from any injury can be strongly influenced by treating medical experts, the nature and severity of the injury, the emotional and psychological fragility of the injured worker and the culture of the workplace. MacEachen, Clarke, Franche, and Irvin’s (2006) systematic review of qualitative literature on return to work found that goodwill (where the employee feels attached to their workplace), trust and overarching conditions are central to successful return to work arrangements. In addition, there are often social and communication barriers to return to work and intermediary players (such as managers) have the potential to play a key role in facilitating this process. For those suffering a psychological injury, even if they return to the same workplace, this process can be complex and prolonged. In the past, most return to work policies and programs took a “top down” approach with employers having the responsibility to establish a return to work program as opposed to involving the injured worker in formulating a program in conjunction with the approval and support of the employer (King & Guthrie, 2007, p.40). But this requires a good of the employer (King & Guthrie, 2007, p.40). But this requires a good relationship to exist between employer and employee, a key factor in a successful return to work for workers’ compensation claimants. The term workplace relationship generally refers to all interpersonal relationships which individuals form whilst performing their jobs and can range from supervisor/​subordinate to romantic (Sias, 2009). Workplace interpersonal conflict is frequently identified as a source of stress which, in some circumstances, may lead to a workers’ compensation claim for psychological injury. Conflict in the workplace can result in damaged relationships, loss of productivity and job satisfaction (Kidder, 2007) for the individual. This also has consequences for employers and society in general. Researchers of organisational behaviour and industrial relations have long recognised the importance of a procedure for resolving employment disputes. Many studies draw on theories such as procedural justice and social accounts theory that suggest opportunities for people to have their concerns heard and taken seriously, and perceptions of fairness, will be associated with positive outcomes (Bingham & Novac, 2001). However, Elshaug, Knott, and Mellington (2004) emphasise that any solution needs to be examined in different ways: individually, in terms of a person’s psychological and physical well-​being; organisationally with regard to issues associated with loss of productivity and absenteeism; and at a societal level in relation to costs associated with mental health and family well-​being.

 Relationship conflict in the workplace [9.25] As McKenzie has outlined, the costs of workplace conflict can be diverse. In many

cases, these conflicts manifest themselves in emotional distress. With the increasing emphasis on the harm that can be caused by workplace harassment and bullying, it is particularly important that workplace dispute resolution processes are designed to deal with these issues. This topic is further discussed in relation to the DR processes at the Fair Work Commission at [9.200]. [9.25]  541

Dispute Resolution in Australia: Cases, Commentary and Materials

The Role of Mediation in Resolving Workplace Relationship Conflict [9.30]  D McKenzie, “The Role of Mediation in Resolving Workplace Relationship Conflict” (2015) 39 International Journal of Law and Psychiatry 52 at 53. The emotional dimension of work relationships is important. Workplace or professional behaviour is often very different from customary, societal, forms of emotional behaviour. Workplace relationship conflict can vary from minor disagreements between co-​workers to aggression and organisational violence; it may be overt or covert, intentional or unintentional, but all conflict will be characterised by negative emotions (Kidder, 2007). For example, Struthers, Dupuis, and Eaton (2005, p.305) argue that co-​worker relationships, increasingly recognised as one of the most meaningful interpersonal relationships that people will have at work, require a particular kind of “emotional labour”. But due to the public nature of the workplace, emotions such as distress may have to be disguised, attraction suppressed, or annoyance left unspoken (Fineman, 2000, p.2). As Lutgen-​Sandvik (2006, p.426) notes, “…communication at work … is always social and public”. Waldron (2000) argues that the experience of emotion at work is influenced by the unique contextual features of work relationships and is an integral part of relational conflict. Moreover, the role of emotion and feelings of alienation in protracted workplace conflict impairs communication by producing intense emotions, especially shame and anger (Retzinger & Scheff, 2000). Poor interpersonal relationships in the workplace are frequently identified as a source (as opposed to a predictor) of stress. There are some indicators such as taking frequent leave or absenteeism that point to workers suffering from workplace stress. When taken together, high levels of distress and low job satisfaction have been identified as precursors to stress claims (Dollard & Knott, 2004, p.350). Conflict, as an emotional experience, has psychological and physical consequences; psychological injury claims are therefore likely to also have corporeal outcomes (Dollard & Knott, 2004; Elshaug et al., 2004). Dollard and Knott (2004, p.353) point out that workplace psychological injury, including interpersonal conflict, “…tends to have a poor prognosis in terms of claim duration [and] return to work outcomes”. They, like Roberts-​Yates and MacEachen et al., argue that organisational culture, and support for injured workers, as well as beliefs and attitudes about psychological injury, impact negatively on these outcomes. Although causes and conditions of sickness absence are not well documented or understood this can be an indicator of a more serious problem such as bullying or harassment. Although some workers find that sickness absence and disconnecting from the work environment can provide short term relief, they often find that the problem remains. In these instances organisations need to address interpersonal issues if workers are to be able to successfully return to work. For example, studies on bullying in the workplace have found that changes in working conditions that remove or interrupt bullying are important indicators of returning to work (O’Donnell, MacIntosh, & Wuest, 2010). In O’Donnell et al.’s (2010, p.448) study of women affected by workplace bullying, they found that “adjusting was influenced by working conditions and organisational support”. But the viability of this depended upon not just the willingness of the workplace to change, but its ability to change. For example, many small businesses may be too small and unable to reorganise their workplace whereas others may simply be unwilling to do so. When it comes to workplace disputes, interpersonal conflict is most often considered to be an occupational health and safety (OH&S) rather than industrial relations issue. OH&S models often treat stress as an individual reaction to external conditions (Kelloway, Teed, & Kelley, 2008) so that strategies and interventions relating to work stress occur at three possible levels: primary, secondary and tertiary. Most interventions occur at either the secondary level (individual/​organisational interface) with a focus on altering the way that individuals respond to stressors at work and improving their coping mechanisms; or the tertiary (individually-​focussed) level that aims to minimise the effects of stress-​related problems once they have occurred (Elshaug et al., 2004; Lamontagne, Keegel, Louie, Ostry, & Landsbergis, 2007). Workplace dispute resolution procedures are likely to be tertiary level interventions.

 542 [9.30]

Dispute Resolution in the Workplace  Chapter  9

[9.35]  There is no doubting that workplace conflict has serious consequences for individuals,

businesses and the national economy. This chapter now turns to examine the ways that conflict in the workplace is managed.

RESPONSES TO WORKPLACE CONFLICT [9.40] All conflicts can be managed by dispute resolution processes that are rights-​based,

power-​based or interest-​based. In the following extract, Raines explains how interests-​, power-​ and rights-​based processes can be used in a workplace context and makes the point that many organisations tend to use rights-​and power-​based processes, even though these are often not as beneficial in the long run. Power, rights and interests

Conflict Management for Managers [9.45] S Raines, Conflict Management for Managers: Resolving Workplace, Client and Policy Disputes (Jossey-​Bass, San Francisco, 2013) pp 229-​230. Disputes can be resolved in three basic ways: through a resort to power, rights and interests. Power is the ability to assert one’s preferred outcome onto others. In workplace settings power is used to resolve disputes through mechanisms such as strikes –​in which the organization and the union seek to show they are more powerful than the other. Workplace violence or the threat of violence is also a way that individuals in dispute try to assert and display their power over others. Rights are established through law, union contracts or official policies. Contests over rights are often played out in the courts, the EEOC, or through union grievance arbitration. Interests … are the needs and desires of individuals and groups. They are addressed through negotiation, mediation and other processes in which all parties seek to reach agreements that meet each other’s needs without resorting to the coercion of power-​based approaches or the use of an external decision maker with rights-​based approaches. In terms of costs, power-​based approaches tend to be the most expensive, then rights-​ based approaches, and finally, interest-​based approaches. Interest-​based approaches also hold the possibility of addressing the underlying causes of the dispute more thoroughly than the other two approaches. Unfortunately, hierarchical organizations tend to use power and rights-​based approaches to solve problems. They do so out of the perception that it is more efficient for a boss to enforce his or her decisions on subordinates than it is to learn about the needs and interests of each person and design more tailored solutions. This approach works in many cases but some will generally fall through the cracks and receive a solution or decision that just doesn’t fit or is inappropriate given the specific circumstances. Research has shown that interest-​based approaches are more cost effective, satisfying, long lasting and sustainable for recurring problems in ongoing relationships, such as those in workplace settings.

 [9.50]  Raines’ point, that an interests-​based approach is more beneficial than a power-​or rights-​ based approach, is supported by comments made by the Victorian State Services Authority.

Developing Conflict Resilient Workplaces [9.55]  State Services Authority, Developing Conflict Resilient Workplaces: A Report for Victorian Public Sector Leaders (State Government of Victoria, Melbourne, 2010) p 9. Some organisations have found hard evidence to support the benefits of this new approach. [9.55]  543

Dispute Resolution in Australia: Cases, Commentary and Materials

Developing Conflict Resilient Workplaces cont. One organisation saved $50,000 a month by changing its conflict management model to one that focused on alternative dispute resolution processes. Difficult cases were addressed using conflict coaching and mediation –​this resulted in cases being resolved more quickly, used fewer resources and lowered the risk of expensive litigation. The organisation estimated a related risk reduction of $150,000 a month. … An approach based solely on “rights” and formal grievances … can create particular ways of thinking about conflict and personal responsibility: • The “arms length” approach can easily reinforce the idea that someone else is responsible for the cause of the problem, and someone else is responsible for fixing the problem. • Often, affected parties are not directly involved in the “resolution” process. • Because of the focus on “rights”, underlying and systemic issues are not always addressed. Paradoxically, this means that the current systems used in the sector are both underused and overused: underused, because people avoid what they perceive to be an unfair, cumbersome system that might bring negative consequences; and overused, because we know that unresolved conflicts are clogging the system.

 [9.60]  Roche and Teague, in the following article, discuss the growth of DR processes in a

workplace context, both in relation to judicial and non-​judicial conflict resolution processes.

ADR in Work and Employment Disputes [9.65]  W Roche and P Teague, “The Growing Importance of Workplace ADR” (2012) 23(3)

International Journal of Human Resource Management 447 at 447-​451. The term ADR, as applied to the world of work, originated in the USA, where it was used to denote procedures and mechanisms for conflict resolution that provided either alternatives to litigation or resort to administrative tribunals established under statute in such areas as equal opportunities and employment discrimination. The term also came to be associated with specific sets of procedures and mechanisms in non-​unionized [448] employments such as workplace mediation, fact-​finding, ombudsmen, arbitration and review panels comprising managers or peer employees. These mechanisms are sometimes bundled together in integrated “conflict management systems” in which multiple forms of ADR, or the so-​called “interest-​based” practices, take precedence over “rights-​based” fall back procedures, such as formal grievance processes. Procedures such as these, whether made available discretely or in systems, have become more common also in unionized employments, particularly in the US public sector. Used in this sense, the term ADR was typically used to denote ways of handling conflict and disputes involving individual employees and often in the context of grievances and disputes surrounding individual employment rights. More recently, the term has gained currency to also denote forms of dispute resolution that operate in conjunction with judicial processes. Here, again the focus has been mainly on forms of ADR concerned with individual grievances, but collective conflict and specifically disputes that arise in connection with collective bargaining also fall within the scope of this definition. These forms of ADR, which seek to eschew or postpone formal judicial or quasi-​judicial hearings, may involve judges or other court-​appointed officers or external experts. Thus, a distinction is now recognized between “judicial ADR” and “non-​judicial ADR” –​the latter covering mechanisms of conflict resolution in the workplace, and sometimes extending to mechanisms of long vintage that fall outside the purview of legal regulation. 544 [9.60]

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ADR in Work and Employment Disputes cont. The term ADR is also now being applied to innovations in conflict management and resolution involving collective conflict in the workplace. Of importance here are innovations in collective bargaining and associated new dispute resolution mechanisms, such as “interest-​based bargaining”, “collective mediation”, fact-​finding, the early facilitation of negotiations by an independent conciliator (a practice sometimes referred to as “assisted bargaining”, brain storming and related problem-​solving techniques, mediation by a party who may also be empowered to arbitrate (“med–​arb”), mini-​trials, proper arbitration and the proactive handling of change management. Some of these techniques may also be applied to group-​based conflict in non-​unionized firms, although such firms, especially of US origin, may resist recognizing conflicts as a group phenomenon in any respect and may seek to disaggregate them into individual grievances and deal with them only on that basis. Conflict management systems encompassing multiple forms of group or collective ADR are also contemplated in the literature, although less commonly than in the case of systems of this kind that address individual employment conflict. The emergence of various forms of ADR in unionized firms aligned with collective bargaining provides a contrast not only with resort to courts but also with longstanding dispute resolution processes, based on linear, multi-​step stages that commonly culminate in resort to external third-​party agencies or again to the courts. … [449] Table 10.1. Non-​judicial and judicial conflict resolution practices Non-​judicial workplace conflict resolution practices  

Conventional

ADR

Individual disputes

• Multi-​step grievance & disciplinary procedures with provision for outside arbitration (grievances) following an impasse • Resort to Employment Tribunals & litigation in courts

•  Open-​door policies •  “Speak-​up” & related systems • Ombudsman •  External and internal mediators •  Review panels of managers and peers • Arbitration •  ADR-​led conflict management systems

Collective disputes

• Multi-​step disputes and grievances procedures, usually with provision for external conciliation and arbitration or adjudication following an impasse

• “Assisted bargaining/​mediation within procedure to avoid impasse” •  “Brainstorming” & related techniques •  “Interest-​based bargaining” with facilitation •  Fact-​finding •  Arbitration, “mini-​trials” & “med-​arb” • Intensive communications surrounding change management •  ADR-​led conflict management systems

Individual & collective disputes

• Resort in rights-​based disputes to litigation in courts or to adjudication in quasi-​judicial administrative agencies with delimited statutory jurisdictions

• Pre-​judicial mediation and adjudication processes or judicial and expert mediation under judicial process, with final-​state resort to formal hearings by courts or administrative agencies

[The] figure represents the main conceptual domains of ADR in its current usage in the world literature. Trends in ADR and their antecedents Virtually, all commentaries in the literature point to a sharp rise in recent decades in the incidence of ADR practices focused on resolving individual employment grievances and disputes. Notwithstanding this, it is also commonly observed that rates of resort by employees to particular forms of ADR are modest overall. Some of the factors responsible for this trend are also well identified, in particular, an expansion in the volume of legislation conferring employment rights on people at work allied with a commensurate growth in people’s determination to vindicate these [9.65]  545

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ADR in Work and Employment Disputes cont. rights. The result of these underlying developments has been a rise –​dramatic in some countries –​ in the volume of cases referred to administrative and industrial tribunals and the courts, and a ratcheting up of the costs involved in the administration of tribunals and courts dealing with employment disputes. These costs fall both on states and on the litigants involved in disputes. A formalization of legal processes and a growing trend towards legal representation are widely reported. Damages awarded can also be substantial, especially in the USA … As Colvin outlines, the “Gilmer” and “Circuit City” judgments of the US Supreme Court have significantly contributed to the growing use of non-​judicial ADR by allowing employers to specify in employment contracts that workplace dispute resolution processes must be used to settle any employment disputes that may arise. Another factor behind the rise of individual employment claims and [450] disputes and the growing use of ADR is the decline in unionization and union power in workplaces. As a consequence of declining unionization, a growing number of employees may have little choice other than to pursue workplace grievances, even grievances that may essentially be collective in genesis and nature, as individual claims. In some countries, especially the UK, it is observed that the decline in unionization and collective bargaining has been associated with the transference of workplace conflict from strikes and other collective expressions of conflict to a range of individual manifestations of conflict. On the management side, the advent of human resource management (HRM) as an influential paradigm is also seen to be an important influence on the growth of ADR mechanisms of various kinds for handling individual conflict. Innovative forms of dispute resolution may indeed represent an extension into the realm of conflict management of the basic principles and postulates informing HRM policies more generally in firms. A strategy of engaging in “union substitution” also sometimes seems to be a potent influence on the use of individual forms of ADR, especially in the USA. The advent of collective forms of ADR reflects somewhat different, even though sometimes, overlapping sets of influences. There has been a secular decline in levels of industrial conflict and especially in the volume of strike activity in many countries. Therefore, the emergence of innovative mechanisms to resolve collective conflict and disputes is not related to concerns about industrial conflict and its consequences. Collective agreements in some countries, for example, the UK and Ireland, are not generally regarded as legally binding, and so no financial penalties arise in the event of breaches of collective contracts. Even in countries where collective bargaining agreements carry legal force, sanctions or penalties have not been reported as an influence on innovations in conflict resolution. The key factor behind the growth in collective ADR is the search for speedier and more flexible forms of dispute resolution than that available through traditional dispute and grievances procedures, or through established forms of external conciliation, adjudication and arbitration. Related to this is a growing concern on the parts of employers, embraced with varying degrees of enthusiasm by unions, to foster a more co-​operative climate of employment relations. This objective is seen to be well served by moving away from traditional procedures for conflict resolution, which may be viewed as an institutional expression of low trust and adversarial postures on both sides. Such developments may reflect deeper forces such as globalization and growing economic openness, new competitive priorities focused on innovation and quality enhancement and allied innovations in manufacturing technologies, service delivery and work organization. The rise of employer–​union workplace partnership initiatives, reported as a significant trend in some Anglo-​Saxon countries from the 1990s, has also been associated with the advent of new forms of collective ADR like interest-​based bargaining, problem-​solving, fact-​finding and mediation. Again the growing influence of HRM may sometimes be an important underlying influence on the adoption of collective forms of ADR. Roche and Teague’s research, in the case of Ireland, focuses on the impact of commitment-​oriented HRM on the prevalence of ADR. In contrast, in the Japanese case, Benson’s paper in this special issue sees the rise of new approaches to conflict management as related in part to the shift by Japanese employers towards a harder form of HRM. Some contributors also suggest that innovative forms of negotiating, such as interest-​based bargaining, better reflect the work and employment [451] preferences of professional and service employees, who make up a growing section of the workforce. 546 [9.65]

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ADR in Work and Employment Disputes cont. The advent of innovations in collective dispute resolution at workplace level has provoked a response in some countries from state agencies responsible for providing third party dispute resolution services. New approaches to assisting disputants have emerged. Thus, the Federal Mediation and Conciliation Service in the USA can provide conventional or ADR-​based facilitation in disputes, while the ACAS in the UK also provides a range of non-​traditional modes of assisting the parties to disputes or involved in significant change initiatives. The Labour Relations Commission in Ireland also provides advisory services and early intervention and facilitation benefits to its clients. Changes and innovations in the role of state dispute resolution agencies may also reflect legislative changes and associated shifts in bargaining levels and arrangements …



INTERNAL CONFLICT MANAGEMENT/​RESOLUTION PROCESSES [9.70]  This section of the chapter provides an introduction to a range of dispute resolution

processes used within organisations to deal with workplace conflict. Most of the processes are interest-​based, however some are power-​or rights-​based, and some may have elements of all three approaches depending on how they are implemented. Organisations usually utilise a combination of processes and these may be part of a consciously designed interactive system (see [9.210]-​[9.235] in relation to Integrated Conflict Management Systems) or as a more ad hoc combination or range of process choices. The Fair Work Commission provides guidance as to best practice in a workplace dispute resolution process, pointing to the recent development of a preventative approach to workplace disputes.

What Are the Features of a Good Dispute Resolution Process? [9.75] Fair Work Commission, Effective Dispute Resolution Guide (Commonwealth of Australia, 2013)  http://​www.fairwork.gov.au/​resources/​best-​practice-​guides/​pages/​effective-​dispute-​resolution. aspx. A best practice dispute resolution process should: • be simple • allow appropriate stages so that matters can, wherever possible, be resolved at the workplace • encourage parties to agree on a process that suits them if the dispute reaches the Fair Work Commission, and • provide the Fair Work Commission with the necessary discretion and power to ensure settlement of the dispute if the dispute remains unresolved after the early stages of the dispute resolution procedure have been attempted. Best practice dispute resolution outcomes should be: • quick –​the issues should be resolved quickly rather than allowing them to escalate through inaction • fair –​all relevant parties should be consulted so that all sides of the story are taken into account • handled sensitively –​disputes should, where possible and appropriate, be resolved in a confidential context in order to minimise impact on employees not affected by the dispute, and • transparent –​the procedure should be made known to every employee. Dispute resolution procedures should not interfere with the continued operation of the business where possible. Any dispute resolution clause in an agreement, contract or policy should require that [9.75]  547

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What Are the Features of a Good Dispute Resolution Process? cont. work is to continue normally during the dispute resolution process subject to any reasonable concerns about health and safety. Generally, the FW Act does not authorise employees to stop performing work while a dispute is being resolved. …. Checklist for Dispute Resolution Best Practice Employers working at best practice will: • ensure they have a simple, quick, fair, confidential and transparent dispute resolution procedure in place, whether it be included as part of a modern award, enterprise agreement, company policy, employment contract, or other industrial instrument • ensure employees are made aware of the applicable dispute resolution procedures. Where a dispute has arisen: • work towards solving the problem and maintaining healthy working relationships • determine which dispute resolution procedure applies • comply with the correct procedure quickly and fairly • use best efforts to resolve the dispute at the workplace, and • where this is not possible, refer the dispute to an independent mediator or arbitrator such as the Fair Work Commission with the power to deal with the dispute.

 [9.80]  Internal conflict management and resolution processes vary in levels of formality, in

relation to those who participate, and as to what outcomes are possible. Some commonly used internal conflict management and resolution processes include: negotiation, a managerial open-​door policy, performance management, peer-​review, voluntary voice/​collective bargaining arrangements, internal ombuds, conflict coaching, mediation, formal grievance/​complaints mechanisms, and investigation/​fact-​finding processes. Each of these processes is introduced in the extracts that follow. Negotiation [9.85]  Many workplace conflicts are resolved through direct negotiation between the people in

conflict. Negotiations may be very informal (eg, a chat in the staff room) or more formally structured (eg, enterprise bargaining negotiations). Most conflict management policies around staff grievances or complaints have, as their first step in the process, the requirement that employees in conflict first try to resolve the matter themselves through direct communication before implementing further processes involving management. Negotiation in the workplace can utilise power-​based approaches to conflict resolution (the stronger or more senior person wins) or more interest-​based approaches (where resolution aims to address everyone’s needs and concerns). Open-​door  policy [9.90] An open-​door policy is related to both negotiation and grievance processes, in that

it provides an accessible means for an employee to raise his or her conflict issue with a senior staff member for the purpose of negotiating an outcome or making a formal grievance. In some senses, this is more an entry pathway to a conflict resolution process rather than a 548 [9.80]

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process itself. In the following extract ([9.95]) Van Gramberg introduces the open-​door technique and identifies some potential issues with it as a conflict resolution tool.

Managing Workplace Conflict [9.95] B Van Gramberg, Managing Workplace Conflict: Alternative Dispute Resolution in Australia (Federation Press, Sydney, 2006) pp 52-​53. The open-​door technique is often used as the first step in the workplace dispute resolution procedure … and is a popular management technique for grievance resolution involving a manager making [53] him or herself available at any time for an employee who wishes to raise an issue. Comprising essentially of an informal, unstructured and ad hoc form of dispute resolution the open-​door policy could be argued to present a powerful symbolic gesture of access to management. However, the policy has been criticised as simply proffering “lip service” and has been argued to be more suitable for white collar employees, who are more accustomed to dealing with management than blue collar, or lower level workers … It has been described as inappropriate for a number of workplace disputes. For instance, this method may make the employee raising the complaint highly visible to his or her co-​workers, which could act as a disincentive to raise sensitive matters such as sex discrimination claims. The method has also been criticized as potentially leading to employees feeling reluctant to confront their supervisor on their own … In particular, employees have reported reluctance to raise claims due to a fear of reprisal, especially if they are using the open-​door policy to bypass their own supervisor … Often the desired outcome of a dispute is a neutral opinion and most employee disputants would probably not want the third party to be a supervisor or manager with whom they are familiar. Problems also arise when the manager is implicated in the employee’s grievance. To avoid this some organisations offer employees a “hot line” to speak anonymously to an internally employed adviser or other senior manager who listens to the problem, provides advice and even undertakes a mediation role if required. In this way the open-​door model may sit well with an internal ombuds model … Clearly, there are limitations in the operation of the open-​door policy. However, this should not detract from the fact that, with training in the role of grievance handling, particularly in the concepts of workplace justice … the open-​door policy, along with a strategy of “management by walking about”, is an effective mechanism for drawing out employee grievances before they become major issues. This is because the open-​door policy is flexible enough to deal with a wide range of disputes from interpersonal conflicts and disagreements (interest disputes) to more formal, rights-​based disputes … Further, performed well, the open-​door policy should contribute to an employee’s sense of being afforded interactional justice (the sense of fairness from being treated with dignity and respect) which has been linked with employee loyalty, job satisfaction and satisfaction with the outcome of the dispute …

 Performance management [9.100]  Performance management provides a forum for supervisors to address performance

issues with staff members through the provision of feedback and improvement planning. Managed well, performance management can be a constructive way to deal with conflict between a supervisor and a staff member about appropriate behaviour or levels of performance. However, when performance management is not constructive or does not occur at all, conflict between staff members and their employees can fester and escalate. Frequently, other dispute resolution processes are implemented as a result of conflict that could have been avoided or managed more effectively had appropriate performance management been conducted earlier. [9.100]  549

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Managing Workplace Behaviour [9.105]  J Hor, Managing Workplace Behaviour: A Best Practice Guide (CCH, Sydney, 2012) pp 201-​202. Performance management is often a particularly difficult area for employers. Managers regularly fail to raise performance issues, or do so indirectly, such as by removing an employee from particular work to avoid unpleasant discussions. Employees who are performance managed sometimes claim that they are being bullied or that, if termination results, they have been discriminated against on a prohibited ground. To ensure the efficient operation of a business and to avoid claims of bullying or harassment from affected employees, it is essential for employers to implement performance management in accordance with “best practice” procedures and educate staff in how the system will run; setting out what behavior is and is not bullying or harassment. [202] The key elements of an effective performance management system include the following: • Clearly articulating the performance standards required from employees • Communicating those standards to employees via a targeted education program • Having an assessment procedure in place to determine if the standards are being met • Communicating with employees in a timely manner when they are not meeting the required standards, and • When employees fail to meet the required standards after participating in a fair performance management process, terminating their employment. Generally, if performance feedback is given on a regular basis as part of a system and delivered in a respectful manner, it is less likely to be considered a form of harassment or bullying. Similarly, roles and responsibilities should be clearly defined, so that all staff understand what is expected of them.

 Formal complaint/​grievance [9.110]  Most organisations have some kind of employee complaint or grievance policy and

procedure. In the following extract, Hor sets out the usual components of such policies and procedures.

Managing Workplace Behaviour [9.115]  J Hor, Managing Workplace Behaviour: A Best Practice Guide (CCH, Sydney, 2012) pp 122 and 204-​205. Grievance policy Grievance policies generally set out how an organisation will deal with grievances in the workplace. All employers should have a grievance policy in place which addresses the following clauses. Policy statement: From time to time an incident may occur that results in an employee feeling aggrieved. This policy sets out the options available to employees in this situation to try and resolve the issue and also sets out the steps that will be taken by the Company when a grievance has been raised. As not all situations are the same, the policy may need to be varies to suit the situation. What is a grievance?: A grievance can include an issue, difficulty or complaint made by an employee relating to the workplace. A grievance may relate to an act or omission, or a particular situation or decision that a person considers to be unreasonable, unwarranted or unjust. Confidentiality: The Company aims to address all grievances in a confidential manner. The Company will act so that only the people directly involved in resolving the grievance have access to the relevant

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Managing Workplace Behaviour cont. information. However, from time to time it may be necessary to share information with other parties (such as managers and supervisors). Grievance process: If a grievance arises, it will be dealt with in accordance with the following process. While the Company will endeavor to follow this process in all circumstances, there may be situations where it is necessary to deviate from this process depending on the specific circumstances of the matter and seriousness of the grievance. Stage 1 (informal resolution): If a grievance arises, it is suggested that the parties to that grievance attempt to resolve the issues directly with one another. This should be done in a respectful manner and all parties are to be professional. While an informal resolution is recommended, the Company understands that this may not be appropriate in all circumstances. Stage 2 (discussion with a manager or supervisor): If informal resolution is not successful, the employee raising the grievance is encouraged to discuss the issue with their manager or supervisor. Once a manager or supervisor is notified of an issue in accordance with this policy, the manager or supervisor must talk to all parties involved to ascertain the facts. Stage 3 (resolution): If the parties reach a resolution, this resolution should be confirmed between the parties. If a resolution cannot be reached, the parties are to discuss whether there is any other method of resolution that can be explored. Disciplinary action: If, as a result of the grievance process, a person is found to be in breach of the Company’s policies, disciplinary action may result. Disciplinary action includes, but is not limited to, a warning, improvement program, termination of employment with notice or summary dismissal. [204] Grievance procedure A part of effectively dealing with issues that arise in the workplace is a grievance (or complaints) procedure. A grievance procedure is aimed at resolving disputes internally to ensure the well-​being of employees, without the involvement of an external court or tribunal which could be costly and result in adverse publicity. A grievance procedure does not, however, prevent an employee from making a complaint to an external court of tribunal at any time. In the context of workplace behaviour, a grievance procedure can form part of a workplace behaviour policy or can be a stand-​alone procedure. The desirable components of a grievance procedure include: • Coverage: identifying the types of grievances the procedure covers (eg discrimination, harassment) • Resolution: offering a range of options for resolution, including informal and formal • Confidentiality: all grievances will be treated confidentially and those employees who are aware of grievances must maintain confidentiality • Impartiality: those involved in investigating and making a decision in relation to a grievance will remain impartial throughout the process and will apply the principles of natural justice • Timing: the grievance will be dealt with as quickly as possible • Treatment of documents: specify what documents may be collected, how they will be kept and who will have access to them • Disciplinary action: if a complaint is substantiated, disciplinary action may result, such as counselling, a written warning or termination of employment • No victimization: a statement that employees will not be victimized for making a complaint (regardless of against whom the complaint has been made), and • Consequences of making a false, frivolous or vexatious claim: a statement that employees who make such a claim will be subject to disciplinary action, which may include the termination of their employment. [205]

[9.115]  551

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Managing Workplace Behaviour cont. Informal and formal resolution options There are a number of options, both informal and formal, for dealing with grievances which can be offered to employees. Informal procedures tend to focus on resolution of a complaint rather than proving whether or not particular conduct occurred. Informal procedures might include the following options: • The employee approaching the offending person themselves • Requesting advice or assistance from the employee’s supervisor or other nominated contact person, such as a human resources representative • The employee asking their manager or other more senior person to approach the alleged offender, and • Organizing a mediation between the relevant persons to try to resolve issues. The informal approach is most often used when the allegations are of a less serious nature or where the person making the complaint wants to protect an ongoing working relationship with someone. A formal complaints procedure involves following a specified process and seeks to determine whether a complaint can be substantiated. If it is substantiated, disciplinary action, such as termination of employment, may result. The components of a formal complaints procedure commonly include: • A process for making a complaint (such as a written or oral complaint to a specified person) • An investigation of the allegations (which should be carried out by an impartial person) • A finding as to whether or not the alleged conduct is likely to have occurred • A decision as to what action, if any, should be taken as a result of the finding (such as disciplinary action if the allegations are found to be substantiated), and • Adherence to “natural justice” throughout the process … A formal procedure is commonly used where: • The employee chooses to utlise it, either as a first step or where informal attempts at resolution have been unsuccessful • The allegations are of a serious nature, or • There is a disagreement between the parties as to what occurred.

 [9.120]  Hor notes that, as mentioned above, the usual first stage is to direct people in con-

flict to try to resolve the matter themselves (ie, through direct negotiation). However, what Hor does not explicitly consider is that, if the disputants had been able to do so, they would not need to refer to the grievance process. One step that is missing in Hor’s account, but that can make a significant difference to resolving grievances in the workplace, is a stage in between Hor’s stages 1 and 2 that provides for some supported conflict resolution (eg, independent conflict coaching or mediation) prior to the formal grievance process being implemented. Conflict coaching [9.125]  Conflict coaching (also called conflict management coaching) is becoming more pop-

ular in Australian workplaces as a way to support employees to manage their own conflict (and is discussed in more detail at [5.280]). One of the problems with a grievance process that incorporates a first stage directing employees to try to resolve their conflict themselves before 552 [9.120]

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lodging a formal grievance, is that if the employees had been able to resolve the conflict themselves they would not need to interact with the grievances procedures. What is often lacking in between these two steps is support for employees to assist them to be able to resolve the conflict without having to make a formal grievance and support for management in dealing with conflict constructively. Conflict coaching is a service that can address this need, as Ewer examines in the following extract.

Can Conflict Coaching Make a Difference to Conflict Outcomes in Hierarchical Organisational Structures [9.130] K Ewer, “Can Conflict Coaching Make a Difference to Conflict Outcomes in Hierarchical Organisational Structures” (2018) 28 Australasian Dispute Resolution Journal 260 at 261-​264. Conflict management has until recently been heavily influenced by rights-​based grievance systems. In Australia, the Fair Work Ombudsman has overseen dispute resolution systems which have primarily focused on negotiated, mediated, arbitrated and adjudicated outcomes. Senior officers have delegated responsibility for conflict management, through grievance policies, to first-​line supervisors, even though these people have rarely been trained in conflict management techniques. Employees, particularly those working in hierarchical reporting structures, have had limited choices in managing workplace conflict. Options have generally been formal, adversarial and often lack confidentiality due to the number of officers who require involvement. Hierarchical structures, including those represented in public service, add a level of complexity to conflict management systems. Reporting lines impose positional power, and grievance policies and procedures reinforce an adversarial employer/​employee relationship. Conflict management is often delayed both due to the requirement to receive the complaint in writing and the formal structure through which the complaint needs to be managed. Studies have shown the more hierarchical the organisation, the more difficult it is to deal with workplace conflict in a timely manner. Some complainants have reported they believe commencing the complaint process has directly resulted in escalation of the conflict, hence the development of inherent mistrust in such conflict management systems. In Queensland, Australia, the introduction of the Industrial Relations Act 2016 (Qld) has followed other States and marked the beginning of a change in the Australian employer/​employee relationship. The Act is in line with an international push to move increasingly toward interest-​ based conflict management with a focus on preserving and restoring the employment relationship. Employers now hold the burden of proof with regards to decisions surrounding dispute and grievance outcomes. Further, employees can act outside internal grievance policies and procedures and request direct assistance from the various national Industrial Relations Commissions. Employers are therefore increasingly forced to [262] initiate alternate, effective and source-​ focused conflict management strategies. For employees to adopt such strategies however, employers will need to ensure employees are able to trust new and developing conflict systems and methodologies. Trust in organisational conflict systems is only possible where integrity forms the core of the system. The intent must then be to assist employees reach their own conflict outcomes; ensure the capacity of supervisors to manage conflict forms part of their management and ongoing training; and those involved in the conflict own the outcomes. Integrity of conflict management systems may be displayed through the honest recognition of the occurrence of workplace conflict, consistent application of conflict management systems and open support of effective and sustainable conflict outcomes. Conflict forms a necessary and important element of human interaction as it has the potential to highlight areas of insight into conflict causality. Positive conflict outcomes have proven to increase organisational trust and have reduced conflict management costs in that conflict does not escalate beyond internal management capability on a regular basis. Positive longer-​term outcomes are also possible through identification of areas [9.130]  553

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Can Conflict Coaching Make a Difference to Conflict Outcomes in Hierarchical Organisational Structures cont. of personal and organisational improvement, therefore focusing on improved interpersonal relationships. Hierarchical organisations in particular have traditionally devolved responsibility for managing conflict to managers and administrators who have enforced an authoritarian view of conflict and how to manage it. Dealing with conflict in this way limits the willingness of employees to approach supervisors unless the conflict has already escalated to crisis point. Adversarial conflict systems such as those generally instituted in hierarchical structures, and followed through formal grievance procedures, do not give employees the perception of equal participation opportunities. For hierarchical organisations obstacles to trust in conflict systems are more difficult to overcome as power is assigned to position, and responsibility for conflict outcomes is defined within grievance policies according to those positions. Research has demonstrated the effectiveness of conflict management depends primarily on the perception of procedural justice. Further, those experiencing conflict tend to place greater value on being treated fairly than on actual outcomes. Work in both the federal and State sectors in Australia, has shown the introduction of conflict coaching to be of considerable benefit as part of managerial professional development programs. Both the Australian Department of Defence and the Queensland Police Service, highly hierarchical structures, have successfully implemented conflict coaching training to managers and employees. [263] These departments have demonstrated the unique place conflict coaching holds within conflict management systems in allowing the organisation and its employees to help themselves to own their conflict outcomes. In this way conflict coaching is increasingly becoming an important cornerstone of organisational dispute management systems. Conflict coaching allows a conflict management system to operate at an almost micro-​level, enabling individuals to address conflict as and when it arises. Allowing conflict management to occur prior to the need for more formal processes assists in preserving interpersonal relationships. Where conflict is managed at this micro-​level it further provides individuals with an organisational voice and a mechanism through which to raise individual and collective concerns and suggestions. Improved internal communication increases trust in conflict outcomes and organisational processes. Trust in conflict management processes encourages employees and managers alike to address conflict directly without the need to frame concerns as a violation of rights. Formal grievance procedures have been demonstrated to associate conflict with individuals and potentially compromise confidentiality. Conflict coaching can further add value in that it allows conflict between peers to remain between those involved, without the requirement to escalate through traditional grievance procedures potentially preserving interpersonal relationships. Conflict management systems assume there will be a continuation of the relationship between conflict parties post the grievance process. Studies focused on hierarchical conflict have demonstrated that supervisors traditionally confront offenders to solve issues, where subordinates have been shown to be more likely to withdraw or avoid conflict, particularly where the other conflict party is the person to whom they directly report. Within-​o rganisation failures are generally attributable to issues surrounding procedural failure, individual skills failures and in some cases, the attitudes of employers, including those whose intent has been to utilise grievance procedures as a way of dismissing employees. Approaches such as these are a product of lack of training in conflict management techniques and instil mistrust in organisational conflict management systems. Certainly, they do not lend themselves to the maintenance of effective workplace relationships. To move away from the adversarial and rights-​based processes dictated through grievance policies, many hierarchical organisations will require cultural transformation. In order to develop trust for the intent with which conflict management systems are developed they will need to move

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Can Conflict Coaching Make a Difference to Conflict Outcomes in Hierarchical Organisational Structures cont. toward more interest-​based and informal processes. Where organisations intend to assist employees reach their own conflict outcomes, their conflict management systems must provide adequate training at all levels. [264] Adequate training in turn develops required skills and builds trust in the conflict management system as a whole. The ability of organisations to effectively manage conflict ultimately leads to conflict resilient workplaces that can reduce the probability of conflict escalation before they become WorkCover claims, thus reducing compensation costs. Conflict management skills including conflict coaching have been shown to be essential skills required in conflict resilient workplaces. Skills such as conflict coaching improve management and employee performance and morale and are considered essential particularly for those in supervisory positions. Conflict literature has long established that once conflict has escalated to formal process, the restoration of relationships is usually impossible. Given that conflict coaching is perhaps one of the most versatile of conflict management skills, in that it is applicable in both personal and professional settings, its effectiveness may be of assistance when changing the cultural hangovers of hierarchically managed conflict. Conflict coaching does not aim to fully resolve conflict, rather the intent is to develop strategies that reduce the negative consequences of conflict over time. Constructive communication, decision-​making processes and problem solving are the core focus of conflict coaching techniques, all of which will assist participants in reaching their own outcomes and maintaining interpersonal relationships now and into the future.

 Mediation [9.135]  Mediation is now a commonly used form of dispute resolution in the workplace. The

mediator may be someone internal to the organisation (more or less removed from the parties in dispute, depending on the size of the organisation and its policy) or an externally appointed mediator. Bennett explores some of the benefits of using mediation in workplace conflicts (at [9.140]).

The Role of Mediation [9.140]  T Bennett, The Role of Mediation: A Critical Analysis of the Changing Nature of Dispute Resolution in the Workplace (2012) 41(4) Industrial Law Journal 479 at 481-​482. Discussions with respondents revealed a number of key drivers for introducing mediation into the organisation. The perceived need to introduce a system that preempted disputes becoming more formalised was particularly significant … Respondents in general consistently cited the potential of mediation to reduce the costs of disputes and, crucially, as a more effective means of repairing damaged relationships in the workplace. With respect to costs, this was seen in terms of time and the emotional distress of the disputants going through the formal process, which at its extreme could lead to a costly employment tribunal hearing. The main reported causes of disputes were breakdowns in relationships, poor management and communication problems. Grievances were the predominant type of cases dealt with through the mediation services, particularly in the public sector. A key strength of mediation for all interviewees was the opportunity through facilitated questioning and discussion to change when possible the perceptions of the parties with the aim of also changing their long-​term attitude and behaviour. The following contribution captures this shared conviction well:

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The Role of Mediation cont. If it is a new manager who is not experienced, you know just, “Get on with it. Get on with it” [to their staff]. You can change new behaviour fairly effectively in mediation because it allows them to realise, “You know, I didn’t realise someone else took it in that way” (Mediator). Performance management cases also figured in the process, albeit to varying degree. The most typical type of performance management case was managing a return from absence. Most interviewees reported that a supportive return to work strategy supplemented by mediation was highly effective in addressing the issues that caused the absence to originally occur. Interestingly, despite mediation’s perceived utility in addressing harassment and bullying, few of the respondents reported such cases being dealt with through mediation. Rather, it was generally felt by those interviewed that the increased complexity of the cases, and “victims” greater reluctance to [482] face the “perpetrator” meant that in reality grievance and discipline procedures were seen by most as more appropriate.

 [9.145]  Many larger organisations or industries now have an internal ombuds whose role is

to support people in conflict to identify appropriate dispute resolution processes, to investigate grievances, and sometimes to conduct mediation or conciliation between the parties in conflict. Van Gramberg explains that the ombuds provides both rights-​and interest-​based conflict resolution.

Managing Workplace Conflict: ADR in Australia [9.150] B Van Gramberg, Managing Workplace Conflict: Alternative Dispute Resolution in Australia (Federation Press, Sydney, 2006) pp 56-​57. The use of an ombuds is common across industries such as telecommunications and insurance. Based on a Swedish concept, the position of internal ombuds has developed in organisations as diverse as universities, municipal councils and large corporations in the United States … An internal ombuds is responsible for the explanation of company policies and procedures, provision of advice on alternative courses of action, investigation of claims, referral to appropriate contacts, arranging meetings and sometimes mediating the dispute. It is particularly suited to instances where disputes are complex or involve a number of parties and the facts around the matter are [57] contested. Investigation by the internal ombuds consists of a fact-​finding exercise in which the investigator is given access to documentation and may interview personnel relevant to the claim … Because the internal ombuds operate through a complaints and investigation process, the model is said to be suitable for both “rights” and “interest” disputes which arise in the workplace … Generally, employee committees or unions are not involved in this type of dispute handling process. The internal ombuds complaints system must be operated independently of the person responsible for the original (disputed) decision, if the system is to have the confidence and support of complainants.

 Investigation/​fact-​finding [9.155] Where a grievance or conflict is not resolved through informal processes, and a formal complaint is made, the next step is usually a formal investigation and fact-​finding process. The investigation may be conducted by an internal or an external person, depending on the organisational policy and the particular circumstances. In the following extract Hor suggests the essential conditions for an investigation and provides a suggested investigation process. 556 [9.145]

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Internal or External Investigation [9.160]  J Hor, Managing Workplace Behaviour: A Best Practice Guide (CCH, Sydney, 2012) pp 206-​207. An important issue for determination is whether an investigation will be conducted internally or externally. For some organisations, such as a very small business with limited resources, an external investigation will be financially draining. In other instances, it will be appropriate to appoint an external investigator, such as when the allegations are of a serious nature or there is no employee with the necessary training and skills to conduct an investigation. When conducting the investigation, it is essential that: • There is no actual or perceived bias • The investigator is clear on the scope of the task (ie whether they are simply conducting a factual investigation into whether something occurred or whether they are required to make recommendations) • The investigator has the necessary training and skills to conduct the investigation, and • The investigator does not have a conflict of interest, such as being the direct manager of either the complainant or the respondent. Figure 8.1 (following) sets out a suggested investigation process. An employee lodges a grievance

The investigation is planned. Relevant evidence, dispute processes and source documents (such as workplace policies and agreements) are reviewed and considered

The complainant is interviewed (with a support person, if required)

The person whom the allegation is made against is interviewed (with a support person, if required)

Witnesses (if any) are interviewed (with a support person, if required) if discrepancies exist between the complainant’s and responden’t version of events

Re-interview parties to clarify issues, if necessary

Consider all evidence that has been gathered during the process and prepare a report

If the complaint is substantiated, then disciplinary action may/ will be taken

If the complaint is unsubstantiated, then no disciplinary action will be taken

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Conciliation/​arbitration [9.165]  Conciliation or arbitration may be provided as part of an internal conflict resolution

system (with either an employee or external contractor conducting the process), but these processes are mostly used through external tribunals (eg, Fair Work Australia or the Human Rights Commission) after a formal complaint has been lodged. In the following extract Commissioner Peter Hampton describes the role of arbitration in an article written for the Law Society of South Australia.

The Role of Arbitration in Disputes Before the Fair Work Commission [9.170]  P Hampton, “The Role of Arbitration in Disputes Before the Fair Work Commission” (2016) 38(7) Bulletin (Law Society of South Australia) pp 16-​18. Along with certain specific jurisdictions of the Fair Work Commission, such as those relating to minimum wages and awards, unfair dismissals and anti-​bullying matters for example, the role of the Commission in dealing with disputes in workplaces is a matter of strong public recognition. Those more general disputes might relate to concerns in a workplace about changes to working conditions or arrangements, grievances about how individuals or groups are being treated, or whether rights and obligations are being honoured. In more recent years, the role of the Commission in dealing with bargaining disputes relating to the negotiations of enterprise agreements has also been a matter of some public interest. I will deal firstly with the general dispute resolution role, however, it is necessary to understand the historical and statutory basis for that role in order to appreciate the present circumstances. Conciliation and arbitration have been part of the institutional framework for the Commission and its predecessors since the enactment of the Conciliation and Arbitration Act 1904 (Cth). Indeed, arbitration, in the sense that (interstate) disputes were determined by the Commission, was at the very basis of what became the award making and dispute resolution role for the Court of Conciliation and Arbitration, and subsequently the Commission. There have been many changes in the institutional and legislative environment since 1904 and some of these have impacted upon the nature and role of arbitration within the national workplace relations system, including the jurisdiction and powers of the Commission in that regard as operating under the present Fair Work Act 2009 (Cth) (FW Act). Perhaps the most significant of these changes involves the notion that in some of its dispute resolution functions, the Commission is conducting a “private arbitration”, a concept confirmed by the High Court in Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission1 (the private arbitration case) and later reflected in the FW Act. In the private arbitration case, the High Court was dealing with the validity of s 170MH of the Industrial Relations Act 1988 (Cth), which provided the capacity for a certified agreement to enable the Commission to determine disputes, and the impact of s 89A, which had the effect of substantially limiting the general capacity of the Commission to arbitrate disputes. The High Court said: “There is, however, a significant difference between agreed and arbitrated dispute settlement procedures. As already indicated, the Commission cannot, by arbitrated award, require the parties to submit to binding procedures for the determination of legal rights and liabilities under an award because Ch III of the Constitution commits power to make determinations of that kind exclusively to the courts. However, different considerations apply if the parties have agreed to submit disputes as to their legal rights and liabilities for resolution by a particular person or body and to accept the decision of that person as binding on them. Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is

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The Role of Arbitration in Disputes Before the Fair Work Commission cont. a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator’s powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator’s award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it. To the extent that s 170MH of the IR Act operates in conjunction with an agreed dispute resolution procedure to authorise the Commission to make decisions as to the legal rights and liabilities of the parties to the Agreement, it merely authorises the Commission to exercise a power of private arbitration. And procedures for the resolution of disputes over the application of an agreement made by parties to an industrial situation to prevent that situation from developing into an industrial dispute are clearly procedures for maintaining that agreement. Parliament may legislate to authorise the Commission to participate in procedures of that kind. Accordingly, s 170MH of the IR Act is valid”. Their Honours also held that, to the extent that provisions in a certified agreement extended beyond anything that might have been justified by the underlying industrial (constitutional) dispute, those provisions were effective as a matter of “general law”. The general limit on the powers of the Commission to arbitrate disputes and the notion that parties may agree to give the Commission what amounts to private arbitration powers are reflected in the FW Act by virtue of ss 595, 739 and related provisions. Broadly summarised, the combined effect of these provisions is that the Commission may only deal with a dispute if it is expressly authorised to do so under or in accordance with another provision of the FW Act. Section 595(2) does provide such an express authorisation in relation to disputes, but non-​consensual arbitration of those disputes is not included. Further, s 595(3) provides that the Commission may deal with a dispute by arbitration only if it is expressly authorised to do so under, or in accordance with, another provision of the FW Act. In general terms, this means that the Commission may conciliate or use other means of alternative dispute resolution to facilitate the resolution of general disputes occurring in the workplace. However, the capacity for the arbitration of those matters depends upon whether there is specific agreement between the parties in a given matter or some other source of agreed authority to do so. Dispute resolution provisions under modern awards do not generally include unilateral access to arbitration. One of the other potential sources of authority to arbitrate results from s 186(6) of the FW Act, which provides that in approving an enterprise agreement, the Commission must be satisfied that the agreement includes a term that provides a procedure that requires or allows the Commission, or another independent person, to settle disputes about any matters arising under the agreement and in relation to the National Employment Standards; and which allows for the representation of employees covered by the agreement for the purposes of that procedure. It is common for dispute resolution provisions in approved enterprise agreements to include access to the Commission to determine (arbitrate) disputes and given the extensive coverage of these instruments this is in practice a significant role. Based upon decisions of the Court and the Commission, the following observations might safely be made about such provisions: • In addition to authorising the Commission or other independent person to conciliate or mediate disputes, the parties may also authorise the Commission or other independent person to arbitrate. However, a valid dispute settlement procedure does not need to provide for arbitration; • The Commission is in effect conducting a private arbitration when utilising any agreed arbitration powers under the terms of an enterprise agreement; • The dispute resolution term can be drafted broadly and extend beyond dealing with matters arising under the agreement to matters permitted in the enterprise agreement, subject to the requirements of the FW Act about dealing with disputes;

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The Role of Arbitration in Disputes Before the Fair Work Commission cont. • Unless the parties have complied with the necessary pre-​conditions contained in the dispute settlement term prior to seeking arbitration, the Commission may have no jurisdiction to deal with the application; • Where the Commission is authorised to intervene under the dispute settlement term, the Commission can exercise any of the general procedures and powers it possesses, unless the enterprise agreement specifies otherwise; • The determination of the dispute cannot vary the terms of the enterprise agreement and must be consistent with those terms; • The Commission’s decision must be in writing and will be published along with any reasons it provides; and • An aggrieved person may have a right of appeal, or may need to seek leave to appeal to the Full Bench from an arbitration decision, depending upon the terms of dispute resolution provision. In terms of bargaining disputes, it is sufficient to observe that in general terms, the Commission does not possess a comprehensive right to arbitrate the substance of these matters. That is, although the Commission has various powers to issue bargaining orders, orders to require the commencement of bargaining, regulate bargaining conduct including processes to authorise protected industrial action and to prevent unprotected action, to set the scope of parties to be involved and to conciliate matters, there is no general power to determine the outcome of a bargaining dispute. The parties may however agree that the Commission will arbitrate such a dispute. There are, however, some important but limited exceptions to the voluntary arbitration rule. These relate to circumstances where the Commission, in effect, terminates the bargaining process and then may determine (arbitrate) the matters in issue and impose a workplace determination upon the relevant parties. This includes where the Commission finds that the industrial action taken in relation to the bargaining process is causing significant economic harm, endangering life, personal safety, health or welfare, or causing significant damage to the economy. The well-​known case involving Qantas airlines some years ago is an example of this process. In addition, where a party is found to have committed a serious breach of the good faith bargaining requirements of the FW Act, the Commission may also make a workplace determination. Accordingly, the role of arbitration remains an important and regularly utilised part of the framework of workplace relations law under which the Commission operates. However, in general terms, that role is exercisable (at least in relation to general workplace and bargaining disputes) where the parties agree to provide that role to the Commission. I should also observe that in almost all circumstances, the Commission is empowered to seek to resolve matters through mediation and/​or conciliation and this remains the power most often invoked to resolve disputes in Australian workplaces.

 Dispute systems design/​integrated conflict management systems [9.175] With such a range of conflict management and resolution processes available to

organisations, it is important that, where multiple processes are to be used, the relationship and pathways between the processes is clear for all concerned. The concept of Dispute Systems Design (DSD) refers to the purposeful arrangement of all dispute resolution processes within an organisation, as explained by Raines in the extract below ([9.180]).

Conflict Management for Managers [9.180]  S Raines, Conflict Management for Managers: Resolving Workplace, Client and Policy Disputes (Jossey-​Bass, San Francisco, 2013) p 227. 560 [9.175]

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Conflict Management for Managers cont. The term dispute systems design (DSD) refers to the strategic arrangement of dispute resolution processes within an organization. Disputing systems are commonly defined for internal employment disputes or disputes with external stakeholders such as clients, customers or regulators (eg, EEOC complaints within a federal agency or environmental enforcement cases with polluters). The goal of DSD processes is to track and reduce the occurrence and costs of disputes that can reasonably be predicted to occur within an organization and between the organization and external audiences such as customers, vendors, and regulators. Instead of treating each dispute as a unique, one-​time event, a DSD approach seeks to identify the sources of recurring disputes, take preventative steps to avoid such disputes when possible, and take a problem-​solving approach to efficiently resolve those disputes that cannot be avoided. All organizations have dispute systems, either by design or by accident. By working to prevent and efficiently resolve disputes, organizations can enhance their reputations, improve their products and services, and reduce the costs of conflict.

 [9.185] Constantino and Merchant (1996) propose six key principles of dispute system

design: 1.

Focus on interests;

2.

Provide low-​cost processes to secure rights;

3.

Provide loop-​backs to interest-​based procedures;

4.

Learn from each dispute;

5.

Try low-​cost processes first; and

6.

Ensure organisational members have the skills, knowledge and resources necessary to make the system work.

The State Services Authority of Victoria recommended workplaces develop and implement an integrated conflict management model, and provided some guidance for doing so in its report, extracted at [9.190].

Developing Conflict Resilient Workplaces [9.190]  State Services Authority, Developing Conflict Resilient Workplaces: A Report for Victorian Public Sector Leaders (State Government of Victoria, Melbourne, 2010) pp 10-​12, 19. 3. Building conflict resilient workplaces A conflict resilient workplace does not rely solely on formal dispute processes, but emphasises positive relationships and strong communication so that conflict is managed early, at the lowest possible level by the people directly involved, and with the most appropriate response. It uses conflict management systems that integrate strong diagnosis (“what is the cause of the problem?”) with appropriate decision making about the best response (“is this best managed through adjudication by a third party, or can we resolve this better through mediation, a courageous conversation or facilitation?”). A practical and achievable first step for sector organisations is to build an integrated conflict management model.

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Developing Conflict Resilient Workplaces cont. 3.1 An integrated conflict management model Each workplace has its own cultures, processes and traditions: this means conflict management systems will inevitably look different in every organisation. However, as Figure 3 shows, an integrated conflict management model has two key features. First, it is always underpinned with a strong intake assessment system (triage, see Figure [below]) when issues are raised. Second, it encourages alternative dispute resolution (with a strong focus on interests and needs of the people involved) approaches. [11] [12] The model retains a place for formal grievance processes –​but they are used only for specific disputes suited to formal complaints, or as a safety net.

Integrated conflict management model

No self resolution? Triage Identify Issues

Formal Complaint

Medical/ Legal Referral

Supported self-resolution

ADR Approaches; Coaching, Mediation, Facilitation

An integrated conflict management model • Provides early intervention through a triage or collaborative intake assessment system with multiple entry points for ease of access. • Identifies root causes of problems in addition to symptoms, and shares this information to create change. • Uses alternative dispute resolution methods (feedback, conversation, mediation, facilitation) that preserve workplace relationships by; • addressing the needs and interests of parties –​not just their rights; and • encouraging self resolution, rather than emphasising a formal process. • Incorporates preventative actions such as training and awareness raising. Where does this leave formal grievance processes? Putting resources into alternative dispute resolution models does not do away with the need for grievance structures. For example, certain situations demand formal processes be used: allegations of criminal or serious misbehavior; situations where there is a lack of good faith and parties won’t cooperate; situations where public policy, procedural or legal issues arise, or where the welfare of individuals is threatened. There is widespread acceptance, and a legal requirement, that organisations must have fair and effective systems for handling grievances. If someone claims that a law, standard or guideline has been 562 [9.190]

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Developing Conflict Resilient Workplaces cont. breached, there must be an effective and fair system to test that claim. If a grievance handling system is not perceived as procedurally fair, it will itself generate grievances, and become part of the problem. A conflict-​resilient workplace uses adjudicated grievance processes when they are necessary; but prevents conflict escalating into formal grievances when early resolution is possible. [19] Figure [below] depicts a conflict resilient workplace …

Grievance Procedures Collaborative problem-solving

Building & strenthening workplace relationships

This diagram reflects an environment that is no longer dominated by a heavy reliance on grievance procedures. At the top of the pyramid (grievance procedures) formal processes are employed only in respect of allegations of criminal or serious misbehavior; where there is a lack of good faith; situations where public policy, procedural or legal issues arise, or where the welfare of individuals is threatened. The next stage denotes activity in an integrated model (of formal and alternative dispute resolution practices), characterised by intake assessment practices and an acknowledgment that responsibility for solving conflict is one shared between people involved (collaborative problem solving). Methods used for resolving interpersonal conflicts are …: feedback, conversation, mediation and facilitation. Typically the focus in this area is focused on preventing things from going wrong. The pyramid’s foundation level signifies that the shift in culture is characterised by one where the dominant focus is on constructive communication (building and strengthening relationships) to help things go right.

 Potential problems with internal conflict resolution [9.195] There is much written about the potential problems of internal workplace conflict

resolution processes. Issues include whether or not management use such processes for the right reason, whether private processes can mask structural problems, the difficulties of neutrality/​impartiality for internal dispute resolution process facilitators, whether to engage legal representation and the appropriateness of DR for dealing with bullying and harassment. Some of these concerns are raised in the following articles.

The Structural Causes of Workplace Conflict: Understanding the Implications for the Mediation of Workplace Disputes [9.200]  M O’Sullivan, “The Structural Causes of Workplace Conflict: Understanding the Implications for the Mediation of Workplace Disputes” (2017) 29 Bond Law Review 87. [9.200]  563

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The Structural Causes of Workplace Conflict: Understanding the Implications for the Mediation of Workplace Disputes cont. V Alternative Dispute Resolution Approaches Mediation and investigation, both of which are common workplace interventions, can be valuable for addressing staff grievances, but it is important to understand their benefits and limitations. Mediation is an interest-​focused approach that seeks to empower the parties to a dispute to reach a mutually agreeable resolution. It is a flexible, informal and useful intervention because it “strives to improve relationships between parties and achieve reconciliation”. However, it is limited in its ability to address entrenched, systemic conflict, as there is often a disconnect between the parties to the initial dispute and the underlying source of the conflict. In relation to the case study, the absence of senior management or HR from the mediation process meant genuine resolution of the underlying causes of the conflict was not possible. There are variations to the mediation model that seek to reduce the disconnect between the individual-​focused approach that is characteristic of a typical mediation and the need to acknowledge the role of the organisation in creating, escalating and/​or impacting a dispute. For example, the Occupational Health and Safety model of mediation (the “OH&S model”) includes the provision of a post-​mediation report to the organisation with recommendations on identified organisational or systemic issues that may assist with the resolution of the dispute. While the OH&S model can be useful for raising broader issues, it does necessarily involve all the parties to the conflict in the resolution process. In the case study the parties found the mediation helpful but ultimately unsatisfactory, as the settlement could not provide a sense of justice. This sense of justice is necessary to support enduring resolution. Investigations are more determinative processes, and tend to focus on the specific incidents that make up a grievance. This typically results in a win/​lose outcome, as is often associated with rights based processes, and can damage ongoing relationships. Nevertheless, “rights or power procedures” can be useful for bringing “a recalcitrant party into the process”. The evidence from the workplace, however, is that investigations are used by human resource departments to ultimately deny or “attempt to reduce conflicts”, rather than to understand and resolve the underlying causes of the conflict. What was needed for the case study was a problem-​solving approach that took into consideration the total environment, and not just the issues within the parties’ control, in order to effectively deal with the source of the conflict. There are several emerging dispute resolution (“DR”) processes that provide this, including group conferencing, which “is designed to bring together those affected by harmful and destructive behaviour in the workplace”, providing an opportunity to consider the impact of workplace culture on the situation. Group conferencing may have been more effective than mediation for addressing the second complaint as representatives of senior management could have been included. This would have fulfilled Galtung’s requirement that all parties need to participate for a peace building intervention to be effective. The Structural Causes of Workplace Conflict An additional alternative process is to appoint a skilled, independent third party to conduct a facilitated discussion. This is a less defined, more flexible option that provides management and HR with the opportunity to influence the purpose and agenda of the DR process and to be part of the discussion. This approach, like group conferencing, recognises that organisations can be parties to a workplace conflict and have an interest in the terms of any resolution. Critical to the implementation of an appropriate DR process is an intake process that seeks to clarify the issues, determine the relevant parties and select the most effective process for the resolution of the dispute. An effective HR intake will support individuals to address issues directly, enable the root causes of a dispute to be identified, and encourage the relevant people to be involved in the discussion and resolution of the conflict. Ultimately meeting staff needs and attaining peace at the workplace will require more than DR processes, and will involve structural and cultural change. Actions senior management can take to turn around the culture include ensuring there is a timely, consistent and appropriate response to incidents of poor behaviour. Culture is influenced by the actions of the senior leaders and it is critical that the 564 [9.200]

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The Structural Causes of Workplace Conflict: Understanding the Implications for the Mediation of Workplace Disputes cont. CEO and senior leadership team demonstrate a preparedness to act. This means enforcing the code of conduct, following policies and procedures regarding performance and behaviour and supporting managers to act fairly, consistently and expeditiously. The role of middle managers will be significant, as this group have the most contact with staff, and their behaviour contributes to the establishment of behavioural standards. Strong, practical and consistent HR support will also be necessary to address poor performance. VI Conclusion Conflict, even where it appears to be between individuals, occurs in a context. Workplaces, like societies, have formal and informal sanctions that encourage and discourage particular behaviours. The behaviours highlighted through the case study demonstrate what can occur when there is a disconnect between formal and informal positions regarding workplace behaviour. The formal position, as expressed by the policies, procedures and systems, was that poor behaviour was not acceptable and would be addressed. The informal position, as expressed by the actions of HR officers and management, was that poor behaviour would not be addressed, and people who reported the behaviour would remain unsupported and be left to continue to work alongside the alleged perpetrators. Ultimately, those with the power to implement policies and sanctions did not exercise formal authority, leaving others to exercise power informally. The case study highlights that identifying the sources of workplace conflict can be complex and that ADR interventions must be sophisticated enough to manage and respond to complex situations. Popular ADR interventions such as mediation and investigation focus chiefly on the individuals directly involved in the dispute, and may be ineffective where the sources and resolution of conflict are beyond the capacity of parties to a conflict to address.

 [9.205]  Keeping in mind the potential for structural problems to lie at the heart of workplace

disputes, it is perhaps not surprising that the experience of some workers who have participated in DR to deal with problems of bullying and harassment has been negative. In the following article, Ballard and Easteal report on their research with DR participants.

(Alternative) Dispute Resolution and Workplace Bullying: Some Pros and Cons From the Coalface [9.210]  A Ballard and P Easteal, “(Alternative) Dispute Resolution and Workplace Bullying: Some Pros and Cons From the Coalface” (2016) 41 Alternative Law Journal 105 at 106-​109. Aim of our survey ADR has many potential benefits including a high settlement rate, direct communication between the parties in dispute, less formality, tailored processes, a narrowing of disputed issues, confidentiality, increased privacy, reduced costs, and a wider range of (potential) remedies including creative solutions to what are often highly personalised problems. Rundle identifies the core values of mediation as “non-​adversarial” ones such as responsiveness, cooperation, empowerment and recognition. She also acknowledges that while many mediators actively promote these values, the extent to which the process reflects non-​adversarial ideals depends significantly on the willingness and ability of the parties (and their lawyers) to engage in a way that promotes them. For mediation to be effective, parties need to listen and communicate effectively; to obtain and absorb new information and advice; to propose solutions; to represent their own (best) interests; and to act in good faith. This may be problematic in workplace abuse as asymmetrical relationships are likely and the parties may want an ongoing employment relationship. [9.210]  565

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(Alternative) Dispute Resolution and Workplace Bullying: Some Pros and Cons From the Coalface cont. Workplace abuse may have eroded targets’ self-​confidence and resulted in cognitive, emotional and behavioural effects that could undermine both the mediation process and their ability to advocate for themselves. For instance, bully targets may react with either passive concession making or reactive defiance, neither of which provides a sound basis for arriving at a durable settlement. Targets may not believe that they are entitled to a fair deal and may negotiate for what they think they can achieve rather than an outcome which is just or equitable, or which protects them”. If parties have low expectations of a legal process they may be happy to get anything but this satisfaction cannot be equated with an endorsement of the legal system. In addition, targets may not always perceive that mediators are competent or independent and may feel bullied into “settling” their dispute. Lawyers who represent less powerful parties (typically employees) have expressed concern about the use of mediation for similar reasons”. In other words, the positives of ADR may not always be realised in bullying matters. As observed by McLay: Mediation is not universally appropriate to all disputes and it is arguably not appropriate to workplace bullying (particularly when the alleged bully is the employer or the employer insists on the bully being present) due to the imbalance of power and the fact that power and its misuse is central to workplace bullying. We wondered then how targets who participated in ADR following workplace abuse experienced both process and outcome. Specifically, we wanted to identify which variables, if any, affect their perceptions of its efficacy. We were also interested in whether apparent resolution by ADR necessarily equates with feelings of satisfaction or justice. Accordingly, 20 bullying targets who had participated in a formal tribunal or court-​facilitated ADR process in the FW Act jurisdiction were invited, through both Survey Monkey and direct email invitation, to respond to a short survey on the ADR process. Ten (50 per cent) of the 20 invited participants completed five survey questions designed to identify demographic factors such as age and occupation, type of ADR process, and whether or not they had legal representation or other support. Respondents were also asked two open-​ended questions about how they had experienced the process and whether they would do it again. Participant responses were analysed thematically and a number of key process and outcome-​based themes identified. These included potential harms and benefits, the positive impact of legal representation or other support, perceptions of bias by the ADR practitioner, feelings of being re-​traumatised, and of concern about repercussions for having challenged employer behaviour (including adverse impacts on future employment), and feelings of justice (or lack of it). The legal practitioner author uses her professional reflections in these matters to further interpret the data.[107] Although our findings do not strictly offer a new perspective, the focus on ADR in the national Fair Work jurisdiction and the use of a survey ensures a unique approach to the information and views held based on the current landscape and experience. Perceptions of the ADR process: Harms and benefits As Rundle notes, where parties engage cooperatively in mediation negotiations, they may enhance the chances of arriving at a mutually satisfactory outcome. The respondents in our survey identified a spectrum of potential benefits from cooperative engagement in ADR, including feeling empowered, being able to hold the employer accountable, and shining a light on toxic workplace cultures. For instance: I felt very positive about the process and the outcome. … I could feel my anger as I read [my statement] over the phone and it felt very empowering. … to have my ex manager and director hear what I had to say with no interruptions [I felt an] overwhelming need to do this and get some. accountability and responsibility happening … [S]‌ubsequently I felt very strong on the day and I also had a great support person with me at the time who coached me through the negotiation (Applicant 9, female, 54, general protections pathway) [I]t actually gave [me] an opportunity to expose the toxic culture of the organisation. Hopefully … my experience [will] help others, to enable for steps to be taken in the future for improvements to be made and develop the organisation in real need of sound leadership, decent and effective management. (Applicant 10, female, 48, unfair dismissal pathway) 566 [9.210]

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(Alternative) Dispute Resolution and Workplace Bullying: Some Pros and Cons From the Coalface cont. Some respondents, though, were ambivalent about the process while others were openly critical. We speculate that this may be in part because ADR is a facilitative problem-​solving exercise with no determinative finding of right and wrong, and that participants may, therefore, feel cheated of an independent public finding that the other party was in the wrong (as seen in some survey respondents’ answers below). We also suggest that targets might be disappointed that the mediator did not always (quite appropriately given the scope of mediation) demonstrate a detailed understanding of the factual intricacies of their case or comment on the unfairness of what had happened to the target. [Although the case was later settled I felt] indifferent [about] the ADR process] (Applicant 8, male, mid-​ 40s, general protections pathway) It was a complete joke. I can hardly believe it [is] a legal process! … He [the conciliator] did not challenge them (employer). … [The ADR practitioner] did not ask the company representative why I had never seen the 14 page rant of complete lies against my colleague and myself? [sic] … He did not query why I was never given a copy of the minutes from the two disciplinary meetings … (Applicant 3, female, 48, general protections pathway) In relation to experiencing harm during the process, one participant noted: [T-​]he ADR process was distressing. I felt hurt and betrayed. … I also understood that I needed to go through the process to “clear my name”. … I had gone into shock by the bullying tactics and sickening extent of my employer’s actions. … There seemed to be an agenda … to wear me out in a game of bluff and cover ups. … Between the agency’s executive and legal teams, there appeared to be an inexplicable immoral stance when it came to defending their own positions … the process itself was all consuming and had a negative impact on my ability to get on with normal living. I was also distressed at the thought of the record on my employment history, and I was determined to have this. This factor was very important to me particularly for future employment prospects which require reference checking and security clearance processes in government agencies. (Applicant 10, female, 48, unfair dismissal pathway) Benefits: Legal support The few studies that have examined the objective success of legal representation during ADR suggest that lawyers may help parties achieve more favourable settlement outcomes, including higher financial compensation, than those achieved by unrepresented litigants”. The role played by lawyers is not restricted to procedural and substantive expertise. Even in employment disputes in which FWC ADR processes are (supposedly) designed for self-​represented litigants, lawyers may be granted permission to represent parties. They may also help targets by providing emotional support, balancing power, boosting the self agency of targets and assisting with strategies Having legal representation and other support mechanisms was seen by some respondents as positively affecting their ADR experience and as being a requisite for more equal participation. I think you need a lawyer. It makes your former employer take the situation/​you more seriously. I don’t think I would have got the same response/​compensation … on my own (Applicant 7, female, 42, unfair dismissal pathway) I felt supported by my representative through the whole process (Applicant 3, female, 48, general protections pathway) [108] I had some great advice [from a lawyer], which … enabled me to stay strong and resolute and not to back down when … the conciliator [suggested] that it would not be worth my while to take it any further. Thanks to [the lawyer] I was able to state with complete conviction that I was fully prepared to take it further if it wasn’t settled … this … I believe greatly assisted me in getting the outcome I wanted. (Applicant 9, female, 54, general protections pathway) I wouldn’t have known what to do or been able to do without [the lawyers] (Applicant 6, female, 36, general protections pathway) However, lawyers may also contribute to an uneven landscape. As Sourdin notes, the competing interests at play in mediation, including “unruly” lawyers, may be unhelpful”. As one unrepresented target noted: [At the reconvened] conciliation my employer [9.210]  567

Dispute Resolution in Australia: Cases, Commentary and Materials

(Alternative) Dispute Resolution and Workplace Bullying: Some Pros and Cons From the Coalface cont. had “lawyered-​up” [it] felt like four against one -​two employer representatives, one lawyer, and the Commission’s conciliator on one side, and unrepresented me on the other … the whole process felt unfair and unbalanced. … Later, at the court-​referred mediation, the lawyer totally sucked up to the (female) mediator which made my stomach churn. I was so disheartened by the appalling tactics used by the other party’s lawyer throughout the entire process that I just didn’t have the emotional strength to take it any further … (Applicant 4, female, (age not provided), unlawful termination pathway) As it is difficult to control the way participants and their lawyers approach ADR, the process may be approached in a competitive or other “adversarial manner, 3 which perhaps unsurprisingly may be experienced negatively by a less powerful party. Where the lawyer and mediator have a prior relationship, it may undermine targets’ faith in the claimed fairness and impartiality of mediation.14 Targets may feel unheard and invisible5 and even re-​victimised. In situations where ADR is conducted by the FWC or the court under the Fair Work jurisdiction, the cost of the mediation is generally borne by the tribunal or court. Although this ought to translate into perceptions of bias-​free mediation, that is not always the case as highlighted by one respondent: During the conciliation, I felt the conciliator was quite aggressive towards me and … biased in favour of my very large employer [which] had not come to the ‘bargaining table’ with any offer of settlement. (Applicant 4, female, (age not provided), unlawful termination pathway) We make no comment on this other than to observe that, where private mediation is arranged by the parties, the mediation may be paid for by the better resourced party (usually the employer). In such cases, the mediator may be perceived by the target as being compromised in favour of the funding employer. Lawyers are clearly partisan advocates for their clients. Impartial ADR professionals engaged by both (or all) parties to a dispute, are (and should be) kept at a distance by the parties and are therefore unlikely to be privy to all discussions parties have had with their lawyers. Mediator neutrality is very important to the parties’ perceptions of the legitimacy of mediation, though some theorise that mediator neutrality is a myth that hides the reality of practitioner impacts on both the content and process of mediation”. Potential harm: Outcomes In employment disputes brought in the Fair Work jurisdiction, “settlement” generally includes a financial settlement. In the practitioner author’s experience, all parties may have unrealistic expectations about a suitable settlement outcome and be offended that the outcome with ADR is negotiated. Settlements in this space may include: apologies; the right to resign (rather than be terminated); reinstatement (rarely); a restorative letter to third parties if the target feels their reputation has been damaged by the employer; the provision of a statement of service or reference; transfer to another position; “agreed” redundancy; an agreed departure announcement; and payment of career coaching. Settlements terms are limited only by the creativity of the parties, their representatives and the mediators. In some cases, a failure to settle may leave the target feeling that the ADR outcome was unjust as noted by one respondent who declined to go to court after the FWC conciliation: [The process was] unfair, no outcome …, waste of time (Applicant 5, female (age not provided), general protections pathway) Even where the matter is “settled”, targets may feel cheated and angry. They may have little feeling of closure and/​or a perception that the employer had not been held accountable. I am still so angry about the whole thing and still want to send a letter to the CEO so that I can feel I have some sort of closure. It upsets me that [X]‌couldn’t even be bothered to attend my … [conference] and … their lawyer didn’t even know which [employee] I was? Plus they never … explain[ed] to the Fair Work Commissioner why they breached their own policies and procedures? (Applicant 3, female, 48, general protections pathway) 568 [9.210]

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(Alternative) Dispute Resolution and Workplace Bullying: Some Pros and Cons From the Coalface cont. The unfair dismissal claim came at the end of a saga of approximately two years of bullying. The unfair dismissal had a positive outcome [but] [t]‌he [worker’s] compensation claim is still ongoing (Applicant 5, female, (age not provided), unfair dismissal pathway) Other respondents expressed concern about possible detrimental impacts arising after the settlement: I am afraid because [X]‌is a very vengeful person I [sic] have seen what he has done to others … even if he is in the wrong just because they have challenged him! (Applicant 2, female, (age not provided), general protections pathway) It’s good that I did it; it’s let me breakthrough being bullied, and I feel different. But I’m already paying the costs that have prevented me from doing it earlier (and that I’m hearing prevent others from doing so): loss of my friendship with colleague [X]‌, and the impression that if it’s anything to do with [Y], I’ll never work in this town again. [Y] is very well connected. I’d like to minimise those costs. (Applicant I, female, (age not provided), general protections pathway) In addition, finalising the agreed settlement may be delayed by negotiating the final deed, compliance [109] with agreed terms (eg, payment and providing a statement of service), and filing a formal notice of discontinuance. Potential harm: Settlement issues and pressures Employers’ greater power and economic resources may see targets “bullied”, perhaps even by mediators prioritising settlement,6 into “settling” their complaint. Thus, according to one target, ADR can become a war of attrition: [A]‌t the end of a very long and stressful day the matter still wasn’t settled. I was exhausted and suffering from “mediation fatigue” after the third attempt at settling the dispute’ (Applicant 4, female (age not provided), unlawful termination pathway). Potential harm: Bar to further action? Deeds of release generally act as barriers to further legal action (apart from actioning rights which cannot be lawfully contracted out of, such as the right to lodge a worker’s compensation claim). This may not sit happily with the parties or be understood by them. Two respondents made the following comments after reviewing the proposed deed following a “successful” conciliation: The deed was silent on the allegations of bullying and other OH&S stuff –​but nevertheless demands that I release [X]‌etc from all liability for anything connected with my employment, and therefore stops me from saying what they did during that employment and from the repercussions. This seems like a great deal of unintended benefit to them, and too broad a waiver of their responsibilities. (Applicant I, female, (age not provided), general protections pathway) I don’t trust them. … [C]‌an that open the path for [X] to try and do anything to me legally because of my allegations towards him? (Applicant 2, female, (age not provided), general protections pathway) Conclusion Tyler’s interpersonal climate (disputant satisfaction) and outcome quality criteria for assessing ADR appear to be relevant to evaluating the bully targets’ experiences of ADR. The concerns that targets expressed about ADR in the context of bullying matters include: unequal bargaining power in negotiating settlement; concerns about mediator impartiality; insufficient opportunity to be heard and/​or for fact-​finding; and unjust outcomes. Even with “settled” matters (which non-​parties might equate with a successful process and outcome), some were dissatisfied with both process and outcome believing there were unintended benefits for the other party and having ongoing concerns about the other party’s future conduct. Paraphrasing the words of one target: “At least I gave them a [metaphoric] bloody nose”. But while both individual bully perpetrators and organisations may receive “a bloody nose” for engaging in, or allowing workplace abuse, it is unlikely that ADR deals a body blow that “knocks-​out” workplace bullying. [9.210]  569

Dispute Resolution in Australia: Cases, Commentary and Materials

(Alternative) Dispute Resolution and Workplace Bullying: Some Pros and Cons From the Coalface cont. It was a horrible, gruelling process but I made them listen to my story. It didn’t really feel like my “day in court” but I did get some satisfaction from the process of making them sit there while I droned on, and on, and on. (Applicant 4, female, (age not provided), unlawful termination pathway) Our conclusion therefore is that ADR in employment law matters such as workplace bullying can be a double-​edged sword. ADR reflects a pragmatic attempt to optimise the use of court and tribunal resources by encouraging complaint resolution by out-​of-​court settlement. It is often successful in doing so. Such success is narrowly defined however if it is measured only by court and tribunal dispute settlement statistics. Even when matters are ostensibly resolved from the perspective of lawyers, mediators and conciliators, and the courts and tribunals, resolution may in fact conceal significant and ongoing concerns on the part of some (but certainly not all) targets. The idea of success is broadened where targets feel that they have been given voice and achieved a measure of justice. This prospect seems enhanced by legal representation helping to balance a landscape skewed by power imbalances, by the psychological and physical effects of bullying, and by the target’s perception of mediator bias. ADR often enhances settlement rates and is therefore resource efficient in that it often eliminates the need for a determinative hearing of matters by courts and tribunals. However, it does not always mean the matter has been resolved safely or justly from a target’s perspective.



The Rhetoric and Reality of Workplace ADR [9.215]  B Van Gramberg, The Rhetoric and Reality of Workplace Alternative Dispute Resolution (2006) 48 Journal of Industrial Relations 175 at 187-​188. Is Private ADR a Tool for Gaining Compliance with a Managerial Agenda? The blurring of the ADR practitioner role with that of management consultancy (resulting in loss of neutrality) may arise because ADR practitioners with management backgrounds, lead the growth in private ADR. As management consultants, they may perceive the employer to be the client; identify themselves primarily as management advocates; have greater sympathy with management issues; or see future work dependent on satisfying client demands. In his study of management consultants, Williams similarly noted that “consultants are not objective, they look to please clients, attempting to secure the next piece of work”. In turn, employers also use consultants to serve their own needs; for instance, a consultant may be used to reinforce and legitimize a managerial decision. Indeed, the hiring of a consultant is itself a management mandated intervention. As such, the consultant brings with him or her, an aura of power. The presence of an ADR practitioner in the workplace is thus symbolic of authority and, arguably, practitioners need to be aware of their symbolic role in the workplace, as their use by management may not be consistent with the goals and values of their profession. In other words, ADR practitioners may unintentionally be used as an instrument of managerial power, while giving non-​managerial disputants the impression that management is actually stepping back from the decision making process. The symbolic role of the ADR practitioner in structuring the attitudes of the disputants is an area which may be amenable to future investigation by action research with the aim of informing ethical codes of practice and self-​awareness of the impact of the ADR practitioner. Is ADR a Better Tool for Achieving Dispute Settlement than for Delivering Workplace Justice? The principle of due process is to guarantee disputants fair treatment in decision making by limiting the arbitrary actions of those with the authority to rule. The key elements in due process are, first, that there is an opportunity to participate in the process; second, that participants have a sense of control over the process; and, third, that they are treated with respect by the third party who is perceived as neutral. 570 [9.215]

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The Rhetoric and Reality of Workplace ADR cont. The cases revealed that resolution was achieved without resort to tribunals or courts. However, the imbalance of power in the work relationships and the lack of practitioner neutrality limited the opportunity of the weaker parties to have their issues considered to an equal extent in the decision making, leading to unfavourable (and at times, unjust) outcomes for the weaker parties. In light of these findings, the suitability of private ADR for workplace disputes is an issue for future research, particularly as private mediation is already installed as the “model” grievance procedure clause for Australian Workplace Agreements (AWAs) and collective agreements. Does Private ADR Offer the Opportunity for Both Employers and Union Representatives to Abrogate their Responsibility to Deal with the Conflict Themselves? The cases revealed that employers and unions were able to extricate themselves from the dispute resolution process through the hiring of a consultant. Certainly, the lack of dispute resolution skills by management appears to be one of the principal reasons behind the engagement of the ADR practitioner, however another possible rationale is that an ADR practitioner affords both employers and unions the ability to abrogate their responsibilities regarding the resolution of the dispute. These two issues will now be discussed. Many of the problems identified in the three workplaces, arose, in part, from lack of employer knowledge of Australian industrial relations. In Metals, parties relied on an external practitioner because the resident HR manager was unable to deal with the work–​family interface issues and allegations of discrimination arising from the dispute over the roster change. Similarly, in Energy Co, there were no managerial staff with experience in enterprise bargaining and so a consultant was deemed necessary. Infotainment, too, featured the inability of the project manager to deal with workplace conflict, leading to the hiring of a mediator. Arguably, these sorts of issues are not special or extraordinary in the workplace, but represent the routine conflicts of workers undergoing changed work processes. The question raised here is that if ADR is used primarily to resolve minor workplace conflicts and to facilitate enterprise bargaining, then the solution may be to provide managerial staff with skills in conflict management and knowledge of industrial relations, not private ADR. The second issue is the lack of communication between employers and employees which resulted from the hiring of the consultant. In organizational settings, communication is normally viewed as the mutual exchange of meanings between workplace actors. Where meanings are contradictory or contested, dispute resolution techniques have a role in bringing about new, shared understandings. A common image of the role of the ADR practitioner is to provide the missing link between what is intended in communicating a message and what is interpreted by the other person. A major role of communication in ADR, once the disputants understand their roles and the nature of the process, is to create understanding of the issues in contention. The case studies demonstrated that employers avoided having to communicate with angry employees and unions. By avoiding an adversarial role in the process, they ceded responsibility for dispute resolution to the ADR practitioner. It is arguable that the combination of a lack of industrial relations knowledge and conflict resolution skills combined with a reluctance to deal with negative emotions provided sufficient impetus to engage an external consultant.



Managing Neutrality and Impartiality in Workplace Conflict Resolution [9.220] B Van Gramberg and J Teicher, Managing Neutrality and Impartiality in Workplace Conflict Resolution: The Dilemma of the HR Manager (2006) 44(2) Asia Pacific Journal of Human Resources 197 at 197-​208. [9.220]  571

Dispute Resolution in Australia: Cases, Commentary and Materials

Managing Neutrality and Impartiality in Workplace Conflict Resolution cont. The interface between conflict management and ethics in organisations occurs in a web of power relations, organisational structures and amidst the (often) conflicting objectives of organisational competitiveness and workplace justice. Human resource management (HRM) policies and practices have been pivotal in managing this interface. Key to the role of HR managers is the management of conflict and the delivery of justice in workplace decision-​making which is often performed through a workplace dispute resolution procedure. We argue that ethical decision-​making to resolve conflict is challenged by the inherent nature of HRM and further exacerbated by the Workplace Relations Amendment (Work Choices) Act 2005 (the Work Choices Act). First, we note that in an environment driven by the need for efficiency, HR managers are expected to perform a range of roles, particularly that of “strategic partner” which can be at odds with that of the “employee champion” role. Second, as representatives of the firm’s interests, HR managers cannot be considered neutral mediators of conflicts between workers. It is timely to raise these concerns given the changes to industrial relations legislation which, arguably, shift the balance of power further towards employers than has previously been the case. At the same time, the changes will remove certain dispute resolution powers from the federal industrial tribunal and this will place greater pressure on HR managers to resolve conflict within the workplace. In light of these changes, we argue that the notion of an HR manager being a third party neutral in dispute resolution is problematic from the point of view of workplace justice and that a more ethical stance might entail the exercise of impartiality informed by an ethical code. … While well-​structured dispute resolution procedures are vital to the delivery of workplace justice, a key component of due process is the role of a neutral third person or decision-​maker (Hunter, Ingleby and Johnstone 1995). In order to afford the disputants a fair process, a third party must also be independent of the disputants. In practice this means that the third party (perhaps acting as a mediator or arbitrator) should not pursue the objectives of one side over the other. Given that many disputes are processed through a workplace dispute resolution procedure culminate with the HR manager, the issue of neutrality in grievance resolution is one which deserves exploration. Workplace justice and the concept of neutrality and impartiality Achieving workplace justice is a key interest and need of employees. It is argued that by entering an employment relationship, workers have ceded authority to their managers and they are aware that decisions made by those in power may be exploitative or underpinned by ulterior motives. Employees deal with this dilemma by measuring decisions against their own principles of fairness. Decisions which pass their “fairness” test are more likely to be accepted and, consequently, the decision-​makers more likely to be obeyed in the future. Individuals use the principles of balance and correctness, which are elements of both equity theory and social comparison processes, to determine if a decision or action is fair or unfair. For any particular event, an individual will compare his or her ratio of input and outcomes to another’s ratio of input and outcomes. This represents the overall balance of the action. The principle of correctness assumes that individuals compare decisions to internal standards of right and wrong, consistency, accuracy, or morality. Generally, these principles are applied at three levels of analysis: outcomes (for instance, a wage rise), procedures (for instance, the nature of the bargaining process), and systems (the organisational context in which the procedures are based and outcomes distributed). In order to be regarded as just, all three levels must be evaluated by employees as fair. These common elements of a fair decision broadly align with the hallmarks of distributive and interactional justice. Procedural justice focuses on the means or process, distributive justice focuses on the ends or outcomes, while interactional justice, is concerned with the level of respect and dignity afforded the disputants. … Workplace justice is complicated by the fact that technical and economic considerations are typically the overriding determinants of management decision-​making along with the pressure to deliver profits to shareholders. This places managers in an invidious situation in which there are likely to be limitations on the interpretation and operationalisation of corporate concepts such as ethical codes 572 [9.220]

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Managing Neutrality and Impartiality in Workplace Conflict Resolution cont. or workplace justice. At the same time, to adhere to the principles of workplace justice is to ensure that corporate goals do not override individual liberties or human needs. Key to delivering workplace justice is the HR manager acting as a neutral arbiter of workplace disputes. This raises the question of what neutrality and impartiality entail and whether either can be achieved by the firm’s representative. … We argue that, with the increasing emphasis on the HR role as a “strategic partner”, the HR manager is intrinsically a representative of the firm rather than a neutral arbiter of disputes among workers. This has important ramifications for managing fair dispute resolution in the workplace. First, we argue that taking a neutral stance in workplace disputes privileges the more powerful disputant, for instance a manager of the organisation. Second, with the exemption for many firms from a duty to dismiss employees fairly, we predict that some employees will be fearful to argue their case in a dispute, thus making it more likely for HR managers to exert the preferred outcomes of the firm. The shifting balance of power away from employees towards employers raises ethical questions for the role of the HR manager in dealing with such disputes. Neutrality applied in these circumstances will have the effect of satisfying the shorter term goals of entrenching managerial or organisational objectives over other interests. However, we argue that longer term goals, particularly those which enhance workplace justice, are likely to be afforded through the exercise of impartiality informed by an ethical code.



EXTERNAL WORKPLACE DISPUTE RESOLUTION PROCESSES [9.225] As well as internal workplace dispute resolution processes, there are a range of

options for people involved in workplace conflict to attempt to resolve their dispute with the assistance of external bodies. External assistance may be provided by private dispute resolution services (arbitrators, mediators, conflict coaches, investigators) or by government bodies (the Fair Work Ombudsman, Fair Work Commission, Human Rights Commission). The Fair Work Commission [9.230] The FWA established the Fair Work Commission (FWC), an independent national

workplace relations tribunal. The FWC makes decisions about the national minimum wage and can create and change modern awards. The FWC also resolves workplace-​related disputes, initiated by individuals or organisations, about many workplace matters, including unfair dismissal, industrial action, equal pay, transfer of business, right of entry and enterprise bargaining. The FWC website explains that the FWC can assist in dispute resolution by providing services including conciliation, mediation and arbitration.

How Can the Fair Work Commission Assist in Dispute Resolution? [9.235] FWC, How Can the Fair Work Commission Assist in Dispute Resolution? http://​www.fwc.gov.au/​ index.cfm?pagename=disputeabout. Members of the Fair Work Commission (the Commission) are experienced in a wide range of alternative dispute resolution techniques including conciliation, mediation and arbitration. [9.235]  573

Dispute Resolution in Australia: Cases, Commentary and Materials

How Can the Fair Work Commission Assist in Dispute Resolution? cont. They are skilled in helping employers and employees resolve workplace disputes and can suggest means of resolving differences that may not have been immediately apparent to those directly involved. They are also impartial and have a sound knowledge and understanding of the relevant legal and industrial issues. Depending on the circumstances, the Commission can exercise statutory powers that enable disputes to be resolved on a final basis. Who can seek assistance from the Commission? In general, the Commission can assist in resolving disputes involving employers, employees and unions and employer associations who are covered by the national workplace relations system. These include: • any employer that is a constitutional corporation • any employer in Victoria or the territories • the Commonwealth (including any Commonwealth authority) • any employee of one of the above types of employers • a registered union or employer organisation. What types of disputes can be referred to the Commission? The main types of disputes that can be referred to the Commission are: • disputes under the terms of an award or a collective or enterprise agreement • bargaining disputes, and • disputes arising under the general protections provisions of the Fair Work Act 2009.

 [9.240]  Section 576 of the FWA sets out the function of the FWC and its power to deal with

disputes. Section 595(2)(a) provides that the FWC may deal with a dispute by mediation or conciliation, and s 595(3) provides that the FWC may deal with a dispute by arbitration.

FWA, ss 576, 595 [9.245]  Fair Work Act 2009 (Cth), ss 576, 595 576 Functions of the FWC (2)

The FWC also has the following functions:



(aa)



(a)

promoting cooperative and productive workplace relations and preventing disputes; dealing with disputes as referred to in section 595;



(b)

providing assistance and advice about its functions and activities;



(c)

providing administrative support in accordance with an arrangement under section 650 or 653A;



(ca)

mediating any proceedings, part of proceedings or matter arising out of any proceedings that, under section 53A of the Federal Court of Australia Act 1976 or section 34 of the Federal Circuit Court of Australia Act 1999, have been referred by the Fair Work Division of the Federal Court or Federal Circuit Court to the FWC for mediation;



(d)

… 574 [9.240]

any other function conferred on the FWC by a law of the Commonwealth.

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FWA, ss 576, 595 cont. 595 FWC’s power to deal with disputes (1)

The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(2)

The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:



(a)

by mediation or conciliation;



(b)

by making a recommendation or expressing an opinion.

(3)

The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(4)

In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

(5)

To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.

 [9.250]  Pathways of dispute resolution vary according to the type of dispute, as explained

in the following extract. For unfair dismissal applications, conciliation (primarily conducted by trained mediators using telephone conferencing) is the norm and appears to be efficient, flexible and cost-​effective. Where the matter does not settle through conciliation, it can go to arbitration conducted by the FWC. For general protections matters, however, where a matter is not resolved through conciliation, parties must apply to the Federal Court for a hearing.

ADR and Industrial Tribunals [9.255]  T Macdermott and J Riley, ADR and Industrial Tribunals: Innovations and Challenges in Resolving Individual Workplace Grievances (2012) 38(2) Monash University Law Review 82 at 84-​85. The FW Act has consolidated and enhanced a number of rights in its “general protections” provisions, including rights to freedom of association, to the enjoyment of the benefit of industrial instruments, and protection from discriminatory treatment. While FWA is able to conciliate these applications, the ultimate power to adjudicate these disputes is vested in the Federal Court or Federal Magistrates Court. So whereas the conciliation of unfair dismissal applications occurs within the shadow of potential arbitration in a short time by the same body (FWA), conciliation of general protections occurs in the more remote shadow of potential court proceedings, which can occur only after considerable delay and expense. Many applicants find the prospect of proceeding to court too onerous and discontinue their complaints. In addition, the complexity of the statutory provisions and absence of a body of decided cases clarifying the provisions mean that the parameters for negotiation in conciliation are much less clear. Finally, the individual rights focus of the provisions means that many applications will involve individual employees (not unions) who may be unrepresented by professionally trained advocates. Many of these will be “one-​shotters”, with little prior exposure to or experience of the industrial relations system. Conciliation provides an important opportunity for them to understand their rights and their prospect for success, but it may in fact be their only viable avenue of recourse, given the difficulty they face in pursuing the matter further.

 [9.260]  Forsyth questions the fairness of the new system, particularly the reduced capacity

for legal representation combined with the activist role of FWA conciliators in a more interventionist type of conciliation. [9.260]  575

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FWA’s Role in Resolving Unfair Dismissal Claims [9.265] A Forsyth, Workplace Conflict Resolution in Australia: The Dominance of the Public Dispute Resolution Framework and the Limited Role of ADR (2012) 25(3) The International Journal of Human Resources Management 476 at 482. As discussed earlier in this article, changes were made under the Fair Work Act to the former process for dealing with unfair dismissal claims, in response to business concerns about the time and costs involved in defending these claims. More employees are now covered by the federal unfair dismissal system, due to the abolition of some of the sweeping exclusions from the ability to bring a claim effected by Work Choices. Nevertheless, concerns have been raised about the fairness of the new process –​particularly, the reduced capacity for legal representation in unfair dismissal cases before FWA (Fair Work Australia). The Labor Government intended to allow FWA some flexibility in the way it handles unfair dismissals, including the use of inquisitorial approaches rather than the previous method of a conciliation conference followed (if necessary) by a formal arbitration hearing. FWA has appointed a team of specialist conciliators (who are employees, rather than members, of FWA) to play a “more activist role than would a mediator in assisting the parties to resolve an unfair dismissal application”, including the use of “reality testing” and “shuttle negotiation”.

 [9.270] Macdermott and Riley discuss the pre-​ eminence of conciliation in the following

extract, noting that despite the rhetoric of FWA changing, the traditional type conciliation process is still the norm.

The Pre-​eminence of Conciliation [9.275]  T Macdermott and J Riley, ADR and Industrial Tribunals: Innovations and Challenges in Resolving Individual Workplace Grievances (2012) 38(2) Monash University Law Review 82 at 90-​92. Notwithstanding the disappearance of the language of “conciliation” from the FW Act, the lack of compulsion and the introduction of other dispute resolution options, the FWA members interviewed by the authors uniformly agreed that they continue to use a traditional form of conciliation when holding conferences in both unfair dismissal and general protections matters. In unfair dismissal matters, members continue to see their role as one of “guiding parties toward the light” of a fair and balanced settlement. In both jurisdictions, they continue to play an active role in advising parties on the strengths and weaknesses of their case, although in the case of the general protections claims, members express greater reservation about the potential outcomes of court proceedings. The jurisprudence surrounding general protections suits is in an early stage of development, making the parameters of settlement less clear. In the unfair dismissal context, the vast majority of applications are resolved by conciliation, or before the matter proceeds to arbitration. This “success” in terms of settlement rates, is in part attributed to the role the conciliators play in giving the parties a realistic assessment of the strengths and weaknesses of their case, in indicating potential outcomes from arbitration if the matter does not settle, in focusing the parties’ attention on options for resolving the matter, and in reality testing any proposed settlement. This can take place in a timely fashion, often only a matter of weeks after filing the application, and does not require the preparation of lengthy statements and supporting documentation. This speed and informality are important factors in facilitating resolution rather than entrenching acrimony between the parties. Finally, the fact that a matter is likely to be set down for arbitration within a relatively short time if the conciliation is not successful is also an important influence in encouraging parties to take the conciliation process seriously. Not all these factors are replicated for general protections applications.

 576 [9.265]

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[9.280]  Recently, more conciliations are conducted by telephone, giving rise to some favour-

able assessments and some concerns, as discussed in the following extracts. As outlined at [9.400], the Fair Work Ombudsman has also moved to a model of telephone mediations, adding further interest to the findings discussed by Forsyth ([9.285]), Macdermott and Riley ([9.290]).

Workplace Conflict Resolution in Australia [9.285] A Forsyth, Workplace Conflict Resolution in Australia: The Dominance of the Public Dispute Resolution Framework and the Limited Role of ADR (2012) 25(3) The International Journal of Human Resources Management 476 at 482-​483. FWA (Fair Work Australia) has also adopted a new method in an effort to ensure early settlement of unfair dismissal claims, and to minimise cost and inconvenience to the parties: telephone conciliation. This has been a controversial initiative, with practitioners representing both employers and employees initially arguing that the dynamics of face-​to-​face conciliation meetings (which are conducive to achieving a settlement) are lost over the telephone. Early figures indicated that the new process had been fairly successful: 92% of unfair dismissal claims in the first nine months of FWA’s operation were dealt with by telephone conciliation, and the overall success rate of conciliation (including by telephone and face-​to-​face) was 81% (up from 75% in 2008-​2009). Research commissioned by FWA and released in November 2010 confirmed this favourable assessment of telephone conciliation. Based on interviews with a sample of participants in the telephone conciliation process, the research found (among other things) [483] that 78% of unfair dismissal applicants, 81% of employers and 58% of representatives of both parties agreed or strongly agreed that the process worked well, and “some 86% of applicants and 88% of respondents considered having the conciliation over the telephone was convenient and cost effective”.



Telephone Conciliations [9.290]  T Macdermott and J Riley, ADR and Industrial Tribunals: Innovations and Challenges in Resolving Individual Workplace Grievances (2012) 38(2) Monash University Law Review 82 at 93-​96. FWA has now moved to telephone conferencing as the primary method for conducting conciliations of unfair dismissal applications. Our interviewees explained that this is not an entirely new practice, as FWA’s predecessor, the AIRC, made use of such a system where the geographic location of parties and the limited availability of Commission members away from metropolitan areas made face-​ to-​face meetings too difficult to facilitate. Telephone conciliations were also trialed by the AIRC for some unfair dismissal applications in Sydney and Melbourne in 2006. Our interviews confirmed that what has been altered in the federal industrial arena is the establishment of telephone communication as the primary method of conciliating unfair dismissal applications since the commencement of the FW Act. Conciliators do maintain a discretion to hold face-​to-​face conferences where multiple parties are involved, and telephone conferencing is deemed inappropriate. Telephone conciliations, as conducted by FWA, aim to provide a quick and cost effective form of dispute resolution that is relatively informal and accessible to the parties. It retains the pivotal role of the conciliator, as a third party neutral, in assisting the parties to seek to resolve their dispute, where possible, by agreement. It follows the classic model of joint sessions in which the parties each give their version of the events and endeavour to find common ground on the identified issues, as well as private sessions in which the conciliator engages with each of the parties individually to encourage them to consider the strength and weaknesses of their claims. Conciliations are generally limited to a time slot of approximately one and a half hours, to enable conciliators to complete on average three conciliations a day. [9.290]  577

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Telephone Conciliations cont. As a dispute resolution process, telephone conciliations fall within the broad church of what is categorised as Online Dispute Resolution (“ODR”). ODR includes any “processes where a substantial part, or all, of the communication in [94] the dispute resolution process takes place electronically”. ODR can take a variety of forms such as “unassisted and assisted negotiation, mediation and arbitration” and can involve totally automated processes, as well as varying levels of human interaction. Telephone conciliations share some but not all of the advantages and disadvantages of ODR. While they make use of available technology to enable the parties to communicate in a convenient, time efficient and cost effective manner, they do retain an interactive and “real time” aspect that is absent in some other forms of ODR. Moreover there is a third party neutral, the conciliator, who is available simultaneously, and in the same medium, to both parties to assist with the resolution of the dispute. What is absent in telephone conciliations is the personal interaction and visual clues that come from being present in the same space. The National Alternative Dispute Resolution Advisory Council (“NADRAC”), in looking at online ADR services as part of its “Resolve to Resolve” report in 2009, observed that: ODR may not offer the same benefits as face to face interest-​based processes where participants can reach a deeper understanding of the other person’s perspective, improve their relationships, and/​or learn communication techniques that may help them resolve their own disputes in future without an ADR practitioner to assist. Telephone conciliations do not lack the human interaction that some automated dispute resolution processes do, but involve a different form of interaction; one without non-​verbal cues such as facial expression, eye contact, and body language. As Gillieron states: F2F obviously is the richest media since it allows the simultaneous perception of multiple cues. The telephone medium is less rich; while its feedback capacity is as fast as F2F, visual cues are unavailable so that the parties have to rely upon language content and audio cues to reach understanding. Written communication is the poorest communication medium since feedback is slow and cues are limited to what is written on paper. This can affect the rapport that develops between the parties, which in turn may affect the parties’ capacity to engage in a genuine problem solving and interests based negotiation that is the foundation of the mediation model on which [95] conciliation is based. Building trust and rapport in the process and between the parties are key aspects of seeking to achieve resolution by agreement. The medium of telephone communication puts a greater responsibility on the conciliator to work at building that trust and rapport, and to pick up on verbal cues in the absence of the opportunity to observe non-​verbal communication. The relationship that the telephone conciliator builds with the parties in the context of unfair dismissal conciliation is short lived. Unlike the conciliation of collective industrial disputes where the industrial parties may have regular interactions with a member of FWA, here the application is likely to be a one off event, with an individual applicant without prior experience nor likely to be a repeat player. Therefore the need to establish a good basis for an on-​going relationship may be less critical. An alternative argument is that the absence of face-​to-​face interactions may be less confronting and more empowering for some parties. For example, where a party might feel there is a power imbalance, the absence of non-​verbal confirmation of this situation may lessen the power imbalance and make the telephone a more comfortable medium of communication for that party. It is also important to keep in mind that not all parties in conciliation have the skills or capacity to engage in a problem solving approach that is based on principled or interest based negotiation. Particularly where reinstatement is not a viable option, some parties will simply approach it as an adversarial bargaining negotiation in which the parties inch towards a mid-​point compromise on the amount of potential compensation payable. Many agencies and tribunals are looking at ways to make their processes more accessible and cost effective, by minimising the disruption to participants’ lives and delaying the preparation of lengthy 578 [9.290]

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Telephone Conciliations cont. statements and materials until absolutely necessary. Inevitably some will turn to different forms of technology to facilitate this. The new telephone conciliation model has been developed to deal with a high volume of cases. Not all of these will be vigorously pursuing reinstatement. Some will simply be seeking a relatively modest amount of compensation within the statutory cap. In terms of what Sanders and Golberg call “fitting the forum to the fuss, one can see the rationale behind FWA’s choice of telephone conciliation as an appropriate medium for the type of disputes involved and for the type of outcomes that are available to the parties. The use of telephone conferencing as the preferred method for conducting conciliations of unfair dismissal applications, subject to its appropriateness in the circumstances, is to a degree an inevitable [96] institutional response to the need to implement more informal and cost-​effective methods of dispute resolution”. It is also early days for this model, and FWA has indicated a willingness to review the processes. FWA has plans to improve the technology it is using, by implementing a system using Skype-​type technology. Although not currently proposed, this type of technology may open up the possibility in the future of using webcam technology to allow some visual input, which is lacking in the process compared to face-​to-​face interactions. Finally, although face-​to-​face contact and the opportunity to “eyeball” participants might be the preference of some; people now entering the workforce are a generation of “digital natives”. For the digital native worker, online delivery of dispute resolution may not be such a challenging prospect, and developing trust and rapport without face-​to-​face contact may not necessarily be so problematic.

 [9.295] Recent changes to the system mean that conciliators are now no longer statuto-

rily appointed members of FWA, but are mediation qualified public servants. The following extract explores the impact of the change in conciliation personnel.

New Conciliation Model for Unfair Dismissal Applications [9.300]  T Macdermott and J Riley, ADR and Industrial Tribunals: Innovations and Challenges in Resolving Individual Workplace Grievances (2012) 38(2) Monash University Law Review 82 at 92-​93, 96-​97. Two principal changes have been made in dispute resolution processes applicable to unfair dismissal applications. First, conciliations are generally no longer conducted as face-​to-​face meetings, but usually as telephone conferences, with each party and their advisors participating by telephone. Secondly, conciliations are no longer conducted by statutorily appointed members of FWA, but are conducted by qualified FWA staff who are public servants. Each of these innovations will be examined in turn. According to a number of our interviewees, a large part of the impetus for adopting this new conciliation model for unfair dismissal applications was the anticipated increase in volume of applications once the FW Act nationalised the system and removed certain jurisdictional limitations. The FWA also carried with it other workload increases for FWA members in the enterprise bargaining area, and in arbitrating over issues that rise under dispute resolution clauses in agreements. A substantial increase in FWA members was unlikely, so FWA needed to consider other means of dealing with its increasing case load. If FWA members had continued as the primary conciliators of unfair dismissal applications, the time lines for its dealing with matters would have inevitably dragged out. The federal industrial tribunal practices have on the whole provided relatively quick access to dispute resolution, without incurring the costs of preparing and filing extensive statements and evidentiary materials. The adoption of a different model of [93] conciliation can be seen in part as a measure to maintain timely access to dispute resolution. The new conciliation model was also facilitated by the removal of the statutory requirement that a Member provide a certificate that indicated the unfair dismissal application had failed to settle at conciliation, before that application could progress to arbitration. … [96] … [9.300]  579

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New Conciliation Model for Unfair Dismissal Applications cont. Change in Conciliation Personnel A number of points can be made in relation to the change in personnel for conciliating unfair dismissal applications. First, this role is now being performed in a context where conciliation is voluntary, albeit one that is taken up by most employers and employees. Secondly, appointments of this nature follow the trend of other agencies that use dedicated staff rather than statutory office holders to conduct dispute resolution, for example in the case of human rights or workers compensation claims. Thirdly, the designated personnel are recruited for their dispute resolution skills, but our interviewees explained that FWA also conducts its own training seminars for conciliators in the institution’s interventionist tradition, and conciliators are encouraged to maintain that activist role previously undertaken by Commission members. Despite the fact that they may have been recruited from disparate areas, staff are expected to develop detailed knowledge of the jurisdiction to engage in such an activist role. A factor in the effectiveness of industrial conciliation has always been that the process is undertaken by a person with detailed knowledge of workplace rights and practices, and knowledge of other settlements and awards. FWA members are also seen as deriving added authority through the panel system and their consequent familiarity with the industry. As Provis observed: The arbitration system has continually established and maintained standards which tribunal members refer to when they are acting as [97] arbitrators or as conciliators, and the public nature of the arbitrated standards largely frees the conciliators from the need to rely on their individual judgment. The norms to be applied in conciliation are the same as the norms that have been formulated in arbitration. There is an overlap between the processes of conciliation and arbitration, which is furthered by the fact that the same individuals act as third parties in each process. The federal statutory system for unfair dismissal has now been in place since the early 1990s. Although it has been the subject of regular statutory amendments, the broad norms and standards relating to the reasons for and circumstances of dismissals are fairly well established. A small number of cases are still arbitrated providing further guidance in the area. Conciliators of unfair dismissal applications can fairly confidently and competently work within those parameters, without the need themselves to be engaged in the arbitration process in order to help the parties evaluate the strengths and weakness of their case. The issue of having an established jurisprudence to work with distinguishes the area of unfair dismissal from that of general protections applications. In this context it is worth noting that FWA Members are still involved in the conciliation of the “new” general protections applications, even when a dismissal is involved. Whether this function will be taken on by conciliation staff at some point in the future, when the parameters of that jurisdiction become clearer, remains to be seen.

 Dispute resolution clauses required in awards and enterprise agreements [9.305]  The FWA also requires dispute resolution clauses to be included in awards and enter-

prise agreements, as explained in the Fair Work Commission’s Effective Dispute Resolution Guide at [9.310].

Effective Dispute Resolution Guide [9.310] Fair Work Commission, Effective Dispute Resolution Guide (Commonwealth of Australia, 2013)   http:// ​ w ww.fairwork.gov.au/ ​ r esources/ ​ b est- ​ p ractice- ​ g uides/ ​ p ages/ ​ e ffective- ​ d ispute-​ resolution.aspx. 580 [9.305]

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Effective Dispute Resolution Guide cont. Dispute resolution in modern awards and enterprise agreements Modern Awards The Fair Work Act 2009 (FW Act) requires that all modern awards include a term which sets out a procedure for resolving disputes between employers and employees about any matter arising under the modern award and the National Employment Standards (NES). Every modern award contains a dispute resolution clause. Generally, the clause will provide for a process with the following stages: • employee/​s meet with their direct supervisor to discuss the grievance • failing resolution, the matter is discussed further with more senior management • failing resolution of the matter, the employer refers the dispute to a more senior level of management or more senior national officer within the organisation • where the dispute remains unresolved, the parties may jointly or individually refer the matter to the Fair Work Commission, and • the employer or employee may appoint another person, organisation or association to represent them during this process. Employers should be aware of, and familiarise themselves with, any dispute resolution procedure that applies to their workplace. Enterprise agreements When making an enterprise agreement, the FW Act requires the parties to include a dispute resolution clause. Enterprise agreements lodged with the Fair Work Commission without such a clause will not be approved. The dispute resolution clauses in enterprise agreements must provide a process to resolve any disputes: • arising under the agreement, or • relating to the NES. The FW Act requires that a dispute resolution clause in an enterprise agreement must: • set out a procedure that requires or allows either the Fair Work Commission or some other independent person to settle the dispute, and • allow for the representation of employees covered by the agreement when there is a dispute (for example by another employee or a union). A “model dispute resolution clause” is available in the Fair Work Regulations 2009 and can be used to develop a dispute resolution term in an enterprise agreement.

 [9.315] Forsyth discusses (at [9.320]) the legislative requirements for dispute resolution

clauses and some of the judicial interpretation as to how far they must extend.

Dispute Resolution Under Pt 6-​2 of the Fair Work Act [9.320] A Forsyth, Workplace Conflict Resolution in Australia: The Dominance of the Public Dispute Resolution Framework and the Limited Role of ADR (2012) 25(3) The International Journal of Human Resources Management 476 at 480-​482. Part 6-​2 of the Fair Work Act empowers FWA to resolve disputes that are referred to it under dispute settlement procedures in modern awards and enterprise agreements. Dispute settlement procedures must be included as terms in all modern awards and enterprise agreements made under the Fair

[9.320]  581

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Dispute Resolution Under Pt 6-2 of the Fair Work Act cont. Work Act (reflecting similar requirements under previous versions of the federal industrial legislation, although the precise form of those requirements has varied over the years). Where an employer and its employees are covered by both an award and an agreement, the dispute resolution procedure in the agreement takes precedence. Failure to comply with the dispute resolution procedure in an award or agreement can have significant consequences, particularly for employers. The remedies available include damages (see, eg, Van Efferen v CMA Corporation Ltd (Fed Crt of Aust, 2009)) and injunctions, and/​or employers could face the imposition of civil penalties following an action for breach of an award or agreement occasioned by non-​compliance with a dispute settlement term. Under s 146 of the Fair Work Act, awards must contain a procedure for settling disputes about any matters arising under the award and the NES. A standard dispute resolution clause has been inserted in all modern awards, providing for mediation or conciliation by FWA if efforts to resolve the dispute at the workplace level prove unsuccessful. The standard award clause also allows FWA to arbitrate, if all of the parties consent to it doing so. Under s 186(6) of the Fair Work Act, enterprise agreements must contain a term that requires or allows FWA, or another person independent of the parties covered by the agreement, to settle disputes about any matters arising under the agreement, and the NES; and which allows for the representation of employees for purposes of that procedure. The inclusion of a dispute settlement term that complies with s 186(6) is one of the requirements for approval of an agreement by FWA. It is clear from the terms of s 186(6) that either FWA, or some other independent person (such as a private mediator or arbitrator; see further below), may be empowered to resolve disputes arising under agreements. The Fair Work Regulations 2009 (Cth) contain a model dispute resolution term for enterprise agreements, which the parties to an agreement may (but are not required to) adopt. The model term provides for the reference of disputes that cannot be resolved at the workplace level to FWA for mediation, conciliation and, ultimately, arbitration (whether or not the parties agree to FWA arbitrating). In Re Woolworths Ltd trading as Produce and Recycling Distribution Centre, a Full Bench of FWA held that enterprise agreement dispute resolution clauses do not have to provide for the final arbitration of disputes. The Full Bench overturned an earlier decision of a single Commissioner, who had refused to approve an agreement because it contained a dispute clause which (in effect) allowed either party to exercise a power of veto over dispute settlement by FWA. According to the Full Bench, the dispute resolution provisions of the Fair Work Act allow FWA to: “deploy voluntary methods of dispute resolution without the consent of the parties to the dispute, provided the dispute is one with which it is authorised to deal, but [FWA] can only arbitrate if it has been specifically empowered to do so”. Further, by providing that FWA can arbitrate disputes where the parties to an agreement have agreed that it may do so, Pt 6-​2 of the legislation: “strongly implies the negative stipulation that if the parties have not agreed, [FWA] has no power to arbitrate”. As a result of the Full Bench’s decision, parties to enterprise agreements are free to negotiate dispute resolution clauses in agreements –​including whether they wish to provide for final arbitration as part of the dispute settlement process –​as long as these clauses comply with s 186(6). Adopting a strict legal interpretation, the Full Bench arrived at the correct conclusion: there is little in the terms of s 186(6) and Pt 6-​2 of the Fair Work Act to indicate that enterprise agreement dispute settlement terms must provide for arbitration. However, from a public policy viewpoint, the outcome is (in the author’s view) an undesirable one: effective dispute resolution must have an end point, and agreement clauses that provide for arbitration as an option, or do not provide for it at all, may result in some disputes never being resolved. It is also hard to see how such clauses meet one of the key overarching objectives of the Fair Work Act: to provide “accessible and effective procedures to resolve grievances and disputes” (s 3(e)). With this in mind, the Labor Government’s support for the employer’s position in the Woolworths appeal appears somewhat peculiar. The Government favours mandatory arbitration in some contexts (the model dispute settlement term for enterprise agreements, and procurement guidelines applicable to tenderers for federal government contracts), but not in others (negotiated dispute settlement terms in agreements). Another government agency, the FWO, regards a “best practice dispute resolution process” as one that “provide[s]‌FWA with the necessary 582 [9.320]

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Dispute Resolution Under Pt 6-​2 of the Fair Work Act cont. discretion and power to ensure settlement of [a] dispute”. Overall, a very mixed message is being sent to workplace relations [482] parties as to what the Government means by the ideal of “accessible and effective” dispute resolution procedures. When FWA is carrying out dispute settlement under Pt 6-​2, it may exercise all of its powers under the Fair Work Act (see above) –​unless these have been modified or limited by the parties in the dispute resolution clause in, for example, an enterprise agreement. FWA must not make any decision under Pt 6-​2 that is inconsistent with the Fair Work Act, or with a modern award or enterprise agreement that applies to the parties (this is intended to preserve the integrity of the minimum safety net of employment conditions operating under the Fair Work system). Part 6-​2 does not affect the right of a party to a dispute to take court action to enforce their rights or entitlements. So, for example, if the dispute is about alleged non-​compliance with an entitlement under the NES, an employee could seek to activate the dispute procedure in an agreement or bring court proceedings for breach of the Fair Work Act. Or, if the dispute is about an alleged breach of a term of an agreement, an employer, employee or union covered by the agreement could invoke the dispute settlement process or seek to enforce the agreement in a court. This is an important feature of the Australian dispute resolution framework, standing in contrast to the common practice in the USA of employees being required to sign mandatory employment arbitration clauses under which they forego their rights to sue their employer.

 [9.325] Macdermott and Riley provide a summary of recent developments in relation to

conciliation and arbitration under the FWA in their article conclusion below. They note that while these processes are achieving settlements, this may be because the barriers to access other avenues of justice are too high.

Recent Developments in Conciliation and Arbitration Under the FWA [9.330]  T Macdermott and J Riley, ADR and Industrial Tribunals: Innovations and Challenges in Resolving Individual Workplace Grievances (2012) 38(2) Monash University Law Review 82 at 100-​102. The nature of employment relationships, and the importance of secure employment in most people’s lives, necessitates effective, quick and affordable means for resolving grievances. Few employees earn enough to warrant the cost of litigation, and few can afford to remain out of work while waiting for the resolution of court proceedings. The traditional Australian model of conciliation followed by compulsory arbitration, which was originally adopted for the resolution of collective industrial disputes, has been adapted to meet contemporary needs for the resolution of individual employment disputes. The emphasis has been on a low cost and timely approach, which offers the parties access to ADR, in the form of conciliation, as a means of facilitating early resolution. That model has also come under pressure from a burgeoning case load in recent times. The adoption of telephone technology for unfair dismissal applications and the utilization of conciliation staff rather than members of FWA [Fair Work Australia] is a direct response to the increasing number of applications being dealt with by FWA [Fair Work Australia] and to its concern that applications should be dealt with in a timely manner. There is a consistency between the traditional approach to conciliation and that being undertaken in telephone conferences. The conciliator is a neutral but expert third party, willing and able to offer assistance to the parties in seeking to resolve their disputes. In [101] the unfair dismissal context, the conciliator can do this confident in the knowledge that if the parties are not able to settle the matter by agreement, a member of the same body will compulsorily arbitrate the matter within a relatively short timeframe. Because of the confidential nature of conciliation, it is not possible to comment accurately on the outcomes of the process. Reinstatement may be an outcome, although many unfair [9.330]  583

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Recent Developments in Conciliation and Arbitration Under the FWA cont. dismissal applications are resolved by settling the terms upon which the employment relationship will be severed, rather than on how to repair or restore that relationship. In the general protections field however, the dynamic is clearly different. Conciliation of such applications by FWA is an option, but if this does not resolve the matter, FWA cannot arbitrate a solution. Where an application is not resolved by conciliation, an applicant is faced with the prospect of instituting expensive and time-​consuming court proceedings, where financial resources and access to legal representation operate as a more immediate barrier than they do in ADR processes or in informal low-​cost tribunal proceedings. The daunting prospect of court proceedings creates pressure on applicants either to take whatever is on offer in the conciliation process or to discontinue the matter. In addition, the current uncertainty of the law in this area makes legal representation advisable if not essential, and makes more difficult any assessment of prospects for a favourable outcome. On the other hand, FWA’s new jurisdiction to hold conferences in general protections matters does enhance its role in the management of workplace grievances while the employment is still on foot, and allows FWA to play a role in discrimination claims that might otherwise have gone to other institutions. At one level, applicants can now access the conciliation provided by FWA to seek to resolve these issues in an accessible jurisdiction and in a timely manner. It also potentially involves FWA, in its conciliation role, working with parties to try and repair or improve their relationship where there has been no dismissal. However, in the event that conciliation is not successful, there are a range of barriers to the enforcement of such rights. Consequently, the conciliation offered by FWA may prove to be the only viable avenue for some applicants to pursue their workplace rights. While the traditional role of the federal tribunal may have shifted from conciliating and arbitrating collective disputes to dealing with a greater number of individual grievances, its conciliation role has remained central to its dispute resolution practices. The “activist” or “interventionist” approach of the collective sphere has been transferred to the context of individual applications. More recently, the conciliation model has been modified in the unfair dismissal context to accommodate a large volume of applications, but the underlying approach to conciliation prevails. General protection applications also have conciliation as an early dispute resolution option, but the absence of a determinative function means that such applications do not have the effective shadow of pending arbitration [102] that operates in the unfair dismissal context. As the law governing general protections becomes clearer, with the development of the court’s jurisprudence, more settlements may emerge within these parameters. Nevertheless, settlements made only because applicants face insuperable barriers to pursuing a claim do not improve access to justice for individual applicants.

 [9.335] In response to the growing recognition of the role of conflict management in the

workplace context, in 2014 amendments to the FWA conferred a new function on the Fair Work Commission: “promoting cooperative and productive workplace relations and preventing disputes”. In the following extracts, Stewart et al discuss this new role for the Commission, the antecedents for this reform and the potential implications. In this first extract, the authors highlight the historically adversarial nature of Australia’s industrial relations system.

“Promoting Cooperative and Productive Workplace Relations”: Exploring the Fair Work Commission’s New Role [9.340]  A Stewart, M Bray, J Macneil and S Oxenbridge, “ ‘Promoting Cooperative and Productive Workplace Relations’; Exploring the Fair Work Commission’s New Role” (2014) 27 Australian Journal of Labour Law 258 at 260-​262. 584 [9.335]

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“Promoting Cooperative and Productive Workplace Relations”: Exploring the Fair Work Commission’s New Role cont. Background The novelty of the 2013 amendments lies partly in the historical absence in Australia of any great emphasis on “cooperative and productive workplace relations” –​both in the broader “politics of industrial relations” and at the workplace level. Adversarial, rather than cooperative, relations have traditionally dominated. The introduction of the Australian system of compulsory conciliation and arbitration in the late nineteenth century and early twentieth century certainly reflected this adversarial tradition. It represented a peculiar form of state intervention designed to moderate destructive conflict between employers and unions and reduce the exploitation of workers in some industries. Once it was established, the system maintained a degree of support from all parties until at least the 1980s, but this consensus masked many competing and contradictory interests. There were not only significant differences amongst employers and within the union movement about compulsory arbitration, but employers and unions supported the system for quite different reasons at different times. These differences found political expression in frequent conflict over industrial relations policy between the main political parties, leading to regular amendments to conciliation and arbitration legislation. Beyond the legislation, there were periodic rhetorical appeals for greater cooperation in industrial relations and isolated examples of genuine cooperation at a workplace level. But the dominant features of Australia’s adversarial industrial relations system included high levels of union membership, at the same time as fragmented union structures and politically-​focused union leadership; employers and employer associations that opposed union influence and protected managerial prerogative; hostile relations between unions and employers, manifest in a high incidence of industrial disputes; and limited interest in, or achievement of, employee participation in organisational decision-​making. Perhaps the most substantial and sustained attempt to change this [261] adversarial tradition and develop more cooperative industrial relations was the Accord between Australian unions and the Australian Labor Party (ALP) during the latter’s period of government between 1983 and 1993. At the level of rhetoric, the Accord was about consensus.13 In practice, it produced significant declines in levels of industrial disputation and more cooperative behavior by Australian unions, both in their approach to the management of the economy generally and in their efforts to accept –​even encourage –​economic restructuring, flexibility and productiveness at an enterprise level. Despite these moves towards greater cooperation, however, the Accord was greatly weakened by its bipartite nature. Most Australian employers never embraced the Accord, at either the national or enterprise level. Indeed, the Accord period witnessed a radicalisation of employers in their approach towards unions and industrial tribunals, reinforcing traditional hostilities and entrenching confrontation rather than cooperation. Political developments from 1993 onwards further reduced the national promotion of cooperation. The Keating Government’s Industrial Relations Reform Act 1993 (Cth) dramatically shifted the Australian system away from compulsory conciliation and arbitration towards a system of collective agreement making. This at worst failed to produce real collective bargaining, and at best promoted arms-​length negotiations that typically traded off wage increases for greater managerial flexibility and rarely blossomed into workplace cooperation. With neoliberalist values increasingly influential in both major political parties and growing employer hostility, the political victory of the Federal Coalition parties under the leadership of John Howard in 1996 saw a fundamental rejection of any model of cooperation involving “third parties” –​the representation of workers by unions or the intervention into workplace relations by industrial tribunals. This was especially true under the 2005 “Work Choices” amendments. Although often still embracing the rhetoric of cooperation, the Howard Government’s [262] policies were principally geared to the “restoration of managerial prerogative and the de-​legitimisation of labour opposition to the objectives of the business enterprise … rather than any true notion of ‘partnership’ based on consultation, integrative bargaining and the delivery of mutual gains”.

 [9.340]  585

Dispute Resolution in Australia: Cases, Commentary and Materials

[9.345]  In this second extract, the authors reflect on future changes that will be necessary

for the Fair Work Commission to truly embrace a new role to foster cooperation and dispute management processes. In particular, they argue that the Commission needs to recruit the right skills set amongst its own workforce to implement a “workplace engagement” strategy, replacing those with experience of the old arbitration system with new personnel well versed in conflict prevention and resolution.

“Promoting Cooperative and Productive Workplace Relations”: Exploring the Fair Work Commission’s New Role [9.350]  A Stewart, M Bray, J Macneil and S Oxenbridge, “ ‘Promoting Cooperative and Productive Workplace Relations’; Exploring the Fair Work Commission’s New Role” (2014) 27 Australian Journal of Labour Law, 258 pp 272-​276. The FWC’s Range of Functions: Finding the Right Mix of Skills Historically, as we have explained, the primary role of the original Conciliation and Arbitration Court, and later the Conciliation and Arbitration Commission, was to settle collective industrial disputes. Of course in practice the tribunal did much more than that bare description might imply. Its power to arbitrate could be used, as a number of scholars have observed, in a range of different ways. Some of what it did, skirting the constitutional limits on the exercise of judicial power by a body not formally constituted as a court, involved determinations as to the meaning and effect of awards and other industrial instruments. At the other extreme it functioned as a legislator, creating minimum standards as to wages, working hours and other conditions that could operate across whole industries or occupations. Nonetheless, the reliance on s 51(xxxv) of the Constitution meant that the tribunal’s powers were still usually tied to the existence or imminent threat of a dispute between identifiable parties –​ even if that dispute existed only on paper. The same applied to its role in regulating bargaining and agreement-​making –​such agreements, whether registered under the Act or given effect as consent awards, had to be made in settlement of a dispute. The preoccupation with disputes began to change in the 1990s, with two developments. One was the shift in the focus of regulation towards the encouragement of collective agreement-​making, with greater party autonomy and a correspondingly reduced role for the AIRC in controlling the content of agreements. The other was the use of different constitutional powers that more easily allowed the AIRC to carry out functions that were not tied to the [273] existence of an interstate industrial dispute. Today, the bulk of what the FWC does is not concerned with the resolution of collective labour disputes at all, but instead involves: • the adjudication of individual claims –​most obviously of unfair dismissal, but also now of applications for anti-​bullying orders, as well as claims under the “general protections” in Pt 3-​1 of the FWAct against victimisation, discrimination and other forms of wrongful treatment; • the conciliation of unfair dismissal and general protections claims; • norm-​setting –​most obviously through annual wage reviews, the making and variation of modern awards, and the hearing of applications for equal remuneration orders; • the approval of enterprise agreements, which can be (and often are) concluded without any overt conflict or disputation; • the issue or cancellation of right of entry permits to union officials; and • the determination of various issues relating to the governance of registered unions or employer associations. Only three elements of the old collective dispute resolution role remain. The first comprises the FWC’s various powers in relation to bargaining disputes and industrial action. These are largely confined to oversight of procedural requirements, such as whether parties have been bargaining in good faith or taken the steps necessary to engage in protected industrial action, together with a power to halt 586 [9.345]

Dispute Resolution in the Workplace  Chapter  9

“Promoting Cooperative and Productive Workplace Relations”: Exploring the Fair Work Commission’s New Role cont. unlawful action. The exercise of these powers involves little if any concern for the substance or “merits” of a dispute; although a number of parties still approach the FWC (or accept offers from FWC members) for assistance in resolving their differences, and the FW Act does provide in a few limited situations for “last-​resort” arbitration. Second, the FWC may still resolve disputes as to the application of enterprise agreements. But this is generally subject to the parties’ agreement as to the scope of the FWC’s powers, and indeed parties are free to nominate other dispute service “providers” if they so choose. Third, and most narrowly, the FWC retains a [274] jurisdiction to resolve disputes as to the exercise of union rights of entry. More than 60% of applications to the FWC are now lodged by individuals; and even that figure is deceptive, because the bulk of the remaining matters comprise applications to approve agreements which may or may not have involved anything in the nature of collective bargaining. Agreements may also be –​and often are –​approved by way of a bureaucratic process that involves no hearing as such. In this way, and in many others, the FWC is increasingly operating as a regulatory agency with a broad array of processes and techniques that do not always reflect its conventional description as a “tribunal”. It is certainly no longer confined to resolving controversies that arise between, or are articulated by, two parties or sets of parties. Even where it is dealing with a formal application, there is often no identified “respondent” as such. Some processes, such as annual wage reviews or the required 4 yearly reviews of modern awards, are instituted without any application at all. In these instances there is simply a general call for any interested person or organisation to make a submission to the member, Full Bench or panel hearing the matter, although applications may then be made to seek particular outcomes or variations. The FWC has also become accustomed to commission research to guide it in its work, rather than simply waiting for parties to adduce evidence in particular proceedings. That in turn brings us to the qualities, attributes and skills expected of those who must discharge the FWC’s many and varied functions. Historically, the legislation establishing the federal tribunal has specified required skills or qualifications only in the most general terms, if at all. For example, when the Commonwealth Conciliation and Arbitration Commission was established in 1956, presidential members had to be either judges or legal practitioners of at least 5 years’ standing, while nothing was said at all about the qualifications of Commissioners. By the time of the AIRC’s creation in 1988, non-​lawyers had become eligible for appointment as Deputy Presidents if they had “experience at a high level” in business or in working for unions, employer associations or government, or if they possessed relevant degrees in fields such as economics or industrial relations; while Commissioners had to have [275] “appropriate skills and experience in the field of industrial relations”. The requirements for appointment to the FWC are expressed in similarly general terms today by s 627 of the FWAct. Only in relation to the part-​time members of the Expert Panel, which conducts annual wage reviews and helps identify the “default” superannuation funds specified in awards, is there any hint of greater specificity. Even there, a general background in workplace relations, economics or business will suffice, though mention is also made of knowledge or experience in social policy, finance, investment management or superannuation. In practice, under the old arbitration system almost all appointees came from the ranks of unions, business or government, or from the lawyers who acted for them. Most commonly, those selected had previously appeared, or been otherwise involved, in proceedings before the federal and/​or state tribunals. Whatever their own potential skills as a conciliator or arbitrator, they could at least be expected to have a familiarity with the (collective) dispute resolution system that they were now charged with administering –​albeit a system, as we have argued, that was focused more on the management of conflict than the promotion of cooperation. In recent years, by contrast, while appointees have still generally worked in or for unions, employers or governments, their personal experiences have perhaps become a little more diverse. Lawyers, managers and even union officials appointed to the FWC are as likely to have developed their expertise through involvement in the resolution of individual grievances, as they are from dealing with collective disputes. There has also been a noticeable [9.350]  587

Dispute Resolution in Australia: Cases, Commentary and Materials

“Promoting Cooperative and Productive Workplace Relations”: Exploring the Fair Work Commission’s New Role cont. trend to the selection of government officials with a background in high-​level public administration, and/​or enforcement of labour standards. The backgrounds of these new recruits do not seem any more (or less) fertile a source of expertise in the promotion of cooperative workplace relationships than that of their predecessors. The increasingly diverse functions performed by the FWC, and the [276] changing profile of the members appointed to it, raise a number of interesting questions about both the appointment process itself (which despite recent changes is still shrouded in secrecy), and the way skills are developed and deployed within the agency. For now, given that our specific concern is with the FWC’s new role of promoting workplace cooperation, it suffices to make two points. The first is that there is every reason to believe that the FWC currently has at least some members who have the interest, expertise and industry knowledge necessary to implement a “workplace engagement” strategy. This is apparent from some of the examples mentioned earlier, as well as from our own dealings with the agency. It is also notable that when stakeholders have been surveyed about the work of the federal tribunal, they have tended to single out for praise those members who adopt a “proactive” or more “interventionist” approach to the discharge of their dispute resolution functions. This suggests a potential readiness to accept a greater role from those members in seeking to improve workplace relations, a matter to which we return in the next section. The second point, however, is that retirements will inevitably start to rob the FWC of members with personal and direct experience (whether as members or practitioners) of the old arbitration system. It is far from clear that such experience should be regarded as a necessary or sufficient indicator of the skills and knowledge needed to promote cooperation, especially in modern workplaces that lack any history of collective engagement. Indeed it might be said that since cooperation has never been the dominant approach in Australian industrial relations, appointing practitioners well versed in the established way of doing things might be expected to result in members who expect adversarialism rather than partnership. There is also an interesting question to be explored about the effect potentially played by the shadow of arbitration –​or rather its absence. It might be said that under the old arbitration system, the spectre of compulsory dispute resolution would have given members of the tribunal an authority that other third party facilitators might not have. This could have made the tribunal a more powerful promoter of workplace cooperation –​although it would obviously still have required the “right” member, with the right motivation and the right skills, to realise that potential. But whether that authority can still be said to exist under [277] the Fair Work system, which gives the FWC far less opportunity and discretion to direct the conduct of workplace relations, is very much a matter for debate. In any event, what seems clear is that the gradual loss of those who have spent a large part of their professional lives dealing with industrial disputation by conciliation and arbitration will make a difference to the FWC. It will focus more attention not just on the way in which new members are selected, but perhaps more particularly on the internal development or training programs that the institution might or should seek to develop to support its engagement agenda. The question of ensuring that the agency has the capacity to discharge its new role effectively is one that was addressed in the Fair Work Review: The Panel recognises that the development of a more active role for FWA and the FWO in encouraging the adoption of best practice in productive workplace relations will over time require significant changes in the method of operation. The organisations would need to develop expertise in industrial organisation, innovation and productivity enhancement. They would need to recruit or engage as consultants experts with different skill sets. As this makes clear, the FWC need not –​and perhaps should not –​seek to rely solely on the expertise that can already be found among its existing members. It may seek to “buy in” expertise, whether for use in training members, in designing or assessing new programs, or simply in generating ideas. It is worth noting too that the FWC has the option of employing specialist staff who are not in formal 588 [9.350]

Dispute Resolution in the Workplace  Chapter  9

“Promoting Cooperative and Productive Workplace Relations”: Exploring the Fair Work Commission’s New Role cont. terms “members” of the institution. A notable example from current practice has been the engagement of a team of “dispute resolution specialists”, located in each state, to conciliate unfair dismissal claims. Because they are not members of the FWC, and have not been formally delegated with any authority to conduct conferences, their services are strictly voluntary and they have no power under the FW Act to control their proceedings. Nevertheless, their work is integral to the operation of the unfair dismissal system, directly resulting in the settlement of more than 80% of claims lodged. It is not inconceivable that specialist “dispute preventers” might likewise be employed by the FWC, if not to take sole responsibility for promoting workplace cooperation, then at least to support and enhance the work of members allocated to that role.

 [9.355] In this final extract, Stewart et  al conclude their observations about the FWC by

observing that the success of the new preventative functions will rely in part on the willingness of employers and unions to seek the assistance of the Commission.

“Promoting Cooperative and Productive Workplace Relations”: Exploring the Fair Work Commission’s New Role [9.360]  A Stewart, M Bray, J Macneil and S Oxenbridge, “ ‘Promoting Cooperative and Productive Workplace Relations’; Exploring the Fair Work Commission’s New Role” (2014) 27 Australian Journal of Labour Law, 258 pp 279-​280. Despite occasional outbursts from certain individuals, and a persistent complaint by business groups about unwarranted intervention by “third parties”, it appears that the FWC continues to enjoy general support from its stakeholders. Nevertheless, the FWC clearly cannot impose cooperation, but must rather await the invitation or consent of the parties concerned. Quite apart from the challenges posed by the Australian history of adversarialism, it will be interesting to see how and in what circumstances the FWC seeks to obtain the necessary agreement to its intervention –​and indeed under what circumstances the parties concerned are prepared to embrace that intervention. Accepting that the focus will generally be on larger organisations, a further question is whether the FWC confines its attentions to those that are unionised, where “cooperation” measures are likely to involve at least some role for union officials; or whether it is prepared to take on the development of dispute prevention strategies in organisations that may not have any effective and independent channel for worker representation. A related issue is the extent to which such strategies might seek to deal with conflict between individuals, as well as disputes that have a more obviously collective dimension. Finally, and perhaps most importantly, consideration will need to be given to the circumstances under which FWC intervention can succeed in improving cooperation –​and indeed [280] how this is to be ascertained or measured. All of these are matters to which we hope to return in further research. Conclusion The FWC’s new function –​a “small” and largely unremarked piece of law –​has the potential to be an important catalyst towards the improvement of workplace cooperation in Australia. A historical review of Australia’s industrial relations system, as well as the role of industrial tribunals within that system, demonstrates the novelty of this new law, but also the weight of institutional inertia that the FWC must overcome if it is to realise its new function. The adversarialism, collectivism and centralism of the early conciliation and arbitration system, combined with the legal preoccupation with dispute resolution, gave the tribunals little room to develop cooperative workplace relationships, despite sporadic episodes. More recent trends towards individualism and decentralisation, along with changes in the legal parameters within which the tribunals work, have not prepared the way any better.

[9.360]  589

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“Promoting Cooperative and Productive Workplace Relations”: Exploring the Fair Work Commission’s New Role cont. In this context, the prospects for the tribunal in leading an outbreak of cooperative and productive workplace relations are far from guaranteed. However, as many commentators have observed, Australia’s industrial tribunals have proved over many decades to be flexible and adaptive organisations. The President of the FWC has a strategy to gradually expand the agency’s activity in this area, he has members within who are committed to the quest, and some achievements have already been reported. However, the future course of events depends a great deal on the support –​in terms of both resources and organisational space –​provided by a Coalition Government that did not create the legislative imperative for promoting cooperation, and on the attitudes and behaviours of the employers, unions and workers at whom the FWC’s engagement strategy is aimed.

 [9.365] Another important recent addition to the Fair Work Commission’s powers was

brought about by the Fair Work Amendment Act 2013 which introduced an anti-​bullying jurisdiction. The following extracts are from the Fair Work Commission’s explanatory report on the case management model adopted to deal with allegations of bullying in the workplace.

Anti-​bullying Jurisdiction: Summary of the Case Management Model [9.370] Fair Work Commission, “Anti-​ bullying Jurisdiction: Summary of the Case Management Model” (20 November 2013)  https://​www.fwc.gov.au/​documents/​documents/​resources/​anti-​ bullying-​case-​mgmt-​model.pdf (accessed 30 August 2018). Statutory framework and functions 4.

The Fair Work Amendment Act 2013 conferred a new anti-​ bullying jurisdiction upon the Commission. From 1 January 2014, a worker in a constitutionally-​covered business who reasonably believes that he or she has been bullied at work, can apply to the Commission for an order to stop the bullying. Part 6-​4B of the Fair Work Act 2009 (the Act) outlines the jurisdictional requirements for making such an application, including the definition of “a worker”, the definition of “bullied at work” and the considerations the Commission must take into account when deciding whether to make orders.

1.3 Bullying defined 5.

New s.789FD defines when a worker is “bullied at work”:

789FD When is a worker bullied at work?

(1)



A worker is bullied at work if: (a)

while the worker is at work in a constitutionally-​covered business:



(i)

an individual; or



(ii)

a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) (2)

590 [9.365]

that behaviour creates a risk to health and safety.

To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

Dispute Resolution in the Workplace  Chapter  9

Anti-bullying Jurisdiction: Summary of the Case Management Model cont.

(3)





If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either: (a)

the person is:



(i)

a constitutional corporation; or



(ii)

the Commonwealth; or



(iii)

a Commonwealth authority; or



(iv)

a body corporate incorporated in a Territory; or

(b)

the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-​covered business. 6.

“Worker” is broadly defined, having the same meaning as in the Work Health and Safety Act 2011 (Cth) (WHS Act), but does not include a member of the Defence Force (s.789FC(2)). Section 7 of the WHS Act defines a worker as an individual who carries out work in any capacity for a person conducting a business or undertaking, including work as: an employee; a contractor or subcontractor; an employee of a contractor or subcontractor; an employee of a labour hire company assigned to work in the person’s business or undertaking; an outworker; an apprentice trainee or student gaining work experience; a volunteer; a member of the AFP, and a Commonwealth statutory office holder (see further Revised Explanatory Memorandum (EM) at paras 103-​105).

7.

The express exclusion from bullying behaviour of “reasonable management action carried out in a reasonable manner” (s.789FD(2)), emphasises the rights and obligations of persons conducting a business to take appropriate management action, including responding to poor performance, taking necessary disciplinary action and effectively directing and controlling the way work is carried out (EM at para. 112). Similar phrases are used in workers’ compensation laws in all jurisdictions to limit the injuries that are compensable under those laws.

 [9.375]  Having outlined the definitions of bullying, the document then moves on to elabo-

rate on the procedures to be adopted by the Commission in dealing with bullying allegations. Depending on the nature of the behaviour and the parties involved, the Commission may exercise powers to refer the parties to mediation. As was discussed at [10.210] parties may be reluctant to deal with bullying through ADR. In this short extract, the Commission outlines some of the factors that will be taken into account in a referral.

Anti-​bullying Jurisdiction: Summary of the Case Management Model [9.380] Fair Work Commission, “Anti-​ bullying Jurisdiction: Summary of the Case Management Model” (20 November 2013)  https://​www.fwc.gov.au/​documents/​documents/​resources/​anti-​ bullying-​case-​mgmt-​model.pdf (accessed 30 August 2018) pp 10-​11. No decisions will be made at the information gathering stage and whilst the anti-​bullying team will accept and process withdrawals of applications, all matters requiring a decision by the Commission will be referred to the Panel Head and either dealt with or assigned as appropriate. • The Panel Head makes a decision as to whether the matter will be assigned to a Member and if so for what purpose (e.g. mediation or determination). Where appropriate, immediate jurisdictional issues11 and other preliminary issues may be heard and determined by the Panel Head. In other [9.380]  591

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Anti-bullying Jurisdiction: Summary of the Case Management Model cont. cases, the applications may be assigned to Panel Members having regard to the location of the parties, the urgency of the circumstances and the availability of the Members to deal with the application. The matter may also be assigned by the Panel Head to a staff mediator at this point to conduct mediation or to make further contact with the parties to more fully investigate the circumstances before it is assigned to a Panel Member. • Mediation in this context will mean a confidential and voluntary process in which the participants, with the assistance of an independent mediator, identify the issues in dispute and endeavour to reach an agreement to resolve the dispute. Mediators are responsible for conducting the mediation process. Mediators may provide guidance on the matters in dispute and/​or options for resolution, but will not make a determination or recommendations on the outcomes. • Mediation will only be proposed where it is appropriate having regard to the nature of the parties and the allegations made in the application. Where mediation (or conciliation) is undertaken, the emphasis will be on the resolution of issues to enable constructive and cooperative relationships to be resumed. Monetary settlements will not be promoted or recommended by the Commission. • Applications that are not resolved at, or subject to, mediation will be heard by a Member for determination. Where the assigned Member mediates or conciliates the matter and it is not appropriate to continue with the file, the Panel Head will assign the matter to another Member. • It is expected that if a matter is referred to a Member by the Panel Head for determination, the Member will generally convene a preliminary conference of relevant parties with a view to understanding the issues involved, the position of the parties and the best approach to the matter. The Member will be responsible for determining when and how the matter will be heard in accordance with the Act. In the case of a Full Bench, the Presiding Member will make that determination. The arrangements for the conduct of conferences and hearings should take into account the nature of the alleged conduct, the relationship between and potential behaviours of the parties, and any associated personal security risks to parties, staff and Members. • The Member may decide to: ◦ Attempt to resolve the matter by conciliation or mediation at the preliminary conference or at a resumed conference; ◦ Determine that other parties should be notified or required to attend; ◦ Make interim orders –​if the jurisdiction to do so is evident and the circumstances warrant that course of action; or ◦ Make directions for the application to be heard. • Appeals of decisions in this jurisdiction will generally be allocated in the same manner as all other applications save that only Members who have undertaken the PD training will be allocated to such appeals.

 The Fair Work Ombudsman [9.385] The Fair Work Ombudsman is an independent statutory agency with a number of

dispute resolution functions, including providing assistance and advice to employees and employers, and investigating breaches of the act. The ombudsman can also represent employees and outworkers in the Fair Work Commission. The FWA sets out the functions of the Fair Work Ombudsman. 592 [9.385]

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FWA, s 682 [9.390]  Fair Work Act 2009 (Cth), s 682 Functions of the Fair Work Ombudsman (1)

The Fair Work Ombudsman has the following functions:



(a)

to promote:



(i)

harmonious, productive and cooperative workplace relations; and



(ii)

compliance with this Act and fair work instruments;

including by providing education, assistance and advice to employees, employers, outworkers, outworker entities and organisations and producing best practice guides to workplace relations or workplace practices;

(b)

to monitor compliance with this Act and fair work instruments;



(c)

to inquire into, and investigate, any act or practice that may be contrary to this Act, a fair work instrument or a safety net contractual entitlement;



(d)

to commence proceedings in a court, or to make applications to the FWC, to enforce this Act, fair work instruments and safety net contractual entitlements;



(e)

to refer matters to relevant authorities;



(f)

to represent employees or outworkers who are, or may become, a party to proceedings in a court, or a party to a matter before the FWC, under this Act or a fair work instrument, if the Fair Work Ombudsman considers that representing the employees or outworkers will promote compliance with this Act or the fair work instrument;



(g)

any other functions conferred on the Fair Work Ombudsman by any Act.

 [9.395]  The Fair Work Ombudsman receives complaints from employees and assists employ-

ers and employees to resolve their disputes through mediation conducted by a Fair Work Ombudsman Mediator. Mediations are conducted via a short (up to 2 hour) telephone conference involving the parties in dispute and can lead to outcomes such as: • crediting or debiting hours of leave; • giving a work reference; • making an apology; • returning property; and • anything else the parties agree to in order to resolve the dispute. The Fair Work Ombudsman provides information and training videos via their website to help prepare parties for the mediation process (Fair Work Ombudsman, “Working With You to Resolve Workplace Issues” https://​www.fairwork.gov.au/​how-​we-​will-​help/​how-​we-​help-​ you/​help-​resolving-​workplace-​issues/​working-​with-​you-​to-​resolve-​workplace-​issues).

AUSTRALIAN HUMAN RIGHTS COMMISSION [9.400]  The Australian Human Rights Commission (and State equivalents) also provides dis-

pute resolution services in relation to workplace conflict (specifically around discrimination and equal opportunity matters). Its dispute resolution processes include investigation and conciliation, as explained on its website and in the legislation setting up the Commission. [9.400]  593

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Complaints Information [9.405]  Human Rights Commission Website, Complaints Information, http://​www.humanrights.gov. au/​complaints-​information. What can I complain about? The Australian Human Rights Commission can investigate and resolve complaints of discrimination, harassment and bullying based on a person’s: • sex, including pregnancy, marital or relationship status (including same-​sex de facto couples) status, breastfeeding, family responsibilities, sexual harassment, gender identity, intersex status and sexual orientation • disability, including temporary and permanent disabilities; physical, intellectual, sensory, psychiatric disabilities, diseases or illnesses; medical conditions; work related injuries; past, present and future disabilities; and association with a person with a disability • race, including colour, descent, national or ethnic origin, immigrant status and racial hatred • age, covering young people and older people • sexual preference, criminal record, trade union activity, political opinion, religion or social origin (in employment only). It is against the law to be discriminated against in many areas of public life, including employment, education, the provision of goods, services and facilities, accommodation, sport and the administration of Commonwealth laws and services. The Commission can also investigate and resolve complaints about alleged breaches of human rights against the Commonwealth and its agencies. How are complaints resolved? Complaints to the Commission are resolved through a process known as conciliation. This is where the people involved in a complaint talk through the issues with the help of someone impartial and settle the matter on their own terms. Conciliation is a very successful way of resolving complaints. Feedback shows that most people find our process fair, informal and easy to understand. It also helps them to better understand the issues and come up with solutions that are appropriate to their circumstances. Complaint outcomes can include an apology, reinstatement to a job, compensation for lost wages, changes to a policy or developing and promoting anti-​discrimination policies.



About the Commission [9.410] Human Rights Commission, About the Commission, http://​www.humanrights.gov.au/​ about-​commission-​0. Our Mission: Leading the promotion and protection of human rights in Australia by: • making human rights values part of everyday life and language; • empowering all people to understand and exercise their human rights; • working with individuals, community, business and government to inspire action; • keeping government accountable to national and international human rights standards;

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About the Commission cont. We do this by: • listening, learning, communicating and educating; • being open, expert, committed and impartial; • fostering a collaborative, diverse, flexible, respectful and innovative workplace. Our statutory responsibilities include: • education and public awareness • discrimination and human rights complaints • human rights compliance • policy and legislative development. We do this through: • resolving complaints of discrimination or breaches of human rights under federal laws • holding public inquiries into human rights issues of national importance • developing human rights education programs and resources for schools, workplaces and the community • providing independent legal advice to assist courts in cases that involve human rights principles • providing advice and submissions to parliaments and governments to develop laws, policies and programs • undertaking and coordinating research into human rights and discrimination issues.



Australian Human Rights Commission Act 1986 (Cth), ss 11, 31, 46PF [9.415]  Australian Human Rights Commission Act 1986 (Cth), ss 11, 31, 46PF 11 Functions of Commission (1)

The functions of the Commission are:



(a)

such functions as are conferred on the Commission by the Age Discrimination Act 2004, the Disability Discrimination Act 1992, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 or any other enactment; and



(b)

to inquire into, and attempt to conciliate, complaints of unlawful discrimination; and



(c)

to deal with complaints lodged under Part IIC; …

31 Functions of Commission relating to equal opportunity The following functions are hereby conferred on the Commission: (a)

to examine enactments, and (when requested to do so by the Minister) proposed enactments, for the purpose of ascertaining whether the enactments or proposed enactments, as the case may be, have, or would have, the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation, and to report to the Minister the results of any such examination;

(b)

to inquire into any act or practice, including any systemic practice, that may constitute discrimination and:

[9.415]  595

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Australian Human Rights Commission Act 1986 (Cth), ss 11, 31, 46PF cont.

(i)

where the Commission considers it appropriate to do so –​to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and



(ii)

if the Commission considers it appropriate to do so –​endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry;

Part IIB –​Redress for unlawful discrimination Division 1 –​Conciliation by the President … 46PF Inquiry by President (1)

Subject to subsections (1A) and (5), if a complaint is referred to the President under section 46PD, the President must either terminate the complaint or inquire into the complaint and attempt to conciliate the complaint.



International Measures of Effective Conflict Resolution Systems [9.420] A Forsyth, Workplace Conflict Resolution in Australia: The Dominance of the Public Dispute Resolution Framework and the Limited Role of ADR (2012) 25(3) The International Journal of Human Resources Management 476 at 486-​487. Innovations in systems of workplace conflict resolution in countries such as the USA, Ireland, the UK, New Zealand and Australia have been examined in a considerable number of academic studies in recent years. In addition, evaluations have been undertaken of the dispute resolution services provided by public agencies and (in some countries) of the national framework for workplace conflict resolution. The following discussion draws upon several of these contributions, to identify certain measures or indicators of effective dispute resolution regimes. Fairness is almost universally considered to be a key criterion of good conflict resolution. Lipsky and Seeber (2003, pp 102-​103) develop this further, by reference to the American Association for Conflict Resolution’s “eight essential elements of a fair conflict management system”: (1) the voluntary nature of the process; (2) privacy/​confidentiality; (3) the impartiality of “neutrals” (mediators, arbitrators, etc.), who must also be (4) adequately trained and qualified; (5) diversity in the core of neutrals; (6) the prohibition of reprisal or retaliation; (7) consistency with an organisation’s collective bargaining agreements; and (8) the statutory rights of disputants are not undermined. Fairness is also expressed in terms of workplace or “organisational justice” in a substantial stream of academic literature. On this view, dispute resolution procedures should provide for “procedural justice” (eg, information about the nature of a dispute, an opportunity to present a case, a neutral mediator or decision-​maker, reasons for any decisions made and an opportunity to appeal), “distributive justice” (eg, perceived fairness of the outcome by disputants) and “interactional justice” (eg, disputants are treated with dignity and respect, and outcomes are explained whether positive or negative). [487] … The concern is that important societal issues, such as workplace discrimination, are shielded from public scrutiny when dispute resolution is “privatised”. There is, of course, another side to the debate about what makes for fair and effective dispute resolution. As Shulruf et al. have observed: “fairness is not an absolute, and different parties have different views over what is and is not fair”. They found 596 [9.420]

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International Measures of Effective Conflict Resolution Systems cont. that employers in New Zealand placed a high emphasis on the quick resolution of employee grievances, with minimal cost to businesses –​although, contrary to the perception of a growing “grievance industry”, most employers in their study were satisfied with both dispute resolution processes and outcomes, indicating that employer satisfaction was highest where dispute resolution was carried out in-​house rather than by external bodies such as the Department of Labour mediation service … Efficiency for employers therefore emerges as another important indicator of effective conflict resolution systems.

 [9.425] Questions

1.

What are the current conflict resolution methods (internal and external) in an organisation with which you are familiar?

2.

What are some of the factors that impact on the cost of conflict in an organisation?

3.

Workplace conflicts can be resolved using processes that are based on power, rights and/​ or interests. Give examples of processes that fall within each of these three categories.

4.

Why is an interest-​based dispute resolution process usually more effective in a workplace conflict?

5.

What are the benefits of an integrated conflict management system in the workplace?

6.

What are some potential problems when conflict resolution processes are facilitated by senior employees of the organisation, rather than external consultants?

7.

What are some of the difficulties of mediating disputes involving workplace bullying?

8. Conciliations in the Fair Work Commission and mediations via the Fair Work Ombudsman, tend to be conducted primarily by telephone. What are some of the benefits and detriments of ADR in this context? 9.

What role can the Fair Work Commission play in preventing workplace disputes?

10. What kinds of dispute resolution processes can the Fair Work Ombudsman provide, and in which circumstances? 11. What kinds of dispute resolution processes can the Human Rights Commission provide and in what circumstances? 12. How can an organisation know whether its conflict resolution system is effective?   

[9.425]  597

CHAPTER 10

Online Dispute Resolution [10.05] INTRODUCTION......................................................................................................... 599 [10.10] WHAT IS ODR?............................................................................................................ 600 [10.20] ADR and Technology........................................................................ 600 [10.30] Designing a Global Online Dispute Resolution System.............................. 604 [10.40]

Designing a Global Online Dispute Resolution System: Lessons Learned From eBay....................................................................................... 606

[10.45] INTERNATIONAL ODR................................................................................................. 607 [10.50] UNCITRAL Technical Notes on Online Dispute Resolution.......................... 607 [10.60] ONLINE MEDIATION................................................................................................... 612 [10.65] Online Dispute Resolution: The State of the Art and the Issues................... 612 [10.75] Taking Mediation Online................................................................... 614 [10.85] ONLINE ARBITRATION................................................................................................. 617 [10.90]

Arbitration of Cross-​Border Consumer Transactions in Australia: A Way Forward?............................................................................... 617 [10.100] Arbitration of Cross-​Border Consumer Transactions in Australia: A Way Forward?............................................................................... 618 [10.110] The Future of Dispute Resolution: Online ADR and Online Courts................ 620

[10.115] ADVANTAGES AND DISADVANTAGES OF ODR............................................................ 627 [10.120] CAN ODR BE USED IN FAMILY LAW DISPUTES?........................................................... 627 [10.125] Methods for Incorporating Fairness into Family ODR................................ 627 [10.130] ONLINE MEDIATION AND FAMILY VIOLENCE............................................................. 629 [10.135] Online Mediation as an Answer to Divorce Cases Involving Violence............ 630 [10.140] ODR –​THE GREEN MODEL......................................................................................... 633 [10.145] ODR: The Next Green Giant............................................................... 633 [10.150] THE FUTURE OF ODR.................................................................................................. 638 [10.155] Online Dispute Resolution: An Artificial Intelligence Perspective................... 639 [10.160] QUESTIONS................................................................................................................ 647

INTRODUCTION [10.05]  Given the changes attributable to the technological revolution, it is not surprising to

see dispute resolution responding to the changing domestic and commercial climates. A genuine growth area within dispute resolution is the provision of online dispute resolution (ODR) services. ODR seeks to capitalise on the ability of parties to communicate quickly with a view to resolving disputes with a minimum of fuss and cost. Perhaps the days of in-​person dispute resolution have gone, with parties no longer needing to travel to dispute resolution venues and the already reduced formality of in-​person dispute resolution becoming even less formal to the point of merely sitting in front of a computer screen. Like all methods and models of dispute resolution, ODR does not work in all cases. Some authors suggest that disputes such as family law and commercial cases, where future relationships are potentially part of an agreed settlement, may be more suited to in-​person dispute resolution than ODR. However, several of the extracts in this chapter suggest that any dispute is suitable for ODR if the parties are willing. In cases such as e-​commerce disputes, ODR is eminently suitable given the subject matter of the dispute and the disparate locations of buyer and seller. In some respects, the speed with which ODR can be initiated and the need to sometimes quickly deal with disputes before they [10.05]  599

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escalate make dispute resolution and technology suitable bedfellows. Like all disputes, the skilled dispute resolution practitioner will “fit the forum to the fuss” and then determine the best delivery mode for the chosen dispute resolution process. This chapter provides an overview of both automated and facilitated ODR and discusses the benefits and pitfalls of applying ODR to a variety of dispute resolution methods. As Colin Rule, a leader in the field of ODR, has cautioned, writing anything about technology in a book runs the risk of becoming antiquated very quickly. For that reason, this chapter will focus on the broad application and challenges of ODR, rather than the specific technologies applied in the field. The chapter begins with an overview of ODR and some of the important design considerations in ODR systems before dealing with specific examples of how ODR is being used in Australia.

WHAT IS ODR? [10.10]  ODR is dispute resolution via electronic means instead of the traditional in-​person

method of communication. Similar terms are “online alternative dispute resolution (ADR)”, “e-​ADR”, “virtual ADR”, “cyber-​ADR” or “online mediation”. ODR can be used for both online and offline disputes and may take a number of forms including:  email (a form of asynchronous communication); instant messaging; chat rooms (a form of synchronous communication); videoconferencing; telepresence; and virtual courtroom projects. There are also “automated dispute resolution processes”. These are processes conducted with the assistance of a computer program rather than a “human” practitioner. The important element that sets ODR apart from in-​person dispute resolution is that the parties do not conduct the dispute resolution process face-​to-​face. Notwithstanding that ODR relies on electronic communication, the dispute resolution process may take place in “real time”, ie, the dispute resolution process may allow the parties to access a third-​party neutral synchronously. This means that while the dispute resolution process is not in person, it is conducted at a time when all those participating can communicate with each other at the same time with little or no time delay. The point of ODR is to avoid the inconvenience and cost of in-​person dispute resolution and, by doing so, to resolve the dispute in an efficient manner. [10.15]  In the following extract, Lancy provides an overview of developments in ODR sys-

tems in Australia and around the world, analysing some of the limitations as well as strengths of these systems. Lancy’s article points to the great flexibility of ODR and the ability of ODR to overcome differences in time and place between disputants as well as some potentially more problematic differences such as power and finances.

ADR and Technology [10.20]  S Lancy, “ADR and Technology” (2016) 27 Australasian Dispute Resolution Journal 168. The Future of ODR: Its Rise, Limitations and Possibilities –​Will it Override or Compliment Existing ADR Processes? The advent of the internet, and the myriad of possibilities for advanced and extensive forms of communication it presented, necessitated the creation and parallel development of appropriate online ADR practices –​now collectively known as ODR. The necessity for such processes arose from the nature of the internet itself. Its very nature undermines traditional boundaries and notions of legal interactions taking place within set locations or jurisdictions. Territorially defined laws are more 600 [10.10]

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ADR and Technology cont. difficult to apply to transactions or disputes that more often than not span continents and legal systems. Parties are frequently engaged in low monetary value activities which may give rise to disputes and the traditional route of litigation is both time consuming and expensive with the issue of jurisdiction often vague. ODR has arisen as a viable alternative to a potentially cumbersome and uneconomical process of dispute resolution for internet users. Such mechanisms try to address the problems unique to online-​based disputes by being efficient and low-​cost. Further, computer systems continue to develop advanced means of decision analysis tasks and are becoming more commercially viable. They are now used for a variety of niche disputes such as domain names. Another example, the dispute resolution services offered by tech giants Ebay and PayPal, now handle approximately 60 million disputes per year. Overseas, such systems are only growing with the rise of legislation regarding their usage and promulgation, such as the European Union Regulation on Online Dispute Resolution (effective from 2015). However, such developments do not encompass the full range of possibilities posed by the growth and development of ODR. Developments also include advances in e-​court and e-​filing processes in [169] Australia (such as Consumer Affairs Victoria and in the Federal Court of Australia) and overseas (such as the proposed HM Online Court in the United Kingdom). Furthermore, changes to how traditional adjudication and mediation are being carried out continue to evolve rapidly with the effect that ODR is becoming increasingly visible. This article will seek to examine the rise of ODR, its limitations as well as advantages before considering where it may be heading. It will discuss how current ADR processes may potentially be superseded or, more likely, how they may incorporate these developments to achieve more effective, thorough and technologically enhanced dispute resolution outcomes. The Current State of Play Technology itself has long been mooted as a tool to assist negotiation, mediation and in decision making more generally. Further, as its potential has become more widely understood, it has been incorporated alongside ADR processes themselves through legislation such as mandatory pre-​litigation mediation. Early attempts at ODR such as the “Virtual Magistrate’s Project” that provided arbitration and fact-​finding services were put forward as a possible generator of a “common law of cyberspace” but struggled to find acceptance and received few requests for its services. Much has since changed. One such example of ADR being incorporated into current dispute resolution practices is the Victorian Magistrates’ “Early Neutral Evaluation” pilot that involved Magistrates hearing disputes prior to trial in an informal setting. Another example is Practice Note 1 of 2007 –​Guidelines for the Use of Technology in any Civil Litigation Matter for the use of technology in the Supreme Court of Victoria’s civil jurisdiction. More specifically, ODR itself has become increasingly accepted within the Court system in the form of e-​filing or e-​Court processes. The Victorian Supreme Court’s use of RedCrest as an online filing system where users can file and access documents is one example. Another is the Victorian Civil and Administrative Tribunal’s new online system for filing, notices and applications. E-​Courts are seen as a positive mechanism for resolving disputes as outlined succinctly in the case of Harris Scarfe v Ernst & Young (No 3), which stated ODR can aid in the reduction of trial time and as a cost saving device. Currently, ODR exists in a variety of government and private spheres both within Australia and overseas. The Ombudsman schemes including the Telecommunication Industry Ombudsman (TIO) [170] and the Financial Ombudsman Service (FOS) both actively employ ODR. Other ombudsmen also exist such as in the energy and water sectors. The TIO for example operates under legislation that ensures such processes protect consumers and ODR is part of this intention. It is the online sphere where one sees the rapid development and proliferation of ODR practices, especially with private providers. A quick internet search by a consumer looking to access ODR will return many private providers of online dispute resolution processes. Examples include Modria.com, which is tailored to the facilitation of online commercial dispute resolutions. Its website states that it has [10.20]  601

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ADR and Technology cont. dealt with over 400 million consumer disputes. Another, Mediate.com, claims an average of 23,000 daily visitor sessions and boasts being the world’s “#1 Mediator Directory” and regularly features “star mediators” and a caseload management system. Other sites include OnlineDisputeResolution. com which enables participants in an ODR session to “move their resolution forward on any day, at any time” and a “virtual space for every case”. Mediate.com was recognised by the American Bar Association as the winner of the 2010 Institutional Problem Solver of the Year Award. Such online sites and private ODR practices point to its increasing acceptance and viability. Other sites such as the Dispute Settlement Centre of Victoria act as “referral and information points” for potential users of ODR. Their existence also demonstrates that the general population, along with ADR practitioners, are increasingly prepared to accept and engage in such processes that differ considerably from traditional forms of dispute resolution such as litigation. As ADR itself has grown and become incorporated into pre and parallel court processes, ODR has emerged as the next logical phase. The rise of low-​cost access to the internet has also enabled ODR to sidestep the issue of the “digital divide” which was seen as a potential stumbling block to its development and usability. ODR’s growth trajectory has several underlying causes. These include, but are not limited to, the low cost of maintaining online platforms and the increase in the expertise of online mediators as seen in the previously mentioned websites. Another is the development of an appropriate legal framework which can recognise such processes such as the Australia Guidelines for Electronic Commerce (“AGEC”) though further specific legislation is absent. Many mediators who may previously have seen ODR as daunting no longer appear to do so, as evidenced by the continuing numbers of mediators who choose to expand their practice online by including technology such as email, Skype and other forms of video-​conferencing where such disputes require them. Another economic reason is that mediation, it has been said, is a competitive market not unlike litigation and is “supply driven rather than demand driven” in which a practitioner must try to attract cases by staying current and on top of technological developments. Not unlike lawyers, ADR professionals must also adapt to changing technologies and perceptions in how disputes can be resolved. A final reason is State and Commonwealth efforts to ensure parties make “reasonable steps” [171] to explore ADR and by extension ODR before commencing litigation such as in Victoria is the Civil Procedure Act 2011 (Vic) that deals with pre-​ litigation requirements. The Advantages of ODR The potential advantages of ODR have long been discussed and envisaged by practitioners as early as the late nineties when the internet was in its nascent stage. It was said “all areas of law and dispute resolution … will need to cope with the context of this new media”. In particular its use was advocated for high volume low transaction cost disputes but its use quickly extended to that of complex multi-​ party dispute resolution processes. This focus has since shifted as technology and ODR has become more complex and nuanced. Enabling Technology ODR itself has now shifted and we now see that technology is not in and of itself the focus but rather the medium through which dispute resolution can be carried out and enhanced. The advantage of ODR in this case is clear. Firstly, the advanced technology at its disposal allows parties to contact each other with or without a live mediator at mutually suitable times and often in geographically separate locations. The technology is, in effect, acting as a “fourth party” to the dispute as an enabler. Such processes also recognise that sometimes cases can fail for lack of a live mediator so the role of the practitioner is still preserved either as an “add-​on” feature of automated ODR or as part of a full service package. One such example is the previously mentioned ODR processes of Ebay which include a live mediator service for parties who cannot reach an agreement using their automated service. Another system, used in the family dispute resolution space, is “SmartSettle”, an online negotiation system, which offers third party assistance as part of their “Infinity Product Matrix” with a focus on decision support. 602 [10.20]

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ADR and Technology cont. Convenience and time-​saving Another key advantage of ODR processes is its convenience. Parties can gain access to an ADR expert or practitioner beyond that which may be available in their location and the frequently slowed down pace of the process enables easier time management for all parties, including the mediator. Messages can be “screened” by mediators before passing them on as can offers and concerns –​all tools which can help a mediator re-​create the “live action” of a face-​to-​face mediation but on their own clock. Some work can be carried out simultaneously such as caucusing or private conversations in a secure site that can aid in the mediator’s desire to appear and remain neutral. This advantage has been termed the “asynchronous process” by Ebner who also emphasises such technology allows for the easier preservation of records that can be reviewable at any time and that electronic communication can reduce the persuasive ability of “smooth-​talkers” gaining an advantage. Further, research [172] suggests participants can focus more readily on information on a screen which they can review and can better appreciate the “substantive message” of that communication than when it is delivered verbally. In brief, they have time to pause, digest and reflect before responding rather than reacting in the heat of the moment. Another linked outcome is that dominant personality types are restricted in their ability to confront or overwhelm the other party. Trans-​continental  Access A key advantage of ODR is its ability to span countries, continents and indeed legal systems. Parties over the Internet often occupy vastly different geographical domains and referring disputes to a country specific legal system can be highly complex and unduly expensive given the quantum of (often) small e-​claims. ODR lends itself to helping link potentially disparate parties to a common process of resolution at a low cost that can also span cultures and time zones. This does however raise the very pertinent question of the jurisdiction of such processes and service providers. In Australia, courts have shown themselves willing to require out-​of-​state defendants to appear and defend themselves. This is provided for in the Service and Execution of Process Act 1992 (Cth) which allows participants to be served in another State or Territory without the need to show a corresponding nexus. Does this extend to internet based disputes? There is a lack of case law on this issue but a relevant case from the New South Wales Supreme Court on jurisdiction is Macquarie Bank Ltd v Berg. It held that the maintenance of a site that is accessible in a particular jurisdiction does not of itself give a court jurisdiction over the defendant who is using that site. In essence, the case offers a detached non-​regulatory approach to commercial undertakings on the internet. Its’ decision has been said to fail to observe the amorphous idea of “netiquette” that has developed alongside e-​commerce and the ability of service providers to block access to sites to specific persons. So can a defendant in another country bring a claim following a failure of ODR using one of the above sites against an Australian? Again, case law is sparse, but the former case can be contrasted with a later case that also addressed online accountability and enforcement: Dow Jones & Co Inc v Gutnick. Here the High Court held that defamatory material published online and accessed by a plaintiff within Australia was in effect “published” in Australia and the defamation occurred where it was downloaded, enlivening the Court’s jurisdiction to hear the claim, even though Dow Jones had no physical presence in Australia.

 [10.25]  As Lancy explained, the proliferation on online markets has been one of the drivers

of ODR, meaning that E-​commerce is one field where growing numbers of people are likely to experience the need for dispute resolution services. As Colin Rule explains below, eBay is currently the world’s biggest online marketplace, selling more than $80 billion worth of goods every year and generating over 60 million disputes a year. According to a study by Roy [10.25]  603

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Morgan Research, more than 7.8 million Australian shoppers aged 14 and older visited eBay in an average four-​week period between July 2015 and June 2016, meaning large numbers of Australians will also have made use of eBay’s ODR system to resolve their e-​commerce disputes. The ODR system developed by Modria for eBay is therefore a significant example of how to effectively manage disputes online and the lessons learnt at eBay have wide application. In the following extract, COO and Chairman of Modria.com, Colin Rule, explains some of the challenges of establishing an ODR system. The eBay experience particularly highlights that a well-​designed ODR system relies not just on good technology but also on the application of principled negotiation as discussed in Chapter 3. In this article, Rule describes the variety and extent of disputes on eBay, the need for an automated system and the importance of language used in the ODR system to help separate the people from the problem.

Designing a Global Online Dispute Resolution System [10.30]  C Rule, “Designing a Global Online Dispute Resolution System: Lessons Learned From eBay” (2017) 13(2) University of St Thomas Law Journal 354 at 355-​369. Characteristics of eBay Disputes [355] When I arrived at eBay, I presumed that all eBay disputes pretty much looked the same. I also thought that eBay was well-​positioned to resolve disputes, because it was neither the buyer nor the seller in each transaction. As a marketplace administrator with no stake in the outcome of the dispute [356] other than a desire to maintain trust in the marketplace, I reasoned that eBay could credibly play the role of mediator. I learned quickly that the truth was much more complicated. In reality, eBay has a wide variety of disputes, and each is fraught with its own specific complexities. Some disputes are initiated by sellers (such as payment disputes), while others are initiated by buyers (such as item quality disputes). Some focus on reputation (Feedback disputes) and others on intellectual property (owner rights disputes). Most of these disputes are not over very large amounts of money. They can be for as little as $5, such as a magazine, or as much as $50,000, such as a car, but the average is $100”. (However, as dispute resolvers know well, dollar amount is usually not an accurate barometer of passion among disputants.) And because eBay users are spread all over the world, eBay disputes can involve cultural misunderstandings, language barriers, and class differences. A single eBay purchase may involve a buyer in Australia, a seller in France, and a drop-​shipper in China, all transacting on a US based website that refers to California law in its Terms and Conditions. This can lead to many possible points of confusion. I also learned that eBay has a very personal relationship with each user. eBay decides what fees will be charged, how listings should be regulated, and when accounts should be limited or suspended. eBay’s decisions about which listings to promote, either in search results or in marketing materials, can result in huge swings in sales (and profits) for sellers. As such, eBay is rarely seen as an impartial figure. The first challenge to tackle in designing the ODR system was the overwhelming volume of cases. Depending on how you count, the number of annual disputes within eBay’s marketplace exceeds the volume of the U.S. civil court system.13 With tens of millions of disputes, the math was obvious: even if eBay had built a staff of 1,000 skilled online mediators, we would not be able to get through the torrent of cases. We called it “drinking from the fire hose”. It was self-​evident that the process needed to be as automated as possible. Another major issue that had to be addressed was the culture around conflict on eBay. The way the eBay community approached transaction problems was a big part of that challenge. First of all, almost no one used the word “dispute”. The language instead was very legalistic: case, complaint, or claim. 604 [10.30]

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Designing a Global Online Dispute Resolution System cont. If a buyer did not pay, that user was often referred to as a [357] “non-​paying bidder” or “deadbeat buyer”. If a seller did not deliver an item, the only option was for the buyer to file a “fraud alert”. Obviously, this language made it very difficult to follow Roger Fisher and William Ury’s well-​known admonition to “separate people from the problem”. The Formative Process It was readily apparent that we would need to forge a new way to describe these situations so as to optimize the chance that they would be resolved. In this section, we examine the design process we utilized to build a system to better handle these disputes, as well as presenting a broader framework for ODR systems that extends the overall design we employed to other ODR volumes. A. Designing an ODR System For eBay Ethan Katsh and Janet Rifkin’s book Online Dispute Resolution had introduced the concept of the fourth party, in which technology could play a dispute resolution role separate and apart from the human third party. In line with this concept, we decided to write a software program to assist the parties in resolving their disputes, and to involve human neutrals only on an exceptional basis. How to do it was the key question. Some things that are particularly powerful offline (e.g., apologies) are much less effective online, due to the specific characteristics of computer-​mediated communications. However, technology can also open new opportunities that are impossible when working face-​to-​face. For instance, in-​person dispute resolution services are usually sought only after a dispute has reached a point of impasse. Most mediators and arbitrators actually have little opportunity to shape the perspectives of the parties at the earliest stages of the issue. On eBay, however, we were in direct communication with the buyer and seller from the very beginning –​from the purchase all the way through to resolution. That enabled us to work with the parties even before they really understood whether they had a problem. For instance, if a buyer made a purchase and the item had not arrived within three or four days, he or she might start to get concerned. eBay could then step in to reassure the buyer that the average delivery time for a package going from the seller’s location to his or her home was seven days. Then the buyer’s anxiety would ease, and the package would later arrive on schedule. In a sense, we were able to resolve the issue before it even became a dispute. [358] An upside existed to the incredible volume of cases coming through the eBay platform: we understood a lot about what these disputes looked like. For example, we knew that most item-​related disputes fell into one of two categories: non-​receipt (the buyer paid but never got anything) or not-​ as-​described (the item arrived, but it was different than what the buyer expected). Then, within these dispute types we could again specialize to pinpoint the problem: How did the seller ship the item? Was shipping insurance purchased? In the case of a not-​as-​described item, was the item broken? Was it counterfeit? Was the difference a small one (e.g., wrong color), or a big one (e.g., the buyer bought a new laptop and got an old, broken one instead)? We also renamed the processes on the site to promote resolution. “Fraud alerts” became “Item Not Received” disputes. We built a “Dispute Console” so that users could see all their transaction problems in one place, communicate easily with their transaction partners, and track them to resolution. Soon after, we started to see community members using this language to talk about their transaction problems in the discussion forums. Several years later the Dispute Console turned into the Resolution Center. This new language helped to shape the way users thought about their transaction problems. B. Building a Framework for ODR In designing the eBay dispute resolution system it became clear that the process would have to provide a resolution for every issue reported. A purely facilitative model that left the outcome up to the parties would generate a lot of frustration, and it would leave many of the toughest cases unresolved. Also, some parties had an interest in not reaching an agreement (for instance, a seller in the case of a [10.30]  605

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Designing a Global Online Dispute Resolution System cont. not-​as-​described dispute), so there was a strong incentive for those users to stonewall or not negotiate in good faith. We decided to take a staircase approach, beginning with problem diagnosis (where we worked with the complainant to identify the root of the problem and likely solutions), then escalating to direct negotiation assisted by technology, and finally moving to an evaluation phase where eBay and its payment system provider, PayPal, would decide the case if the transaction partners could not do so. Each party could decide unilaterally when it wanted the process to move on to the next phase. The goal of the system was to prevent as many disputes as possible, amicably resolve as many as possible, and then decide the remainder as quickly and fairly as possible. [359] It was very clear that eBay users did not want to spend a lot of time in transformative processes intended to build a long-​term trustworthy relationship. Most eBay transactions were between strangers, and most buyers did not buy more than one item from any individual seller, so there was little interest in approaches that did not match this purely transactional orientation. What users wanted was communication, transparency, efficiency, and a fair outcome, in as little time as possible. We discussed filing fees for our dispute processes, but it is difficult to convince a disputant to pay $30 to resolve a $50 dispute, and near impossible to convince him or her to pay $50 to resolve a $50 dispute. The disputant might as well just give the money to the other side and save the time associated with the process. Moving online dispute resolution inside eBay was a much more natural way to address the funding problem. Instead of thinking about the costs on a per-​case basis, as one does with a third-​party provider, eBay evaluated the cost for the system on a revenue enablement basis, which made much more economic sense. eBay’s internal economic analysis has shown that the savings from reduced contacts with customer service, retained activity from users, and increased transaction activity more than justify the investments in ODR.

 [10.35]  Rule goes on to describe some of the challenges of the new eBay ODR system, includ-

ing how to deal with buyers or sellers who were trying to “game” the system in some way. In the conclusion to his article, Rule reiterates the lessons learned by eBay and now utlitised by other online companies. Rule emphasises that the principles for an effective ODR system are the same principles that apply in the development of any civil justice system.

Designing a Global Online Dispute Resolution System: Lessons Learned From eBay [10.40]  C Rule, “Designing a Global Online Dispute Resolution System: Lessons Learned from eBay” (2017) University of St Thomas Law Journal 354 at 368-​369. [368] Now that the systems we built at eBay have processed hundreds of millions of disputes, we’ve learned a lot about how ODR systems can be best designed to deliver fast and fair resolutions. The bottom line is the users want the process to be simple to use, fair to all participants, and easy to understand. The main observation is that users just want their resolution processes to be quick and easy. They want to be able to work out problems with minimal effort. Redress systems need to be simple to find and intuitive to complete. Users don’t expect to get incentives or giveaways as part of their resolution; they just want to get a fair outcome so they can put the issue to bed and move on. And they want to know that the policies that guided their outcome will be applied consistently and fairly across other disputes as well. We also learned that, just like in offline dispute systems design, it’s very important to pay attention to power differentials. Because sellers are repeat players (and because they have more resources), 606 [10.35]

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Designing a Global Online Dispute Resolution System: Lessons Learned From eBay cont. they have a systematic advantage over buyers, and it is important to design systems that compensate for that asymmetry. Part of tackling this challenge is thinking hard about how your system may be gamed by users trying to find shortcuts or advantages, and finding ways to address each identified vulnerability. Also, tone matters. Language shapes the way we see the world, and it shapes the way we think about resolutions. It may seem like the name of your process isn’t as important as the steps within it, but that perspective is short sighted. If your language promotes empathy and reason, then that’s a big step toward encouraging resolutions. If your language warns users to beware because fraud and deception is running rampant, it will provide an additional obstacle to helping users reach agreements. Many times at eBay we observed that we were essentially building a civil justice system for an online country (alongside, it must be noted, the fraud investigations team, who were building a parallel criminal justice system at the same time). If you counted users as citizens, in 2006 eBay would [369] have been the fifth largest country in the world. As one of the first large internet marketplaces, we were wrestling with new design questions around how an online justice system might work. We didn’t always get the right answer, but it is easy to see the lessons we learned reflected in the policies of newer companies like Airbnb (really, the eBay of travel) or Uber or TaskRabbit. Our society is becoming more digital every day, and face-​to-​face civil justice systems are now confronting some of the same challenges we faced on eBay. The lessons we learned on eBay may offer guidance for how justice systems can evolve over the coming decades. Citizens now live and work online, and they bring expectations drawn from sites like eBay (and Google and Facebook) to their interactions with government and the courts. In fact, it may turn out that the justice systems of the future will resemble the designs we crafted for eBay more than the geographically-​bound systems of today.



INTERNATIONAL ODR [10.45]  Given the prevalence of cross-​border e-​commerce and disputes, the United Nations

Commission on International Trade Law (UNCITRAL) undertook to develop guidelines for the field. In 2016, UNCITRAL finalised and adopted the Technical Notes on ODR. These technical notes and the minutes of meetings of UNCITRAL that led to their development are instructive about the difficulties of developing guidelines in an emerging and swiftly developing technological field. However, the technical notes clearly set out the kinds of procedures that typically take place in ODR systems. Full minutes of these meetings and the complete report can be found on UNCITRAL’s website: http://​www.uncitral.org/​uncitral/​en/​index.html. The following extract from the Technical Notes on ODR outlines some of the guiding principles and the stages of typical ODR processes.

UNCITRAL Technical Notes on Online Dispute Resolution [10.50]  United Nations Commission on International Trade Law, UNCITRAL Technical Notes on Online Dispute Resolution (United Nations, New York, 2017). Overview of Online Dispute Resolution 1.

In tandem with the sharp increase of online cross-​border transactions, there has been a need for mechanisms for resolving disputes which arise from such transactions. [10.50]  607

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UNCITRAL Technical Notes on Online Dispute Resolution cont. 2.

One such mechanism is online dispute resolution (“ODR”), which can assist the parties in resolving the dispute in a simple, fast, flexible and secure manner, without the need for physical presence at a meeting or hearing. ODR encompasses a broad range of approaches and forms (including but not limited to ombudsmen, complaints boards, negotiation, conciliation, mediation, facilitated settlement, arbitration and others) and the potential for hybrid processes comprising both online and offline elements. As such, ODR represents significant opportunities for access to dispute resolution by buyers and sellers concluding cross-​border commercial transactions, both in developed and developing countries.

Purpose of the Technical Notes 3.

The purpose of the Technical Notes is to foster the development of ODR and to assist ODR administrators, ODR platforms, neutrals, and the parties to ODR proceedings.

4.

The Technical Notes reflect approaches to ODR systems that embody principles of impartiality, independence, efficiency, effectiveness, due process, fairness, accountability and transparency.

5.

The Technical Notes are intended for use in disputes arising from cross-​border low-​value sales or service contracts concluded using electronic communications. They do not promote any practice of ODR as best practice.

[2]‌Non-​binding nature of the Technical Notes 6.

The Technical Notes are a descriptive document. They are not intended to be exhaustive or exclusive, nor are they suitable to be used as rules for any ODR proceeding. They do not impose any legal requirement binding on the parties or any persons and/​or entities administering or enabling an ODR proceeding, and do not imply any modification to any ODR rules that the parties may have selected.

Section II –​Principles 7.

The principles that underpin any ODR process include fairness, transparency, due process and accountability.

8.

ODR may assist in addressing a situation arising out of crossborder e-​commerce transactions, namely the fact that traditional judicial mechanisms for legal recourse may not offer an adequate solution for cross-​border e-​commerce disputes.

9.

ODR ought to be simple, fast and efficient, in order to be able to be used in a “real world setting”, including that it should not impose costs, delays and burdens that are disproportionate to the economic value at stake.

Transparency 10.

It is desirable to disclose any relationship between the ODR administrator and a particular vendor, so that users of the service are informed of potential conflicts of interest.

11.

The ODR administrator may wish to publish anonymized data or statistics on outcomes in ODR processes, in order to enable parties to assess its overall record, consistent with applicable principles of confidentiality.

12.

All relevant information should be available on the ODR administrator’s website in a user-​ friendly and accessible manner.

Independence 13.

It is desirable for the ODR administrator to adopt a code of ethics for its neutrals, in order to guide neutrals as to conflicts of interest and other rules of conduct.

14.

It is useful for the ODR administrator to adopt policies dealing with identifying and handling conflicts of interest.

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UNCITRAL Technical Notes on Online Dispute Resolution cont. [3]‌ Expertise 15.

The ODR administrator may wish to implement comprehensive policies governing selection and training of neutrals.

16.

An internal oversight/​quality assurance process may help the ODR administrator to ensure that a neutral conforms with the standards it has set for itself.

Consent 17. The ODR process should be based on the explicit and informed consent of the parties. Section III –​Stages of an ODR proceeding 18.

The process of an ODR proceeding may consist of stages including: negotiation; facilitated settlement; and a third (final) stage.

19.

When a claimant submits a notice through the ODR platform to the ODR administrator (see section VI below), the ODR administrator informs the respondent of the existence of the claim and the claimant of the response. The first stage of proceedings –​a technology-​enabled negotiation –​commences, in which the claimant and respondent negotiate directly with one another through the ODR platform.

20.

If that negotiation process fails (i.e. does not result in a settlement of the claim), the process may move to a second, “facilitated settlement” stage (see paras. 40-​44 below). In that stage of ODR proceedings, the ODR administrator appoints a neutral (see para. 25 below), who communicates with the parties in an attempt to reach a settlement.

21.

If facilitated settlement fails, a third and final stage of ODR proceedings may commence, in which case the ODR administrator or neutral may inform the parties of the nature of such stage.

Section IV –​Scope of ODR process 22.

An ODR process may be particularly useful for disputes arising out of cross-​border, low-​value e-​ commerce transactions. An ODR process may apply to disputes arising out of both a business-​ to-​business as well as business-​to-​consumer transactions.

23.

An ODR process may apply to disputes arising out of both sales and service contracts.

[4]‌Section V –​ODR definitions, roles and responsibilities, and communications 24.

Online dispute resolution, or “ODR”, is a “mechanism for resolving disputes through the use of electronic communications and other information and communication technology”. The process may be implemented differently by different administrators of the process, and may evolve over time.

25.

As used herein a “claimant” is the party initiating ODR proceedings and the “respondent” the party to whom the claimant’s notice is directed, in line with traditional, offline, alternative dispute resolution nomenclature. A neutral is an individual that assists the parties in settling or resolving the dispute.

26.

ODR requires a technology-​based intermediary. In other words, unlike offline alternative dispute resolution, an ODR proceeding cannot be conducted on an ad hoc basis involving only the parties to a dispute and a neutral (that is, without an administrator). Instead, to permit the use of technology to enable a dispute resolution process, an ODR process requires a system for generating, sending, receiving, storing, exchanging or otherwise processing communications in a manner that ensures data security. Such a system is referred to herein as an “ODR platform”.

27.

An ODR platform should be administered and coordinated. The entity that carries out such administration and coordination is referred to herein as the “ODR administrator”. The ODR administrator may be separate from or part of the ODR platform. [10.50]  609

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UNCITRAL Technical Notes on Online Dispute Resolution cont. 28.

In order to enable ODR communications, it is desirable that both the ODR administrator and the ODR platform be specified in the dispute resolution clause.

29.

The communications that may take place during the course of proceedings have been defined as “any communication (including a statement, declaration, demand, notice, response, submission, notification or request) made by means of information generated, sent, received or stored by electronic, magnetic, optical or similar means”.

30.

It is desirable that all communications in ODR proceedings take place via the ODR platform. Consequently, both the parties to the dispute, and the ODR platform itself, should have a designated “electronic address”. The term “electronic address” is defined in other UNCITRAL texts.

31.

[5]‌To enhance efficiency it is desirable that the ODR administrator promptly:



(a)

Acknowledge receipt of any communication by the ODR platform;



(b)

Notify parties of the availability of any communication received by the ODR platform; and



(c)

Keep the parties informed of the commencement and conclusion of different stages of the proceedings.

32.

In order to avoid loss of time, it is desirable that a communication be deemed to be received by a party when the administrator notifies that party of its availability on the platform; deadlines in the proceedings would run from the time the administrator has made that notification. At the same time, it is desirable that the ODR administrator be empowered to extend deadlines, in order to allow for some flexibility when appropriate.

Section VI –​Commencement of ODR proceedings 33.

In order that an ODR proceeding may begin, it is desirable that the claimant provide to the ODR administrator a notice containing the following information:



(a)

The name and electronic address of the claimant and of the claimant’s representative (if any) authorized to act for the claimant in the ODR proceedings;



(b)

The name and electronic address of the respondent and of the respondent’s representative (if any) known to the claimant;



(c)

The grounds on which the claim is made;



(d)

Any solutions proposed to resolve the dispute;



(e)

The claimant’s preferred language of proceedings; and



(f)

The signature or other means of identification and authentication of the claimant and/​ or the claimant’s representative.

34.

ODR proceedings may be deemed to have commenced when, following a claimant’s communication of a notice to the ODR administrator, the ODR administrator notifies the parties that the notice is available at the ODR platform.

35.

[6]‌It is desirable that the respondent communicate its response to the ODR administrator within a reasonable time of being notified of the availability of the claimant’s notice on the ODR platform, and that the response include the following elements:



(a)

The name and electronic address of the respondent and the respondent’s representative (if any) authorized to act for the respondent in the ODR proceedings;



(b)

A response to the grounds on which the claim is made;



(c)

Any solutions proposed to resolve the dispute;



(d)

The signature or other means of identification and authentication of the respondent and/​or the respondent’s representative; and



(e)

Notice of any counterclaim containing the grounds on which the counterclaim is made.

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UNCITRAL Technical Notes on Online Dispute Resolution cont. 36.

As much as is possible, it is desirable that both the notice and response be accompanied by all documents and other evidence relied upon by each party, or contain references to them. In addition, to the extent that a claimant is pursuing any other legal remedies, it is desirable that such information also be provided with the notice.

Section VII –​Negotiation 37.

The first stage may be a negotiation, conducted between the parties via the ODR platform.

38.

The first stage of proceedings may commence following the communication of the respondent’s response to the ODR platform and:



(a)

Notification thereof to the claimant or



(b)

Failing a response, the lapse of a reasonable period of time after the notice has been communicated to the respondent.

39.

It is desirable that, if the negotiation does not result in a settlement within a reasonable period of time, the process proceed to the next stage.

Section VIII –​Facilitated settlement 40.

The second stage of ODR proceedings may be facilitated settlement, whereby a neutral is appointed and communicates with the parties to try to achieve a settlement.

41.

[7]‌That stage may commence if negotiation via the platform fails for any reason (including non-​participation or failure to reach a settlement within a reasonable period of time), or where one or both parties to the dispute request to move directly to the next stage of proceedings.

42.

Upon commencement of the facilitated settlement stage of proceedings, it is desirable that the ODR administrator appoint a neutral, and notify the parties of that appointment, and provide certain details about the identity of the neutral as described in paragraph 46 below.

43.

In the facilitated settlement stage, it is desirable that the neutral communicate with the parties to try to achieve a settlement.

44.

If a facilitated settlement cannot be achieved within a reasonable period of time, the process may move to a final stage.

Section IX –​Final stage 45. If the neutral has not succeeded in facilitating the settlement, it is desirable that the ODR administrator or neutral informs the parties of the nature of the final stage, and of the form that it might take.

 [10.55] The systems described by Rule and outlined in the UNCITRAL Technical notes

are clearly typical of ODR used to manage cross-​border e-​commerce disputes, but the key elements are common to many online systems. Moreover, these systems share common features with traditional dispute resolution processes. To some extent automated negotiation simply provides the disputing parties with access to a software program that decides the outcome of the dispute on behalf of the parties if the blind bids are within a certain defined range. It is quasi-​adjudication without the opportunity to present a persuasive argument. Assisted negotiation is more facilitative in that it facilitates communication between the parties and effectively acts as an agency which administers the negotiation process through to finality should an agreement be reached. Clearly, assisted negotiation resembles traditional consensual-​style problem-​solving rather than automated negotiation. In other words, it is [10.55]  611

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similar to interest-​based bargaining or principled negotiation whereas automated negotiation resembles adversarial or zero-​sum negotiation.

ONLINE MEDIATION [10.60]  ODR can encompass a broad range of dispute resolution processes. As discussed ear-

lier in this book, mediation and other dispute resolution processes often develop as hybrids. That is, the basic principles of dispute resolution form the foundation of a process that differs from classical processes because of variations required by its users. This is a healthy state of affairs and is one of the positive characteristics of dispute resolution. The different types of mediation discussed in an early ODR research paper by a team from the University of Geneva varied from facilitative and not focused on settlement to evaluative or robust mediation where mediator intervention was high. In the following extract, the Geneva team describes their findings on the type of mediation processes discovered during their research of ODR providers. This variety of mediation processes can still be found in ODR today.

Online Dispute Resolution: The State of the Art and the Issues [10.65]  T Schultz, G Kaufman-​Kohler, D Langer and V Bonnett, Online Dispute Resolution: The State of the Art and the Issues (E-​Com Research Project of the University of Geneva, Geneva, 2001, http://​ www.online-​adr.org) at [7]‌-​[11]. Part 1-​2 Mediation Some authors call mediation a form of assisted negotiation. We distinguished the two because most websites do and because, in online proceedings, mediation is based on the activity of the third neutral, the mediator, while assisted negotiation is based on technological tools, such as software. The activity of the neutral is the main characteristic of mediation: it is a procedure during which a third party helps the disputants come to an agreement to resolve their conflict. While the mediator, having no decision-​making power, never imposes a solution, the degree of his [sic] intervention can vary significantly, ranging globally from “purist” mediation, where the mediator intervenes as little as possible, to “muscle” mediation, where the neutral tries to force an agreement on the parties. On one side of the spectrum, one finds a form of mediation, called “facilitative”, which specifically requires the mediator not to express an opinion or to recommend a solution, being simply a catalyst to the communication. The strategy used in this form of mediation can be described as “orchestration”, as it seeks to assist the parties in discovering themselves a [8]‌solution that meets their mutual interests. This is typically the kind of procedure Online Resolution and 1-​2-​3 Settle. Com have chosen. On the other side of the spectrum, one finds “evaluative” mediation, where the neutral gives opinions on law, facts and evidence. The strategy used is “deal-​making”, the mediator figures out a solution mutually acceptable to the parties and then tries to persuade them to adopt it. This is for instance the much more flexible and active approach adopted by WebMediate, where the mediator can act in any lawful manner agreed to by the parties (of course, he [sic] still does not have the authority to impose a settlement). In between these two extremes one finds proceedings of the like of SquareTrade’s, in which the mediator seeks to intervene as little as the parties agree to: he [sic] intervenes only if the parties are not successful in negotiating fully by themselves, and, if he [sic] intervenes, he [sic] for instance proposes a solution only if the parties request it. The main common bottom line of these procedures is the aim to facilitate the communication between the parties and the mediator and between the parties themselves. Such communication can be improved, or sometimes impaired, by the technological tools involved (such as Internet relay chats, 612 [10.60]

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Online Dispute Resolution: The State of the Art and the Issues cont. emails, tele-​and videoconferencing). Communication and its varying modes are the core elements, which shape the different stages of mediation. Offline mediation is usually organized along three major steps, or “sessions”: the opening joint session, where all parties, attorneys, the mediator, and maybe experts and psychologists are present. During this session, the parties present their views on facts and law and the mediator summarizes the issues. Thereafter comes a series of private sessions, also called caucuses, in which the mediator sequentially discusses in private with each of the parties. [9]‌This stage is considered the “engine room” of the whole procedure. At last comes a closing joint session, during which the parties communicate with each other again and then either verify the terms of the settlement reached or, at least, the progress they have made. These offline sessions are of interest for online mediation mechanisms because they influence the architecture of online mediation websites. In offline mediation, a balance exists between formal steps and informal stages, the mediator and the parties making use of joint sessions, periods of caucus and even coffee breaks. A variety of communication methods are used during the resolution process and they differ according to the formality of the session, the state of mind of the parties and the balance of powers. Communication is thus fine tuned to achieve its best results. Some corresponding possibilities must be offered online: ODR providers should have common discussion rooms and private communication facilities and provide technological tools able to support communication with the highest possible amount of subtleties. In online mediation, real space is replaced by virtual space, ie, cyberspace. A priori at least, this is the only fundamental difference between offline and online mediation, with the result that all other aspects should remain unchanged, subject of course to adjustments to technology. However, our review showed that in many cases the experiences of offline mediation were not fully considered and integrated into the architecture of online proceedings. For instance, quite surprisingly, only one online mediation provider applies standards developed by large institutions for offline mediation. Moreover, instead of being organized according to the three types of sessions in both common and private rooms discussed above for offline mediation, online procedures are sometimes simplified to the extreme, communication possibilities offered by new technological tools not being adequately used. Real-​time discussion is rather seldom offered and common and private communication rooms are not always available. A typical description of a well-​developed mediation procedure is Mediate-​Net’s: Online mediation starts out like a traditional mediation in the sense that a mediator acceptable to both parties is assigned to the case. The mediator will communicate with both parties by email to determine the issues to be decided by the mediation and to reach an agreement on the methods of communication. Unlike a traditional mediation, there is no first “meeting” of all of the parties online, unless the parties agree to begin the mediation with an “online” chat session which enables all of the parties to communicate with each other in real time. In addition to email, the mediator and the parties have access to a variety of electronic communication tools including electronic conferencing, online chat with the capacity for private conversations, videoconferencing when the parties have access to the required equipment, and, as well as the use of the telephone if the parties agree that telephone communication is necessary. We will also arrange a “face-​to-​face” meeting if the parties want to mediate “face-​to-​face” in a traditional setting, if practical … Phase I involves an initial online communication which gives all the parties a chance to learn more about the various phases of the mediation process. The mediator answers questions about the ground rules of the mediation and procedures available governing the mediator’s effort to settle the dispute … The mediator also emphasizes that all compromises made in the interest of negotiation are confidential and that such information is inadmissible and not discoverable for any purpose in litigation among the parties … [10.65]  613

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Online Dispute Resolution: The State of the Art and the Issues cont. Phase II involves familiarizing the mediator with the facts of the dispute. Each party prepares a submission which may include supporting information such as financial information, reports, and documents … Phase III involves presenting the settlement terms and assessing the initial reactions of the parties by the mediator to her proposal. The proposal is communicated to the parties by email. The mediator separately explains to each party in writing both the proposed settlement terms and the confidential reasons underlying her proposal … During this phase, each side does not know of the reaction of the other party to the mediator’s proposed terms. This procedure gives the parties an opportunity to reach in confidence the proposed settlement and the rationale which the mediator hopes will bring the dispute to an immediate conclusion. Phase IV may involve “shuttle diplomacy” and is the final phase of the mediation process. “Shuttle diplomacy”, of course, takes place if the mediator’s “best” settlement terms prove to be unacceptable to either party. If settlement is reached, the mediator drafts a written settlement agreement reflecting all of the settlement terms. This document is circulated among the parties, and sent to the parties’ attorneys for review, after which it is formally executed. As mediation seeks to satisfy each party’s interests rather than to adjudicate fair and legitimate rights, the procedure is governed by few rules: substantive state law applies only insofar as some types of agreements are prohibited, and no rule of evidence controls the process. One rule, however, is of prime importance to make the process effective: mediation [11] is without prejudice and confidential. The agreement to mediate usually includes a provision holding that the mediator is not to be called to give evidence or produce documents in court or arbitration. This rule is necessary to establish trust in order to get communication and negotiation going.

 [10.70]  Given the above, the question should be asked: “Would mediation purists approve

of the way ODR mediation has developed in the above examples?” The mediation described above borders on what we in Australia would call early neutral evaluation or expert determination, rather than mediation. The difference is that in the classical model of mediation, the mediator does not craft the resolution for the parties. Alternatively, is the above description just shuttle diplomacy in the extreme where parties are effectively kept in a separate session conducted in cyberspace until agreement has been reached? The mediator electronically shuttles back and forth building a settlement between the parties until they are both comfortable with the outcome, after which the mediator drafts a settlement agreement. In the following extract, the Los Angeles-​based mediator and arbitrator, Jeffrey Krivis, describes his experiences with online mediation and describes the transformation from facilitative mediation to neutral evaluation as part of the online process he offers disputants. Mediation purists would probably disagree with this change of role given that the parties have submitted confidential information to the mediator during the pre-​mediation stage of the process. However, Krivis suggests that parties look for such a change in role after they have participated in a facilitative-​style online mediation process which has not achieved a settlement.

Taking Mediation Online [10.75]  J Krivis, “Taking Mediation Online” (1998) 5(4) Dispute Resolution Magazine 25 at 26-​27. First Things First The first step in the online process is to send the parties a mediation agreement that should include not only the standard confidentiality language, but specific rules about responding to e-​ mail, 614 [10.70]

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Taking Mediation Online cont. including: (1) that all communications shall go through the mediator and not to communicate with each other without permission from the mediator; (2) that the mediator shall be notified of all times when a party will be away from the computer for more than 24 hours. The Position Statements Next, ask all parties to submit to you a brief, confidential position statement which you will use to analyze the issues and set an agenda. This is the first critical piece of information in the case for the mediator and sets the tone for the rest of the online mediation. Based on the position statements, your job is to come up with a concise, balanced summary of the dispute. This is quite difficult because you will be tempted to lean toward one side or the other. Your statement should be accompanied by an agenda of issues. You then ask each side to approve your statement of the case and agenda. They have the right to make comments or changes. This might require some back and forth communication until you arrive at a frame for the case upon which both sides agree. The success of getting both sides to agree on the statement and agenda is the key to unlocking the dispute. Select your Style I have found that in cases where the mediation is being conducted strictly through e-​mail (not teleconferencing), it is critical to be extremely facilitative, defining the issues in a narrow sense and focusing primarily on the legal issues. This initial approach gathers the most information for the mediator and helps the parties feel comfortable. Under no circumstances would it be useful to yield to the temptation to give an advisory opinion or predict the outcome too soon, or you may lose one or more of the parties. Gathering Information At this stage, gathering information requires thoughtful, articulate questions that allow the parties time to carefully analyze their responses. The mediator must be especially skilled and knowledgeable in the area of law in which the parties are operating, since the personal dynamics usually available in an “in person” mediation are not available. As a result, the mediator must follow up each answer with a more in-​depth question that reflects both the mediator’s knowledge of the law and a sense of understanding or compassion about the parties’ positions. At the same time, it is important to help the parties become realistic about their chances of success by asking the tough questions. During this ongoing stage, there will be opportunities to learn more about the driving forces behind the positions taken by the parties. Though it is useful to learn about those forces and it could assist in crafting a settlement, it is easy to get off track with matters that might not be relevant to the dispute and that will not help you reach agreement. Be careful as you drift into this area, but don’t be afraid to test the waters. The objective is to ask questions that lead to a common goal, and then to float trial balloons that might be used later in the mediation as the subject of a proposal. Synthesize Materials As you synthesize and understand the information you gather, the case will start to turn on an issue or two which become readily apparent after a short period of asking questions. As issues start to unfold, one approach I use successfully is to ask the parties the following questions: • Where do you think you disagree most strongly? • In those areas where you disagree, [27] is there any objective criteria you can suggest to develop a fair and constructive voluntary resolution? • From your perspective, what important understandings did you think you had when you originally got involved with the other party? (Time, money, allocation of risk, division of responsibilities, rights and duties, etc.) What important shifts in these understandings happened as the situation developed, and where do you think their perspective differs from yours? [10.75]  615

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Taking Mediation Online cont. • In areas where you have sharply different perspectives, what evidence could you present that would be credible to the other party to help them see your view? (Written industry standards, notes, witnesses, etc.) • What criteria will you use to determine when an agreement proposed in this case is “fair?” • How do you think the other party realistically views their chances of success in this case? • What do you think the other party views as a fair outcome in this case for both sides? These questions can be asked all at once or at strategic intervals depending on the progress of the case. The goal is to keep the conversation moving forward and to search for clues so that you can begin to develop a proposal for settlement. The Neutral Evaluation At this point, the parties look to the mediator for direction and leadership. Your role as a facilitative mediator is over. It’s time to become evaluative and ask each side if they would permit you to make a neutral recommendation to which each party can confidentially respond. Tell them that if both parties agree with the recommendation, you have a deal. If not, you continue the process. Parties can feel comfortable agreeing with part or all of the recommendation. The evaluation should be specific and supported extensively with facts and law if applicable. The timing of this recommendation is important, because it has to be done only after the parties have total confidence in the mediator, and at a moment in the process where there is a sense of not wanting to lose the opportunity to settle. Final Thoughts Life is sometimes difficult, particularly in the civil justice system, and the process of confronting and solving litigated problems is not always perfect. As lawyers, we have an obligation to the client to look for tools that will aid us in achieving the client’s goals. A good mediator who is willing to explore the use of digital communication in a case where the parties are geographically challenged could provide the key that unlocks the dispute.

 [10.80] The ongoing debate about the value of online mediation is whether the process is

faithful to the base philosophies of mediation as they developed in the face-​to-​face world. Those philosophies include the requirements of confidentiality, voluntariness, empowerment, neutrality and a unique solution crafted consensually by the parties themselves. Some of these philosophies are susceptible to compromise in the ODR world, for example, breaches of confidentiality can occur via hacking or even the simple mistake of pressing “reply all” rather than just “reply” during email correspondence in an ODR process. As with in-​person dispute resolution, some ODR schemes are compulsory and therefore remove the philosophically based essential element of voluntariness. ODR may or may not empower disputants given the lack of face-​to-​face negotiations. Where intimidation is being used by one disputant over another, ODR can partially remove that type of power imbalance. However, it does not provide for the situation where there is an opportunity to empower a victim of a power imbalance through in-​person negotiations. ODR neither exacerbates nor eliminates the issues surrounding neutrality and therefore is itself a neutral issue regarding the philosophical tenets of dispute resolution. Likewise, ODR does not aggravate or resolve the issues surrounding parties finding a solution of their own. However, experiences such as those described by Krivis above lead us to ask the following questions: “Does ODR encourage 616 [10.80]

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the mediator to cross the line of neutrality or impartiality by being evaluative?” and “Does the lack of joint sessions damage the philosophical tenet of parties communicating with each other to reach a consensual outcome?” These questions need to be addressed in the form of empirical research on ODR.

ONLINE ARBITRATION [10.85] Hybrid forms of dispute resolution have formed in cyberspace, just as they have

developed elsewhere, and forms of med-​arb are not uncommon. One issue for online arbitration is the enforcement of awards in cross-​border online arbitration. While this is still an issue for in-​person arbitration, arbitrating according to a set of established rules that are recognised by the jurisdictions in which the parties to the dispute operate provides for easier enforcement. In the following article extracts, Garnett discusses the potential of online arbitration to resolve cross-​border consumer disputes. Garnett’s article canvasses many aspects of these disputes from the perspective of the law of arbitration, focusing on pre-​dispute arbitration clauses before highlighting the need for post-​dispute arbitration clauses. In his conclusion, Garnett suggests that online arbitration may provide a solution that overcomes jurisdictional differences between consumers and sellers. The first extract focusses on the lack of transparency of many online arbitration agreements.

Arbitration of Cross-​Border Consumer Transactions in Australia: A Way Forward? [10.90]  R Garnett, “Arbitration of Cross-​Border Consumer Transactions in Australia: A Way Forward?” (2017) 39(4) Sydney Law Review 569 at 586. Unfair Contract Terms: The Online Dimension A further important issue concerning unfair terms and consumer arbitration clauses is transparency. Section 24(2) of the ACL specifically provides that in determining whether a term is unfair, the court must consider the extent to which the term is transparent. Section 24(3) further provides that a term is transparent if it is “(a) expressed in reasonably plain language; and (b) legible; and (c) presented clearly; and (d) readily available to any party affected by the term”. It is well known that standard form consumer contracts can be presented in a manner that is not easy to understand for the layperson. The problem is magnified in the online context where key terms may only be accessible by a hypertext link or dropdown box. Given the likely prejudicial consequences for a consumer in being subjected to a foreign arbitration proceeding, imposing an obligation on a trader to provide adequate notice to the consumer of the clause and securing his or her assent to the provision would seem to be required by “transparency”. The issue of transparency with online arbitration clauses has been considered in several US decisions that may be instructive in the Australian context. In the leading decision of Specht v Netscape Communications Corp, the Court found that a claimant consumer was not bound by an online arbitration clause in circumstances where the user was not required to give his or her assent to the terms and conditions (including the clause) before making a purchase. The test applied by the Court was whether the contractual terms were “reasonably conspicuous” and whether the plaintiff’s alleged assent to them was “unambiguous”. Consequently, in later US decisions, it has been held that as long as the layout and language of the website gives the user reasonable notice that a “click” will manifest his or her consent to the terms and conditions of the agreement, then the agreement, including the arbitration clause, is valid. Further, if the terms are not [587] displayed on the site, but must be brought up by using a hyperlink, a clear prompt must be provided directing the user to read them. [10.90]  617

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Arbitration of Cross-​Border Consumer Transactions in Australia: A Way Forward? cont. While these US decisions did not involve application of legislation similar to the Australian unfair contract terms legislation, the reasoning described above is reminiscent of English cases such as Mylcrist and so may be valuable guidance on the question of “transparency”. However, the fact that an arbitration clause is found to be transparent will not preclude a finding of unfairness on more general grounds, such as where an imbalance is caused in the rights and obligations of the parties.

 [10.95]  Lack of transparency in online agreements is just one of the recurring criticisms of

ODR. The ease of online transactions and the speed with which they occur are two reasons why consumers may gloss over the online terms and conditions for their transactions. Garnett believes that one solution is to focus on post-​dispute arbitration agreements that consumers enter into after a dispute has arisen, rather than before a sale has even taken place. In the conclusion to his article, Garnett proposes that these kinds of arbitration are most suited for ODR and suggests some guiding principles for their development.

Arbitration of Cross-​Border Consumer Transactions in Australia: A Way Forward? [10.100] R Garnett, “Arbitration of Cross-​ Border Consumer Transactions in Australia: A Way Forward?” (2017) 39(4) Sydney Law Review 569 at 596-​599. ODR is a process whereby a substantial part of the dispute resolution process takes place electronically and may include negotiation, mediation and arbitration. Supporters of ODR technology cite time and cost advantages, as well as less scope for intimidation of vulnerable parties such as consumers with increased access to information. UNCITRAL spent seven years examining the feasibility of creating international rules for online dispute resolution for low value, cross-​border disputes. Ultimately, no final agreement was reached due to “fundamental differences between States that allowed binding pre-​dispute agreements to arbitrate and others [who did not]”, but a set of draft procedural rules for resolving disputes were produced that could provide some guidance for countries such as Australia. The members of the UNCITRAL Working Group also recognised that, for a complete “ODR package”, principles on applicable substantive law and cross-​ border enforcement would have to be developed. The draft procedural rules create a multi-​tiered dispute resolution procedure that commences with negotiation, which, if unsuccessful, moves directly to arbitration or alternatively, mediation and then arbitration. The Rules regulate how the proceedings are commenced, conducted, decided and terminated, including [597] matters such as how adjudicators are to be appointed and challenged and the costs of proceedings. In terms of substantive legal principles for resolving B2C disputes, the Working Group noted that consumers are currently deterred from seeking redress in cross-​border cases due to prohibitive costs, which is where ODR could make a significant contribution. In resolving ODR disputes involving consumers, it would be important to develop a set of principles based on equitable considerations, codes of conduct and internationally recognised principles of consumer protection law for deciding cases. The aim is to avoid complex issues involving applicable law. On the question of cross-​border enforcement, the Working Group queried whether the New York Convention would apply to enforcement of online arbitral awards involving consumers. Further, given the low value of such transactions, “[m]‌echanisms aimed at self-​compliance” such as credit card chargebacks, trustmarks, reputation management systems and escrow systems may in any case be “the most effective means of ensuring enforcement”. 618 [10.95]

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Arbitration of Cross-Border Consumer Transactions in Australia: A Way Forward? cont. From the perspective of an Australian consumer transacting with a foreign trader, ODR may overcome the problem mentioned above whereby a consumer is forced to conduct dispute resolution in a distant country at high cost and inconvenience with potentially hostile laws for consumers. The EU has also introduced a regulation on ODR for consumer disputes, which entered into force in January 2016. Pursuant to the regulation, an ODR Platform has been established for the settlement of disputes between EU consumers and traders for both domestic and cross-​border online purchases. Disputes are channelled through accredited alternative dispute resolution (“ADR”) bodies in the EU member states that are connected to the Platform. All online traders who sell goods, services or digital content to consumers via the trader’s website within the EU must provide a link to the ODR Platform on their site that is easily accessible to consumers. Traders must also inform consumers of the existence of the ODR Platform and certified ADR provider and the possibility of using the Platform to resolve disputes. Yet, the weakness of this system is that traders are not obliged to use ODR; their only obligation is to notify consumers of the existence of the Platform. An important question, therefore, is whether an ODR process similar to that suggested by UNCITRAL, if it were to become operational, would be compliant [598] with Australian law. From a technical perspective, there is now no problem with the enforcement of online arbitration agreements under Australian law. Section 3(4) of the IAA, added in 2010, provides that the requirement for an arbitral agreement to be in writing is met by an electronic communication where the information contained therein is accessible to be useable for subsequent reference. Similar requirements exist for arbitrations conducted in Australia under ss 7(3), (4) and (5) of the CAA (for domestic arbitrations) and arts 7(2), (3) and (4) of the UNCITRAL Model Law (for international arbitrations). Regarding enforcement of foreign and local awards, there is no express definition in the IAA that includes both electronic and paper awards. What is required in s 9(1)(a) of the IAA, art 35(2) of the UNCITRAL Model Law and s 35(2) of the CAA is that an applicant for enforcement supply an original copy of the award or a certified copy thereof. It seems unlikely that an Australian court would refuse to enforce an electronic award. Since 2000, uniform legislation provides that electronic and non-​electronic communications are to be treated equally with the aim of facilitating the use of electronic commerce. More specifically, such legislation requires that “if, by or under a law of this jurisdiction, a person is required to produce a document ... that requirement is taken to have been met if the person produces, by means of an electronic communication, an electronic form of the document”. The more difficult and ultimately significant question is whether an ODR-​type process would comply with the ACL provisions on misleading conduct, unfair terms and consumer guarantees. Regarding unfair terms, much would depend on how the process was presented and explained to the consumer in the online agreement, the costs of the process and the extent to which the procedure allowed scope for assent, input and negotiation by the consumer. In essence, it would be need to be shown that there was no significant imbalance in bargaining power between trader and consumer. Consistency with the ACL provisions on misleading and deceptive conduct and the consumer guarantees will more likely depend on the substantive rules provided for determination of the merits of the dispute. If such rules embody best practice international consumer protection standards at least equivalent to or not significantly less than the ACL, then an Australian court may well consider that a consumer would not be prejudiced by losing access to ACL rights in a “foreign” arbitration. If, however, the substantive principles take a more freedom-​of-​contract type approach that insufficiently recognises the unique status of the consumer, a court may be less willing to compel resort to ODR. In this regard, an amendment to the ACL to approve ODR processes that satisfy Australian and/​or international standards of consumer protection may be considered. Australian commentators have proposed a number of “standard fair terms” of substantive consumer protection that could be required in an ODR scheme. Such terms would include requirements: that the product meets quality and safety [599] standards, and is fit for purpose; that the [10.100]  619

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Arbitration of Cross-​Border Consumer Transactions in Australia: A Way Forward? cont. seller be restricted from excluding its liability; that there be terms regarding the consumer’s right to retain goods, to obtain a refund and for the protection of the consumer’s privacy; and that there be provided inexpensive and fair methods of dispute resolution. If ODR is to be successful for consumer transactions in Australia, then the above matters will need to be addressed. Otherwise, Australian purchasers may remain at the mercy of foreign (particularly US) sellers. VI Conclusion The status of arbitration in contracts between businesses and consumers in Australia remains uncertain, despite such clauses now becoming more common in international transactions. This article has suggested that an Australian consumer would have a number of grounds to resist foreign arbitration under Australian law, particularly in reliance on the consumer guarantee and unfair contract terms provisions of the ACL. The comparative experience in North America and the EU is conflicting, with the US opting for a strong pro-​arbitration policy, but the EU firmly upholding consumer protection. The Australian position is closer to that of the EU in conferring substantial protections on local consumers in their dealings with foreign traders. Yet, the likely lack of awareness of such rights among consumers, the relatively low value of consumer claims and the significant logistical barriers to consumers in obtaining redress in traditional forums are all possible reasons why foreign arbitration clauses have not been challenged by Australian consumers to date. Consequently, a widely adopted system of online dispute resolution may be the best path forward. To be effective, such a system would require simple procedural rules, a ready enforcement mechanism and consumer-​friendly substantive legal principles. Achieving international agreement on such a system has so far proven elusive, but efforts may have to be redoubled if consumers are not to be left stranded.

 [10.105]  A consistent theme in the ODR literature is the importance of procedural fairness

and overarching principles to guide the development of the field. Michael Legg takes up the differences between online courts and online ODR in the next extract. In analysing the differences, Legg distinguishes the institutional norms and procedural requirements that form part of the judicial system as compared to online dispute settlement systems.

The Future of Dispute Resolution: Online ADR and Online Courts [10.110]  M Legg, “The Future of Dispute Resolution: Online ADR and Online Courts” (2016) 27 Australasian Journal of Dispute Resolution 227. Introduction A key driver of online dispute resolution (ODR) is the need for affordable access to justice. For many lower value disputes what is at stake is worth less than the cost of commencing formal legal proceedings, or even seeking legal advice. Consequently ODR, with its lower cost structure, provides an opportunity for extending access to justice to many citizens. ODR also has the potential to enhance access not just generally but for disadvantaged groups specifically by removing or reducing barriers through technology such as: geographical isolation; mobility impairment; confinement or imprisonment; sight or hearing impairment (eg, through voice recognition software); language difficulties (through translating software); lack of confidence or competence in face to face communication; and physical violence or intimidation. ODR may also permit the resolution of disputes between parties from different countries and cultures. 620 [10.105]

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The Future of Dispute Resolution: Online ADR and Online Courts cont. Online Alternative Dispute Resolution (OADR) may be defined as “dispute resolution outside the courts, based on information and communications technology”. It focuses on using technology to resolve customer complaints and supports negotiation, mediation and arbitration. It may go further and give rise to new ways to resolve disputes beyond the traditional categories of alternative dispute resolution (ADR). In contrast, online courts form part of the justice system and are therefore subject to institutional norms and legal requirements derived from the nature of the judicial function. The reason for drawing this distinction is that it assists in understanding both the challenges and opportunities for technology in relation to dispute resolution. Providing Information –​Preventing Disputes? Before examining ODR it should be remembered that the basic or first step in technology assisting dispute resolution is the provision of information. Access to information can assist in avoiding disputes as well as resolving them. [228] It needs to be recalled that people may need information to assist them to identify that the problem they confront is a legal problem and legal problems may arise in the context of other problems so that the first place that a person looks for information may not be a traditional source of advice about legal issues. Courts can no longer rely on lawyers always being sought out for advice or being retained to represent people in disputes. As a result even courts need to support the provision of information to non-​lawyers about how to navigate court procedures. Online Alternative Dispute Resolution OADR has seen a number of waves or generations of technology use. OADR may adapt existing technologies to allow disputants to communicate directly and to allow OADR practitioners to be brought into the process as needed. This form of ODR seeks to provide a place or mechanism to resolve the dispute rather than information or steps but there is still a human involved. OADR can also employ “expert systems” or what is also called simple or rules-​based artificial intelligence. To create the expert system the system designers need to acquire expert knowledge from human experts and encode that knowledge into rules which will be applied based on the factual information obtained from the users. Expert systems collect facts from users through interview-​ style questions and produce answers based on a decision-​tree analysis. This form of OADR goes beyond assisting what is otherwise traditional ADR by providing tools for communications and is used for “idea generation, strategy definition and decision making”. This has led two of the pioneers of OADR to observe that “[o]‌nce a process moves online, its very nature begins to change”. Additionally or alternatively, OADR can replace or significantly reduce the role of humans and instead use advanced artificial intelligence (including algorithms, machine learning and big data) to become the third party that performs the mediation or decision making. An example is “blind-​ bidding” systems which use multivariate algorithms to help parties arrive at the optimal outcome. The technology obtains information from the disputants as to how they rank or value issues within the dispute and then combines those outcomes to suggest solutions. The conduct of ODR and the existence of big data now mean that information about the source and types of disputes can be captured and employed to determine how disputes might be avoided. Conflicts that arise because of a misunderstanding or lack of clarity around contractual requirements or consumer protection laws could signal a need to better explain those requirements/​laws, or possibly suggest reform. Online Courts [229] The Chief Justice of the Australian High Court, Robert French AC has pointed out “it is the courts and only the courts which carry out the adjudication function involving the exercise of judicial [10.110]  621

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The Future of Dispute Resolution: Online ADR and Online Courts cont. power”. However court resolutions are also expensive and time-​consuming. The former High Court Chief Justice Murray Gleeson explained the conundrum of seeking to address cost and delay in civil litigation as follows: “the court of the future will need to embrace, and respond appropriately to, the demands of the future, while remaining a court. For that purpose, judges themselves, and especially judicial leaders, need a clear idea of what being a court involves. This means understanding the characteristics of the judicial function and discriminating between the essential and the inessential”. It is characteristic of the judicial process that it seeks to be fair. Some people would say another characteristic is that the process is slow and expensive. How do you reverse the second and preserve the first? ODR is one way in which the judicial process may be made faster and cheaper. However, an important question is how does the new approach stay true to essential characteristics of a court such as procedural fairness and open justice? A further issue is whether the physical aspects of a court hearing must change. This includes the physical courthouse open to all, particular ways of dressing, the centrality of the judges and lawyers to the conduct of the proceedings rather than the parties, and the giving of oral evidence in person after the administering of the oath. In the UK the Online Dispute Resolution Advisory Group reported to the Civil Justice Council that: Perhaps the most fundamental question that must therefore be posed is this –​is court a service or a place? Do we always need to congregate physically in a court building to resolve our differences? Or might some of our civil problems be more appropriately resolved using one of a number of online techniques? To focus on the court as either a service or a place is to miss the point made by Chief Justice French about the distinctive nature of courts that are “not just another provider of dispute resolution services in a market of different providers”. Technology will provide the capacity to reconfigure the court as historically conceived of so that it does not have to be a single physical place. Videoconferencing has already started this change. However, the truly fundamental question is that raised by former Chief Justice Murray Gleeson as to how can courts embrace technology but maintain the core requirements of a court. The American Bar Association’s Report on the Future of Legal Services in the United States hints at this issue: “Courts also should consider whether the physical presence of litigants, witnesses, lawyers, experts, and jurors is necessary for hearings, trials, and other proceedings or whether remote participation through technology is feasible without jeopardizing litigant rights or the ability of lawyers to represent their clients. [230] However, if the core requirements of a court are seen as only being able to be preserved through adhering to the way litigation has been historically conducted then innovation in online courts may be hobbled. ODR Examples To illustrate the operation of ODR three examples are explained below: (1)

the Netherland’s platform called Rechtwijzer (Roadmap to Justice);

(2)

the Canadian province, British Columbia’s Civil Resolution Tribunal (CRT); and

(3)

the recommendations for an online court for the United Kingdom.

(1) Rechtwijzer, the Netherlands An example of a leading ODR system is provided by the Rechtwijzer for couples who are separating or divorcing. Couples pay 100 Euros for access to Rechtwijzer, which starts by asking each partner for information relevant to their situation, then guides them through questions about their preferences. The platform uses algorithms to find points of agreement, and then proposes solutions. If the proposed solutions are not accepted then couples can employ the system to request a mediator for an additional 360 Euros or, a binding decision by an adjudicator. The aim of Rechtwijzer as “to empower 622 [10.110]

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The Future of Dispute Resolution: Online ADR and Online Courts cont. citizens to solve their problems by themselves or together with his or her partner. If necessary, it refers people to the assistance of experts”. Rechtwijzer is voluntary and non-​binding up until the point where the parties seek a binding decision. (2) Civil Resolution Tribunal, British Columbia, Canada A further example is the CRT which deals with small claims and condominium disputes. The CRT involves four stages: Stage 1 –​an expert system called Solution Explorer uses interactive questions and answers to give people tailored legal information as well as tools and resources, like template letters, to help them resolve their dispute consensually. Stage 2 –​if no consensual resolution is achieved then Solution Explorer provides an online intake process that commences a claim. Stage 3 –​once a claim is commenced there is a further attempt to facilitate a consensual resolution by employing facilitators from around British Columbia. The process can be online or in person. Agreements become orders of the CRT. Stage 4 –​if an agreement is not reached the dispute proceeds to adjudication where a tribunal member, who is a lawyer with relevant expertise, hears the parties’ evidence and submissions and makes a binding decision. Hearings will generally take place through electronically submitted written documents, or through telephone or videoconferencing. Participants can seek legal assistance throughout the process, but if a hearing becomes necessary, a party will require permission to have a lawyer represent them. The design and operation of Solution Explorer is set out in a detailed article by Darin Thompson, a lawyer with the Ministry of Justice in British Columbia, Canada. [231] (3) Online Court, United Kingdom A further example is Lord Justice Briggs’ Civil Courts Structure Review (interim and final) reports which recommend an online court for claims up to £25,000 in the UK. The online court would involve three stages: Stage 1 –​a largely automated, inter-​active online process for the identification of the issues and the provision of documentary evidence. The online portal will guide the litigant through an analysis of his or her grievance so as to produce a document which will in effect be a simplified pleading. Stage 2 –​conciliation and case management, by case officers, the aim of which is to then employ ADR where appropriate. Part of the purpose of stage 2 is to educate litigants of small claims about the existence of ADR. Stage 3 –​resolution by judges. This may not require the traditional trial. Rather, the court may choose to determine the matter on the documents, or by electronic communication. A face to face hearing, if employed, may only be used for resolving particular issues. In the final report reference was also made to a stage 0 and stage 0.5 so as to acknowledge that there is a need for advice on the law and on alternatives to the online court. Further, it was recognised that some claims will not be disputed and the court is being engaged so as to access the State’s enforcement mechanisms. To reduce costs the online court is to be designed for use by litigants without lawyers. However, lawyers are not excluded. Rather, depending on the recovery of costs mechanism that is adopted, the result could be a lawyer-​free online court “by economic means”. One suggested solution was to utilise “unbundling” where a person retains a lawyer for an advice on the merits only, and not through a full retainer. Even if lawyers are not excluded from the online court, there will still need to be assistance for the many litigants in person in answering the questions posed by the online portal. The Interim Report states that there will be a need for “substantial assistance online, in the form of digital help, for the [10.110]  623

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The Future of Dispute Resolution: Online ADR and Online Courts cont. purpose of completing online forms” as well as a telephone helpline. In the Final Report Lord Justice Briggs reported that one of the most widespread issues raised in response to the recommendations in the Interim Report was how to assist persons who would find using a computer (or paper) to resolve their dispute challenging. The answer to this concern is that there will remain a need for pro bono and litigant in person advice and assistance agencies. This suggests a limitation of technology as well as a guide for the employment of technology, which is discussed below. The interim and final reports also consider how to define those types of claims that should be excluded from an online court. One area was personal injury claims, on the basis that “they usually [232] involve an injured private individual against a large insurance company and only legal representation for the claimant will ensure the possibility of a fair and just outcome”. This raises for consideration whether a technological solution can address disparities in resources, including access to legal expertise. ODR Design Considerations A useful starting point for ODR design considerations is the 2001 statement by Ethan Katsh and Janet Rifkin that “no ODR system will be used or be successful unless it is convenient to use, provides a sense of trust and confidence in it use, and also delivers expertise”. Convenience An ODR website or app must be user friendly so that it is easy to understand and use for disputants. This may have two conflicting ramifications. Disputants using ODR will have the same expectations of that technology as for other websites and apps that they use. This also means designing technological solutions that can be used by people with varying levels of education and financial resources. There is a need for simple, and accurate language to both communicate information and to illicit responses. An online court may need to revise its procedures to improve useability, nonetheless some users will still be challenged. The Law and Justice Foundation of NSW’s 2012 Legal Australia-​Wide Survey observed that “internet and telephone services can be ineffective modes of delivering legal assistance for people with low levels of legal capability [or] people with poor literacy or communication skills”. Steps can be taken to address this, such as building in translation software or providing a real time “online chat” feature. Utilising the latest technology may allow for greater functionality but this needs to be balanced with the need for the technology to work on older devices that may be more accessible. The experience in some jurisdictions has been that designing ODR to function on a smartphone rather than a computer increases its accessibility as smartphones are more common. Information on what technology is used by the target audience for ODR therefore becomes an important step in the design process. Lastly while convenience is crucial it also needs to be balanced with security as disputants as an ODR platform that is not secure will not be utilised by disputants. Expertise Advanced forms of ODR acquire accurate knowledge from human experts to create the ODR platform. The relevant expertise or information may differ between OADR and an online court. Litigation involves the gathering of facts, the determination of the relevant law and applying that law to the facts to determine the outcome. The ODR system would need to ensure that it accurately modelled the relevant legal principles and adduced from the user the facts that the law considers relevant to determine the outcome. Some forms of ADR, such as arbitration, may proceed in a manner similar to litigation. [233] However, interest-​based negotiation or mediation places less reliance on determining the facts and law and adds an extra dimension, interests. The focus is on determining why a person wants a particular outcome and exploring ways to meet that outcome. 624 [10.110]

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The Future of Dispute Resolution: Online ADR and Online Courts cont. Both Rechtwijzer and the CRT concern themselves with issues beyond pure legal analysis by including tools that address emotions, resilience, ability to solve problems and interests. The expert system used in the CRT factors into its analysis emotional intelligence functionality. The CRT seeks to assist users to identify their emotional states and provide resources for addressing them. Similarly the Rechtwijzer website recommends to visitors that they first prepare themselves by reflecting on the conflict, their goals and the goals of the other party. Rechtwijzer also asks whether visitors generally feel capable of resolving problems themselves or whether they prefer help. An interest based OADR system would need to ask different questions to one focused simply on the law. It may also then make recommendations which are not legal outcomes. In OADR novel approaches to dispute resolution could be devised which may employ different expertise than what is used by courts or existing ADR. The technology may allow for expertise that humans alone cannot provide. Technology based analysis of data may produce insights into disputant interests, satisfaction with outcomes and subsequent behaviour which may indicate the types of solutions that can be offered and are valued. As technology advances, more complicated disputes may fall within the capacity of an ODR system in the future. Impartiality A successful ODR system must provide the user with trust and confidence by being impartial. Courts have addressed the need for neutrality through requiring judges to be impartial, to sit in public, to give reasons and be subject to appeal. The ODR platform needs similar protections suitable for its context –​“technology is by no means neutral and a particular software design reflects a preference for certain values over others”. An example of this concern is provided by eBay which has been accused of favouring buyers over sellers. The accusation arose because eBay, like many traditional businesses, adopted a “buyer-​is-​ always-​right” policy which allows buyers who dispute a transaction to keep the items they purchased and receive a refund. The problem with such an approach in an OADR context resolving disputes between buyers and sellers, rather than buyers and eBay, is that the system has a built-​in bias. The need to avoid bias may be addressed in a number of ways. There may need to be ethical requirements for programmers. A formal accreditation process may be needed for OADR providers that ensures impartiality before being accredited. Alternatively, it may be a matter for the marketplace with disputants favouring OADR platforms that are regarded as trustworthy and fair. [234] Fairness Related to impartiality is the need for the process to be fair. In the judicial system this is referred to as natural justice or procedural fairness. It includes such matters as the need for notice of the existence of a dispute and its planned resolution, as well as a right to be heard, which can include being able to adduce evidence, challenge evidence and make submissions. The question for ODR is, how is fairness entwined with technology? Further, what is required for fairness in OADR and in an online court may not be the same. An online court may be held to a stricter standard because of the fact that it is a court. This is not to say that an online court must seek to copy all of the features of a traditional court. The courts have shown that they can adapt to changes in society. One example is the High Court’s recognition in Aon Risk Services Australia Limited v Australian National University that “[s]‌peed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings”. Another example is the adoption of the concept of proportionality. The High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd cited with approval a passage from the English Court of Appeal in Jameel v Dow Jones & Co Inc: It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that [10.110]  625

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The Future of Dispute Resolution: Online ADR and Online Courts cont. judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice. Technology permits speed, efficiency and proportionality, but it must also be fair. The holdings in Aon Risk Services Australia Limited v Australian National University and Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd are clear that requirements of minimising delay and cost must be balanced against ensuring fairness. In the OADR context it may be sufficient to explain the operation of the platform so that the disputants are able to choose whether to use the platform or not. Similarly, if an outcome is not binding unless the disputants agree, such as with mediation, then any lack of fairness may be dealt with by a disputant refusing the outcome. This of course assumes that the disputant is able to effectively evaluate the outcome. It should not be assumed that a requirement for procedural fairness and open justice means that technological advances cannot be employed in a court. For example, open justice may be advanced by broadcasting hearings, indeed full trials, over the internet. Technology may also give people a more structured and fulsome opportunity to convey their evidence and arguments. But there will also be situations where oral advocacy or cross-​examination is needed. An issue raised by Lord Justice Briggs is whether some disputants and some disputes require legal representation to ensure fairness. But technology may be able to achieve greater fairness by simplifying processes and assisting citizens through expert systems or providing affordable expertise, either through unbundling of legal services or employing non-​lawyer coaches. Cost Much of ODR’s popularity in Europe and elsewhere stems from its speed and low cost. ODR might be publicly funded and therefore free or at a minimal price per user. Alternatively, “user pays” may apply and each user will need to pay for access to the ODR platform. Either might be employed in [235] relation to an online court. ODR might be part of a larger commercial site such as eBay or Amazon and the site covers the cost of ODR as part of its customer experience. Affordability will be central to whether ODR provides value and is used. Equally the funding available will influence the quality of the ODR platform, including convenience and expertise. ODR platforms need to be able to cover the initial design and set-​up cost as well as the ongoing costs of responding to changes in technology (eg, new operating systems for computers and smart phones) and the law. Likewise the sources of those funds may impact the existence or perceptions about the existence of bias in design. The most financially viable ODR platform is one that serves high volume, recurring disputes that follow a standard course or pattern. This type of dispute is particularly amenable to economies of scale with the marginal cost of assisting an additional person being low. Conclusion ODR offers the opportunity to use technology to make major advances in access to justice. However achieving access to justice requires that careful attention is paid to the key design considerations, namely convenience, expertise, impartiality, fairness and cost. Different approaches may be available, or be required, in relation to OADR as compared to online courts. OADR is able to start with a blank sheet (or computer screen) and can choose how it will structure the dispute resolution framework by drawing on existing learning about ADR but also through employing technology in a variety of ways. An online court should be seeking to use technology to innovate but it will be constrained by the essential characteristics of the judicial function. However, those constraints should not be equated with requiring adherence to the conduct of litigation as currently conceived. The ODR design considerations speak to the requirements of justice, cost and delay that already guide courts through the overriding or overarching purpose in the courts enabling legislation or rules. However courts might also consider how technology could assist them to deliver on the convenience consideration and enhance possibilities for automating expertise which would in turn assist with justice, cost and delay. The online court has less freedom than OADR but technology will spur the redesign of civil justice procedures.

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ADVANTAGES AND DISADVANTAGES OF ODR [10.115] At first glance, ODR seems to solve many of the logistical issues surrounding the

convening of a dispute resolution process where, for example, geographical distances prevent or inhibit an in-​person process. The parties do not need to be face-​to-​face in a room; this in turn means that the process can probably be arranged more quickly than an in-​person meeting, although international disputes create problems in relation to different time zones if real time electronic discussions are desired. However, ODR can suffer if there are technical problems that prevent or delay communication or if the communications are hacked into, thus creating a breach of confidentiality beyond the control of the parties and the dispute resolution practitioner. As well as the logistical issues, there are substantive issues that both promote and work against ODR as a viable dispute resolution process. In the following extracts, these advantages and disadvantages are explored in the context of online mediation of family law disputes.

CAN ODR BE USED IN FAMILY LAW DISPUTES? [10.120]  Given the very personal and often emotional nature of family law disputes, some

commentators take the view that family law disputes are not suitable for ODR. It is said that in such disputes it is better to have parties deal with the dispute in person in order to diffuse some of the personal animosity that exists in such disputes. Most importantly, particularly where custody of children is involved, it is better for parents to resolve the dispute in person and agree on how to manage visitation and the ongoing relationships between themselves and their children. However, other commentators turn to ODR as a way to diffuse heightened emotions that prevent effective dispute resolution and most importantly, the tactics of intimidation predominantly from male spouses or partners. In the following extract Zeleznikow discusses some of the elements that could lead to a model of ODR for family law disputes.

Methods for Incorporating Fairness into Family ODR [10.125] J Zeleznikow, “Methods for Incorporating Fairness into the Development of an Online Family Dispute Resolution Environment” (2011) 22 Australasian Dispute Resolution Journal 16 at 16-​18. Online dispute resolution is a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties. Primarily, online dispute resolution involves negotiation, mediation, or arbitration, or a combination of all three. In this respect, online dispute resolution is conceivably analogous to alternative dispute resolution (ADR). Online dispute resolution can augment these traditional means of resolving disputes by applying innovative techniques to the process. The use of information technology can promote many of the benefits of ADR: • By receiving advice online and, in particular, receiving such advice from decision support systems, costs incurred in the dispute will be reduced because the disputants will have a lower reliance on support from lawyers and mediators. • Because the advice will be available online, or at least through the use of computer systems, such advice will be timely and mostly in real time. This will result in the current backlog in disputants seeing lawyers or FDR practitioners being diminished –​anecdotal evidence suggests that time taken to hear a dispute is often a factor in the successful resolution of a dispute. The sooner disputants are able to have their views heard, the more likely the prospect of a successful resolution. • By using negotiation support systems, disputants and FDR practitioners can conduct hypothetical sessions with the systems and conduct reality checking. • Rather than mandate solutions, negotiation support systems can offer disputants advice –​which they are free to reject. Further, if users of the system are unhappy with the advice given by the [10.125]  627

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Methods for Incorporating Fairness into Family ODR cont. system, they can alter their inputs to the system. This approach forces the disputants to re-​examine their priorities. • Because of their ability to efficiently search through a wide variety of solutions and meet disputants’ needs, negotiation support systems can provide enhanced flexibility in providing a useful range of outcomes. [17] Zeleznikow and Bellucci have suggested that in terms of family mediation, online dispute resolution has the following additional benefits over ADR: • Disputants do not have to meet face-​to-​face; an important factor if there has been a history of violence and • FDR can occur at any time, with participants located in different places or even countries. To develop an online FDR, it is useful to consider the online dispute resolution environment suggested by Lodder and Zeleznikow. Methods for developing an online FDR system A model for online FDR Lodder and Zeleznikow evaluated the order in which online disputes are best resolved. They suggested: 1.

First, the negotiation support fool should provide feedback on the likely outcome(s) of the dispute if the negotiation was to fail –​that is, the “best alternative to a negotiated agreement” (BATNA).

2.

Secondly, the tool should attempt to resolve any existing conflicts using argumentation or dialogue techniques.

3.

Thirdly, for those issues not resolved in step two, the tool should employ decision analysis techniques and compensation/​trade-​off strategies in order to facilitate resolution of the dispute.

If the result from step three is not acceptable to the parties, the tool should allow the parties to return to step two and repeat the process recursively until either the dispute is resolved or a stalemate occurs. A stalemate occurs when no progress is made when moving from step 2 to step 3 or vice versa. Even if a stalemate occurs, other suitable forms of ADR can be used on a smaller set of issues. BATNAs and dialogue in online FDR In the domain of legal negotiation, Mnookin and Kornhauser introduced the notion of bargaining in the shadow of the trial (or law). By examining the example of divorce law, they contended that the legal rights of each party could be understood as Bargaining chips that can affect settlement outcomes. Bibas has argued that the probable outcomes of litigation provide beacons or norms for the commencement of any negotiations. Related to bargaining in the shadow of the law is the notion of a BATNA. The reason you negotiate with someone is to produce better results than would otherwise occur. If you are unaware of what results you could obtain if the negotiations are unsuccessful, you run the risk of entering into an agreement that you would be better off rejecting, or rejecting an agreement you would be better off entering into. Developing BATNAs is an important step for disputants to engage in when they are reality checking. Mnookin claimed that having an accurate BATNA is part of the armoury one should use to evaluate whether or not to agree to enter a negotiation. [18] Stranieri and Zeleznikow have developed the Split-​Up system to provide decision support about BATNAs. Split-​Up is a hybrid rule based/​neural network system that uses textbooks, heuristics, expert advice and cases to model that part of the Family Law Act 1975 (Cth) which deals with property division. Split-​Up can be directly used to proffer advice in determining a BATNA. The following example illustrates this point. Suppose the disputants’ goals are entered into the Split-​Up system to determine 628 [10.125]

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Methods for Incorporating Fairness into Family ODR cont. the asset distributions for both wife (W) and husband (H). Split-​Up first shows both W and H what they would be expected to be awarded by a court if their relative claims were accepted. The litigants are able to have dialogues with the system about hypothetical situations. Given the requirements of W and H in a hypothetical example, the Split-​Up system provided the following answers as to the percentages of the distributable assets received by each partner: Resolution

H’s %

W’s %

Given one accepts all of W’s beliefs

35

65

Given one accepts all of H’s beliefs

58

42

Given one accepts all H’s beliefs except for giving W primary care of the children

40

60

Clearly, primary care of the children is very significant in determining the husband’s property distribution. If he were unlikely to win primary care of the children, the husband would be well advised to accept 40% of the common pool (otherwise he would also risk paying large legal fees and having ongoing conflict). Split-​Up provides disputants with their respective BATNAs and hence provides an important starting point for negotiations. A vital part of the dispute resolution process is the ability for parties to conduct dialogues with each other. The Lodder-​Zeleznikow model discusses this as part two of their online dispute resolution model. Relationships Australia is currently constructing an online FDR prototype using Adobe Connect Plus to facilitate communication between disputants. This is a natural extension of the national telephone dispute resolution service which commenced in 2007. The telephone dispute resolution service has enjoyed a similar success rate relative to traditional Family Relationship Centres (FRCs), while being able to handle its caseload more cheaply, efficiently and quickly, as evidenced by the increasing numbers and complexity of referrals. Online FDR services potentially broaden the options and capacity of existing services by offering another method of supporting families to reach agreements. Given that most people in disputes about the care of children are under 45 years of age, arguably, 95% of the disputants will have familiarity with, and access to, the appropriate technology. For those who do not have such access, the technology could conceivably become readily available at locations such as local libraries, community legal centres or FRCs. Furthermore, the development of online FDR services could include the provision of mobile resources in centres or hire facilities. Compared to the costs of litigation or even prolonged ADR, the investment in online technologies potentially adds value as well as saving time and money.



ONLINE MEDIATION AND FAMILY VIOLENCE [10.130]  As Zeleznikow has argued, ODR can be effective in overcoming some of the barriers

in negotiations between parties to a family law dispute. However, as discussed in Chapter 8, the use of ADR in cases that have involved violence is a contentious area, though some authors have suggested that ODR is the perfect medium for cases involving intimate partner violence because the parties do not have to meet face-​to-​face. In the following extract, Lavi discusses some of the advantages of online mediation. Though this article is specific to intimate partner violence, the issues raised may have broader application for disputes involving violence and intimidation. [10.130]  629

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Online Mediation as an Answer to Divorce Cases Involving Violence [10.135]  D Lavi, “Til Death Do Us Part?!: Online Mediation as an Answer to Divorce Cases Involving Violence” (2015) 16(2) North Carolina Journal of Law and Technology 253 at 280-​288. a. Dealing with the Component of Danger Disadvantage By eliminating any real or perceived physical threat between victim and offender in cases where it exists, ODR might allow restorative justice where there was previously no other option to address the wrong’. Consider, for example, the advantage of physical distance online mediation provides, which is especially important in situations of divorce involving violence. Contrary to traditional mediation, which takes place face-​to-​face and requires the close physical presence of the parties, e-​Mediation eliminates the possibility of injury. ODR is also the only mode that enables direct communication between the parties (as opposed to the negotiations between their lawyers), but prevents a potentially dangerous meeting between them’. Through the advantage of distance, e-​Mediation may expand the range of cases that can be addressed by mediation. By eliminating the component of danger, online mediation may also prove suitable for cases that would be disqualified for mediation and would be referred to litigation (with all its inadequacies, as previously noted)’. This would include, for example, cases of extreme violence and other circumstances, which, by accepted opinion, would disqualify the case for mediation’. b. Dealing with the “Imbalance of Power between the Parties” Disadvantage The concern regarding the imminent disparity of power between the parties in cases of divorce involving violence stems from the fact that “fear is the name of the game”. “ Very often, the violent husband has the power to control the victim with a word, a movement, or a gesture known to or recognized by himself and the victim (as a coded signal or a disguised threat of violence). ‘ “ The victim may easily agree to conditions that will jeopardize her life and those of her children, simply in order to get out of the room’. One of the major advantages of online communication is its sole reliance on written texts. An important benefit of this type of communication lies in its ability to eliminate intrusions that may arise because of body language and nonverbal hints by the abusive party, which serve as a means of intimidation and control of the victim. Examples of these might be hostile facial expressions and subtle use of body posture communicate aggression, such as particular gestures and eye contact. Thus, online mediation paves the way to conduct practical negotiations without accompaniments that might hinder the reaching of an effective settlement. In this context, one of the key advantages of online mediation is that it enables asynchronous communication. This type of communication allows for the possibility of “taking a step back with the computer and reflecting before reacting”.‘ Online mediation makes it easier to react rationally in a reasoned manner. Asynchronous communication contributes to the “organization” and control of feelings; it facilitates presenting them to the other party in a rationalistic manner that uses good judgment. This attribute is likely to ease the concern that the victim will make rash decisions or make too many concessions out of fear on the part of the victim. In addition, e-Mediation may further improve upon traditional mediation’s ability to counter the “imbalance of power between the parties” through the use of separate meetings. Advocates of traditional mediation argue, as previously noted, that in separate meetings, the mediator is more likely to control the balance of power between the parties and enable more equilibrium between the couple. Nonetheless, this solution is limited and unsatisfactory. In e-​Mediation, on the other hand, this practical technique turns out to have many new advantages. First, the mediator in the online process, as opposed to traditional mediation, does not have to worry about the reactions and/​or the 630 [10.135]

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Online Mediation as an Answer to Divorce Cases Involving Violence cont. apprehensions of one of the parties about the amount of time he is devoting to a separate meeting with the other party. Second, in a face-​to-​face meeting, the joint session has to come to a halt in order to set up a separate meeting with each party, which could disrupt the flow of discussion. E-​Mediation, on the other hand, allows the mediator to speak with each party privately by using separate virtual rooms in video-​conferencing. The online procedure, which allows only the mediator (as opposed to his counterpart in traditional mediation) to be present at three locations concurrently, requires him to acquire and master new skills. It seems evident that part of the implementation of expertise in the virtual environment must view, as its goal, the gradual increase of the wealth of online interaction, thereby enabling the mediator to demonstrate his skill in the most effective and efficacious manner. Another characteristic of the online process that may help to counteract the imbalance of power between the parties is the anonymity provided by Internet communication, termed “netocracy” by Robert Gordon. This refers to a situation in which all of the correspondents enjoy equal status. He argues that the online process increases the likelihood that negotiations will be effective and will result in a fair and equal outcome, reached by means of the “netocracy”. People apparently tend to adapt their behavior to society’s expectations of them. If the man was more dominant in the spousal relationship, in all probability, he will continue this behavior during divorce mediation’. The Internet netocracy in the ODR creates a “balanced playing field” in situations of power imbalance (overt or concealed) and may well contribute to a win-​win settlement in which both sides are truly satisfied. In Ebner’s words: “Some of the benefits associated with text communication for e-​Mediation are that it often minimizes the effects of ‘good talkers’ gaining the upper hand or of dominant figures causing others to reduce their participation levels.“ Another approach proposed by traditional mediation regarding the imbalance of power between the parties in divorce cases involving violence is the inclusion of other experts. One of the major advantages of online dispute resolution is the ability to overcome obstacles such as venue and distance. Online discourse makes it possible for people in different locations to communicate easily and quickly from almost anywhere. In e-​Mediation, this advantage may even increase the possibility of drawing on a wealth of professional knowledge of the process by consulting experts from afar, who suddenly become accessible. As Ebner notes, “Parties gain access to mediator expertise beyond that which might be available in any given geographical region.” He states further, “External experts can be consulted with, or brought into the process as necessary, regardless of their geographical location, and without disrupting the process dynamics”. In divorce cases involving violence, when it comes to the use of professional knowledge as a means of protecting the rights of the parties and the balance of power between them, the mediator may need to make very frequent use of external aids. In a face-​to-​face meeting, the mediator’s use of such aids is liable to cause the parties to lose their confidence in him, to question his expertise and waste valuable time. The online environment, on the other hand, allows instant access to sources of help, and the use of them is hidden from the parties. c. Dealing with “The Limitations of the Mediator” Disadvantage The insulation of physical “non-​presence” also has the power to disrupt unique control devices of the abuser in the domestic violence system. The claim here is that a skilled mediator may not recognize the extent of the influence of the violent party on the victim, even during a mediation session, because the violent spouse is very often able to control the victim through a word, movement or gesture, known to or understood only by the victim and the abuser. Textual communication, one of the characteristics of e-​Mediation, may counteract this disadvantage, because communication based on written messages neutralizes body language. The physical distance between the parties can eliminate the abuser’s abilities to manipulate the session through physical movements. While the chance that the violent party will use coercive language is still possible, it is no longer possible to insinuate threats through language inflection.

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Online Mediation as an Answer to Divorce Cases Involving Violence cont. On this point, another relevant advantage of online communication is the advantage of saving archives. In the traditional process, the emphasis is on confidentiality and on the fact that nothing is saved. In online dispute resolution, everything is saved. The fact that the digital written texts are monitored and automatically saved provides the mediator with a record of the exchange of words, the disagreements, and agreements, without requiring him to make any special effort. It is safe to assume that under these circumstances, when everything is open, above board, and documented, the violent party will avoid conveying disguised threats of violence or control. If the violent party does so anyway, the textual communication and the archival saving will serve as documentation of it and enable the mediator to exercise his judgment and respond appropriately to the circumstances, such as stopping the mediation, referring the parties to litigation, etc. Just as in traditional mediation, online mediators should be well trained in identifying aggressive language between the parties in order to prevent it, and should hold private talks with the victim as well as joint sessions with the abuser. Training enables the mediator to observe how the mediation affects the victim and allows him to communicate with the victim, with no possibility that the abuser will be able to exercise manipulation. Online mediation enables the mediator to intervene in any attempts at manipulation by the abuser by restricting conversations instantly if either party so wishes. Regarding the claim that the mediator is limited in maintaining the balance of power between the parties, due to his obligation to remain neutral, online mediation provides a number of tools to maintain neutrality and advance the balance of power between parties. A prime example is the use of the framework of preliminary communication, namely, a framework in which the messages of the parties first reach the mediator rather than the other party. By using this framework, the mediator can coach the parties in more respectful forms of expression and can block manipulative statements and assertions such as attempts to exercise power or control before they reach the other party. This is an upgrade of the technique known as “reframing”, which is also used by the traditional mediator. The mediator in the online process can take as much time as he needs before responding in order to reframe a problematic statement written by one of the parties. This luxury is usually not possible in face-​to-​face mediation. d. Dealing with the “Preserving the Aggressive Paradigm” Disadvantage Studies have shown that those who insulted or emotionally abused their partners when they were together tend to continue this behavior pattern during negotiations (or mediation) at the end of the relationship. This disadvantage, termed “preserving the aggressive paradigm”, includes the concern that, because traditional mediation is a voluntary process, it may arouse this cycle of controller-​ controlee and provide the violent party with optimal conditions for maintaining this pattern of control and aggression towards the weaker party. Online mediation may counteract this disadvantage by means of physical distance and written communication. Coupled with the obvious decrease in physical danger when parties are separate, the ‘role of the screen’ as insulation can greatly reduce the potential for victim intimidation during mediation. Furthermore, the concern is that the dominant party may control the mediator. As noted, since he is potentially a skilled manipulator who can assume many different disguises (as usually happens), the dominant party may control not only the weaker party, but also the mediator, and may even succeed in recruiting him to his side, or in other words, use the mediator to tilt the balance of power in his favor-​namely, for the benefit of the violent party. Online mediation is likely to counteract this fear. Rogers notes, “ODR also has the potential to eliminate or reduce gender and racial norms that skew mediation and prevent parties from effectively advocating their own interests.” In other words, “netocracy”, which characterizes the online discourse, has another advantage: it minimizes the stereotypes and cognitive biases that may affect the mediator’s perception of the parties. Traditional mediation, conducted face-​to-​face, naturally promotes the advantages of people who are educated, good looking, speak fluently, or belong to a dominant social group. Written communication diminishes chances that the mediator will (even subconsciously) favor one party over 632 [10.135]

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Online Mediation as an Answer to Divorce Cases Involving Violence cont. the other thereby increasing the prospects of neutrality and absence of partiality on the part of the mediator. In this way, netocracy is able to break the cycle of the aggressive paradigm and eliminate this disadvantage.



ODR –​THE GREEN MODEL [10.140]  One of the benefits of ODR is the potential to create a more environmentally friendly

method to resolve disputes than either litigation or in-​person dispute resolution. There is scant literature on the savings to the environment through the use of ODR. The following extract argues in favour of the reduction in carbon emissions through the use of ODR.

ODR: The Next Green Giant [10.145]  N Ebner and C Getz, “ODR: The Next Green Giant” (2012) 29 Conflict Resolution Quarterly 283 at 285-​286, 288-​293 and 295-​299. ODR: The Green in the Machine ODR is, in our view, inherently green. We attempt to quantify this later in this article, but for the time being we can present an initial, almost intuitive, list of environmental costs incurred by DR’s main alternatives –​other [286] dispute management settings, including traditional court procedures as well as face-​to-​face Alternative Dispute Resolution (ADR) processes –​costs that are eliminated through use of ODR. In ODR, parties connect at a distance, eliminating what is often the most significant environmental cost of all: carbon emissions resulting from travel. A party driving down to a local mediator’s office to work out a dispute or a Wall Street corporate attorney flying to Paris to appear in court both cause carbon emissions, albeit at a different scale. While the dust may certainly fly when a Canadian businesswoman logs onto an online forum to negotiate with her former business partner who has moved to California, no carbon emissions are directly incurred. Carbon emissions are only part of the story; other environmental costs are avoided as well. In ODR, paper use is reduced to a minimum and often eliminated altogether. Additionally, ODR services can and often do eliminate the need for office space, or diminish it greatly, decreasing the need for construction of office buildings (or large structures such as courthouses). This has many side effects or ripples, depending on how far you wish to cast the net of environmental impacts to be measured. Fewer buildings can be equated with reduced impact on wildlife habitats, or it can very practically be factored into an equation of energy savings: every court complex not built saves millions of kilowatt-​hours of electricity per year (see, for example, Thurston County, 2010) … [288] Beyond Intuition: How Green Is ODR? It makes sense that resolving disputes online should have important environmental implications. Through the use of a case study, it is possible to examine these implications more thoroughly. Case Study: The Distance Mediation Project Few places in the world are better situated to profile the benefits of ODR –​green or otherwise –​than Canada’s west coast. Vancouver, in the more populated southern region of British Columbia, may be familiar to many as the place where the winter Olympics was staged in 2010. In the north and some other parts of the province, however, geography presents significant communication and transportation challenges: rugged coastline, rock, ice fields, and forests result in isolation for many small [10.145]  633

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ODR: The Next Green Giant cont. communities. [289] The Distance Mediation Project was an effort to bring family mediation services to these small, sometimes remote communities with the help of some of the ICTs that are the trademark of ODR. Some believe that applying ODR in family mediation cases is counterintuitive. Practitioners and parties alike have looked askance at the notion of resolving, in the online venue, disputes in which emotional, relational, and social issues are at least as important as transactional elements. The Distance Mediation Project was somewhat of a trailblazer in this regard (see Ebner, in press(a)). Even more unusual, the project dared to apply a “green lens” to its efforts by articulating a green objective as part of its overall purpose “to explore the extent to which the use of ICTs might reduce the reliance on fossil fuels when delivering and accessing family mediation services”. While possibly not a primary goal of the project, the green objective’s listing as one of four project objectives nevertheless invited its inclusion in the post-​project assessment, giving us the first real-​world case study for assessing the environmental benefits of ODR. Given that this was a practical project focusing on delivering dispute resolution services and not an experiment in saving fuel emissions, the environmental element of the project was more of a demonstration piece than an attempt at furthering the science of carbon calculation, or at modelling the way that ODR should spotlight its contribution to climate science. It was a very exploratory attempt to awaken an interest in this side of ODR and to get a sense of whether this could be quite simply another reason to continue to employ and to promote ODR. Indeed, the evaluation results for the project showed that the low carbon emissions associated with this form of ODR is another factor in ODR’s favor (Getz, 2010). Thirty-​one cases were accepted into the project during the study period, twenty-​three of which proceeded to completion. It was estimated that, had clients in these cases traveled to a qualified mediator nearest them, they would cumulatively have traveled approximately 43,740 kilometers (27,179 miles). The carbon emissions associated with that travel would have been approximately 12.6 metric tons. This is substantial, considering that the average person living in that part of Canada is thought to contribute approximately 5 tons of greenhouse gas emissions over the space of a full year. Of course, for every observation there are new questions. It is arguable that some of the clients of the Distance Mediation Project would not actually have traveled to the nearest qualified mediator; they might have found other ways to resolve their disputes, or simply left them unresolved –​at [290] least in a formal sense. The carbon emissions might, therefore, have been avoided merely in an imaginary sense. On the other hand, the main purpose of the project was to improve the access to family mediation services. This travel then would have been incurred to provide those people with the same level of service in a face-​to-​face format. In addition, parties might have preferred a less carbon-​efficient process –​traveling greater distances to a mediator of their choice and not to the nearest qualified mediator. These questions and others are the first hints that there is no simple, unequivocal way to calculate environmental benefits. They also invite us to consider how ODR’s environmental benefits might add up in other settings, contexts, and locales. The Distance Mediation Project measured a relatively low volume of cases in a region in which large travel distances are par for the course. However, ODR has long since jumped the conceptual barrier that would have suggested it be employed for conflicts involving geographical distance. Indeed, several developing areas of ODR involve applying ODR in settings where geographical distance is not a significant barrier to convening (see Ebner, in press(a)). What would be the environmental impact of applying ODR in low-​distance settings? In some urban centers, for instance, it is not unusual to drive 30 or 40 minutes to a destination elsewhere in the city. What impact would small transitions to preferring ODR have, and what would be the environmental effect of moving substantial numbers of cases to an ODR format? In order to explore this, we will leave the real-​ world example of British Columbia behind and create a hypothetical test-​project in an urban area … [291] In order to focus on this aspect, and in order to provide a sense of ODR as it might be practiced in many centers around the world, we decided to site our hypothetical case in a well-​known, densely populated city with a “car culture”: Chicago, Illinois. 634 [10.145]

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ODR: The Next Green Giant cont. Chicago is a city with almost 3 million residents, and is a global transportation hub with about 64.5 million passengers passing through its O’Hare Airport every year. It is a city of neighborhoods, with seventy seven distinct community areas recognized officially by the city government. It is estimated that roughly half of all workers in the city drive their cars alone to work, within and between these communities. In this setting we can easily imagine three hypothetical initiatives being set in place, discussed in the following: 1.

A fictitious mediator with an office near the Cook County Court House, in a business area in west Chicago, who wants to examine the environmental benefits of conducting mediation sessions by web conference.

2.

That same mediator encouraging his or her partners in a small mediation firm to do the same.

3.

A government policy decision that results in a well-​established court connected ADR program in that same locale shifting some of its work to ODR.

An Individual Shift. In our first hypothetical case, an individual mediator decides to take part of her practice online. She decides to begin by handling three cases online instead of face-​to-​face, to get a feel for how the process plays out online and for her clients’ reaction. She chooses cases representative of her caseload: one involving local Chicago clients living in a neighboring district, one involving clients living in nearby towns outside of Chicago, and one involving clients living in two other Illinois cities some distance away (but not so far that they would choose to fly rather than drive their cars to a mediation session). [292] We calculated the travel distances and carbon emissions that could be avoided for clients in these three cases (see the appendix later in this article): the carbon emissions associated with this travel might range from 0.09 to 0.28 metric tons, assuming that each of these cases would have entailed one to three sessions at the mediator’s office. While these numbers are modest, they reflect the carbon savings associated with our mediator conducting only a few experimental cases online. Once online mediation becomes part of a mediator’s regular practice, it is easy to see how quickly the figures can add up, as we will demonstrate through our fictitious mediator’s progress with ODR. Pleased with how the mediations worked out, and enjoying the standard benefits of ODR such as convenience, time saved, and client satisfaction, the mediator experiments some more and gradually decides to conduct twenty-​one cases (distributed in a roughly similar manner) online per year. While this represents only a part of her practice, her carbon savings are now between 0.6 and 2.0 metric tons per year. To put this in perspective, it is estimated that just 1.1 tons of emissions is about 6 weeks’ worth of those emitted by someone living a 10-​ton emissions-​per-​year lifestyle (considered to be a realistic and environmentally conscious level, nevertheless keeping in mind that the average North American is actually believed to live a 28-​ton lifestyle [Berners-​Lee, 2011]). We will note that these are only the carbon savings associated with parties’ travel. Should our mediator recognize that she need not be at the office to convene sessions with her clients, and decide to work from her home office twice a week, her own emissions savings could be added to the figures. An Organizational Shift. In order to show the benefits associated with the scaling up of ODR practice, we will continue to accompany our mediator as she presents her casework summary to her partners at their end-​of-​the-​year meeting. She provides some calculations of costs saved, discusses client feedback (and notes, as a side benefit, the environmental benefits in a general sense, if she is aware of them). She recommends that her three partners join her in shifting the same quota of cases online, and they enthusiastically agree. As a result, the firm’s carbon savings have now risen to between 2.5 and 7.8 metric tons per year, the larger amount being roughly comparable to about 9 months of living at a 10-​ton lifestyle. Going Green at the Policy Level. For an even bigger bang for the carbon buck, public programs that go green with ODR can make very significant contributions. Let us assume that in the name of promoting the public’s [293] well-​being, the Illinois state government has issued a directive to all state agencies to implement one significant environmentally positive program in the upcoming year. The Cook County Courthouse (a very real and extremely busy courthouse, located next to our fictitious [10.145]  635

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ODR: The Next Green Giant cont. mediator’s office), assigns a task force to decide on a plan to implement and evaluate its success. The head of the task force, a friend of our mediator, has lunch with her and hears of her online practice. Intuitively realizing the environmental potential in harnessing ODR, he goes back to his office and has an assistant crunch some numbers for him. Using carbon calculators not unlike those we ourselves used in writing this article, he understands the savings involved –​and the benefits of scale. The Cook County Courthouse not only has an ongoing commitment to technological advancement, it also has a mandatory nonbinding arbitration program for civil cases involving claiming relief for monetary damages in amounts between $10,000 and $30,000. About 13,500 cases are heard at this location annually (Supreme Court of Illinois, 2009). Let us assume that the head of the task force has a meeting with the chief administrator of the arbitration program, and they agree on a pilot project in which 10% of the program’s arbitration hearings over the next year will be conducted online. Furthermore they decide that parties will receive the decision in electronic form and that post-​hearing or follow-​on motions (such as parties’ motions to enter the award into judgment or, conversely, motions to reject an award) can be submitted with the click of a button on the decision form they receive. In this hypothetical case, while reviewing the data at the end of the year, the program administrator and the head of the task force find that the same proportion of cases referred to online arbitration proceeded to actual hearings as in the cases handled through traditional face-​to-​face practice. Accordingly, 1,000 arbitration hearings took place online. Based on our hypothetical mediation firm achieving between 2.5 and 7.8 metric tons of carbon savings per year with just 84 cases –​and assuming for our purposes that the clients of the arbitration program at the Cook County courthouse incur roughly similar travel distances, distributed in a roughly similar way as the clients of the mediators’ office –​we can speculate that the arbitration program might achieve between 30.0 and 93.3 metric tons in carbon savings. This is comparable to the emissions of someone living a 10-​ton annual carbon emission lifestyle for between three and nine years. An amount of 90 tons of carbon emissions is the equivalent of someone driving an average car 126,000 miles or about five times around the world … [295] The Dark Side: Environmental Costs Incurred by ODR To the extent that everything we do impacts the environment in some way, the practice of ODR bears its own burden. The degree to which ODR is truly green, then, depends largely on how the relative pluses and minuses measure up. Once again, it must be said that carbon footprinting, the measuring of the overall carbon impact of any given activity, is extremely difficult; coming up with the pluses and minuses is quite simply like being swallowed up in a quicksand of endless minutia. Therefore, an overall calculation of the climate footprint of ODR would look not only at the carbon costs saved through travel, and at other direct and indirect savings, but also at the environmental costs –​primarily carbon emissions associated with products and activities related to ODR. These would include estimating the carbon dioxide and equivalent greenhouse gas emissions associated with manufacturing the hardware used for a particular type of ODR practice –​for example, a mobile phone or a laptop or desktop computer –​as well as the emissions associated with each discrete use of this equipment, such as sending a text message, sending an e-​mail, or turning on a computer (for more on the carbon costs hidden in such everyday activities, see Berners-​Lee, 2011). Looking at the numbers, we are provided with some context at an individual-​user level; indeed, the carbon costs associated with ODR seem to be minute when contrasted with the savings it incurs. The carbon emissions associated with an e-​mail mediation consisting of fifty messages, supplemented with two dozen text messages, are not even in the same ballpark as [296] those associated with one party getting in a car and driving downtown once –​even if that person is driving a Prius. In fact, parties will outstrip those carbon emissions by far merely by circling the block looking for a parking space in the vicinity of the mediator’s office (as they will certainly need to, in our Chicago example). However, when considered from a big-​picture perspective, the emissions question demands more scrutiny and an open mind. ODR relies on IT, and the carbon emissions associated with this industry 636 [10.145]

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ODR: The Next Green Giant cont. are not necessarily incorporated into the measurements for the costs of an individual e-​mail. In fact, the IT industry as a whole has come under scrutiny for its carbon footprint. In 2007, IT research and consulting company Gartner Inc. estimated that the IT industry contributed about 2% of the global volume of CO2 emissions –​a figure that Gartner felt was unsustainable (Gartner, 2007). Additionally, besides carbon emissions, there are major concerns about other kinds of pollution caused by the ever-​increasing volume of unwanted equipment disposed of annually as each new generation of electronics is introduced. The minuses, like the pluses, are complex. It is difficult to measure how much IT resource use is directly incurred by ODR. Mediators such as our own fictional protagonist might make the transition to ODR without buying any additional hardware (incurring added cost in terms of carbon emissions). The computer she uses in her office will be turned on in the morning and off at night, and her e-​mail will remain open and follow preset send/​receive patterns, whether she is sitting in front of it conducting ODR sessions or spending the day in the conference room with her face-​to-​face mediation clients. Casting the net further, and approaching the issue from a dispute resolution perspective, one might find other environmental costs embedded in employing ODR. For example, the convenience (including the relatively low cost) of ODR might result in more disputes being handled, whereas they previously might have been abandoned, ignored, set aside, or any other form of “lumping it” as parties to disputes so often do (Felstiner, 1974; Galanter, 1983). Assuming that an abandoned dispute has no environmental cost (a tricky proposition in itself), should we look at the environmental costs of handling such “un-​lumped” disputes as a net environmental loss? These are exactly the types of questions we would hope to see raised and explored in future writing. Measuring environmental impact is indeed all about the pluses and minuses. While our minds are pretty much made up about the green benefits [297] of ODR, we realize that there might be aspects to take into account that we have not considered. However, one thing is clear: even if the incremental environmental effects of conducting a case online will be shown to be insignificant, ODR can still make a significant contribution to the indirect and larger systemic effects of our behavior on the environment. Offering an ODR format to a client might reduce the need to get in the car and drive to a face-​to-​face meeting, trigger a new way of conducting business, begin to rein in the car culture, decrease the demand for large office spaces and meeting rooms, lessen the draw that large buildings make on energy and water infrastructure, and so on. These effects may be incremental and difficult to measure; but, taken cumulatively, their impact on a societal scale cannot be discounted (see Pamlin and Pahlman, undated, for the large-​scale positive implications of ICT use for the environment). Spotlighting ODR’s Environmental Advantages In this section we suggest initial ideas for ways in which ODR’s environmental benefits can be spotlighted and the benefits this will bring. These are intended to spark further ideas rather than to provide a recipe or a rationale for going green. Some of these ideas relate to individual service providers who can use green branding to promote or leverage their individual services. Others relate to the field as a whole, adding environmental considerations to the field’s language, writing, thrust of activities, outreach to partners, interaction with policymakers, and formulation of the field’s vision for the future. All of these –​from profit to prophet –​are necessary in order to fully realize the advantages that this new focus can bring to the field and to the environment. Private Market Initiatives ODR can learn from the experience of other industries when it comes to spotlighting environmental impact reduction. Learning from Success. ODR, as an attempt to take traditional face-​to-​face services or interactions provided by an industry online, is not alone in deliberating the best way to frame its green benefits. There may be lessons to be learned from other well-​established online industries. We will briefly discuss two industries that warrant in-​depth analysis for approaches and best practices in this [10.145]  637

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ODR: The Next Green Giant cont. regard –​webconferencing services and e-​commerce –​realizing that this is just a start. Many other industries are making the [298] online jump and their strategies in incorporating environmental issues should be examined in depth. 1.

Webconferencing services: There are many companies offering platforms for conducting webconferencing –​ranging from two-​party videoconferencing to multiparty, multimedia interactions. The main thrust of their websites and promotional material tends to aim at the corporate world and at the field of higher education, encouraging them to take their interactions –​from one-​on-​one business meetings to courses with hundreds of registered students –​online. Most service providers mention the environmental benefits of online convening, although they differ as to the degree of centrality awarded to this issue. Some companies spotlight webconferencing’s green benefits overtly, with well-​crafted green marketing material linked to prominently from the main page, such as Syntella (http://​www.syntela.com/​green-​initiatives. php), Momentum Conferencing (http://​ www.momentumconferencing.com) and WebEx (http://​www.webex.com/​overview/​environment.html). Others, such as Elluminate, mention it in press releases or other material but do not give it prominence. One must not discount the use of nonverbal cues and indirect promotion as well: Adobe Connect’s website does not mention the environment overtly at all; however, several nonverbal cues –​of colors and images –​seem to hint at environmental benefits. These are backed up by multiple blog posts regarding the green benefits of webconferencing posted by the Adobe Connect team (see, for example, http://​www.blogs.adobe.com/​adobe connect).

2.

E-​Commerce: Another realm to explore for how the environmental benefits of online activity have been displayed is that of e-​commerce. Looking at two large online marketplaces, we found that both of them stress environmental benefits –​different foci:

• EBay portrays most of its environmentally related aspects under the more general classification of sustainability, and ascribes most of its own green projects to its employees’ initiative (see http://​www.ebayinc.com/​sustainability). There is some discussion of the environmental benefits of reselling used products, and of paperless transactions. However, there is not much attention called to the environmental benefits of avoiding travel or of reducing the need to construct physical marketplaces. There are no banners asking buyers to consider how much carbon emissions they are saving by not driving down to their local mall. One is not overtly told, “Go green [299] by shopping here”; this message is embedded in a wider branding of eBay as an environment-​friendly company. • Amazon invests in similarly broad green-​branding efforts. However, a link from the bottom of Amazon’s homepage at http://​www.amazon.com (titled Amazon and Our Planet) leads to a page on which Amazon details the environmental advantages of online over conventional shopping, including linking to a study on CO2 emissions, describing green packing methods and more. Interestingly, Amazon refrains from mentioning environmental benefits associated with its flagship product, the e-​book reader Kindle.



THE FUTURE OF ODR [10.150]  It seems that most commentary about the future of ODR seeks to try to develop the

process so that it equates more closely to in-​person dispute resolution. For example, the use of video-​conferencing techniques or dedicated software for personal computers and mobile devices that provide good quality contemporaneous chat room style connections are seen as being desirable because they enable parties to gauge, amongst other things, the non-​verbal communication flowing between the parties while still allowing for face-​to-​face negotiation 638 [10.150]

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to play its part in the consensual resolution of disputes. This begs the question: “If in-​person dispute resolution is the desired result, then why bother with ODR?” The answer is probably that ODR still has many attractive attributes, as does in-​person dispute resolution –​therefore, an amalgam of the two types of dispute resolution can satisfy an element of the marketplace that, for example, desires the convenience of ODR but with the quality attributes of offline dispute resolution. The challenge for ODR is to try and achieve the best of both worlds and strive to provide a quick, efficient and cost efficient method of dispute resolution that still preserves informality, party control and consensual outcomes.

Online Dispute Resolution: An Artificial Intelligence Perspective [10.155]  D Carneiro, P Novais, F Andrade, J Zeleznikow and J Neves, “Online Dispute Resolution: An Artificial Intelligence Perspective” (2012) eLaw Journal: Artificial Intelligence Review, http://​www.link. springer.com/​article/​10.1007/​s10462-​011-​9305-​z, at 4-​5, 7-​17 and  19-​21. Contrary to previous approaches, in Online Dispute Resolution it must be considered not just the disputant parties and the eventual third party (mediator, conciliator, arbitrator) but also what Ethan Katsh and Janet Rifkin call “The fourth party”, ie, the technological elements involved. An important element of this “fourth party” will obviously be the emergence of expert systems and intelligent software agents empowered to help the parties and the mediator/​arbitrator in reaching a fair solution. And as (Lodder 2006) already refers, it must be considered as well a “fifth party”, ie, the service providers, those who provide and deliver the technological elements. All this is turning ODR in a quite new and somewhat complex (but eventually quite fast, cheap and advantageous) way of interaction and of solving conflicts. The goal of AI research in this field is to attain a technological threshold, resulting in computational systems that are indeed the 3rd party. In this sweeping approach, there is no human intervention on the outcome or in guiding the parties to a specific situation. There is, on the other hand, a system that performs that major role. This is usually known as an electronic mediator or arbitrator. It should have skills for communicating with the parties and understanding their desires and fears and have the ability to decide on the best strategy to be followed in each possible scenario. This is evidently the most challenging approach to follow since it is not easy to implement in a computer system the cognitive abilities of a human expert, as well as the ability to perceive the emotions and desires of the parties involved. On the other hand, there is an inherent risk in letting machines take binding decisions that influence our lives (Lodder and Zeleznikow 2010). ODR systems can be categorized according to the function that machinery may play (Peruginelli and Chiti 2002). First generation ODR systems describe the systems that are [5]‌used in our moment in time. The main idea behind these systems is that the human beings remain the central pieces in the planning and decision making processes. Computational tools are evidently used, but they are seen as no more than equipment, without any autonomy or a major role in the course of action. In this kind of ODR systems the main technologies used are instant messaging, forums, video and phone calls, video conference, mailing lists, and more recently, Video Presence. Agent-​based technologies may be used but have no active part or autonomy. These systems are common nowadays and are usually supported by a web page. They represent a first necessary step before the consideration of those that may be more autonomous, a characteristic that may be achieved through the use of intelligent systems. The second generation of ODR systems is essentially defined by a more effective use of technical tools. It is no longer used for the mere job of putting the parties into contact and/​or making access to information easier. It goes beyond that and it is used for idea generation, planning, strategy definition and decision making. In that sense, it can be said that second generation systems extends its first generation with new intelligent and autonomous artefacts. This new generation relies and is supported by technologies that allow for a regular connectivity among all the entities involved. However, by using innovative technologies on top of this communication layer, it is possible to present services with more added value. For the implementation of such services, one can look at fields as diverse as [10.155]  639

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Online Dispute Resolution: An Artificial Intelligence Perspective cont. Artificial Intelligence, Mathematics or Philosophy. In the intersection of these fields one can find a range of technologies that will significantly empower the previous generation of ODR tools, namely artificial neural networks, intelligent software agents, case-​based reasoning mechanisms, methods for knowledge representation and reasoning, argumentation, learning, and negotiation. Thus, we move forward from a paradigm in which reactive communication tools are used by parties to share information, to a virtual environment in which ODR services proactively assist the disputant parties … [7]‌3.1 How can artificial intelligence improve ODR It is a fact that computers are being intensively used in virtually every domain and the legal one is not an exception. However, the functionalities and the possibilities of computers are not being fully exploited, being relegated to basic back office tasks such as text processing, billing, agenda management, communication, among others. Nevertheless, the role that technology plays in this field will slowly begin to change as AI techniques develop … [8]‌3.1.1 Decision support systems With the constant growth of the amount of information present in the decision processes, the need for tools that could provide support has also grown. Indeed, the new economy, along with increased competition in today’s complex business environments, takes the companies to seek complementarities in order to increase their competitiveness and reduce risks (Bonczek et al. 1981). Under this scenario, planning takes a major role in a company’s life. However, effective planning depends on the generation and analysis of ideas (innovative or not) and, for this reason, the idea generation and management processes become a crucial tool in present days. The tools used may range from simple systems for compiling useful information from raw data, to more complex ones that make suggestions on the best strategy to be used or the fairest outcome. [9]‌Decision support systems may be used in virtually any knowledge based environment and the legal domain is not an exception (Turban 1993). In the legal arena, these are known as legal decision support systems. However, as its use is still recent, there are not any advanced implemented systems. Nevertheless, the ones that have been developed so far have something in common (Zeleznikow and Hunter 1994): they are rule-​based. There are several reasons for this: rule-​based systems are generally easy to understand and implement, there are a lot of tools for building rule-​ based systems and many legal concepts can be modeled using rules. These rules are instructions of the type IF condition THEN conclusion, that is, if certain conditions are verified, one or more conclusions will be true … These systems thus have the ability to analyze relevant facts input by the parties as well as legal information such as norms or past known cases in order to make simple legal decisions. There are some fields in which decision support systems have been more significantly used. Social security systems use them to help practitioners deciding if an unemployed individual should or should not receive a benefit. Banks use them in order to more efficiently decide if a client should be granted a loan. As a last example, insurance companies use decision support systems when deciding on the amount of an indemnity to be paid to an insured. In any of these cases, as well as in the legal domain, results are generally supervised by human experts. Decision support systems are therefore not automated systems that issue outcomes. They are systems that, based on important information, issue justified recommendations and compile information that can be useful for the decision making process. One example of application of decision support systems in the legal domain is Split Up (Zeleznikow and Stranieri 1995). This is an intelligent decision support system that makes predictions about the distribution of marital property following divorce in Australia. Its main purpose was to assist judges, registrars of the Family Court of Australia, mediators and lawyers. Split Up operates as a hybrid system, combining rule-​based reasoning with neural network artifacts. A more recent example in the same legal domain can be found in (Bellucci and Zeleznikow 2001), in which an agent-​based negotiation decision support system for the Australian family law is presented. 640 [10.155]

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Online Dispute Resolution: An Artificial Intelligence Perspective cont. 3.1.2 Expert systems According to Susskind (1987), Expert Systems can be defined as computer programs that have been constructed in such a way that they are capable of functioning at the level of (and sometimes even at a higher standard than) human experts in given fields. In that sense, such systems are designed, trained and fine-​tuned by humans and must embody a depth and richness of knowledge that allow them to perform at such level (Hayes-​Roth et al. 1983). The training can be performed using information from past cases and respective decisions provided by human experts. On the other hand, these systems can also learn while they are used, generally with the supervision of an expert that makes adjustments according to the input, expected output and verified output. Similarly, Harmon and King (1985) define Expert Systems as intelligent computer programs that use knowledge and inference procedures to solve problems that are difficult enough to require significant human expertise for their solution. Both definitions share one common idea: Expert Systems try to mimic the human expertise [10] and knowledge in a given domain (Jackson 1990). In that sense, it is correct to say that the knowledge necessary to perform such high level tasks as well as the inference procedures used can be seen as models of expertise of the best human experts in the field … On the whole, particularly constructive when considering the legal domain is the ability of an Expert System to detail the reasons for a specific analysis or recommendation, i.e., its ability to explain its actions. In order to do so, legal expert systems generally allow the assignment of weights to factual data on a case. This may trigger additional actions, such as comparing a given case to the cases stored in the knowledge base, producing outcomes based on similarity metrics. However, once again, these outcomes should be regarded as merely informational, i.e., legal expert systems should be used, for example, to help judges to deal more rapidly with the cases, providing guidance based on a model of the legal domain in question that includes the norms, the facts and past cases. Currently, complex Expert Systems of this level are not yet established. There are even authors that argue that these are not only difficult to implement but also unnecessary. Following this simplistic approach, James (Popple 1996) presented SHYSTER, a simpler, pragmatic approach in which the utility of a legal expert system is evaluated by reference, not to the extent to which it simulates a lawyer’s approach to a legal problem, but to the quality of its predictions and of its arguments. In fact, most of the legal expert systems currently at use are fairly simple implementations, focusing, for example, on automated drafting of complex legal documents. In such systems, users are generally guided through a series of interfaces with questions, while receiving practice tips or support about the legal domain or strategies. Nevertheless, other authors argue that a purely rule-​based approach is inappropriate if the Expert System is to be of use to a lawyer. Popple (1991) concludes that a better approach is obtained when rule-​based methods are combined with case-​based ones. [11] 3.1.3 Knowledge-​based systems Knowledge is an abstract term that represents a collection of specialized facts, procedures, and judgment conventions. There are many types of knowledge and many different ways of acquiring it. First, knowledge can come from a single source or it can be compiled from several sources. Depending on the domain, it can be compiled from human experts (eg, observing the behavior of a law practitioner), sensors (eg, a domotic environment), pictures (eg, medical imaging), maps (eg, finding a path), flow diagrams or historic context, just to name a few. Depending on the type and source of information, several techniques for knowledge acquisition can be used, namely human observation, scanners, pattern matching, pattern recognition or intelligent agents … This group may include, but is not limited to parties’ information, norms, past cases, facts or arguments. These systems are also essential when such information must be stored digitally in a way that allows for fast and efficient retrieval. When knowledge is stored in a formal and well-​defined way, it allows for the development of automated processes that can, for example, interpret the validity of logic arguments. The development of systems that can efficiently cope with huge amounts of knowledge is in fact one important advance that legal practitioners can take advantage of, in order to deal with the current increasing number of disputes. Moreover, knowledge-​based systems can be [10.155]  641

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Online Dispute Resolution: An Artificial Intelligence Perspective cont. designed to deal with either statute law or case law (Popple 1991). The main motivation behind the use of Knowledge-​based Systems in the legal arena is its capability of representing norms and judgment under uncertainty. In fact, systems can be developed that can produce new facts or conclusions based on knowledge … 3.1.4 Intelligent interfaces Lawyers currently face a problem that has already been pointed out in this document, ie, the ever growing amount of information that must be considered in legal problems, either in [12] statute law or case law. On the one hand, in statute law, new statues and treaties are making its way, making legal analysis more complex. On the other hand, case law is faced with more and more disputes, which generate an exponential increase in legal rulings. The main reason for this happening is the process of socialization in course in terms of the use of information technology by the human beings, which not only adds to the information available but also increases the number and diversity of the disputes that must be solved. Ironically, the same technologies that led to the exponential availability of information also show the way to the development of tools to deal with this information, ie, technologies such as Expert Systems, Decision Support Systems or Knowledge-​based Systems are now available that can assist practitioners. Nevertheless, the adoption of these useful tools has been rather slow, wasting the theoretical advantages. A possible cause for this drawback is pointed out by Matthijssen (1995), when the author states that in legal information systems the interface-​modalities do not shield the users of these systems from the internal organization of the data and the additional workload associated to the processing mechanisms, ie, legal practitioners find a conceptual gap in this process, once they work in a given way, and legal information systems are either designed to work in a different way or are designed very closely to the internal structure of the system, providing no abstraction interpretation of the decision process. This gap can be filled with the development of the so-​called Intelligent Interfaces. Therefore, it will be useful for the developers to be aware of the way practitioners solve legal problems. Using this information, intelligent interfaces can be developed that reflect the knowledge domain of the practitioner rather than the structure of the stored data. The main objective here is that practitioners can focus on the actual content of the legal concepts rather than on how these concepts are translated and stored in legal information systems. Intelligent Interfaces are very singular, ie, besides making the bridge between humans and computers, they present additional features. The eternal problem addressed, present on the legal domain (as well as in any knowledge-​based domain), is in an efficient and effective retrieval of data (generally from a database). When the methods for retrieving information are much related to the structure of the data, it becomes harder for a non-​expert to perform efficient searches. According to Matthijssen (1999), to a large extent, these problems can be attributed to the limitations of the traditional Boolean query mechanism used in text databases, which is difficult for users to operate. Using Intelligent Interfaces, it is possible to develop different forms of abstraction, at the user level, that make possible to personalize methods to access data, regardless its structure. In order to implement this behavior, an intelligent interface needs specific data about the legal domain that is being addressed, as well as models for the representation of legal knowledge, its rules and processes. Additionally, such interfaces can also take into consideration personal preferences or user roles. Then, it can act as an intelligent intermediary between the user and the database. Using such an interface, practitioners can make use of a more intuitive and powerful tool to analyze and organize information. Possible applications include the structured publication of high amounts of information, automated organization of data according to a given criteria or automated search. Another interesting area of application is one in which the user is not completely sure of how to search or what to search. A search request may be incomplete, incorrect or inaccurate and the interface is responsible for assisting the user in reformulating the request or trying to guess what the user intentions are in terms of search. In order to fulfill these goals, the interface must be adaptive, anticipate the needs of the user, proactive and able to explain its actions. We can also think of search engines 642 [10.155]

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Online Dispute Resolution: An Artificial Intelligence Perspective cont. like Google or Yahoo as intelligent interfaces. In fact, they often do successful searches although we misspell the search terms, or suggest similar words or concepts in order [13] to make our search more accurate. Intelligent Interfaces also filter the information, deciding which is closer to what the user is looking for and which is useless. In order to do this, context information is taken into account (eg, legal domain, past experiences, domain of expertise of the practitioner). One particular case of application of Intelligent Interfaces in the legal domain is the one of the intelligent tutors, aimed at teaching or training its users in a given area (eg, LITES, an intelligent tutoring system for legal problem solving in the domain of Dutch Civil law, Span (1993) and Ashley and Aleven (1991), where an intelligent tutoring system for teaching law students to argue with cases is described). 3.1.5 Case-​based Reasoning Case-​based Reasoning (CBR) can be described as a problem solving methodology that relies on past experiences and its data to make present choices (Kolodner 1992; Aamodt and Plaza 1994). The key assumption is that if a new problem is similar to an old one, it will have a similar outcome. This procedure is commonly observed in humans and is intrinsically related with our learning processes. As an example, let us consider that some time ago, an individual left home, with a cloudy sky, and the clouds turn into rain, and he/​she got wet. A few days later, before leaving its house, the same individual look at the sky and, as it is was cloudy, took an umbrella with him/​her. In general, this process involves the ability to compare two scenarios (or cases) and admit that if they are similar, they will have an identical outcome. Consequently, the first task is to select among all the uniqueness that describe a case, which are the ones that are useful to determine the similarity between two cases. Failing to do so will lead to the impossibility of dealing with all the attributes that define a given universe of discourse and their range of possible values. Continuing with the previous example, the individual could take the decision of taking or not taking an umbrella based on different factors: the day of the week, the weather forecast, the current weather conditions, the clothes wore and/​or the distance to the local of destination. While some of these factors make sense (eg, the current weather conditions, the weather forecast) considering the nature of the problem, others are completely irrelevant. The first challenge is therefore to select which attributes to consider, according to the problem domain (or universe of discourse). It is also essential to enquire the relative significance of each of the problem attributes. In our previous example, it makes sense to consider both the current weather conditions and the weather forecast. However, a different weight might be given to the weather forecast attribute if the individual is more worried about the evolution of the weather conditions and not so much concerning the immediate ones. This factor may however be different, depending, for example, on the hour the individual will be outside or its confidence on the weather forecast … [14] CBR is obviously suitable to be used in the legal domain, once the ability to predict or estimate an outcome is an important component of legal advice. A legal practitioner frequently examines past similar cases and their outcomes to try to predict the outcome of a new case. There is even a similar legal concept: the legal precedent (Landes and Posner 1976). The notion of legal precedence defines a case that establishes a rule or principle that could or should be utilized by practitioners when deciding on subsequent similar cases. CBR models are, in principle, particularly useful in common law systems, in which The Law is interpreted and applied by judges … Although being object of research, CBR is already one of the most commonly used approaches in the development of intelligent and learning systems, for the most varied purposes. Watson (1997) gives some examples of big enterprises like air and fraud management companies where the use CBR is routine. Likewise, the legal field has some implementations of CBR that address specific problems … 3.1.6 Multi-​agent Systems A MAS is a group of entities (software or hardware) that make intelligent decisions in order to achieve some common goal (like proposing a solution for the parties in dispute) based on information that is shared among every agent in the system. Parunak (1997) proposes a detailed definition, based on the [10.155]  643

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Online Dispute Resolution: An Artificial Intelligence Perspective cont. presupposition that a MAS is not only defined by the agents or their properties, a MAS is defined by a triple, ie, a set of agents, an environment and a pairing between them. We have to agree with Parunak since an agent is genuinely associated with the environment, as its actions depend on the state of its peers. As an analogy, we humans commonly look to ourselves in function of our social or geographical positioning, ie, our environment and our social relations make us who we are … [15] In the context of a MAS, negotiation refers to the modelling of human conciliation techniques so that they can be used for solving conflicts between agents. The main field of application of this modus operandi is in conflicts that arise from auctions and e-​commerce. In this specific sub-​field of dispute resolution, agents may represent the parties in a negotiated settlement and try by themselves to get to an end, then suggesting it to the parts in dispute. An important analogy may also be done with negotiation procedures that take place in the legal arena, between parties that are trying to achieve a common agreement. The use of MAS in the legal domain is just right. A different kind of add value that comes with the use of MAS, from which the legal domain may profit, is distributed problem solving. Significant virtues in the legal domain (eg, veracity, benevolence) can also be instilled into agents, namely in the so-​called emotion-​based ones (Velasquez 1997). In the legal field, this kind of work may lead to the implementation of the second generation of ODR systems, with the ability to understand the feelings of the parties according to each topic of the dispute. 3.1.7 Legal ontologies In philosophy, ontology is the study of the nature of existence in general. In that sense, ontology deals with the questions that concern the definition of a given entity, its existence, and how that entity relates with others. In computer science, ontologies are a way of formally representing knowledge in terms of concepts within a domain and the relationships between those concepts. According to Gruber (1993), an ontology is a “formal, explicit specification of a shared conceptualisation”. In order for the ontology to be understood, a shared vocabulary must be provided. This vocabulary must contain all the concepts that can be used to model the domain of discourse, ie, the ontology must define the type of each concept as well as their properties and relations. Therefore, in ontology specification, one defines classes and subclasses of individuals as well as the properties of each individual in a class or subclass. If on top of that are also defined relationships between individuals, it will be possible to infer properties, namely by inheritance. In computer science, ontologies are nowadays paramount, mainly because they are the enablers of the so-​called Semantic Web. The Semantic Web describes a group of methods and technologies that allow machines to understand the meaning of information on the Web, [16] rather than simply accessing it. That is indeed the main innovation that ontologies brought along, ie, allow machines to read, interpret and understand information. Logically, such technologies can also be used in other domains than the Web. Specially, ontology’s are used in different systems, ranging from software engineering, biomedical informatics, library science, and information architecture, among others. Indeed, for complex domains, like the legal one, the advantages are considerable. For instance, by systematizing knowledge, it becomes readily available. It allows not only for the extraction of rich patterns of information that otherwise would not be perceptible, but also to draw inferences … 3.1.8 Rule-​based systems Rule-​based Systems (RbS) are, in general, the straightforward way of implementing a system intelligent behaviour, ie, they stand for the simplest form of building Artificial Intelligent systems. Using a RbS, it is possible to encode the knowledge and skill of a human expert in a given domain in the form of IF-​THEN rules, in which each rule denotes a small piece of the expert’s knowledge. Rules have a left and a right hand side. On the left side there is information about facts that must be true in order for the rule to be enforced. On the right hand side, the rule contains the actions that should be carried out whenever the rule is fired. The model of execution of a RbS consists, therefore, in analysing, on the fly, the left hand side of all rules. The rules whose left hand side is evaluated to true are placed on an execution agenda. Then, rules in the agenda will be executed, without any explicit order, and 644 [10.155]

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Online Dispute Resolution: An Artificial Intelligence Perspective cont. then removed from the agenda. One singularity of RbS, contrasting with standard object-​oriented programming, is that there is not an effecting order that can be predicted beforehand. Thus, RbS are a way to store, interpret and manipulate knowledge about a given domain. In fact, if appropriate design strategies are followed, these systems allow for an ease access to an expert knowledge, i.e., whenever knowledge about the domain changes, only specific rules need to be transformed. This can be even looser if a proper and perceptive rule editor is made available and used by non-​experts. In order to have a fully operational RbS, a rule engine is necessary, which stands for it. If we consider specifically the legal domain, a parallel can be established between the legal corpus and other legal conceptions that may be expressed as RbS. The most obvious one is that when capturing the expertise of an expert in a given field, that expertise will become available to all. However, when representing legal rules in a RbS, some issues must be kept in mind in order to avoid some possible problems. Indeed, if one tries to encode considerable amounts of knowledge into a single RbS, the system may become inefficient, once it must search through a very large number of rules. Another possible disadvantage is that rules may not exactly implement the reasoning process used by an expert as no specific execution sequence can be dictated. Last but not the least, is related with the open textured nature of The Law and reasoning mechanisms being used (Popple 1991). In fact, when a judge decides on verdicts, he/​she does not look only at the rules that apply in that situation. [17] There is more information that influences the outcome, such as recurrence or intention of the defendant, information that is hard to model in such systems. Nevertheless, RbS are broadly used in different areas of doings, namely in insurance companies, banks, fraud detection, e-​commerce and evidently in The Law. In conclusion, these systems implement a fairly simple and efficient way of modelling knowledge and expertise of a human practitioner in a well-​defined field. Such systems can be particularly useful in the legal domain, once this field is rather rule-​based, ie, legal practitioners are usually comfortable about using such systems as they reflect their way of reasoning … [19] 3.3 The current state of artificial intelligence and ODR Having analyzed some existing research projects and commercially available ODR providers, an assessment may be done about the shortcomings of the current state of the art in the ODR arena. If there is a conclusion that can be drawn, is that currently technology is not exploited as it could be. Indeed, there is a limited use of IT by legal practitioners that use it mostly to word processing, office automation, case management, and here at a rudimentary level, client and case databases or for electronic document interchange. Some needs may, therefore, be pointed out. First of all, most of the existing ODR implementations rely on traditional forms for acquiring information, providing little to no assistance at all. Moreover, the visualization of information is done at a very low level, i.e., users see information in a way that is very close to how it is stored. This can indeed be pointed out as a major disadvantage as the lack of intelligent and intuitive interfaces can constitute a barrier for a wide acceptation and use of these systems. Technologies are also barely used for even the simplest forms of processes automation. This automation could boost the throughput of legal institutions and practitioners by automating simple tasks that do not explicitly need human intervention. Finally, another major drawback can be pointed out. It is a fact that very little systems use IT for knowledge management and goal achievement, ie, the use of technologies able to handle complex models of legal information would improve information structuring and retrieval, improving the work of legal practitioners. [20] We conclude that IT still plays a secondary role on the ODR arena. In fact, the technologies that are more used are simply the ones required to implement traditional dispute resolution mechanisms over telecommunication systems. Consequently, current ODR systems have little to no autonomy at all and are barely automated. In a few words we can state that, excluding some innovative research projects, that first generation ODR systems are still the rule. A research effort must thus be conducted in order to achieve the so-​called second generation ODR. The path to follow relies, in our [10.155]  645

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Online Dispute Resolution: An Artificial Intelligence Perspective cont. opinion, in the use of intelligent techniques that can enhance ODR systems with conceptions such as autonomy and proactivity. 3.4 The future of artificial intelligence on online dispute resolution Progress in the field of Artificial Intelligence (AI) and The Law has been slower than expected. In fact, in the excitement of the early years, it was expected that computers would soon have the skills and the computational power to take over the role of judges and attorneys. This is far from happening and, nowadays, this is not the main purpose of the work that is being pursued in this area. The main reason against sitting computers in the chairs of judges and attorneys, mainly uttered by lawyers, is that doing so is morally undesirable. However, that alone would not hold back the research being done in the area of AI and The Law; it would, at most, delay its implementation but not its development. One of the main reasons is that computers act as simple executors of rules while the legal field requires interpretation. While computers are unable to actually interpret norms and their framework, they will not be sufficient to make judicial systems. John Searle formalized this restriction on the well-​ known thought test of the Chinese Room (Searle 1980): Suppose I am in a closed room and that people are passing in to me a series of cards written in Chinese, a language of which I have no knowledge; but I do possess rules for correlating one set of squiggles with another set of squiggles so that when I pass the appropriate card back out of the room it will look to a Chinese observer as if I am a genuine user of the Chinese language. But I am not; I simply do not understand Chinese; those squiggles remain just squiggles to me. Moreover, law is not straightforward and ambiguous. That is, the interpretation of norms frequently raises doubts among legal practitioners, frequently leading to different and clashing interpretations and, consequently, different outcomes. Thus, at a first glance, one would conclude that we need a more specific definition of the norms, one that would lead to unambiguous interpretations. The problem is that the society is complex, with many conflicting values and norms of conduct. This task seems thus rather utopic. Nonetheless, let us admit that such achievement is possible, that we can define norms to the point that their interpretation is straightforward. It is evident that this would only be achieved by having a much higher amount of more specific norms. Would it be efficient to handle such a complex legal system? Would it be feasible to develop computer systems to handle such complexity? Another challenge that future research in AI and The Law will face is related with the changing nature of the laws. Indeed, in civil law systems, the frequency of legislation changes is higher and higher. Moreover, as the number of cases solved by courts in common law systems increases, more and more different cases can be considered when solving a new one. Thus, another major challenge will be to deal with increasing and ever changing amount of information. From the technological point of view, for ODR systems that work in civil law domains (tendentiously rule-​based), this means that whenever a legal norm changes someone will have to search the system for the rules or ontologies that implemented that norm and change them accordingly. Thus, there will be a growing effort to manage such systems and [21] keeping them up to date without creating ambiguities. The same happens in common law domains, in which systems tend to be case-​based. In these systems, the question is about whether a past case should or should not be considered after a clear trend of change in more recent cases. Here, there is also a growing effort to maintain a database of relevant information. There are evidently many challenges to be addressed in the development of AI and The Law research. It is thus not clear if the development of fully autonomous software agents that can take the role of judges and attorneys will happen or not in a near future. Nevertheless, by aiming at that ambitious objective, researchers will continue to develop useful tools that will slowly but steadily improve the legal systems, making them more efficient and, ultimately, more accessible to people. And, in our opinion, this should be the goal of future AI and The Law research, i.e., not to develop 646 [10.155]

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Online Dispute Resolution: An Artificial Intelligence Perspective cont. highly advanced and complex systems that barely no one will use but to develop systems that can actually be used by individuals that have little to no knowledge at all about the legal field, essentially as support decision tools.

 [10.156]  Extensive effort has been directed at establishing national mediator approval and

practice standards for offline dispute resolution practitioners. The system for accreditation is based upon the report of the former National Alternative Dispute Resolution Advisory Council (NADRAC) on standards, entitled A Framework for ADR Standards. In launching the report, the former Commonwealth Attorney-​General, Daryl Williams AM QC MP, noted that the quality of services is a critical component in building community confidence in ADR. As in offline dispute resolution, ODR is starting to consider what standards and ethical considerations should apply to practitioners and providers of ODR. These issues are taken up further in Chapter 15. [10.160] QUESTIONS

1.

What is ODR and how does it differ from offline dispute resolution?

2.

How does online negotiation work?

3.

What is the difference between automated and assisted negotiation?

4.

How does online mediation work?

5.

What are the advantages and disadvantages of ODR? Give examples of each advantage and disadvantage.

6.

Can communications in ODR be kept confidential? How?

7.

What is the future of ODR?

8.

Is ODR really a green alternative to face-​to-​face dispute resolution?

9.

What is meant by the term “netocracy”? Can ODR overcome differences in power between parties to a dispute?

10. Is ODR suitable for disputes and conflicts involving personal violence?   

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CHAPTER 11

The State and Dispute Resolution [11.05] [11.10] [11.25] [11.35] [11.60]

INTRODUCTION........................................................................................................ 649 THE EXTENT OF STATUTORY SCHEMES IN AUSTRALIA............................................... 649 [11.20] Mediation and the Art of Regulation..................................................... 650 THE VALUE OF DISPUTES............................................................................................ 652 [11.30] Exploding the Empowerment Myth of ADR.............................................. 652 THE STATE’S ROLE IN APPROPRIATING DISPUTE RESOLUTION................................... 654 [11.40] Exploding the Empowerment Myth of ADR.............................................. 654 [11.50] The Decline of the Trial in Australia....................................................... 656 THE ROLE OF THE COURTS IN DISPUTE RESOLUTION................................................ 661 [11.65] Mediation and the Judicial Institution.................................................... 661 [11.75] Mediation and the Court.................................................................... 663 [11.85] Settlement in Court-​Connected ADR and the Constitutional Function of the Judiciary: An Imbalance Between Two Competing Public Interests................ 664 [11.95] Hands-​On Judges and User-​Friendly Justice............................................. 668 [11.105] Can Judges Increase Mediation Settlement Rates? Of “Coase” They Can....... 670

[11.110] Judges as mediators................................................................................... 672 [11.115] Judicial Mediators: Is the Time Right? –​Part II......................................... 672

INTRODUCTION [11.05] The formalisation of dispute resolution in Australia has largely taken place in the

public sector although this statement is not to diminish the important role of private dispute resolution. In particular, court-​annexed dispute resolution schemes now dominate the dispute resolution landscape in Australia. The rationale for the introduction of State-​sponsored schemes, amongst other things, has generally been the perceived saving in the time it takes to dispose of matters brought before the courts, and because of this, a concomitant saving in the costs of litigation for people and the State. However, concerns arise when considering how appropriate it is for the State to be involved in the provision of dispute resolution services –​for example, whether the State is appropriating disputation for its own purposes; whether courts should be involved in dispute resolution given they are tribunals of fact and law; and whether dispute resolution compromises the role of the State. Consideration should also be given to the issue of whether judicial officers should act as third-​party neutrals. This chapter will discuss these issues.

THE EXTENT OF STATUTORY SCHEMES IN AUSTRALIA [11.10]  In 2001 the Report of the former National Alternative Dispute Resolution Advisory

Council (NADRAC) observed that ADR in Australia is subject to numerous legislative Acts, regulations and rules that are not consistent, coordinated or systemic across jurisdictions: see A Framework for Standards (Attorney-​General’s Department, 2001) p 44. Obvious difficulties arise when different jurisdictions apply disparate laws and regulations to the practice of dispute resolution. An issue for consideration is whether there is scope for uniform legislation in Australia.

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In the United States, the Uniform Mediation Act 2001 (US) (UMA) was promulgated in an effort to achieve consistency and cohesion through model legislation. The Drafting Committee argued that uniform mediation laws would be of general benefit for several reasons. For instance, uniformity is necessary to predict if something which is not admissible in one jurisdiction will be treated in the same way in another jurisdiction; given the increase in online mediation, uniformity is important in cross-​jurisdictional mediation; without uniform laws, a person signing a mediation agreement will not know where a future mediation will take place and therefore what privilege the law will provide; uniformity contributes to simplicity (see: R Carroll, “Developments in Mediation Legislation” (2002) 5(5) ADR Bulletin 78). At the time of writing 12 states in the USA had enacted the UMA with a further two states, Massachusetts and New York, introducing the Act in 2018.1 In Australia, we do not have any uniform legislation that mirrors the UMA. However, as has been discussed in Chapter 4, the use of mandatory mediation is wide spread. Federally and in all state jurisdictions, Australian courts have powers to order people to various dispute resolution processes, with the predominant process being mediation. [11.15]  Concerns have been expressed that uniformity will pose a number of problems. The

2001 NADRAC Report identified two principles that need to be balanced in any efforts to impose standards or regulate ADR in Australia –​the “diversity” principle and the “consistency” principle. The following extract addresses the diversity-​consistency dilemma before examining the formal legislative approach to regulating contemporary mediation.

Mediation and the Art of Regulation [11.20]  N Alexander, “Mediation and the Art of Regulation” (2008) 8(1) QUT Law and Justice Journal 1 at 2, 9 and 23. The diversity–​consistency dilemma refers to the multiple tensions between the desire to embrace diversity in practice through flexibility and innovation, on one hand, and the call to establish consistent and reliable measures of quality in mediation service provision through regulation, on the other. Essentially the debate is about the long-​term sustainability of mediation as an informal dispute resolution forum that offers parties autonomy and ownership of their conflict in addition to cost and time savings. The diversity–​consistency debate begins with the issue of definitional consistency and the risks of excluding certain mediation practices in the search for uniformity; it extends to concerns that rule consistency may stifle the growth of mediation, inhibit its opportunities for innovative development and lead it down the highly legalised path that arbitration has travelled … [p 9]. Formal Legislative As the term implies, formal legislative regulation relies primarily on legislation supported by formal institutions, such as the judiciary, to regulate mediation. Arguably a manifestation of traditional Eurocentric civil law thinking, the formal legislative approach focuses on positive notions of law and sits well with the concept of an “active” state. According to Damaska, active states tend to adopt paternalistic, welfare-​oriented and interventionist approaches in relation to their citizens. In other words, active states adopt policies based on the premise that they know what is good for civil society. To this end a systemised body of legal norms and policies define what is appropriate and just according to state interests and values. 1 See the Uniform Law Commission, http://​www.uniformlaws.org/​Act.aspx?title=Mediation%20Act (accessed 4 May 2018).

650 [11.15]

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Mediation and the Art of Regulation cont. Formal legislative strategies on mediation represent a strong endorsement of mediation by the state and go a long way towards its formal recognition as a legitimate dispute resolution practice and as a profession. The Austrian Law on Mediation in Civil Cases 2003 is a case in point. It demonstrates a dominant formal legislative approach to the regulation of the approval and practice of mediators in civil matters. Specific legislation focussing on areas such as court-​annexed, family and victim-​offender mediation has also been enacted in Austria. Following Austria’s lead, the Slovak Republic introduced comprehensive mediation legislation in 2004. A similar legislative strategy is being pursued in the German state of Lower Saxony and considered at the federal level. Formal legislative approaches also aim to offer clarification of the status quo, set practice consistency goals, establish certainty on legal issues and consumer protection. In Australia a formal legislative approach has been adopted in the area of family dispute resolution. The Family Dispute Resolution Practitioners Accreditation System is regulated under the Family Law Act 1975 (Cth) and the Family Law Regulations 1984 (Cth). In addition to acknowledging the professionalism of the sector, the Accreditation [10] System has a quality assurance goal. It is a comprehensive and compulsory formal regulatory package, which came into force in July 2007 with a transitional period of two years. During this two year period further amendments are being made to the Regulations and practitioners wishing to be accredited under the FDRP System must be compliant by July 2009. The FDRP Accreditation System operates in stark contrast to the voluntary minimum standards of the national self-​regulatory system outlined earlier. While the intention of the national self-​regulatory standards is to operate as an entry point for all mediators, the relationship between the two sets of standards has not been clarified at the time of writing. The Uniform Mediation Act 2001 (UMA) in the United States is an example of a formal legislative approach in relation to the confidentiality aspects of mediation. It aims to “replace the hundreds of pages of complex and often conflicting statutes across the country with a few short pages of simple, accessible and helpful rules”. The extent to which this goal has been achieved, however, is the subject of considerable debate. Throughout the world, many transitional democracies indicate a preference for centralised and comprehensive formal legislative regulation of mediation. Countries eager to attract investment and enter bi-​and multilateral political and economic arrangements are highly motivated to demonstrate their democratic, dispute resolution friendly and modern legal systems to the rest of the world. Here formal documented laws are more readily recognised internationally than other “softer” forms of regulation. However there are limitations to legislative approaches in the mediation context. Legislative mechanisms are restricted in their ability to deal with non-​legal perspectives, high levels of generality, complexity, unpredictability and innovation. It is difficult to be rigidly exacting and sweepingly general at the same time. This goes some way to explaining the widespread use of sector-​specific mediation legislation in common law countries such as Australia, the United States and England, which have deliberately chosen not to enact comprehensive general national mediation legislation. A focus on specific contexts, sectors and industries such as family dispute resolution in Australia allows for tailor-​ made legislative solutions … [23]. In Australia there is a clear preference for context-​specific and –​integrated legislation with hundreds of regulatory instruments triggering and supporting mediation in a variety of sectors such as family and franchising mediation. Such an approach supports diversity in mediation practice on a sector-​by-​sector basis while striving for uniformity within the relevant sector. The introduction of national mediator approval and mediation practice standards in 2008, however, has signalled the emergence of a general, self-​regulatory approach to minimum level standard-​setting regulations. Importantly the voluntary nature and minimum standards level of the national self-​regulatory initiative encourages diversity over and above the minimum standard. Moreover it does not prevent mediators from operating outside the standards, leaving the market place to make choices about whether to engage mediators approved to the national minimum standards or mediators without this accreditation. [11.20]  651

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Mediation and the Art of Regulation cont. [The original article has been published in the QUT Law and Justice Journal 2008, Vol 8, issue 1, p 1. The article as it appears at that site is the only authorised version of this article. The copyright in the print and electronic appearance of the article are held by QUT and the copyright in the content of the article is held by the author.]



THE VALUE OF DISPUTES [11.25]  Why does the State become involved in the resolution of disputes? One reason could

reflect the popular conception that dispute resolution saves time and money for the State and its citizens. If this belief is true, then it can be stated that conflict has an inherent value –​a value that makes it worth appropriating for the State’s own use. The following extract discusses why conflict has an inherent value and who is stealing it for their own financial or other gain.

Exploding the Empowerment Myth of ADR [11.30] D Spencer, “Exploding the Empowerment Myth of ADR” (1996) 3 Commercial Dispute Resolution Journal 13 at 14-​17. The Value of Conflict The noun “value” connotes notions of the significance or worth of a tangible or intangible object. In a commodity driven capitalist society, such as Australia, we tend to define value as financial worth. And so, in one sense, the value of conflict can be defined as its cost or price. Putting an exact cost on conflict is problematic. If we believe that one manifestation of conflict is litigation, then we can begin to estimate its fiscal value. The Civil Justice Research Centre surveyed 26 law firms in New South Wales in relation to 259 matters before the District and Supreme Courts and found that the average solicitor’s fees charged to clients was between $781 and $160,300 for plaintiffs and between $450 and $110,862 for defendants. These amounts do not include disbursements which added a further $7416 per plaintiff matter and $4149 per defendant matter. If we were to add up the number of matters litigated per year and correlate them with the 16,000 legal practitioners employed in the hundreds of law firms in New South Wales alone, it is possible to come to the conclusion that lawyer managed conflict is a multi-​million dollar profession. The value of conflict cannot only be expressed in dollar terms. It has other valuable attributes. Professor of Criminology at the University of Oslo, Nils Christie, believes that conflict is valuable for three reasons. First, conflict presents an opportunity for active participation in society. Because modern society has become segmented, not all of its members participate in all the activities it has to offer, including conflict management. The natural result of segmentation is that monopolies occur, particularly in the work place. Christie calls these people the “task-​monopolists”, who take away from the individual and society the opportunity for active participation. Second, conflict provides an opportunity for norm-​clarification. When the task-​monopolists take conflict away from society, the opportunity to debate what constitutes the law is lost. Once the conflict is removed from society, the relevance of the conflict is similarly removed. The state, through the court system, decides what is relevant. Disputants have no say in presenting what may be highly relevant material which does not accord with the state determined rules of evidence. Finally, conflict provides an opportunity to build relationships with others. Individuals are removed from any relationship building by leaving them, “… outside, angry, maybe humiliated through cross-​ examination in court, without any human contact with the offender. He [sic] has no alternative”. In a true sense, conflict has been removed from the very people who have the [15] most at stake in 652 [11.25]

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Exploding the Empowerment Myth of ADR cont. seeking a resolution. However, society generally accepts this situation, as conflict is seen as something negative and to be avoided: … the assumptions regarding conflict as disclosed in mediation are: conflict is generally not good, there can be too much conflict; settlement is therefore good; conflict is individual and personal rather than public and political; conflict is primarily a problem in communication or misunderstanding rather than about the use and abuse of power; most conflict, whatever the conflict, ought to be treated by the same methods, based on general psychological principles. Conflict can be a positive factor generating: a)

new  ideas;

b)

strategies for present and future problems;

c)

interpersonal bonding;

d)

better channels of communication;

e)

greater understanding about past, present and future behaviour; and

f)

attitudes and responses to conflict.

Christie believes that “… our industrialised large-​scale society is not one with too many internal conflicts. It is one with too little. Conflicts might kill, but too little of them might paralyse”. The Larceny of Conflict Like any object of value in capitalist society, conflict is susceptible to larceny. The larceny of conflict is perpetrated by the state through its instrumentalities such as, police; courts, tribunals and commissions; government departments; and, publicly funded advocacy groups. In the private sphere, the conflict thieves are generally psychologists, psychiatrists, social workers, and lawyers. Most of these conflict thieves, whether employed by the state or by the private capitalist owners of production, owe their very existence to the theft of conflict. Conflict thieves: … are particularly good at stealing conflicts. They are trained for it. They are trained to prevent and solve conflicts. They are socialised into a sub-​culture with a surprisingly high agreement concerning interpretation of norms, and regarding what sort of information can be accepted as relevant in each case. Theft of conflict is no accident. Conflict thieves encourage society to leave their conflict available for theft. They create a system which is unfriendly to society. For example, the legal system consists of courts which are situated in administrative centres away from where individuals live. The courts themselves are complex and formal to the point of intimidating any disputant brave enough to enter without a lawyer. They discourage lack of representation and involvement directly by the disputants by creating a plethora of complex rules, regulations and procedures. In criminal matters, the state assumes the role of one of the party’s, usually always the victim, and does not allow that party to be engaged in the resolution of the conflict. [16] The result of conflict theft is that society comes to accept the role of the thieves. So accepting is it, that it allows the thieves to: a)

encourage the theft through advertising;

b)

organise themselves into co-​operatives, unions or professional bodies;

c)

charge fees for the handling of conflict;

d)

lobby governments that they are the only members of society capable of handling conflict; and

e)

continue to encourage the complexity of conflict management in order to perpetuate the larceny. [11.30]  653

Dispute Resolution in Australia: Cases, Commentary and Materials

Exploding the Empowerment Myth of ADR cont. Society’s response to conflict becomes simply to hand their conflict to the nearest, cheapest or most convincing thief. They become fearful of moving without professional advice and precedent … Christie believes that conflict thieves have a detrimental effect on society, which has become more polarised. It dichotomises individuals into groups with labels and those individuals do not get to know each other outside their assigned roles. The division and specialisation of labour assists this process. The result of this polarisation is that society knows less about its members, which means that “[i]‌f a conflict is created, we are less able to cope with this situation. Not only are professionals there, able and willing to take the conflict away, but we are more willing to give it away”. Conflict thieves are also responsible for the loss of local resolution strategies which are outside of the state’s control. Not only have the thieves deprived society of a solution to any given conflict, they have also prevented long term conflict resolution strategies from being instituted because society no longer understands how to handle conflict, or to even follow a conflict resolution precedent … This runs counter to the notion that ADR educates people to deal with future [17] conflict. In most ADR processes, the education is centred on the conflict thief assisting the disputants. The disputants themselves leave the process understanding that the conflict thief is knowledgeable about ADR processes and they themselves are not; otherwise, why would they have participated in the ADR process? The disputants rely heavily on the conflict thief to solve the problem for them by invoking a conflict resolution process. Given the growth of the multi-​million dollar conflict resolution industry and the polarisation of society, the question becomes: “[A]‌re we willing to let them [disputants] give it away? Are we willing to give them the easy way out?”. Christie suggests that perhaps it is time society reclaimed conflict, or at least begin to take preventative measures to stop the theft.



THE STATE’S ROLE IN APPROPRIATING DISPUTE RESOLUTION [11.35]  One way in which the state promotes the theft of conflict is by state-​sponsored stat-

utory dispute resolution schemes which takes disputes seeking a curial solution and delivers them to the doors of the courts for non-​curial resolution. Once inside, disputants are forced to deal with judicial officers, court staff and lawyers who are trained to appropriate disputes in an attempt to resolve them. In this respect, the judicial system plays the role of dispute thief. Lawyers, for example, are trained to deal with disputes and to charge people fees for the right to take over the dispute and resolve it in their own way. Lawyers deal with the disputes in the way they have been taught to deal with them, that is, via the adversarial system of litigation. However, since the rise of dispute resolution, lawyers have appropriated it as a means of resolving disputes so that they can generate fees for that service in addition to the more traditional services offered. The state has played an important role in facilitating the theft of disputation. The following extract explores how the state achieves this.

Exploding the Empowerment Myth of ADR [11.40] D Spencer, “Exploding the Empowerment Myth of ADR” (1996) 3 Commercial Dispute Resolution Journal 13 at 17-​21. If the state cannot adequately respond to the increased demand on the formal conflict resolution mechanisms, it must either spend more money on increased resources or find other methods of resolving conflict. To this end, the cost of ADR is generally said to be less than that of the formal systems of conflict resolution. ADR is seen, particularly by those with a vested interest in reducing the 654 [11.35]

The State and Dispute Resolution  Chapter  11

Exploding the Empowerment Myth of ADR cont. demand placed on state controlled mechanisms of conflict [18] resolution, as a cost efficient alternative to the formal processes already available. De Maria agrees that pecuniary interests are driving the state’s enthusiasm for ADR, however, for different reasons. He believes that the economic rationalists of the 1970s and 1980s have led a drive to de-​institutionalise and cut back the public sector. But for whatever philosophical or political reason, society is experiencing a reduction in the institutionalisation of conflict resolution, therefore, the state must substitute acceptable mechanisms or risk non-​state sanctioned forms of conflict resolution … The result of the changing role of the state in conflict resolution is the increase in state control over social relations. Not only does the state remain in control of formal conflict resolution processes, it now has control over the informal ones, whose disputants may not have come to the attention of the state, had it not been for the informal processes. Nowhere is this more prevalent than in the area of community dispute resolution. In New South [19] Wales and Queensland, the Community Justice Centres (“CJCs”) and Dispute Resolution Centres (“DRCs”) respectively, operate within the state controlled Attorney-​General’s Department. Over half of all matters mediated by the CJCs are referrals from chamber magistrates, courts, solicitors and police. Therefore, not only are over half of the referrals coming from state controlled instrumentalities, but under half of the conflict experienced in society is being brought into the purview of the state under the guise of empowering disputants to deal with their own conflict ... The Community Justice Centres Act 1983 (NSW) and the Dispute Resolution Centres Act 1990 (Qld) (“the Acts”) are directive pieces of legislation which allow the state to exercise greater control over society’s ability to deal with conflict. In this respect they do little to empower disputants, rather they allow the state to become the controller of conflict on behalf of society … The legislation is a good example of a state strategy to control conflict. It is a strategy which Bryson describes as having “replicated a bureaucratic service model of operation”. So bureaucratised are the state run ADR programmes, that by their own admission they clearly view themselves as being part of the state run bureaucracy that informalises and privatises justice: Community Justice Centres are now considered a permanent part of the administration of justice in New South Wales providing an effective and efficient mechanism for dispute resolution … [20] Another interesting theory on state control of ADR comes from Althusser and Foucault, who suggest that it is impossible to escape state control over conflict because the power of the state is exercised informally through agencies such as the family and community institutions. An example of such control would be a typical commercial dispute regarding a retail lease. A dispute of this kind arguably has little to do with the state, yet the lessor and [21] the lessee have their conflict appropriated by the state, either through the courts or the CJCs or DRCs. The counter argument to this hypothesis is that the disputants have the opportunity to solve the conflict themselves, however, if they do not make such a choice, the state mechanisms are in place to appropriate the conflict. However, using the Althusser and Foucault hypothesis, one may argue that it is precisely because of the existence of these conflict appropriating state apparatuses, the state is able to exercise informal control over society. Even though ADR propaganda makes it clear that the disputants themselves control the process, it is the state that has provided the catalyst for resolution; control over the conflict remains with the state in the form of an informal conflict resolution process …

 [11.45]  The above extract raises the important issue of whether the state should be involved

in resolving disputes that arise in society, or whether parties themselves should be empowered to deal with disputes at their origin. While most commentators would probably agree that the rule of law demands that courts adjudicate certain disputes, the role of the state in dispute [11.45]  655

Dispute Resolution in Australia: Cases, Commentary and Materials

resolution is still questionable. Such questions as, “Does the state need to be involved in the provision of dispute resolution?” And “If so, what controls should be put in place to minimise loss of disputant power and control?” remain largely unanswered by the governments that control court-​annexed dispute resolution. Certainly the answer to the first question posed above is in the affirmative. The state is having unprecedented success in resolving matters away from courts using a variety of methods thereby avoiding litigation. The strategy of the state is to divert disputes away from the courts and into specialist tribunals and commissions and then provide mandatory dispute resolution processes thereby preventing them from proceeding to trial. The following extract, based on data gathered from the NSW District Court, discusses not only the extent of the decline but reasons why disputants are avoiding litigation.

The Decline of the Trial in Australia [11.50]  D Spencer, “The Decline of the Trial in Australia” (2011) 30(2) The Arbitrator and Mediator 1 at 2-​10. Civil trials in the NSW District Court The first set of data represented diagrammatically in Figure 1, shows the number of civil filings in the Sydney Registry of the Court and state-​wide. The pattern for new filings or new cases in the Sydney Registry is similar to that state wide. Even accounting for the legislatively induced and data reporting anomalies listed above, it would seem that over the last two decades, new filings are decreasing. In 1990 new filings in NSW amounted to 22,860 compared with 5,297 in 2009. In other words, in 2009, new cases commencing in the Court number less than a quarter of those two decades ago. Notwithstanding the effect of civil litigation reform by the NSW Government, the last two years has seen new filings drop to their lowest levels in 20 years.

Figure 1. Civil filings in the Sydney registry of the NSW District Court and state-​ wide, 1990-​2009.

Number of cases

25,000 20,000 15,000 10,000 5,000

19 90 19 91 19 92 19 93 19 94 19 95 19 96 19 97 19 98 19 99 20 00 20 01 20 02 20 03 20 04 20 05 20 06 20 07 20 08 20 09

0

Sydney Registry

New South Wales

[3]‌Figure 2 shows the Court’s disposal rates and manner in which cases are disposed of. There are noticeable peaks and troughs some of which correlate with new filings entering the Court. For example, the peak of cases disposed of in 1996 coincides with the up-​turn in new filings in 1995 that in turn coincides with the civil jurisdictional limit increase of 1994. The 1996 peak in disposals also coincided with the introduction of the Court’s Civil Case Management System pursuant to the Chief Judge’s Strategic Plan introduced in December 1995 which applied to all actions commenced after 31 December 1995. The system sought to ensure that as many cases as possible were 656 [11.50]

The State and Dispute Resolution  Chapter  11

The Decline of the Trial in Australia cont. disposed of within 12 months from commencement and set quotas for the disposal of new filings. Further, it forced cases commenced prior to 1996 to file praecipes for trial before 1 January 1998 or face dismissal.

Figure 2. Civil cases disposed of in the Sydney registry of the NSW District Court by trial and settlement, 1990-​2009. 14000

Number of cases

12000 10000 8000 6000 4000 2000

By Trial

09

08

20

07

20

06

20

05

20

04

20

03

20

02

20

01

20

00

20

99

20

98

19

97

All cases

19

96

19

95

19

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19

93

19

92

19

91

19

19

19

90

0

By Settlement

[4]‌The number of cases disposed of by trial tends to follow the overall disposal rates of the Court. Disposal by trial rates drop from a peak in 1990 of 3,028 or 34% of all disposals to 570 or 15% of all disposals in 2009. Given these figures it seems that one could state that there has been a significant reduction in the number of trials run by the Court over a 20 year period from 34% in 1990 to 15% in 2009. However, it is more accurate to observe that the true percentage of disposals by trial in the Court has reached a plateau of approximately 15% over the last 20 years. Therefore, the Court’s data shows that there is no conclusive evidence that trials in the Court are vanishing. However, the data could support the proposition that trials in the Court are in decline and that may be due to the decrease in filings more than the unpopularity of trials. The reasons that trials are in decline There are numerous reasons for the decline of the trial in the US District Court and in the NSW District Court. The American literature lists more reasons than those discussed below which are restricted to those that resonate with the Australian judicial landscape. The complexity of the judicial system acts as a counter-​incentive to participation in trials. Litigants who lack the funds or ability to attract legal aid are reluctant to appear for themselves because they may not have the ability to act as their own advocate and understand the plethora of complex rules and procedures that govern a trial. The flow on effect of this is that many potential litigants must find processes other than adjudication to respond to conflict. In the US, this polarisation of litigant choice is leading to the ‘privatization of disputing processes, whether located in or out of courts’. If the complexity of court rules and procedures forces people away from trials and into other private methods of adjudication or dispute resolution then the resulting outcome is a move away from the trial as the only method to resolve conflict. In NSW it is apparent that potential cases are being referred away from the Court as well as the fact that referral of matters to mediation are on the rise largely through court annexed and industry code requirements –​factors that will be discussed below. The delay in getting cases to trial may also act as a disincentive for litigants. In the United States there is evidence that filings are continuing in an upward trend which in turn places pressure on the court system to deal with more cases. Figure 3 compares the time taken from filing to disposition by [11.50]  657

Dispute Resolution in Australia: Cases, Commentary and Materials

The Decline of the Trial in Australia cont. trial in the US District Court with the median delay between commencement of cases and disposition by any means in the NSW District Court between 1990 and 2002. The data shows that the time taken to get cases to trial in the US has been in a state of plateau for the last 15 years with the average time being 20 months. However, in NSW the Court takes approximately 11-​14 months to get a case to trial –​a situation that has been in plateau since 1998. It is likely that this time period probably would not act as a significant disincentive for litigants to proceed to trial.

Figure 3. Median time (in months) from filing to disposition by trial in the United States District Court and median time (in months) from filing to disposition by any means in the NSW District Court, 1990-​2009. 35

Number of cases

30 25 20 15 10 5

United States

09

08

20

07

20

06

20

05

20

04

20

03

20

02

20

01

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00

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19

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19

90

0

New South Wales

… Case management systems are a recent factor that may contribute to a decline in trials. In the US some judges are simply anti-​trial and see themselves as case-​resolvers who ‘have a way of exacting a [6]‌toll on those who want to hold out for a jury trial’. The epithet that ‘a bad settlement is almost always better than a good trial’ is a truism expounded by one US judge who stated, ‘There is an overriding public interest in favor of settlement’, with another judge stating, ‘trials are evidence of lawyers’ failure’. In the US, this sort of judging is called ‘managerial judging’ and the legislatures in America have given judges more discretion to make continuous procedural, evidentiary and management decisions concerning the progress of cases through to trial. The same trend has occurred in Australia with changes brought about by economic rationalism and institutional pressures focussing on judges’ performance based on their control over case disposals. In both the US and Australia, legislatures, judges and administrators of the courts have ‘embraced the notion that judges [are] problem solvers and case managers as well as adjudicators’. The introduction of the Civil Case Management System in 1996 and subsequent passing of Part 6 of the Civil Procedure Act 2005 (NSW) places judges in the position of having to play a more pro-​active role in case management than ever before. In this sense managerial judging is experienced throughout the Court and delivers disposal rates consistent with legislative demands. In recent years, the US has experienced a proliferation of adjudicatory bodies that complement the court system. This has led to disputes migrating to other places. It is apparent that in the last two decades of the 20th century, the prospect of adjudication became feasible for potential litigants as ‘different political conceptions of people, governments, and markets became dominant’. The concept of adjudication grew to the point where alternative methods of adjudication had to emerge because of the inherent difficulties in having trials as the only form of adjudication. Therefore, it is argued that trials have been moved to other places such as tribunals, commissions and private adjudicators within 658 [11.50]

The State and Dispute Resolution  Chapter  11

The Decline of the Trial in Australia cont. and outside the courts –​‘Under this approach, courts –​not trials –​are atrophying’. Therefore, in the US, ‘the claims and contests are there but they are in different forums’. The experience in NSW is similar to that in the US where there has been the creation of numerous tribunals and commissions since the 1980’s that divert disputes and relieve the courts of the compulsion to conduct trials. In NSW there are 14 specialist tribunals and commissions that determine disputes allowing disputants to avoid the court system. Of those, the Administrative Decisions Tribunal (ADT) and the Consumer, Trade and Tenancy Tribunal (CTTT) established in 1998 and 2002 respectively are the two specialist tribunals that mostly deal with disputes that were once the domain of the Court. Figure 4 compares the number of new filings in the Court with those of the ADT and CTTT. It can be seen that as new filings in the Court began to rise between 1997 and 2001, the government established the CTTT and the ADT. The creation of these tribunals has coincided with a reduction in the number of new filings in the Court between 2002 and 2009. It is apparent that the establishment of these tribunals and others have contributed to the decline in new filings and therefore trials in the Court.

Figure 4. Number of new filings in the NSW District Court and selected NSW tribunals and commissions, 1990-​2009.

Number of cases per 000’s

10

District Court

Admin Dec Trib

9

8

20 0

7

20 0

6

20 0

5

20 0

4

20 0

3

20 0

2

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1

20 0

0

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9

20 0

8

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7

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19 9

5

19 9

4

19 9

3

19 9

2

19 9

1

19 9

19 9

19 9

0

0

Consumer Trader & Ten Trib

[7]‌Another possible factor that could contribute to the decline of the trial is the rise in the popularity of dispute resolution in civil cases. In the last two decades the courts in Australia have embraced dispute resolution as an element of their case management systems. Legislative reforms empowering courts to order, (primarily mediation) without the parties’ consent exist in each state and territory of Australia and in the Federal Court, Family Court and Federal Magistrates Court. In the US, ‘ADR is the ‘new’ civil procedure as techniques –​such as mediation, arbitration, and settlement conferences, which were once termed ‘extrajudicial’ –​have become regular features of civil court processes’. [11.50]  659

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The Decline of the Trial in Australia cont. While there was initial enthusiasm for the idea that dispute resolution was the major contributing factor to the decline of the trial in the US, zeal for this concept has been replaced with caution, partly as a result of the RAND Corporation’s Institute for Civil Justice Report of 1996 (the report) which looked into the dispute resolution programs of US District Courts and found that there was no evidence that dispute resolution affected dispositions, costs of litigation or views of fairness or satisfaction among lawyers. The report audited the Chicago Centre for Analysis of Alternative Dispute Resolution Systems which had conducted sixty-​two studies of mediation in more than 100 different court-​annexed programs. It concluded, ‘in most of these studies, mediation was found to have no effect on the incidence of trial’. Further, it has been acknowledged ‘that the decline in trials is very general, across the board, and is not confined to sectors or localities where ADR has flourished’. [8]‌In Australia there is little data available regarding the impact of public or private dispute resolution on the number of trials. The only publically available figures on the disposal rate of the Court by mediation is that in 2008 and 2009, 66 cases or 1.6% and 67 cases or 1.7% of all disposals respectively were by mediation. Of the matters referred to court-​annexed mediation approximately 50% were settled. In those same years some 343 and 458 cases respectively were referred to private mediation where the rates of disposals and withdrawals in the Court are unknown. Given the lack of data it is difficult to draw any firm conclusions other than dispute resolution as part of the Court’s case management system may be a contributing factor for a reduction in trials but it is only part of a larger set of reasons for their decline. The cost of proceeding to trial may be a contributing factor in explaining the decline of trials –​‘we as trial lawyers bear some responsibility because we have made the process of getting to trial too expensive and, relatedly, the trials themselves too long’. In the US and Australia going to trial has become more costly as litigation has become more technical and complex. The more technical and complex cases become, the more specialised the legal profession has to become in order to deal with that technicality and complexity. Further, there are increasing numbers of corporate litigants in the courts, largely because they are the only entities that can afford to run litigation and who regard legal action as part of their business operation that is budgeted for and subject to cost controls. ‘One part of such control is alternative sourcing –​diverting what might have been in the courts into alternative forums.’ … Litigants –​particularly corporate litigants –​are concerned about the perceived uncertainty and unpredictability of jury trials. The complexity and increasing numbers of precedents, based on the multitude of factual permutations and combinations, is moving litigation to bimodal outcomes where mean and median judgments differ substantially which in turn complicates trial-​or-​settlement calculations. In many civil cases the range of damages can be very large –​for example, general, special, nominal, aggravated and exemplary damages have a broad range despite legislative reforms. ‘These two [9]‌factors push litigants” calculations about possible outcomes in opposite directions. The bimodality bias of much of the substantive law creates a very substantial all-​or-​nothing risk’. This heightened level of bimodality in civil case outcomes is reflected in the advice most lawyers’ tender to their clients about adjudication and is a relevant and common factor between the US and Australia that contributes to a decline in the use of trials.

 [11.55]  The extract above explains why the trial is in decline. One of those reasons was the

intervention of the courts in diverting disputes to court-​annexed dispute resolution. As stated in the extract, precise figures on the success rates of dispute resolution are difficult to glean, however, there is certainly much activity around the diversion of civil matters into some form of dispute resolution. Such activity begs the question, “Can the courts themselves make a positive impact on the extra-​judicial resolution of disputes?” In answering that question, the focus of the role of judicial officers in court-​annexed dispute resolution now becomes an important consideration. 660 [11.55]

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THE ROLE OF THE COURTS IN DISPUTE RESOLUTION [11.60]  The state controls disputes in at least two distinct ways:

1.

Through its monopoly status as the only provider of legally binding curial adjudication,once a dispute enters the judicial system it is forced into a statutorily prescribed dispute resolution process; and

2.

The state employs judicial officers, court personnel and private providers beholden to the courts to preside over the dispute resolution processes prescribed by the courts.

While not all jurisdictions within Australia allow judicial officers or court personnel to preside over dispute resolution processes, many do allow a variety of personnel, such as Tribunal Members, Masters, Commissioners, Registrars and Judges, to conduct a variety of dispute resolution processes. For example, in Victoria, rr 50.07.1-​50.07.4 of the Supreme Court (General Civil Procedure) Rules 2005, permits an:  Associate Judge; Costs Registrar; Prothonotary; Deputy Prothonotary; or Judicial Registrar to mediate disputes coming before the court. The role has generally been seen as a departure from the normal functions of judicial officers and court personnel and has been criticised as being in conflict with their court-​appointed roles. In the following extract former Chief Justice of the Supreme Court of New South Wales and well-​known mediator, the late Sir Laurence Street elaborates on the distinction between on the one hand the role of the courts, and on the other hand the provision of mediation services. Whilst he acknowledged that mediation was a “valuable social mechanism for the resolution of disputes”, he proposed that it is inappropriate for courts to provide mediation services within their own organisational structures.

Mediation and the Judicial Institution [11.65]  Sir. Laurence Street, “Mediation and the Judicial Institution” (1997) 71 Australian Law Journal 794 at 794-​796. The upsurge of interest in the role and functioning of the courts consequent upon the publication of the Woolf Report renders it timely to offer a few words of warning lest the courts stray too far beyond their long-​established role in society. In the last two decades we in Australia have witnessed an upsurge in the availability of dispute resolution procedures additional to the sovereign process of litigation. Arbitration has come of age. Mediation is being taught and practised. The holistic interrelation between the procedures in the dispute resolution spectrum is becoming more generally recognised and understood. Practising lawyers are now conscious of their professional obligation to advise clients on the selection of the procedures best suited to the case in hand and to undergo training in the use of extra-​curial processes. Institutionally speaking the court system is benefiting from the evolution of new and additional procedures in its never-​ending task of coping with pressures in the lists. Community Justice Centres provide a valuable means of lightening the burdens on the Local Courts. Court-​annexed arbitrations and Part 72 referrals are enlarging the load-​bearing capacity of the higher courts. Increasingly courts and judges are ordering or encouraging parties to resort to mediation conducted by a professional mediator at the interlocutory stage as a precondition to being allotted a hearing date. Developments such as these are to be welcomed, involving as they do utilisation of resources from outside the regular court system. There is, however, a very real danger that the courts, in well-​ intentioned attempts to extend their own services to litigants, will stray beyond their conventional role. There is not, I believe, an adequate recognition in many legal circles and beyond of what could be said to be the proper relationship between the court system and the evolution of ADR … [11.65]  661

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Mediation and the Judicial Institution cont. [p 795] The confusion of the roles of the courts and the providers of ADR could well have originated with (it certainly gained strength from) the United States concept of the “multidoor” courthouse. Underlying this concept is the proposition that courts are the proper instrument of society to provide the various mechanisms required to address the resolution of the whole range of disputes and frictions that can arise between members of society. In contrast to that concept, it needs to be recognised that the courts fill a highly specific role as custodians of the sovereign power of adjudication of disputes through the mechanism of due process and by the application of the principles and rules of law. Judges are chosen for their perceived qualities and ability to exercise this power of adjudication. Courts are established, staffed and resourced to enable judges to fulfil this responsible role. That is the proper province of the courts and society should cherish and protect zealously this ultimately important constitutional function. In my own view that should be the only field for active involvement by the judicial institution in dispute resolution. ADR –​more specifically mediation –​is a valuable social mechanism for the resolution of disputes, but it is not an exercise in the administration of justice. It is not subject to any appellate or supervisory authority of the court system. One expects the procedures to be operated fairly, but the principles of natural justice simply have no relevance in a mediation: the process does not involve the imposition of any decision affecting the rights or interests of any of the disputants. Natural justice or due process have no more relevance to the mediation of a dispute than they have to the mediating of any other commercial deal. Professional mediators are on occasions involved in putting deals together between strangers who have no prior relationship from which a dispute has originated. A good example of what I believe to be the proper place of the mediation mechanism is provided by the Community Justice Centres in New South Wales. These socially valuable Centres have been established by legislation to provide mediation services for resolving interpersonal frictions that inevitably arise within local communities. Disputes come in to them from four principal sources –​by being referred from the Local Court, by being referred by the local police, by being referred from government instrumentalities or by parties coming of their own volition. The Centres service the needs of our society across a broad range of interpersonal frictions and they operate wholly independently of the court system. I view with apprehension proposals that the courts should provide mediation services from their own resources and personnel. There are already some courts in which mediation services are in fact provided by a judge or registrar. In other courts a re-​vamp of the well understood and useful settlement or pre-​trial conference has been misdescribed as mediation. Whilst the latter is to be regretted as misleading and as introducing confusion into the meaning of mediation, the former ventures represent a real threat to the very foundation of public confidence in the courts. At the heart of the mediation process is the caucus –​a private discussion between the mediator and each of the disputants. Such discussions move to and fro from one disputant to the other whilst the mediator explores the perceptions, the prejudices and the objectives of each party in free-​ ranging examination of the merits and the prospects. They take place under a solemn commitment by the mediator not to disclose any confidences or information without the specific authority of the party. It is essentially through the process of caucusing that the mediator is enabled to comprehend the whole range of the elements involved in the dispute and to guide the parties towards settlement. A court that makes available a judge or a registrar to conduct a true mediation is [p 796] forsaking a fundamental precept upon which public confidence in the integrity and impartiality of the court system is founded. Private access to a representative of the court by one party, in which the dispute is discussed and views are expressed in the absence of the other party, is a repudiation of basic principles of natural justice and absence of hidden influence that the community rightly expects and demands that the courts observe. It is not enough for a court so to arrange its internal working that the judge or registrar who has mediated will have no further connection with the case if it is not settled. The public sees a court as 662 [11.65]

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Mediation and the Judicial Institution cont. an integrated institution –​indeed this is to be encouraged. If the dispute is not settled the party who loses is likely to feel that the court as an institution was, or may have been, prejudiced by poison privately fed in by the other side during the mediation. Rostering barriers and distinctions between the functions of judges and registrars will not dispel that likelihood. On a wider plane, if it becomes known that a litigant can have private access to a judge or registrar in order, behind the other side’s back, to tell the whole story as that party sees it, an expectation could well be built up in the community that this is a normal part of court procedures. On a broader philosophical plane, a judge or registrar is inevitably seen by the disputants as charged with the great power of the court. This in itself is inimical to the uninhibited freedom of choice by each party of a negotiated settlement that it can live with rather than litigating. This freedom is an essential and pervading aspect of the mediation process. The involvement of a custodian of power as mediator imports the real risk of a party feeling a sense of coercion and hence of disenchantment with the mediated outcome that can reflect back adversely on the court.

 [11.70]  Sir Laurence Street had a firm view that the administration of justice is, in form and

substance, a different task requiring different skills, compared to the facilitation of dispute resolution. The effect of this view necessitates the exclusion of courts and judicial officers from the provision of dispute resolution processes. In the following extract, the Honourable James (Jim) Spigelman, former Chief Justice of the Supreme Court of New South Wales, expounds a different view.

Mediation and the Court [11.75]  The Honourable J J Spigelman, “Mediation and the Court” (2001) 39 Law Society Journal 63 at 64. At a higher level of principle many of you will no doubt share the view forcibly put by Sir Laurence Street, that participation by court officers, whether judges or registrars, in a mediation process should not be permitted on the basis that it threatens the integrity and the impartiality of the court system itself. Sir Laurence said in the Australian Dispute Resolution Journal in November 1991: Private access to a representative of a court by one party, in which the dispute is discussed and views are expressed in the absence of the other party, is a repudiation of basic principles of fairness and absence of hidden influence that the community rightly expects and demands that the courts observe. The Declaration of Principles adopted by the Chief Justices Council, as quoted above, recommends that mediators should “normally” be court officers, like registrars. It does, however, contemplate circumstances in which it is appropriate for a Judge to mediate. The practice of the Supreme Court of New South Wales is that mediations are done only by registrars. No judicial officer descends into the arena in the way feared by Sir Laurence. No doubt there are people who do not understand the difference between registrars, who are administrative officers, and judges and masters, who are judicial officers. Nevertheless, the difference does exist and it is the important line in this respect. This is a distinction which it is the policy of the Supreme Court to maintain. The first principle in the Chief Justices Council Declaration is that mediation is an integral part of the Court’s adjudicative processes –​it is not, of course, itself adjudicative, but is an integral part of the process of adjudication as a means of resolving disputes. That first principle also asserts that the “shadow of the court” promotes resolution. This appears to unquestionably be the case. [11.75]  663

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Mediation and the Court cont. There may be some difficulty in maintaining the distinction between registrars and judges in the public arena, but I do not see any signs that the blurring of any such distinction, if there be blurring, is affecting or likely to affect public confidence in the administration of justice. The issue deserves to be watched, for the reasons Sir Laurence mentioned. As Justice Gummow has put it, “public confidence in the administration of justice in present times, is the meaning of the ancient phrase ‘the majesty of the law’ ” (Mann v O’Neill (1996-​1997) 191 CLR 204 at 245).

 [11.80]  Street was and Spigelman is two of Australia’s most eminent jurists and possess dif-

fering views on the role of the courts in court-​annexed dispute resolution. In the following extract, lawyer Michael Windeyer juxtaposes the public interest in settling disputes in court-​ connected dispute resolution versus the public interest in enabling the constitutional function of the judiciary. He argues that while the two interests are not mutually exclusive, the danger is favouring one at the expense of the other.

Settlement in Court-​Connected ADR and the Constitutional Function of the Judiciary: An Imbalance Between Two Competing Public Interests [11.85]  M Windyer, “Settlement in Court-​Connected ADR and the Constitutional Function of the Judiciary: An Imbalance between Two Competing Public Interests” (2017) 28(2) Australasian Dispute Resolution Journal 135 at 136-​142. A Systemic Imbalance (a) The Rush to Court-​Connected ADR The existence of an imbalance between the aforementioned public interests can be observed in the ascendency of court-​connected ADR in Australia. Where greater recourse is had to court-​connected ADR, more matters will settle therein. This logically means less matters will enter the courts where they may enliven the constitutional function of the judiciary. Thus in theory, the popularisation of court-​connected ADR over the last few decades is indicative of the imbalance between the two public interests, as this necessarily has come at the expense of the judiciary carrying out their constitutional function. [137] The popularisation of court-​connected ADR is demonstrable through statistics. In the Federal Court for instance, there were 236 matters referred to ADR in 2003–​2004 (5% of all matters filed). Comparatively in 2013–​2014 there were 572 referrals to ADR mechanisms (11% of all matters filed). This is reflective of a general trend of increase in referrals, both in number and percentage of total filings, experienced by the Federal Court. Of interest is the fact that in the 2013–​2014 period, 67% of matters mediated by a registrar of the Court settled in full or in part. This was an increase of 6% from the previous period. Thus, at least in the Federal Court context, it can be seen that more and more matters are going to court-​connected ADR and are settling there. Moreover, there are no signs that the general growth of ADR in Australia is slowing. If anything, the opposite is occurring. Revenue from ADR “is expected to grow at an annualised 4.4 per cent from now until 2019, outstripping … the lacklustre legal services industry, with its expected annual revenue growth rate of only 2.4 per cent to 2019”. By 2018–​2019 revenue is expected to reach $845.2 million per year; “$162.3m more than ADR revenue for the 2009-​14 year period”. Furthermore, court-​connected ADR is now present in every jurisdiction in Australia, to one extent or another. Some jurisdictions, like the Federal Court and Family Court, have broad powers and 664 [11.80]

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Settlement in Court-​Connected ADR and the Constitutional Function of the Judiciary: An Imbalance Between Two Competing Public Interests cont. provisions in relation to court-​connected ADR. In the Family Court for instance, an order to “attend conciliation, family counselling, ‘family dispute resolution’ … [or] an appointment with a family consultant” can be made at any stage of the proceedings. Other jurisdictions do not have this breadth of discretion. Nevertheless, there is still a common capacity to refer amongst most courts. Every new matter that enters ADR from the courts could theoretically deprive the court of an opportunity to develop the common law. The current ascendency of court-​connected ADR in Australia then would suggest that great importance is being placed on ADR settlement by disputants and the courts, at the expense of the constitutional function of the judiciary. (b) The Courts’ Approach to the Two Public Interests: A Case Study The existence of the imbalance between the public interests of settlement in court-​connected ADR and the constitutional function of the judiciary is not purely theoretical. It is also observable in the decisions of the courts themselves. This can be seen in the case of Matthews v AusNet Electricity Services Pty Ltd [2014] VSC 663. In Matthews v AusNet Electricity Services Pty Ltd, representative proceedings were brought against a number of state and private parties in relation to the cause of the Kilmore East bushfires in 2009. After a 208 day trial, the proceeding provisionally settled outside of the Court for a record amount –​ just under $500 million. This result was attributable to mediation. The settlement was “the product in part of an extended and complex mediation process during which there has been an exchange of confidential material between the parties and exploration of potential bases of resolution [138] of the proceeding”. Yet before the settlement could be finalised, s 33V of the Supreme Court Act 1986 (Vic) required that it must be approved by the Court. The factors that the Court took into account when considering whether to approve the settlement help to demonstrate the imbalance. Osborn JA looked at the fairness and reasonableness of the terms of the settlement in light of the likelihood of success of the plaintiff’s case. As part of this assessment, he stressed the benefits that settlement in ADR would provide: the avoidance of further litigation and delay which could go on for years, and the containment of costs. At no stage however did he consider the constitutional function of the judiciary. There were a number of legal issues surrounded by uncertainty, which if the case had been decided in the courts, would have enlivened this function. For instance, one of the arguments forwarded by the plaintiff was based on the tort of nuisance, which involves an unreasonable interference with interests in land. However, the “circumstances in which the escape of a single fire will properly be characterised as constituting an actionable nuisance are not entirely clear”. If the matter had not settled, the Court would have decided whether nuisance had occurred in the circumstances and thus gone on to clarify the law in this area. In other words, they would have performed their constitutional function of developing the common law. Yet it was fairness and reasonableness, in conjunction with the benefits of ADR settlement, which led Osborn JA to approve the settlement. What is problematic here is not that the constitutional function was outweighed by these other factors. The arguments for settlement of such a large and unwieldy case are cogent and persuasive. The issue is that the constitutional function of the judiciary was not considered by Osborn JA in his reasoning. The public interest in court-​connected ADR settlement was persuasive and central in the Courts’ reasoning. Conversely the constitutional function of the judiciary, which was being frustrated by the out of court settlement, did not even rate a mention. Matthews v AusNet Electricity Services Pty Ltd is a clear example of the courts favouring the public interest in settlement in court-​connected ADR without recourse to the importance of enlivening the constitutional function of the judiciary … [139] The Imbalance in the Federal Court The imbalance can also be observed specifically within the context of the Federal Court and mediation. The Federal Court provides for court-​connected mediation through a patchwork of Acts, rules, [11.85]  665

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Settlement in Court-​Connected ADR and the Constitutional Function of the Judiciary: An Imbalance Between Two Competing Public Interests cont. case law and other behaviour-​guiding mechanisms. Yet in this provision, the constitutional function of the judiciary is absent both as a general consideration, and as a counter point to be balanced against the use of ADR. [140] (a) Referral to ADR The primary way in which the Federal Court facilitates court-​connected mediation is through the referral of matters. Section 53A of the Federal Court of Australia Act 1976 (Cth) (the Act) allows for referral by order of proceedings to an ADR process. This is to be done in accordance with the rules of the Court. For all ADR processes except arbitration, this can be done compulsorily. Part 28 of the Federal Court Rules 2011 (Cth) (the Rules) sets out how this is to be done. Rule 28.01 provides that “Parties must, and the Court will, consider options for alternative dispute resolution, including mediation, as early as is reasonably practicable”, and if necessary the Court will help to implement those options. This part also provides that parties are able to apply to the Court for an order to refer proceedings. Furthermore, r 28.05 of the Rules allows parties to refer proceedings to ADR independently of the Court, so long as “within 14 days of the referral, [they] apply to the Court for directions as to the future management and conduct of the proceeding”. In the Act and rules however, there is no provision as to what factors the decision maker should take into account when deciding whether or not to refer a matter to court-​connected mediation. At the moment then, there is no express legislative guidance mandating or recommending that the constitutional function of the judiciary should be accounted for in referral decisions. One notable exception to this general lack of guidance on referral is the Native Title Act 1993 (Cth). The Federal Court must refer each application made for mediation under the Native Title Act 1993 unless the Court considers that mediation will be unnecessary, settlement unlikely or that the application has not provided sufficient detail as to the matter to be decided. In making this decision, factors are provided that should be taken into account, including the number of parties, likely amount of time needed to reach an agreement, the size of the area involved and “any other factor that the Court considers relevant”. This last factor, while it doesn’t explicitly allow for consideration of the constitutional function of the judiciary, could theoretically allow for its consideration. Other key Acts which take up much of the Federal Court’s time however do not have equivalent guidelines like the Native Title Act 1993. As the legislation and delegated legislation do not provide for consideration of the constitutional function of the judiciary in referring, the next logical step is to look at whether this public interest is accounted for in practice. Case law from the Federal Court reveals certain considerations that judges have taken into account when deciding to refer a matter to mediation. These include but are not limited to: whether mediation might narrow issues, lower costs, further the public interest (in the form of educating the public about misleading advertisements), whether it is likely to be successful, and what the previous outcomes of mediation have been. An extensive review of the case law however did not find one instance in the Federal Court where the constitutional function of the judiciary was taken into account when deciding whether to refer. [141] Therefore it is arguable that in the referral of decisions in the Federal Court, this public interest is currently not accounted for. (b) Genuine Steps Another way in which the Court facilitates court-​connected mediation is through the requirement that disputants file a genuine steps statement. This statement must set out “the steps that have been taken to try to resolve the issues in dispute between the applicant and the respondent in the proceedings”. Examples given of genuine steps include considering ADR, and attending the process. A failure to file a genuine steps statement may affect the awarding of costs. 666 [11.85]

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Settlement in Court-​Connected ADR and the Constitutional Function of the Judiciary: An Imbalance Between Two Competing Public Interests cont. There are however a number of excluded proceedings where a genuine steps statement is not required. This includes proceedings under certain Acts (for instance the Migration Act 1958 (Cth)), and proceedings of a certain kind (for instance “proceedings in the appellate jurisdiction of an eligible court”). However, there is no reference to any exception regarding the importance of the courts developing the common law. Thus no exception is made for circumstances where a matter might enliven the constitutional function of the judiciary. It is arguable then that consideration of the constitutional function of the judiciary is absent where court-​connected ADR is initiated or encouraged by the Federal Court. (d) The Overarching Purpose One further observation to note about the Federal Court context is in relation to the overarching purpose. The Federal Court of Australia Act 1976 provides that the: “parties to a civil proceeding before the Court must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose”. This purpose is to ensure the just resolution of disputes according to the law, and in the quickest, most efficient and inexpensive manner. The “civil practice and procedure provisions must [also] be interpreted and applied … in the way that best promotes the overarching purpose”. The constitutional function of the judiciary requires matters which might develop the common law to remain in litigation. Yet this is contrary to the overarching purpose, as it may increase the case load of the Court and consequent costs. Not only then can it be said that the constitutional function of the judiciary is overlooked in the Federal Court’s provision for court-​connected ADR, but it can also be said that the environment is somewhat hostile to it. The Federal Court makes extensive use of court-​connected mediation. However, in the provision for this, no reference is made to the constitutional function of the judiciary, either generally or as a counter point to the use of court-​connected ADR. In fact, the overarching purpose if anything opposes its consideration. This suggests that in practice, there is an imbalance in this context. III Issues with the Current Imbalance It has been argued that there is an imbalance in the importance placed on the competing public interests of settlement in court-​connected ADR and the constitutional function of the judiciary. This imbalance is to the detriment of the latter, and this is problematic. As Chief Justice French cautioned [142] in 2009: It is the third branch of government of which we speak. This is not just another provider of dispute resolution services in a market of different providers. The courthouse door is not just one door among many. The court has a vital role in the development and the application of the common law. Only they can fulfil this role. Yet in the pursuit of ADR settlement, that function is arguably being inhibited. Our legal system may suffer as a result of this. Resolving cases in ADR is “much like putting out small brush fires without ascertaining what is causing those fires”. The results in ADR are insufficient as they cannot be used “to offer guidance concerning potential future action and to serve as standards for the assessment of past actions”. For this to be provided to disputants there needs to be an authoritative interpretation and explication by the judiciary. The fulfilment of this role is not only of benefit to future litigants. ADR participants themselves require a relevant common law. A lack of precedent reduces objective criteria to guide negotiations, and creates uncertainty in ADR which makes outcomes more difficult to reach. Furthermore, a mass movement of disputes into ADR might mean certain areas of the law stagnate. Imagine, “for example, the impoverished nature of civil rights law [in the US] that would have resulted [11.85]  667

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Settlement in Court-​Connected ADR and the Constitutional Function of the Judiciary: An Imbalance Between Two Competing Public Interests cont. had all race discrimination cases in the sixties and seventies been mediated rather than adjudicated”. While this is a hyperbolic illustration, it does show the severity of consequences that could occur if the public interest in the constitutional function of the judiciary is disregarded.

 [11.90]  Views about the changing nature of the judicial role have been ventilated for many

years. Much discussion has focused on perspectives that are similar to those already raised in respect of the role of the courts. Emeritus Professors Hilary Astor and Christine Chinkin state that the “advent of case management and settlement activity by judges has … wrought a significant change in the judicial role”.2 Concerns have been expressed that such managerial activities are less public, less accountable and less reviewable than the traditional determinative role of judges. The following extract highlights concerns about judicial participation in alternative dispute resolution and the involvement of judges in settlement activities. Although a little dated, the views of Justice French are still salient, particularly so given that at the time of writing, his Honour was the immediate past Chief Justice of the High Court of Australia.

Hands-​On Judges and User-​Friendly Justice [11.95]  Justice R S French, “Hands-​On Judges and User-​Friendly Justice” (1991) 2 Australian Dispute Resolution Journal 73 at 79-​83. In addition to the continuing inquiry about the practical benefits of judicial participation in ADR, important questions of principle must be addressed. Some contend, quite persuasively, that judges should not be seen to depart from their traditional functions to participate in the bargaining that may lead to a mediated result. There are concerns that this will have an undesirable effect on the reality and the public perception of what judges do. One powerful critic of judicial mediation as an element of case management is Professor Judith Resnik, whose argument is set out at length in “Managerial Judges”. The thrust of her paper was summed up at p 380: In the rush to conquer the mountain of work, no-​one –​neither judges, court administrators, nor legal commentators –​has assessed whether relying on trial judges for informal dispute resolution and for case management, either before or after trial, is good, bad or neutral. Little empirical evidence supports the claim that judicial management “works” either to settle cases or to provide cheaper, quicker or fairer disposition. Proponents of judicial management have also failed to consider the systemic effects of the shift in judicial role. Management is a new form of “judicial activism”, a behaviour that usually attracts substantial criticism. Moreover, judicial management may be teaching judges to value their statistics, such as the number of case dispositions, more than they value the quality of their dispositions. Finally, because managerial judging is less visible and usually unreviewable, it gives trial courts more authority and at the same time provides litigants with fewer procedural safeguards to protect them from abuse of that authority. In short, managerial judging may be refining sub silentio our standards of what constitutes rational, fair and impartial adjudication. The article raised issues which require careful consideration in the development and testing of systems of court-​annexed ADR particularly where they involve the direct participation of judges. Professor Resnik’s propounded requirement that the judicial system should preserve “the core of adjudication” 2 H Astor and C Chinkin, Dispute Resolution in Australia (2nd ed, LexisNexis Butterworths, Australia, 2002) p 264. 668 [11.90]

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Hands-On Judges and User-Friendly Justice cont. would seem fundamental, no less than her proposition that judges not be overburdened with new responsibilities that may affect the time and patience that they have available for deliberation and decision-​making  … The practical difficulties seem to be overstated. There is no reason why the reference to a mediating judge should not be consistent with a general rule that court-​annexed ADR will not prejudice the progress of a case to trial or its priority in the list. And there is no real reason in principle why a mediating judge should not be able to make directions at the end of the mediation when certain issues have been disposed of consensually to give effect to that disposition. Nor is there any reason why directions could not be made to restore the matter to the trial judge’s list or if it is ready for trial, to fix a date for trial or refer it to an appropriate court official for listing. Professor Resnik’s criticisms came under heavy attack from Dr Steven Flanders, Circuit Executive of the Second Circuit in “Blind Umpires –​A Response to Professor Resnik”… Most Federal judges in the United States, he contended, are alert to the risks created by their involvement in the settlement process but are also sensitive to the obstacles to settlement imposed by the adversary relationship. Where settlement can be achieved through the intervention of a third party who has objectivity, no stake in either side of the case, no prestige involved and is ultimately prepared to try the case if necessary, judicial involvement in settlement efforts is something no sensible person could quarrel with if the dangers are handled appropriately. And further: We must also remind ourselves that encouraging settlements is a policy problem of paramount importance. In a system founded upon the adversary relationship, in which lawyers are trained to fight, not to negotiate, suggestion of settlement is often taken as a sign of weakness. A settlement is in many respects the closest thing to a truly final judgment that can emerge from litigation. A settlement is not normally appealable, and it normally embodies a commitment by the parties to work together in some manner, a stance that may forestall future litigation. Thus, while Professor Resnik is correct in reminding us that judicial settlement efforts can get judges into trouble and that not all settlement approaches work, it does not follow that efforts to encourage and achieve just settlements should be rolled back or even slowed down … In my opinion selective judicial participation in mediation in appropriate cases is warranted, not only for the benefits that it may bring in those cases [83] but also for the important message that it sends to the community about the concerns of judges that disputes before the court should be resolved as cheaply and expeditiously as possible, provided that the resolution is fairly reached and reflects a just result. Those who continue to be troubled by these great debates of principle may find some comfort in the very pragmatic words of the English County Court judge and legal novelist, Henry Cecil, in one of his 1970 Hanlyn Lectures entitled Public Image of The Judges … In the result, I have never known of a civil case where an interview between the judge and counsel did any harm to either of the parties or to the public.

 [11.100] There are compelling arguments both in favour of and against courts and judicial

officers being involved in the provision of dispute resolution services. Given the rise of statutory dispute resolution schemes and how entrenched the existing schemes are in their respective jurisdictions, it is unlikely that we will experience a reduction in those schemes or a peeling back of the involvement of judicial officers and court personnel within those schemes. Having regard to contemporary demands on our legal system and the ongoing debate about the role of the courts and the judiciary, it is appropriate to consider the notion of judges acting as mediators. [11.100]  669

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Many commentators refer to the potential damage court sponsored dispute resolution has on disputes, or similarly, when a judicial officer attempts to combine the role of adjudicator with that of mediator. However, the positive impact is often ignored, particularly given it is difficult to quantify. In the extract below, an attempt is made to quantify the positive impact that judicial officers have on the prospects of success in dispute resolution in matters that are before the courts. The author sets out the premise that in cases where interlocutory applications (“motions” in American parlance) have been dealt with by the court prior to court-​ annexed mediation, the incidence of settlement increases. Naman Wood sampled cases that were mediated by the Civil Division of the Fulton County, Georgia, Superior Court between 1 January 2005 and 31 December 2008. As the extract will show, the results are certainly worth rethinking any objections readers may have about court-​annexed dispute resolution.

Can Judges Increase Mediation Settlement Rates? Of “Coase” They Can [11.105] N L J Wood, “Can Judges Increase Mediation Settlement Rates? Of ‘Coase’ They Can” (2011) 26 Ohio State Journal on Dispute Resolution 683 at 687-​689 and 691-​699. The Coase Theorem holds that if transaction costs are zero, the parties will always recognize the advantages of reaching an agreement. Each party will be led by the “invisible hand” to the point that would be achieved by the ideal merger between the parties. This solution will be reached regardless of how the law assigns property rights because there are no barriers hindering negotiations, and both parties have the same incentive to choose the most efficient result. Since transaction costs include all impediments to bargaining, there can never be a situation in which transaction costs are actually zero; just getting the parties together to talk involves transaction costs. The Coase Theorem [688] does not require transaction costs to be absolutely zero for the parties to reach an agreement; it just requires that transaction costs be less than what is at stake. Transaction costs need to be low enough for the parties to recognize a mutual gain from cooperation: the lower the transaction costs, the more likely this is to occur … A case will settle in mediation only if both parties perceive that, all things considered, an agreement would increase their welfare. The Coase Theorem predicts that this will happen regardless of the legal assignment of property rights when transaction costs are low, but by specifying when an assignment of property rights is not important, the Coase Theorem implies when an assignment of property rights is important-​when transaction costs are high. The very fact that a case is in litigation indicates that transaction costs are already high, and the mediation process adds its own transaction costs to the mix. So, the corollary to the Coase Theorem holds that when transaction costs are high enough to prevent private bargaining, the efficient use of resources will depend on how property rights are assigned. [691] … B. Results Table 1: Summary of research data  

No Pending Motions

Pending Motions

No Motions Filed

Some Motions Ruled On

No Motions Ruled On

All Motions Ruled On

Total

No Settlement

155

12

29

44

240

Settlement

456

50

5

12

523

Total

611

62

34

56

763

… There were 523 settlements in 763 total cases, for an overall settlement rate of 69%. If there were no pending motions at the time of mediation, the settlement rate was 75%, but if pending 670 [11.105]

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Can Judges Increase Mediation Settlement Rates? Of “Coase” They Can cont. motions were present, the settlement rate was only 19%. Motions were filed before mediation in 152 cases, and the overall settlement rate for these cases was 44%. If the court ruled on all of the motions before mediation, the settlement rate then jumped to 81%. If the court did not rule on any of the motions, the settlement rate dropped to 21%, and if the court ruled on some but not all of the motions, the settlement rate dropped again to 15%. While these data appear to support the hypothesis, there is the possibility that the results just happen to coincide with the hypothesis as a random occurrence. In order to prove the hypothesis, the data must be analyzed, and the null hypothesis rejected. [692] Data Analysis The hypothesis predicts that if the courts rule on pending motions before mediation, settlement rates will be higher than if they do not rule on pending motions. A necessary condition for this to be true is an inverse relationship between pending motions and settlement in mediation … Table 3  

No Pending Motions

Pending Motions

Total

No Settlement

167

73

240

Settlement

506

17

523

Total

673

90

763

[693] An inverse relationship produces more settlements than no-​settlements when there are no pending motions and more no-​settlements than settlements when there are pending motions. Table 3 shows that settlements outnumbered no-​settlements 506 to 167 when there were no pending motions and that no-​settlements outnumbered settlements 73 to 17 when there were pending motions. While there were far more cases with no pending motions than cases with pending motions in the testing sample, each category strongly indicates an inverse relationship between pending motions and settlement in mediation. [694] Cases with no pending motions were almost four times more likely to settle in mediation than cases with pending motions. There are two situations in which a case has no pending motions: (1) the court ruled on all the motions, and (2) no motions were filed. The hypothesis predicts that cases in which the court rules on pending motions are more likely to settle in mediation than cases in which the court does not. The hypothesis specifically refers to cases in which motions are filed before mediation and the court makes a decision on whether to rule on those motions before sending the case to mediation … [697] VII. Implications The research results have practical implications for all judges, lawyers, and mediators associated with court-​connected mediation programs. For judges, the implication is simple: rule on the pending motions before sending cases to mediation. Individual cases may present overriding circumstances that weigh against ruling on the motions before mediation, but all things being equal, mediation is more likely to induce settlement when the motions have been resolved. The logistic regression analysis of the data in this research shows that cases sent to mediation with pending motions were about eleven times less likely to settle in mediation than those in which there were no pending motions. Any initial time saved by not ruling on motions was lost when cases came back from mediation, not only to have those and subsequent motions heard, but also to have the entire case tried. Plus, the parties incurred the additional costs of mediation and suffered another delay in obtaining justice. [698] The implication for attorneys is also simple: when genuine issues exist, file appropriate motions before mediation. Attorneys may try to save their clients the cost of bringing and prosecuting motions by waiting until after mediation to file them. After all, if the baseline settlement rate for cases [11.105]  671

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Judicial Mediators: Is the Time Right? – Part II cont. in which motions are filed is only 44%, while the settlement rate for cases in which no motions are filed is 75%, why not wait? The problem with this reasoning is the same that applies to the child who moves the hands on the clock so that it will be time for the cartoons to come on television. Settlement rates do not cause cases to settle; they just reflect the likelihood that a case will settle under certain conditions. By not filing motions when genuine issues exist, attorneys lose their best opportunity to maximize the likelihood of settlement in mediation. After all, courts cannot rule on motions that are not made. By the same token, attorneys should not file motions before mediation when genuine issues do not exist. It is not uncommon for some attorneys to attempt to enhance their bargaining positions by filing numerous motions shortly before mediation, knowing fully well that there is not enough time for the court to rule on the motions before mediation. Perhaps this strategy actually works once in a blue moon, but most likely, it will only work to sabotage the mediation process. The difference in settlement rates between cases in which no motions are pending at the time of mediation, 75%, and cases in which motions are pending, 19%, strongly suggests that the filing of motions just before mediation has an extremely negative impact on mediation results. Rather than enhancing bargaining positions, unresolved motions result in viable settlement options going unexplored, money being left on the table, and valuable resources being wasted. The implications for mediators are a bit more subtle. The first implication: find out whether any motion has been filed. The entire dynamics of a dispute changes when a party files a motion. The filing party now operates from a position of entitlement. If a response is filed, the opposing party also moves to a position of entitlement. From these respective positions, it will be difficult for the parties to see a mutually beneficial resolution because they will attempt to claim, rather than create value. Each party will be unwilling to consider a resolution that requires a perceived concession of valuable property rights, and each is likely to adopt a competitive, rather than a collaborative or compromising, negotiation strategy … [699] Mediators need to know whether motions were filed, whether the court ruled on any of them, and whether motions are anticipated to be filed if the mediation fails to bring a resolution to the conflict. The strategy for mediation will be different for each situation. The likelihood of settlement increases when the mediator recognizes the types of transaction costs involved and employs appropriate strategies to mitigate them.

 Judges as mediators [11.110] Whilst Canadian judges have actively engaged in “judicial dispute resolution”

(JDR) for more than two decades, the notion of judges acting as mediators presents a conundrum in Australia. In a two part article entitled, Judicial Mediators:  Is the Time Right?, Spencer explains the function and role of judicial mediators and whether such appointments breach the separation of powers doctrine of the Australian Constitution. In the extract below the author notes Sir Laurence Street’s assertion that the involvement of courts in dispute resolution undermines public confidence in the institution (see the comments by The Honourable J J Spigelman [11.75]) and outlines the negatives of the appointment of judicial mediators.

Judicial Mediators: Is the Time Right? –​Part II [11.115]  D Spencer, “Judicial Mediators: Is the Time Right? –​Part II” (2006) 17 Australasian Dispute Resolution Journal 189 at 191-​197. 672 [11.110]

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Judicial Mediators: Is the Time Right? – Part II cont. The Case Against Judicial Mediators Street’s concern about “poisoning” the judicial institution when it comes time to adjudicate the matter is best illustrated by the case of Ruffles v Chilman (1997) 17 WAR 1 where the trial judge ordered a conference during the trial to be presided over by the deputy registrar of the court. It was alleged that at that conference the deputy registrar stated that in a conversation with the trial judge in his Chambers, the trial judge had formed a negative view of the appellant’s credit and/​or the appellant’s evidence. The court found for the appellant on the basis of the appellant’s reasonable apprehension that the trial judge had already reached a conclusion before the end of the trial. The decision was quashed and remitted to the District Court for a new trial before another judge. The court’s final words (at 14) are of significance in this discussion and support the concerns raised by [192] Street: Mediation is now a significant feature of litigation in this State. The integrity of that process is of critical importance. This requires that there should be no communication between the mediator on the one hand and the Judge who either will be hearing, or is hearing, the action. If this requirement is not observed, confidence in the process of mediation is likely to be seriously compromised. The essence of Street’s argument comes back to the issue of the public perception of an institution whose purpose is to decide issues between parties, as opposed to seeking consensual resolutions between them. This is a hard argument to counter. The blending of the non-​judicial function of mediation with the judicial function of adjudication within the one institution gives succour to Street’s argument. A counter argument could be the requirement in most jurisdictions in Australia that promote the just, quick and cheap resolution of the real issues in the proceedings. In other words, if courts are perceived by the community to deal with their disputes through to resolution in a way that is efficient in terms of time and cost, yet still provide for just outcomes through the use of a variety of strategies including dispute resolution and adjudication, then perhaps public confidence in the courts can still be maintained. It is possible to change public perception and bolster public confidence in an institution. Street’s other significant point is the potential for coercion to occur via the influence of a person who ordinarily wields significant power within the system of the administration of justice. Street’s arguments relate to the use of sitting judges acting as judge one day and mediator the next, and can perhaps be tempered by the role of the judicial mediator who has no judicial function to perform in relation to the adjudication of any cases that come before the court. In this respect, the only power invested in the judicial mediator is to assist the parties to reach a resolution. Parties would be confident knowing that the judicial mediator could never go on to decide the case and should be statute-​barred from discussing the mediation with anybody from the court involved in adjudicating the matter. Chodosh lists at least three concerns he has with judicial mediation. Firstly, he is concerned of [sic] the potential for “brain drain” from the bench. He states: Beyond the conventional view of judicial mediation as oxymoronic, judges may see it as a threat to their authority to make public judgments and normative pronouncements. They may perceive the risk of a “brain drain” from the bench as a consequence of perverse incentives for judges to retire early in search of a more lucrative career in private dispute resolution … Chodosh’s second concern is the potential loss of revenue for lawyers which he suggests affects more the endorsement of such court-​annexed programs as opposed to the competitive nature of legal practice per se. Without the backing of the legal profession, private or publicly sponsored dispute resolution programs would fail because of the fact that the legal profession is the chief captor of disputes. Chodosh’s final concern about judicial mediation is the diminution of the role of law. He suggests that trials serve a useful purpose in society aside from the adjudication of disputes that lead to the creation of the common law. He views trials as necessary because: [193] [11.115]  673

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Judicial Mediators: Is the Time Right? – Part II cont. Litigants in systems where there is little trust of judges generally may feel more comfortable with a formal, public, albeit more rigid, procedure. In some cultures, litigants may not be able to maintain dignity or honor if they have to admit their mistakes or make a concession. Further, Chodosh opines that public funds should not be diverted into keeping private matters of public interest that should be available to all in a publicly funded court of law through mediation … Associate Professor Peter Bowal (as he was then) investigated the Ontario judicial dispute resolution pilot program and highlighted what he considered were the disadvantages of such models. Bowal was initially concerned that parties consenting to participate in non-​adjudicatory dispute resolution had no guarantee of a resolution. His view is that dispute resolution provides no binding decision and that “[a]‌compelled binding decision is the great advantage of litigation and arbitration”. In this respect Bowal surmises: “What contributes to making litigation unattractive, may also be its greatest virtue”. In the Ontario pilot program, if the parties fail to settle at the dispute resolution stage, they have to file a certificate with the court advising of the failure of the process and providing the trigger mechanism for a subsequent trial. This, according to Bowal, creates more delay in having the matter finalised and adds unnecessarily to the costs of disposition. Bowal’s argument is a valid criticism of the system of judicial dispute resolution in cases where matters do not settle. Adding veracity to Bowal’s argument is the fact that, in most judicial mediation programs, it would be assumed that the parties themselves have already attempted to resolve the dispute through non-​adversarial means and failed. Further, given the fact that only about 10-​20% of disputes that enter the trial trail proceed through to trial and judgment, we are talking about very few cases that –​chances are –​would not have settled, regardless of the existence of judicial mediation. For those cases that remain in the court lists destined for trial, only a very small proportion of them settle before judgment and of those cases, they are being settled without any judicial dispute resolution process other than judicial case management. In other words, those cases that settle on the trial trail are doing so satisfactorily between the parties themselves without the need for judicial mediation. Therefore, why go to the expense of appointing judicial mediators and having the parties expend further funds and experience further delay by having to participate in judicial mediation. In other words, why not let the parties themselves, who are often motivated by the cost and delay in getting to trial, settle the dispute themselves without having to jump a judicial dispute resolution hurdle. [195] The Case for Judicial Mediators The Chief Justice has picked up on the topic of earlier discussion in this article –​that of the diminution of public confidence in the judicial institution should courts sponsor judicial mediation. His Honour is suggesting that there can be no loss of confidence in the judicial institution, providing the judicial and non-​judicial roles of the court are kept separate and that the public are educated in accepting the emerging role of the court in providing a just, quick and cheap resolution of the real issues in the proceedings before the court. Two years after Spigelman’s comments, the Honourable Hugh Landerkin QC of the Provincial Court of Alberta raised a similar issue to that of Spigelman when he stated that “helping parties settle their cases does not undermine the foundations of our formal justice system”. In other words, surely it is within the overriding principles of the courts to help parties resolve their disputes –​therefore, how can it undermine public confidence in the judicial institution to assist parties in that process via the provision of judicial mediation? Landerkin suggests that the role of the judicial function “can be broader than that traditionally expected in an adversarial system of justice”. In other words, the role of judges developed under the adversarial system of justice, fits with judicial dispute resolution because of the move, largely governed by statute, to include other modes of dispute resolution other than adjudication within the spectrum of the work of the courts. His Honour’s important words tell us that non-​adjudicatory methods of dispute resolution very much form part of the judicial process or function of the judicial institution. This in itself is an important development that allows the comments of Spigelman to be [196] framed in a more convincing way over the critics of judicial dispute resolution who are concerned with the erosion of public confidence in the courts. 674 [11.115]

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Judicial Mediators: Is the Time Right? – Part II cont. Academic John Epp conducted a study among legal practitioners into the role of the judiciary in case management and found that, in Canada, 82.5% of lawyers surveyed thought that judicial involvement by judges in settlement discussions was likely to improve significantly the prospects of success. Further, that 58.5% of those lawyers surveyed thought that settlement conferences before judges should be mandatory. Epp hypothesises that the reason these figures disclose support for judges to be involved in settlement discussions is because judges have the unique ability to discuss common ground in a setting where parties are expected to act reasonably. Epp suggests that “[t]‌he judge can improve the civility, efficiency, and efficacy of the negotiation process”. Further, that judges bring the ability to break impasses between parties and that they, by being involved in such a process, can provide face saving for lawyers who think that participating in such processes weakens their position as trial advocates. A side-​effect of judicial mediation is that by judges managing the process, they can assist lawyers to handle difficult clients with unreasonable expectations –​there is nothing more sobering than a judge telling a party that their case is not as strong as they first perceived! Epp’s study was conducted only with Canadian lawyers but his article quoted a study by Judge Wayne Brazil who, with the support of the American Bar Association, conducted a study of about 1,900 litigators who practiced in United States Federal Courts. Brazil’s study found that 85% of respondents to the study believed that judicial involvement was likely to improve the chances of settlement with 72% believing that settlement conferences before judges should be mandatory. This is confirmed by Galanter and Cahill when they argue that the advantage of having judges involved in resolving disputes prior to adjudication is that “they know what a case is worth”. In another result, 70% of American respondents wanted judges to be involved, regardless of an invitation to do so. The Canadian study resulted in 86% of respondents wanting an active judge at settlement conferences –​ an active judge being defined as a judge who come[s]‌well prepared, having a thorough understanding of the facts and relevant law. They want carefully considered input: both opinions and creative alternatives. They want an active, persistent judge. They do not want a judge who is aggressive, so as to put a party in a defensive mode, nor a judge who is quick to leap to conclusions. A judge who suggests that the parties “split the difference is useless”. They want a judge who is confident, competent and polite, attuned to the dynamics of the personalities involved. From these results, it can be concluded that the legal profession in the United States and Canada have confidence in the judiciary to take a lead role in the early resolution of disputes coming before the courts. The author suspects that there would be similar results in Australia if such a study were to be conducted here. It seems that lawyers do not want an overly evaluative judicial mediator; at the same time they do not want an overly transformative one. From the above comments, it seems they seek an adherent to the principled negotiation model that, among other things, seeks to assist the parties in identifying creative options for settlement that are based on interests not positions … [197] The case for the appointment of judicial mediators largely revolves around the new mandates courts now operate under, ie the requirement to do more than just conduct a trial –​ the need to orchestrate more efficient methods of dispute resolution whether those methods be adjudicatory or non-​adjudicatory. These new mandates are not necessarily directed towards the compulsory use of non-​adjudicatory types of dispute resolution rather the case management of matters that give the parties every opportunity to resolve their cases before using adjudication. But perhaps these new mandates are hinting at much more than that. Perhaps the real agenda is for the judicial institution to reform itself so that even its adjudicatory functions fulfil the mandate of a just, quick and cheap resolution of the issues. Perhaps the time is right for reform that addresses the inequitable access to justice through adjudication in our courts. Is this the way forward?

 [11.115]  675

Dispute Resolution in Australia: Cases, Commentary and Materials

[11.120] Questions

1.

Is legislation creating statutory dispute resolution schemes consistent in Australia?

2.

Is it desirable to stop conflict thieves stealing disputes? If so, how can this be achieved?

3.

Should the state have the power to appropriate disputes? Why?

4.

Should dispute resolution be codified and regulated?

5.

Should judicial officers be involved in providing dispute resolution services to litigants? What are the positives and negatives?

6.

Does court-​annexed dispute resolution hinder the progress of a matter to hearing?

7.

What is the danger of courts being involved in dispute resolution as highlighted in Ruffles v Chilman (1997) 17 WAR 1?

8.

Should the taxpayers expect the courts to provide dispute resolution services?

9.

Should judges cross the line from adjudication to mediation?

  

676 [11.120]

CHAPTER 12

Culture and Dispute Resolution [12.05] INTRODUCTION......................................................................................................... 678 [12.10] DEFINITION OF CULTURE............................................................................................ 678 [12.15] What is Culture?.............................................................................. 678 [12.25] How Does Culture Manifest Itself?....................................................... 679 [12.35] Conflict Across Cultures..................................................................... 680 [12.45] Defining Culture.............................................................................. 681 [12.50] RELATIONSHIP BETWEEN CULTURE AND CONFLICT................................................... 682 [12.55] Culture and Conflict Analysis.............................................................. 683 [12.65] Conflict and Culture: Mapping the Terrain............................................. 684 [12.75] Culture and Conflict: Intertwined Inextricably......................................... 685 [12.85] The Wheel of Culture........................................................................ 687 [12.95] The Dynamics of Conflict Resolution..................................................... 688 [12.100] CULTURE AND CONFLICT RESOLUTION..................................................................... 689 [12.105] Cultural Variation in Conflict Resolution................................................ 690 [12.115] Connecting Culture and Conflict Resolution............................................ 690 [12.125] Culture and Conflict Resolution........................................................... 691 [12.130] Cross-​cultural perspectives.......................................................................... 693 [12.135] A Cross-​Cultural View of Mediation...................................................... 693 [12.145] A Cross-​Cultural View of Mediation...................................................... 695 [12.155] The Cultural Constructions of Conflict and Peace –​Western and Non-​Western Perspectives................................................................... 696 [12.165] A Culture-​Centred Approach to Conflict Resolution.................................. 698 [12.175] The ARIA Framework........................................................................ 699 [12.185] The Cultural Grid............................................................................. 700

[12.195] BECOMING CROSS-​CULTURALLY FLUENT .................................................................. 702 [12.200] Concrete Steps to Develop Cultural Fluency............................................ 702 [12.205] Overview of Capacities and Skills for Intercultural Conflict Resolution........... 703 [12.215] How do Negotiating Parties Acquire Cross-​Cultural Fluency?...................... 704 [12.225] Exploring Alternative Scenarios for the Journey Ahead.............................. 707 [12.230] REFLECTIVE PRACTICE................................................................................................. 707 [12.235] Preliminary Notes for Practitioners....................................................... 707 [12.245] Responding to Culture in Mediation..................................................... 708 [12.255] Dispute Resolution and the Demonisation of Culture................................ 712 [12.265] Dispute Resolution and the Demonisation of Culture................................ 714 [12.270] Dispute resolution and aboriginal communities........................................... 715 [12.275] Role of culture in indigenous dispute management..................................... 716 [12.280] Conflict Murri Way: Managing through Place and Relatedness................... 716 [12.290] The Role of “Culture” in Indigenous Dispute Management........................ 717 [12.305] Resolving Indigenous Disputes: Land Conflict and Beyond......................... 719 [12.315] The Business of Process –​Research Issues in Managing Indigenous Decision-​Making and Disputes in Land.................................................. 720 [12.325] What Makes an Effective Dispute Management Practitioner?..................... 723 [12.335] Process Design................................................................................ 724

[12.340] Native title mediation.................................................................................. 724 [12.345] Native Title Act 1993 (Cth), s 108....................................................... 724 [12.360] Resolving Indigenous Disputes: Land Conflict and Beyond......................... 725 [12.370] AN ASIAN PERSPECTIVE ON DISPUTE RESOLUTION.................................................... 729 [12.375] The Quest for an Asian Perspective on Mediation.................................... 729 [12.385] Interests-​based Model: A Cross-​Cultural Context..................................... 730 [12.395] Incompatible Cultural characteristics and the Tensions They Create............. 731 [12.400] QUESTIONS................................................................................................................ 735  

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INTRODUCTION [12.05]  Social contexts are relevant to the construction and resolution of disputes. Disputing and dispute processes develop within social contexts and are informed by the practices and norms of communities. While commonalities may be present between dispute processes across different social contexts, cultural differences may mean that processes developed based on certain cultural norms may produce different outcomes in a different socio/​cultural context. This chapter addresses what happens when dispute processes discussed in this book are applied in a cross-​cultural context? Will these processes still be effective? What will dispute resolvers need to know to meet any cross-​cultural challenges? What is culture, and what are the cultural constructions of conflict and settlement? In addition, the chapter explores particular cross-​cultural contexts: dispute resolution and aboriginal communities, and dispute resolution in Asia.

DEFINITION OF CULTURE [12.10] The concept of culture has been described in different ways. The Oxford English

Reference Dictionary (2nd ed, 1996) describes it as “the way of living of a particular society or group”. This description, however, is simplistic, particularly in a highly multicultural society such as Australia. Culture is a fluid, dynamic and amorphous concept. It can be very difficult, some may say impossible, to define. As the following extracts show, culture is a complex thing, but at the same time, simple if you are “in” it (so simple it goes without saying and is usually not even noticed). Culture is traditional, yet also evolving. Culture is socially constructed and yet highly personal; there are often clusters of people with similar cultural attributes, but there will always be outliers who do not fit any generalisation. Culture is not something that can be mapped on a single spectrum, culture is multiple and overlapping –​if it were to be mapped on some kind of spectrum it would be three dimensional, changing and responding to different situations and interactions. At [12.15], Mayer describes culture as a compilation of “the enduring norms, values, customs, historical narratives, and behavioural patterns common to a particular group of people”. He notes that those groups may be based around geographic areas, ethnicities, generations and even organisations. He emphasises the fact that we each belong to multiple and overlapping cultures, and that our cultural identification changes depending on the situation in which we find ourselves. He also refers to Winslade and Monk, who introduced us to the concept of narrative mediation, and their conception of culture as created and developed by the stories we compose and share with others about ourselves.

What is Culture? [12.15]  B Mayer, The Dynamics of Conflict: A Guide to Engagement and Intervention (2nd ed, Jossey-​ Bass, San Francisco, 2012) pp 93. What do we really mean when we refer to culture? We speak of organizational culture; gender culture; the culture of a region, community or town; generational culture; and of course ethnic culture among others. For our purposes, culture may be considered as the enduring norms, values, customs, historical narratives, and behavioral patterns common to a particular group of people. In this sense each of us belongs to multiple and overlapping cultures, a situation that creates internal conflict at times. Which cultural identification we are most influenced by at any particular moment depends on the context and the nature of the interaction in which we are involved. One prominent approach to understanding culture and conflict suggests that culture is best understood as residing in the 678 [12.05]

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What is Culture? cont. changing and evolving set of discourses that individuals adopt or operate on the basis of as they interact with others (Winslade and Monk, 2008). This approach to culture emphasizes the histories we create, the values embedded in how we communicate with each other, and the stories about who we are that are constantly changing and that we cocreate with those we are communicating with …

 [12.20]  Moore and Woodrow (at [12.25]) explore how culture manifests itself; how we

“see” and “do” culture. They reiterate the complexity of the concept of culture and the diversity of cultural groups. They also caution against using culture as a tool for generalisations and stereotypes, emphasising that while we can use typical “clusters” of cultural attributes as the basis for possible hypotheses about how similar people may think or behave, careful attention must be paid to the individual in the particular situation.

How Does Culture Manifest Itself? [12.25]  C Moore and P Woodrow, Handbook of Global and Multicultural Negotiation (Jossey-​Bass, San Francisco, 2010) pp 5-​7. Culture is the cumulative result of experience, beliefs, values, knowledge, social organizations, perceptions of time, spatial relations, material objects and possessions, and concepts of the universe acquired or created by groups of people over the course of generations. It is socially constructed through individual and group effort and interactions. Culture manifests itself in patterns of language, behavior, activities, procedures, roles, and social structures and provides models and norms for acceptable day-​ to-​day communication, social interaction, and achievement of desired affective and objective goals in a wide range of activities and arenas. Culture enables people to live together in a society within a given geographical environment, at a given state of technical development, and at a particular moment in time. When we think of culture, we often think exclusively in terms of national cultures that are often reported in the media. However, we find cultural differences at many levels. For instance, women and men constitute the two largest cultural groups in the world. We also encounter subcultures in the beliefs, attitudes, and behaviors of ethnic groups, regional groups, social classes, tribes, clans, neighborhoods, and families. Governments and their agencies, corporations and private firms, universities and schools, civil society and nongovernmental organizations have their own specific cultures and ways of doing things, often called organizational culture. [6]‌Culture is also rooted in religious beliefs, ideological persuasions, professions and professional training and in the levels and types of education. Finally, families have cultures that are a blend or combination of the cultures of their adult members or of their extended families. Given all of these cultural variables and significant variations within cultures, how can we develop any conclusions about how a particular person or group from any one culture might behave in negotiations or conflicts? Despite the apparent insurmountable scope of the problem, specific cultures do contain clusters of people with fairly common attitudinal and behavioral patterns … However, every culture includes outliers –​people who vary significantly from the norm and are outside the cultural cluster. Although they are still contained within the range for their culture, their views and behaviors differ significantly from those of their peers and may even look similar to those of people from other cultures. For instance, a businessperson or engineer from a developing country who was educated in the United Kingdom and has lived there for many years may have more in common with his or her peers in Europe than with people in his or her country of origin … For this reason, we must be wary of making vague or sweeping generalizations about how people from a specific culture may think or act. Rigid notions about a group’s cultural patters can [12.25]  679

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How Does Culture Manifest Itself? cont. result in potentially inaccurate stereotypes, gross injustice to the group, and possibly disastrous assumptions or actions. Common elements and repetitive cultural patterns found in a group’s central cultural cluster should be looked on as possible, or even probable, clues as to the ways that members of a cultural group may think or respond. However, the hypothesis should always be tested and modified after direct interaction with the individual or group in question. You never know when you may encounter an outlier who acts out of cultural character, [8]‌does not follow expectations according to stereotypes, and may think and behave more like you than you ever expected.

 [12.30]  In the following extract, LeBaron and Pillay explore the slippery nature of culture.

Conflict Across Cultures [12.35]  M LeBaron and V Pillay, Conflict Across Cultures: A Unique Experience of Bridging Differences (Intercultural Press, Boston, 2006) pp 14-​15. And what is culture? This is the million-​dollar question, subject of everything from folk tales to academic treatises to talk shows. For our purposes, culture is the shared, often unspoken, understandings in a group. It is the underground rivers of meaning-​making, the places where we make choices about what matters and how, that connect us to others in the groups to which we belong. It is the water in which fish swim, unaware of its effect on their vision. It is a series of lenses that shape what we see and don’t see, how we perceive and interpret, and where we draw boundaries. Often invisible even to us, culture shapes our ideas of what is important, influences our attitudes and values, and animates our behaviors. Operating largely below the surface, cultures are a shifting, dynamic set of starting points that orient us in particular ways, pointing toward some things and away from others. Each of us belongs to multiple cultures, and so we are experienced in transitioning cultural boundaries within and between us from an early age. Cultural messages whisper to us from the many groups of which we are part. They come not only from groups that share race, ethnicity, and nationality, but from cleavages of generation, socioeconomic class, sexual orientation, differing abilities, political and religious affiliation, language, gender –​ the list [15] goes on. They come unheralded and unmarked, initially seeping into our understandings and interpretations of the world with our mothers’ milk, turning our heads this way and not that. They tell us what matters and how to pay attention to it without words, but through the beliefs and action we imitate and incorporate as our own. Cultural messages shape our understandings of relationships and of how to deal with the conflict and harmony that are always present whenever two or more people come together. It is a challenge to talk about, write about, or work with cultural differences. Among the many reasons are the complexity of culture, its elasticity and constant change, the tendency of individual members of cultural groups to vary considerably from the group norm; and the importance of context and history in shaping behaviors and values. At the same time, culture is so much a part of our identities and the ways we make meaning that it must be taken into account in addressing conflict. No comprehensive understanding of culture exists, since cultures are never static and they do not exist in isolation. Context shapes how cultures are manifest and nudges them toward change in our continuing dance with each other. Because of the dynamic nature of both conflict and culture, resilience and creativity are called for as we navigate the differences among us. Effectiveness in recognizing and moving among cultural frames or ways of being is part of the idea of cultural fluency, central to effectively addressing conflict … Since culture is potent, it is vital to bring it into conscious awareness, to see it as the lenses that color the world in particular ways. Seeing our lenses, we have the choice at least of trying on othersenses’, 680 [12.30]

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Conflict Across Cultures cont. if only temporarily, to realize how others see and experience the same situation so differently. As we become more aware of cultural lenses –​our own and othersenses’ –​we recognize that there is no such thing as a culture-​free perspective. Given that everyone views the world through their own kaleidoscope of cultural lenses, the only way we can work effectively with the conflicts that are part of cultures in action is to be aware of our standpoints (places from which we look, informed by our experiences and worldviews) –​and the ways they frame and exclude certain realities. This awareness is central to effectively addressing cultural conflict.

 [12.40]  Avruch is a much-​referenced authority on the topic of culture and conflict resolution.

In the extract at [12.45], he explains that understanding culture is essential for understanding and effectively working with conflict and grapples with the difficulty of defining the concept of culture.

Defining Culture [12.45]  K Avruch, Context and Pretext in Conflict Resolution: Culture, Identity, Power and Practice (Paradigm Publishers, Boulder, 2013) pp 9-​11. The argument is simple. Understanding the concept of culture is a prerequisite for effective conflict analysis and resolution. The problem of defining culture starts in recognizing that the term comes to us from the nineteenth century, with different meanings, and that these meanings came attached to political agendas of one sort or another, and do so today … Think for example, of how some regimes reject criticism of their human rights record by saying, in effect, “Our culture’s notion of ‘human rights’ is different from yours (in the West), and to criticize us is therefore neocolonial and unjust” … Leaving aside the political uses of the term, it is the case that even analytically culture is used differently (and sometimes deficiently) in the various social science disciplines that have contributed to the study of conflict and conflict resolution … Another, more recent critique has come from poststructuralist scholars who say the notion has never overcome its colonial past …, and in effect the analytical and political uses are inseparable … In any case, noting these problems, some advocate doing away with using the term entirely, substituting for it such concepts as discourse …, habitus …, or worldview … There are reasons for retaining the term (even the sharpest critics see its importance and indispensability) while seeking to sharpen both how we understand it and how we –​and others –​use it in situations of conflict. We must grapple with definition. [10] One of the things that all contemporary social science definitions have in common is that for none of them is culture connected primarily –​as Raymond Williams … put it –​to “culcha”: high art, superior knowledge, refinement, or “taste”. (This, indeed, is one of the main nineteenth-​century meanings of the term that has so confused contemporary, colloquial usages). For no anthropologist, certainly, is culture something possessed only by the educated, aesthetic –​and upper –​classes! Everyone has culture. In fact, everyone has potentially several cultures; this is partly why (as we shall see) using the concept gets complicated. At a minimum and very generally, it is possible to think of culture as something widely shared by individuals in a society, namely “the socially learned ways of living found in human societies” … or perhaps the “socially inherited solutions to life’s problems” … Notice that both of these definitions stress the idea that culture is learned and that it is passed down (reproduced or inherited) in the context of social groups. Beyond this agreement, however, many questions are raised. For example: Is culture only learned –​is no part of it innate? Does culture refer only to how people think about the world, or must it refer also to how people actually behave? How widely shared are these things in any event? With regard to the second definition: Are the solutions proffered by culture always the best ones possible? If solutions differ from society to society, can we –​or ought we –​ judge some of them better than others? And can it be that culture sometimes creates new problems in the course of presenting solutions to old ones? If it does, how can we deal with these new problems? [12.45]  681

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Defining Culture cont. Even these few questions might indicate why, pushed beyond the barest minimum, definitions of culture tend to proliferate and contend with one another … As well, neither of these definitions addresses some of the oft-​found deficiencies that the culture concept is prone to, such as connotations of homogeneity (culture is all one thing; there is a single thing called “Mexican culture” for example); stability (culture is timeless or changeless); singularity (culture maps onto society in a singular way, so that Japanese society is characterized unproblematically by a single Japanese culture, for instance); or entityness (the idea that culture is a thing that can act independently of the persons who carry it … To account for this complexity … I drew on Theodore Schwartz’s definition of culture. “Culture”, Schwartz wrote, “consists of the derivatives of experience, more or less organized, learned or created by individuals of a population, including those images or encodements and their interpretations (meanings) transmitted from past generations, from contemporaries, or formed by individuals themselves” … In this definition, culture retains some of the traditional or customary force often associated with it –​because it is transmitted from past generations –​while the dynamism of contemporary influences and individual agency are recognized. This definition stresses cognitive aspects of culture, such as images, [11] encodements, and also schemas or cognitive representations …; as well as its interpretive dimensions … But although culture in this sense exists in the minds of individuals, as it provides “solutions to life problems”, it is also in no way disconnected from collective behavior and social practice. Schwartz’s definition must be supplemented by three other observations. First, because individuals in societies are distributed across many different sorts of social groupings –​regional, ethnic, religious, class, occupational, and so on –​and because each of these groupings is a potential container for culture, any complex society is very likely multicultural. Thus, culture is socially distributed across a population. Second, even members of the same social grouping do not internalize cultural representations or schemas equally. Some schemas are internalized very superficially and are the equivalent of cultural clichés. Others are deeply internalized and invested with emotion or affect. The more deeply and internalized and affectively loaded, the more certain cultural representations are able to motivate action … In other words, in addition to being socially distributed in a population, culture is psychologically distributed within individuals across a population. Finally, because culture is the derivative of experience, it is deeply connected to ongoing or past social practice. Therefore, despite its traditional or customary base, culture is to some extent always situational, flexible, and responsive to the exigencies of the worlds that individuals confront. And because human social experience is often rife with conflict, culture, far from being always identified with shared values or consensus, is often contested as well …



RELATIONSHIP BETWEEN CULTURE AND CONFLICT [12.50]  As Avruch suggests at the end of the previous extract ([12.45]), culture is inherently

related to social experience and human social interactions are rife with conflict. Accordingly, experiences of conflict can influence culture, and culture can also influence what we perceive as conflict and how we respond to it. At [12.55], Avruch expands on this two-​way relationship between culture and conflict. He explains that it is not easy to identify how culture might affect a particular social encounter. He also notes that culture is rarely the cause of conflict, but is often a context for conflict. In other words, culture can act as a kind of lens through which conflict is interpreted and engaged with. 682 [12.50]

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Culture and Conflict Analysis [12.55]  K Avruch, Context and Pretext in Conflict Resolution: Culture, Identity, Power and Practice (Paradigm Publishers, Boulder, 2013) pp 11-​13. Given this definition, how does culture help us to understand social conflict? First, notice that for any given individual, culture always comes in the plural: Individuals carry multiple cultures, from ethnic, racial, national, or religious ones, to those contained in –​or derived from experience in the practices associated with –​occupational, professional, or class social categories. This point will be especially important when we turn to such conflict resolution practices as negotiation in intercultural contexts. For now, it means that a statement such as, “Juan is a Mexican”, tells us quite a bit less than some think it does. Is he Zapotecan or Mestizo? From the South or the North? A Catholic or a Protestant? A peasant or a university graduate? A military veteran or a victim? It also means –​even if we knew the answer to all of these questions –​that we should be wary of such simple causal statements as, “Juan behaved in this or that way because he is a Mexican”. This is so because even a more or less complete listing of all the relevant categories would still constitute a rather blunt instrument for getting at the specific images, encodements, schemas, metaphors, and interpretations that Juan brings to a particular social encounter. [12] Second –​notwithstanding the plural nature of culture as just discussed –​note that culture is no longer simply a label –​a name for persons aggregated in some social, often national or ethnic, grouping … Nor is it simply a synonym for attitudes, norms or values –​the soft side of the harder (and putatively more real) materialities of social life. Instead, culture is conceived more deeply and comprehensively as an evolved constituent of human cognition and social action. It constitutes social worlds for individuals, as it is in turn constituted by those actors in those worlds. The dialectial nature of culture means that except in the narrow sense of a failure to communicate across cultural boundaries –​not an unimportant concern to be sure! –​culture is rarely by itself the cause of conflict. The mere existence of cultural differences is usually not the primary cause of conflicts between groups … However, culture is always the lens through which differences are refracted and conflict pursued … This is so because culture frames the context in which conflict occurs. It does so partly by indicating what sorts of things are subjects for competition or objects of dispute, often by postulating their high value and relative (or absolute) scarcity: honor here, purity there, capital and profits somewhere else. It does so also by stipulating rules, sometimes precise, usually less so, for how contests should be pursued, including when they begin and how to end them. And it does so –​to return to our earlier definition of culture –​by providing individuals with cognitive and affective frameworks, including images, encodements, metaphors, and schemas, for interpreting the behavior and motives of others … In these terms, the important point for analysts of conflict to consider is this: When contestants (and analysts) mostly share frameworks for interpretation –​share culture –​then the culture factor disappears into the background, and the actual conflict may appear (to cultural insiders, anyway) to be entirely over scarce resources or divergent interests. However, in this case culture’s disappearance is only an illusion to which cultural insiders are susceptible. Outsiders, who do not share the interpretive frameworks of the contestants, may see culture at work when and if they do not understand what the conflict is about or how it is being socially processed –​which often means not sharing with contestants the cultural calculus by which certain resources or interests are valued or counted: “You beat your daughter severely to protect your family’s … honor?” Note that such cultural nonapprehension is usually experienced and expressed ethnocentrically by outsiders in a moralizing way. Culture (re)appears –​literally in sharp relief –​when contestants come into contact from significantly different cultural backgrounds and thus share few frameworks for interpretation. In that case, whatever conflict there is between them over resources or interests is potentially complicated, in part by intercultural interference or impedance to the actual processing of the conflict (What are we really fighting over? Do we share the same interests and notions [13] of valued resources? How do we fight/​), as well as to communication among contestants about the conflict (How do we negotiate?). [12.55]  683

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Culture and Conflict Analysis cont. Of course, recalling the heterogeneous nature of culture, it should be clear that usually contestants “even from the same culture” may share some, but not all, interpretive frameworks. Individuals in complex, differentiated social systems are in effect multicultural. This means that even within the same society, intercultural encounters abound and affect the processing of social conflict. In the United States, for example, African Americans and whites approach conflict differently …; members of different social classes do when they interact in such institutions as courts …; workers in different occupations do …; as do middle-​class women and men, even within the microsociality of the family or workplace …

 [12.60]  Avruch’s discussion on the relationship between culture and conflict [12.55] indicates

the complexity of that relationship and the possibilities of misconceptions and misperceptions in the construction and analysis of conflict. LeBaron and Pillay, in extract at [12.65], provide some practical examples about the way in which culture impacts on peoples’ perceptions of what is and isn’t conflict, including the words people use to describe conflict situations. They demonstrate the problems with assuming that everyone perceives and understands situations similarly. This assumption creates communication difficulties and misunderstandings, which may generate or cause conflicts to escalate.

Conflict and Culture: Mapping the Terrain [12.65]  M LeBaron and V Pillay, Conflict Across Cultures: A Unique Experience of Bridging Differences (Intercultural Press, Boston, 2006) pp 13-​14. Conflicts are always cultural, since we are all cultural beings. Yet the very definition of conflict is challenging because of our cultural ways of seeing. This became very obvious in a series of interviews conducted as part of the Multiculturalism and Dispute Resolution Project at the University of Victoria, Canada in 1990-​1993. One interviewee, an elderly Chinese man who had emigrated after World War II, insisted to a young female interviewer that he had experienced no conflict during his forty-​some years in Canada. Was he lying, or was it possible that his way of seeing the world and thinking about his relations led him to pay attention to harmony and the glue of connection rather than discord and conflict episodes? Did his way of understanding conflict include a connotation of cataclysmic events, while his Confucian upbringing led him to seek harmony with others and avoid open confrontation? Discussing this and other examples of how individuals understand conflict, we recognized that our academic bias led us to see conflict as more particularized and episodic than might be perceived by those outside our field of study. We realized that conflict can be defined in multiple ways, and that a central precept for those who work across cultures is to explore how local people think of conflict, and what their “common sense” of conflict tells them to do about it. John Paul Lederach, an American colleague whose work has advanced our understandings of intercultural conflict considerably, relates his experience of working in Puntarenas, Costa Rica. A participant in a workshop he led there described to him a difficult clavo, or nail, that she was experiencing in her neighborhood. Lederach observed in reply that people in Puntarenas did not seem to use the word “conflict” to describe their problems very often. Ah, no, the woman responded, “here we do not have conflicts. Conflicts are what they have in Nicaragua. In Puntarenas, we have plietos, lios, and enredos (fights, [14] messes, and entanglements)” (1995, 74). Lederach explains that she meant that the word “conflict” refers to wars, which Nicaragua was experiencing at the time, while Costa Rica was not. Spurred on by this exchange, Lederach went on to collect over two hundred Spanish words that connote conflict –​an illustration of the complexity of defining conflict across cultural contexts, and the importance of remaining open to diverse understandings (1995). 684 [12.60]

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Conflict and Culture: Mapping the Terrain cont. Lederach’s work also reminds us that conflict always arises in relationship. While much work in the conflict resolution field situates conflict as an individual phenomenon, it is the relational aspect of conflict we wish to emphasize. Conflict happens in relationships, moving across levels from individuals to families to groups and communities. It is about our relationships with self and others, and about the paradoxes and differences that animate our internal worlds and our ways of being together –​and apart. Conflict cannot be defined without reference to cultural context, since understandings of conflict vary widely. When a cultural frame for understanding conflict is not articulated, it is generally assumed, and thus may speak to some, but not all, intended audiences.

 [12.70]  In the following extract, LeBaron and Pillay discuss the inseparable nature of cul-

ture and conflict. They also note the tendency of those who study and work in the field of conflict to avoid acknowledging culture due to its complexity and difficulty. They stress the importance of not taking anything for granted and of continually learning about culture in our conflict study and work.

Culture and Conflict: Intertwined Inextricably [12.75]  M LeBaron and V Pillay, Conflict Across Cultures: A Unique Experience of Bridging Differences (Intercultural Press, Boston, 2006) pp 16-​18. Culture is embedded in every conflict because conflicts arise in human relationships. The ways we name, frame, blame, and attempt to tame conflicts are profoundly influenced by culture. Given its omnipresence, culture is more than a topic related to conflict and conflict resolution –​it is an integral part of all interaction, harmonious and conflictual. Culture informs how issues are seen, what communication approaches are taken, and how identities and meanings play out in difficult and smooth times. Culture is not the only set of influences –​context and individual differences must also be considered –​ yet it is vitally important because it is so often invisible, out of awareness, and out of our repertoires of conscious choice. Is culture always a factor in conflict? Yes, it is. Culture may play a central role in a conflict, or it might influence a conflict subtly and gently, but for any conflict that touches us where it matters, where we hold precious values and continually construct our identities, there is always a cultural component. For example, the Israeli-​Palestinian conflict or the India-​Pakistan conflict over Kashmir are not just about territorial, boundary, and sovereignty issues. They are also about the acknowledgement, representation, and legitimization of different identities and ways of living, being, and ordering relationships. Conflict between a teenager and parent is touched by generational culture, and conflict between spouses or partners is influenced by gender culture. In the workplace, “disciplinary” or departmental culture affects tensions between the professional staff and the administrative staff. Culture permeates conflict no matter what –​sometimes it pushes forth with intensity, insisting on being noticed; at other times it quietly snakes along, hardly announcing its presence until people accidentally stumble on it. Culture is inextricable from conflict, though it does not cause it. When differences surface in families, organizations, or communities, culture is always present, shaping perceptions, attitudes, behaviors, and outcomes. [17] Even the call of whether a conflict exists is a cultural one –​a spirited conversation in an Italian home may be regarded as an unseemly conflict in an English one; Chinese Confucian comfort with harmony may lead to indirect communication and forbearance in place of overt conflict in families, while French Canadian political norms may license robust debate and passionate disagreement.

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Culture and Conflict: Intertwined Inextricably cont. Conflict and culture are intertwined at every level, arising from pulls of different values within and between us, fueling conflicts between loved ones, coworkers, community groups, and nations. Powerful cultural messages, unseen and subterranean, may be unknown in their course and potency even to those through whom they run. From within specific cultural groups there is a shared understanding of what is “natural” or “normal”. We only notice the effect of cultures that are different from our own, attending to behaviors that we label exotic or strange. For example, at the outset of a US academic seminar, we seldom articulate the norm that we will all stay seated around a table, discussing ideas in civil, calm ways. Only when someone displays anger or frustration, or –​more outside the realm of expectations –​jumps on a chair and loudly advocates a point of view, do we recognize that our assumptions about how differences are to be handled are not necessarily universal. The more a behavior deviates from collective, often unarticulated expectations, the more likely we are to marginalize that behavior (and the person enacting it) as an abnormal outsider. Though culture is intertwined with conflict, many analyses of conflict ignore cultural issues and influences. Of the grand theories on conflict that exist, few of them situate cultural dimensions and dynamics in the center, where they belong. Readers should not worry –​we do not propose to elucidate these grand theories here. We only want to emphasize that theories, research, or practice addressing conflict that do not take culture into account have missed the largest part of the iceberg, the part beneath the surface. Icebergs unacknowledged can be dangerous, and it is impossible to make choices about them if we don’t know their size or location. Acknowledging culture and bringing cultural fluency to conflicts can help all kinds of people make more intentional, adaptive choices, whether they are parents and children, supervisees and supervisors, people on either side of divisive social issues, or people from different identity groups. For many of those who study or work in the field of conflict resolution, culture often seems like a temperamental child: complicated, elusive, [18] unpredictable, and prone to misbehavior. Rather than get tangled in the net of its complexity or involved in the lifelong process of developing cultural fluency, many writers and practitioners are content to leave culture underground, giving it no more than lip-​ service. Perhaps it is the combination of complexity and importance that leads to the atomization of culture in attempts to feature it, yet contain it. Countless training programs in leadership, facilitation, and conflict resolution include modules on culture as though it were a separate facet of conflict. In fact, it is not. Conflict and culture are inseparable for those who want to understand and effectively prevent and address the conflicts that separate us at the interpersonal, intergroup, and international levels. There are many ways to think about conflict, and these vary with cultural context, situation, history, and a whole range of personal and group factors. This complexity causes us to question the limited answers and understandings we have of conflict, and reminds us that there are no universal ways of thinking about or responding to conflict. It also entices us to think of alternative meanings on an ongoing basis, recognizing that our common sense is not common. We choose to invoke the Platinum Rule as articulated by Milton Bennett –​to treat others as they would like to be treated –​rather than the Golden Rule, treat others as you would like to be treated (1979). Aware of the cultural layers in conflicts, we stop ourselves from taking things for granted, continually learning about the relationship between conflict and culture.

 [12.80]  Several authors have attempted to develop models to demonstrate the relationship

between conflict and culture and to uncover the various dimensions of cultural differences and their relationships to conflict and conflict processes. Probably the most well-​known is social psychologist Geert Hofstede (1991), who proposed a model with five dimensions for understanding cultural differences:  power distance, uncertainty avoidance, individual/​collectivist, masculine/​ feminine, and long-​ term/​ short-​ term orientations. As forewarned by the writers 686 [12.80]

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extracted at [12.75], any model involving culture runs the risk of over simplification. It is also important to note that models are developed from the viewpoint of a particular culture (that of the model developer) will be biased in favour of that culture’s ways of interpreting the world. However, so long as these models are not treated as complete or definitive, they can provide useful starting points for us to consider the relationship between culture and conflict. A model developed by Moore and Woodrow is extracted at [12.85]. Moore and Woodrow call it “The Wheel of Culture” map, in which they suggest eight key variables as to how different cultures may approach conflict.

The Wheel of Culture [12.85]  C Moore and P Woodrow, Handbook of Global and Multicultural Negotiation (Jossey-​Bass, San Francisco, 2010) pp 23-​24, 32, 39. The Wheel of Culture map (see Figure below) identifies critical cultural variables that shape the ways that members of societies conduct problem solving and negotiate to achieve interests and resolve disputes. … The inner and outer rims of the Wheel of Culture concern the broader environment in which negotiations take place, and a series of spokes represent key ways in which cultures differ in their attitudes and behaviors in negotiation settings. …

Wheel of culture map Natural environment

Needs and interests Outcomes

View of relationships

Cooperation competition and conflict

Time and space

Communication

Roles and participation

Use of third parties History

Sources and forms of power

Basic approach to negotiation

Situations, problems and issues

Social structures

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The Wheel of Culture cont. The outer rim: natural environment, history and social structures [24] Negotiations are not isolated processes; they occur within a broad environmental and social context. The outer rim of the Wheel of Culture identifies the broad external factors that influence the development of a specific group’s cultural approach to negotiations and conflict resolution: • The natural environment • History, events, trends, and adaptations that have occurred over time or are currently happening • Social structures, both intellectual and physical, that people create to adapt to or survive in their environment These three factors continuously interact and influence one another and the individuals and groups of any given culture. In order to understand why people think and act the way they do, it is helpful to understand how the natural environment and history have shaped their values, views, behaviors, and social structures. … [32] The inner rim The individuals or groups engaged in negotiations respond to and try to address different factors: • Context, situations, issues, or problems that must be addressed • Needs or interests they wish to have met in the outcome of the problem solving • Sources of power and influence … [39] The spokes of the wheel While the inner and outer rims provide insights regarding the broader context of negotiations, the spokes of the wheel delineate areas where specific culturally based patterns of belief and behaviors influence interactions between individuals and groups. These factors are influenced by the natural environment, social structures, and history of a cultural group, as well as the specific situations or problems to be addressed.

 [12.90]  Mayer explains that in attempting to resolve a conflict situation we tend to be either

blind to, or overwhelmed by, the cultural aspects impacting upon it and its resolution. He suggests in the extract at [12.95], that the challenge for those working in the field of conflict resolution is to take culture into account without becoming overwhelmed by it.

The Dynamics of Conflict Resolution [12.95]  B Mayer, The Dynamics of Conflict Resolution: A Guide to Engagement and Intervention (Jossey-​ Bass, San Francisco, 2012) p 92. Sometimes we are blind to the impact of culture on the conflicts we are dealing with, and sometimes we are overwhelmed by it. Even though culture is the medium in which conflict plays out, to most of us it is as invisible as the air we breathe. As a result it is often easy for us to overlook the critical role cultural norms and practices play in creating conflict, affecting its course, and influencing the way we try to deal with it. Conversely, when we do focus on culture, it is easy to view it as the overarching determinant of what will occur. As conflict interveners, we often feel hopeless about altering the ways disputants from different cultures approach conflict. When we view a particularly destructive approach to conflict as being rooted in cultural practices, we may feel powerless to change its

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The Dynamics of Conflict Resolution cont. course. We also often have a difficult time distinguishing the impact of culture from the dynamics of dominance. Part of the challenge arises from how we think about culture and conflict. We often focus on the many culturally based differences in how people approach conflict that have the potential to exacerbate a conflict or make communication more difficult. We tend not to look at the similarities or continuities among different cultures, or at how differences can actually benefit us over the course of a conflict. And it is not just the difficulties that different cultural practices put in the way of communication that are instructive, but also the ways in which people transcend those difficulties as they work across cultural boundaries to handle conflict productively. The truly amazing thing is not that cultural differences intensify conflict but that people so often manage to relate and communicate well across cultures, often under very difficult circumstances. Although conflict theorists have given a great deal of thought to the interplay of conflict and culture and much has been written about how conflict plays out in different cultural settings, our understanding of how to deal with cross-​cultural conflict is still underdeveloped. The challenge we face is to take the enormous impact of culture on conflict into account without becoming either overly deterministic (culture determines conflict behavior) or relativistic (everything –​values, behavior, communication, and needs –​varies by culture). Cultural norms and practices are critical forces in conflict, but culture does not tell the whole tale. Furthermore, each culture contains many subcultures and each subculture contains many groups. Each has a different set of values, customs, and views about conflict, just as does each of us as an individual. And culture is not static. Just as culture affects the course of conflict, conflict affects culture.



CULTURE AND CONFLICT RESOLUTION [12.100] Individuals from diverse cultures think about and deal with conflict in different

ways. In other words, each culture has at least one, and possibly many, subcultures of dispute resolution. In seeking to understand the subculture of dispute resolution, it is important to appreciate that law is only one aspect of that subculture. Indeed, certain cultures might value custom and history, rather than law, as even more important determinants of their approach to dispute resolution. Thus, even the roles of law, justice and legal institutions generally, need to be examined and appreciated in their cultural contexts. Fry and Bjorkqvist explain how conflict resolution is a cultural phenomenon. They also note that conflict resolution practitioners may not identify possible ways of resolving a conflict that would be culturally appropriate to the disputants because of the practitioner’s own cultural assumptions about how conflict should (or could) be resolved. Culture is critical in shaping the manner in which people perceive, evaluate, and choose options for dealing with conflict. Conflict resolution, as a cultural phenomenon, is highly connected with and dependent on a society’s relevant norms, practices, and institutions. Different cultures develop their own formal and informal ways of handling conflict. This fact becomes ever more important when people from different ethnic, religious, racial and social backgrounds attempt to solve their conflicts.1 1 D Fry and K Bjorkqvist (eds), Cultural Variation in Conflict Resolution: Alternatives to Violence (Psychology Press, New York, 1996) p xiii.

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Cultural Variation in Conflict Resolution [12.105]  D Fry and K Bjorkqvist (eds), Cultural Variation in Conflict Resolution: Alternatives to Violence (Psychology Press, New York, 1996) pp 4-​5, 10. Ross (1993, p 19) coined the term culture of conflict, which reflects “a society’s relevant norms, practices, and institutions” regarding conflict, which provides a framework for people’s perceptions of conflict. Scripts that persons may follow for conflict resolution are accordingly defined within a given culture of conflict. Similarly, Avruch (1991, p 11) talks of the culture of conflict resolution, emphasizing that conflicts and their resolution are “cultural events” (also see Lederach, 1991) …  [5]‌  … An important implication … is that one should exercise caution when attempting to apply conflict resolution techniques across cultural settings. Avruch (1991, p 2), for example, related the frustration of a conflict-​resolution workshop attendee with processes such as “producing manuals for resolving conflicts in easy steps” that are insensitive to cultural differences. Lederach (1991, p 184) recommended that conflict resolvers, attempting to mediate within a culture different from their own, need to be both flexible and sensitive to avoid acting like the proverbial bull in a china shop: “Personal experience suggests we should recognize that our premises and assumptions about conflict process are not necessarily shared by those who we are attempting to help, and that we may, inadvertently, break a lot of china in our attempts to find the aisles”. … [10] … The ways that conflicts are perceived and handled reflect a culturally shared set of attitudes and beliefs. In some societies the emphasis is on punishing wrongdoers, but in many cultures, conflict management hinges upon repairing strained or broken relationships. Some cultures have formal mechanisms for handling conflict, such as courts or arbitration boards, whereas other cultures rely on informal mechanisms, such as teasing, gossip, exclusion, witchcraft, and so on. An implication of conflict being a cultural phenomenon is that the culturally typical ways of perceiving and responding to conflict remain in some ways invisible to the members of any given society as unquestioned assumptions within their social universe. Furthermore, options for dealing with conflict, which lie outside a person’s cultural repertoire, tend to remain unconsidered. Exploring cross-​cultural diversity in how conflicts are handled opens up new possibilities.

 [12.110]  To further indicate the way in which culture is important to conflict resolution,

LeBaron and Pillay explain (at [12.115]) the effect culture has on conflict in three ways  –​ defining what is conflict, impacting on the meaning of the conflict to those involved and finally on the way in which the conflict is responded to. They note that in effective conflict resolution, all of these dimensions need to be considered.

Connecting Culture and Conflict Resolution [12.115]  M LeBaron and V Pillay, Conflict Across Cultures: A Unique Experience of Bridging Differences (Intercultural Press, Boston, 2006) pp 19-​21. Connections between culture and conflict are easier to understand if we consider three different dimensions of conflict, as depicted in Figure 2.1. While all three dimensions may be present in any given conflict, conflict dynamics may be most visible in a specific dimension at any given time. Figure 2.1 shows the relational level as the one that both contains and underlies the other two dimensions: symbolic and material. Conflict occurs at • the material level, or the “what” of the conflict; • the symbolic level, the meaning of issues to the people involved, especially those meanings that resonate with peoples’ identities, values, and worldviews; • and the relational level, or the dance among the parties, or the way in which conflict plays out. 690 [12.105]

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Connecting Culture and Conflict Resolution cont. Effective conflict resolution across cultures must address all three dimensions. Culture contextualizes and shapes all three dimensions, so conflict resolution must also be anchored in cultural fluency. [20] Culture and Conflict Resolution (CCR) Resolution of conflict across cultures is most obvious in the material dimension, situated on the outside of Figure 2.1. This dimension represents the concrete aspects of the conflict. Conflict may point to needed change in policies, structures, systems, rules, or agreements. To be successful, conflict resolution must result in changes at the material, or concrete, level. These concrete issues are always influenced by symbolic and relational dimensions, and they in turn shape how the concrete issues are perceived. Culture is most alive and visible in the symbolic and relational dimensions, because it is so powerful in shaping perceptions and meaning-​making processes. The symbolic dimension emphasizes how identity and ways of seeing the world shape the way we perceive and act on material issues. Because conflict can seem like a challenge to identity or deeply held meanings, it can touch us to our core. For example, in a conflict over a boundary, it may not be only resources or wealth (material things) at stake, but also national identity, pride, belonging, or security. For such a conflict to be resolved, the meanings people attach to the material issues must be considered. [21] The relational dimension is closely related to the symbolic dimension. It is the foundation on which sustained progress in conflict can be made. It involves building the capacity to communicate, and –​ultimately –​recognizing the interdependence that conflict thrusts upon the parties. Search for Common Ground, a US-​based non-​governmental organization, uses Figure 2.2 to illustrate the positive change that can happen in relationships when conflict is used as a foundation for discovery. The symbolic and relational dimensions emphasize the need for relationship-​building as a precondition to and a product of conflict resolution. While the material dimension is where conflict is manifest, concrete, and visible, relationship-​building, appropriately situated at the center, can create the atmosphere for sustainable change at the material dimension. When relationships between people in conflict remain broken and damaged, changes at the material dimension are likely to be superficial and temporary. Resolving conflict at the material level requires substantive investment of time, effort, and relationship-​building to address the deeper symbolic and relational issues below the surface. When relationship-​building is seen as a priority in the face of conflict, efforts to solve material problems become more productive …

 [12.120]  According to Avruch, effective conflict resolution requires effective conflict anal-

ysis, which in turn requires cultural analysis, particularly in intercultural conflicts. In the following extract he provides an overview of intercultural negotiation and communication styles research, and a warning about applying models in a generalized way. He emphasises the importance of paying attention to the rich detail of context and the particularities of individuals and conflict situations.

Culture and Conflict Resolution [12.125]  K Avruch, Context and Pretext in Conflict Resolution: Culture, Identity, Power and Practice (Paradigm Publishers, Boulder, 2013) pp 17-​20. If the field of conflict resolution has a fundamental principle, it is that effective conflict resolution depends upon conflict analysis. This chapter proposes that effective conflict analysis, in turn, requires cultural analysis. This requirement is especially keen in cases of intercultural conflict, where one can [12.125]  691

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Culture and Conflict Resolution cont. expect that the greater the cultural divide, the more acute the requirement. However, as our discussion of the nature of culture has indicated, many more conflicts –​ethnic, class, religious, occupational, gender –​are more intercultural than may be initially apparent. Most of the research and analysis of intercultural conflict resolution thus far has dealt with negotiation rather than third-​party processes such as mediation, or more specialized forms such as the problem-​ solving workshop … Some of this early work aims to get at “national negotiating styles” … or focuses by way of case study on the purported styles of particular countries … For the most part, these studies concentrate on diplomats and treat culture monodimensionally, only at the level of “national culture”. They have been criticized for this, among other reasons … Another genre of intercultural negotiation work has tried to be more explicitly comparative by identifying several transcultural dimension according [18] to which all cultures may be commensurably evaluated. The work of Hall (1976) on high-​context versus low-​context communicational styles is foundational here. It has been extended by Cohen (1997), who added to the basic sociolinguistic distinction (high-​context language use is expressive and group oriented; low-​context is instrumental and status/​individual oriented) other dimensions of cultural difference that include orientations toward time (polychronic vs monochronic); individual versus interdependent/​communal ethos; and a concern with negotiating mainly for results (a prototypical American’s bottom line) versus mainly for the maintenance of valued social relationships. Another influential researcher in intercultural communication is Hofstede (1980), who investigated corporate (transnational IBM) culture and found that values across all “cultures” sampled (again, national culture) clustered into four underlying dimensions: power distance (the degree of inequality in a social system, from small to large); collectivism versus individualism; “masculinity” versus “femininity” (similar to assertiveness vs compliance); and uncertainty avoidance (weak to strong). Later on, work in Asian societies prompted him to add a fifth dimension: temporal orientation (long term vs short term). Building on this and other work …, Salacuse (1998) has proposed ten basic ways in which culture affects negotiating style or behavior: (1) negotiating goals (for contract [outcome] or relationship); (2) attitudes towards negotiating process (win-​win or win-​lose); (3) personal styles of negotiators (formal or informal); (4) communication styles (direct [low context] vs indirect [high context]; (5) time sensitivity (high or low); (6) emotionalism (high or low); (7) agreement form (specific or general); (8) agreement building process (bottom up or top down); (9) negotiating team organization (one leader or consensus); (10) propensity toward risk taking (high or low). The overlap of dimensions for most of these schemes should be apparent. The assumption underlying all of them is that when negotiators from polar opposite cultures (say, risk takers vs. risk avoiders) interact, the effects of the differences are powerful enough to create communicational dissonance and misunderstanding. Cohen (1990) subtitled his earlier study of Israeli-​Egyptian negotiations “a dialogue of the deaf”. These studies are useful and signal a welcome change from the days when cultural factors were ignored more or less completely in the study of negotiation and conflict resolution. They serve well to remind us that even successful and widely accepted prescriptive models for negotiation –​that proposed by Fisher and Ury, for instance –​should be deployed cautiously in other cultural settings … Nevertheless, their reliance on transcultural dimensions, say individualism versus collectivism, puts us in danger of losing much of the rich context that actor-​oriented, ethnographically based thick description provides. This context should not be thought superfluous: it is not the case, for instance, that individualism means the same thing for “individualist” Muslim city dwellers in central Morocco … and “individualist” Southern Baptists in central Georgia … In much the same way, Cohen …, paying careful [19] attention to context, tells us that even such key negotiating terms as “compromise” may be emotionally valenced entirely differently in American English (where a problem-​solving, rationalist, and legalistic culture gives it a neutral or even positive gloss), and Arabic (where in fact “it” doesn’t exist; and cognate words negatively connote concession, retreat, and abandonment … 692 [12.125]

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Culture and Conflict Resolution cont. Given enough time and resources, culturally sensitive conflict resolution would pay attention to elucidating the relevant cognitive representations and their accompanying affect –​images, encodements, schemas, and metaphors –​the “psychocultural interpretations”, as Ross (1993) has put it, that contestants bring with them to the conflict. Such resolution would aim first to get at the relevant ethnotheories of conflict and would then try to utilize as much as possible relevant ethnopraxes –​ the resources of conflict resolution that the parties themselves bring to the table. This orientation to culturally attuned conflict resolution is expressed most strongly by Lederach, who compares the prescriptive models of resolution that many Western third parties bring with them and try to impose on the parties, with the elicitive model –​essentially a kind of ethnographic practice that uses Indigenous techniques and resources as a foundation for resolution work … Much conflict resolution work now takes Indigenous conceptions of practice seriously, indeed as the sine qua non of ethical practice … In this mode, the role of third parties in conflict resolution is to help the contestants reframe their psychocultural interpretations of one another and thus part of the world: to change metaphors and schemas … This doesn’t mean that material interests no longer matter or can be safely ignored. As is abundantly clear in the middle East, it is the case that in deep-​rooted conflicts (often ethnic, racial, or nationalistic ones), the parties may never be able to get to the point of negotiating interests until they recognize each other as fully human, if not yet wholly legitimate, interlocutors. Parties must recognize each other’s mutual existential right to exist before they can move on to negotiating interests around water, much less the contours of a new state. Here we are in the domain of affect, language and metaphor –​of interpretation, of culture.

 Cross-​cultural perspectives [12.130]  It is essential to have a cross-​cultural perspective in dispute resolution. It clarifies

and gives meaning to communication. It shapes what interventions are appropriate and effective. Having a cross-​cultural perspective also means understanding one’s own culture and Australia’s multicultural evolution. This topic is introduced at [12.135].

A Cross-​Cultural View of Mediation [12.135]  J Kalowski, “In a Manner of Speaking: A Cross-​Cultural View of Mediation” (1996) 2 Commercial Dispute Resolution Journal 200 at 200-​203. Before individual mediators can begin to judge whether mediation is culturally transferable or by its nature favours those of certain cultural, educational and class backgrounds, it is necessary first to decide whether we are qualified to make judgments, and on what knowledge bases such judgments are premised. Australian attitudes to culture bear all the hallmarks of our colonial past. White Australia’s denial of the Aboriginal presence and the rights of Aboriginal people as encapsulated in the doctrine of terra nullius, only recently addressed by the High Court in the Mabo decision, has left a legacy of ignorance and discomfort which lingers on in countless forms. With this belief system as a backdrop, it is little wonder that attitudes to post-​war immigrants followed much the same pattern, and that a policy of assimilationism prevailed. Its guiding principle, as enunciated in the White Australia policy, was that “social harmony could be preserved provided that in the longer term, ethnic differences could be erased”. As mediators, we are likely to have been influenced by such views, but do we recognise how pervasive they have been? What are we doing to gauge the extent to which they affect our practice, either consciously or unconsciously? [12.135]  693

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A Cross-Cultural View of Mediation cont. By the late 70s, the assumptions about the relationships between immigration and social cohesion had once again been revised. The new policy of multiculturalism now emphasised the virtues of cultural diversity. The simple pluralist model of culture, emphasising the enrichment of Australia by the addition of different peoples to the society and exotic foods to the national diet, was promoted in the late 1970s to overcome resistance to the entrenched notion of Australia as a monocultural society. Attractive at first glance in its encouragement of pride in one’s identity, in its celebration of the diversity of Australia, it soon degenerated into a feel good philosophy: [201] multiculturalism of the heart. It still failed to address the contribution to nation-​building of generations of immigrants, the status and sovereignty of Aborigines, and underlying structural issues of access to the society and equity of outcome. Reliance on a view of culture as fixed rather than dynamic and the tendency to stereotype whole groups by virtue of their ethnicity are the drawbacks of the simple pluralist model. Its promotion in the late 1970s and through the 1980s, a highly successful enterprise, was largely achieved via a decade of so-​called “cultural awareness” training, achieved through a “cultural differences” approach. This is a process whereby an understanding of different ethnic groups is reached by learning how they behave, eat, celebrate, raise their children and bury their dead. All these practices are quaint, interesting, and at times, unbelievable. Ultimately, however, they serve to underline differences. This approach encourages, even depends for its success, on the kind of generalisation that also leads to stereotyping of a negative kind. Among other disadvantages of the simple pluralist model are the fact that this view of culture takes little account of similarities, and emphasises only differences. It does not allow for the consideration of in-​group differences, emphasising only between-​group differences, and then only on the ground of ethnicity. It should be a matter of concern that this model still enjoys such widespread acceptance. It goes unchallenged and largely unquestioned, most of its adherents quite unaware of its implications for maintaining the status quo in power terms. While much energy is expended in considering the mediator’s role in managing power imbalances between the parties in mediation itself, little attention is focussed on distortions of power brought about by the possibility that mediators act out their unexamined acceptance of certain views, for instance that adjustment is one-​way: towards the so-​called mainstream. The simple pluralist model posits the notion that culture is fixed, and can be described in terms which will explain behaviour and motivation along ethnic [202] lines. It takes little account of what could more accurately be termed migration behaviour, what any of us might do in a strange situation, and seeks to explain through mainstream eyes for mainstream consumption what is actually happening. The potential for distortion is obvious, yet it is likely many mediators share this outlook. This model has been offered to them in Australia as a way of managing the complexity of cross-​cultural interactions and, indeed, infers that culture and cultural differences are a complicating factor in any negotiation when the reverse may actually be the case. Culture provides a unique perspective where two persons can disagree without one being right and the other wrong –​when their arguments are based on culturally different assumptions. To date the training of mediators and other professionals has focussed on their content knowledge of culture, the “cultural differences”, approach, rather than on their perceptiveness in recognising and their skills in managing the phenomenon described here. Whether manifestations of different values or belief systems are attributable to culture or to a mix of the individual’s personality, past experiences, present situation, and cultural background may never be known. What matters is that mediators possess the necessary repertoire to deal with the situation in the search for common ground. This communicative competency has been described as intentionality, and the intentional individual as having a wide repertoire of ways of communicating and the ability to generate alternatives in each situation. 694 [12.135]

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A Cross-Cultural View of Mediation cont. Mediators, no less than others in the community, are confused about just what culture means and what its uses are. Perhaps this is because confusion reigns about the cross-​cultural dimension of negotiation, and what cross-​cultural training, if they have had any, sets out to achieve. Is it better, more persuasive communicators? An awareness of cultural diversity? The ability to perceive differences? More sensitive people, replete with knowledge of the migration process? All these goals are admirable but they lack one key element of cross-​cultural effectiveness, the ability to adopt what is now termed the “broad view” of culture: “to understand ourselves and those with whom we work in a complicated social context” not just to understand the “exotic groups” with whom we interact. In the last 20 years, “culture has become recognised as a powerful perspective, and has gained the status of a general theory, complementing other theories to explain human behaviour”. A “broad” view of culture has emerged over the past 20 years in countries like Australia, the United States of America and Canada, which once competed to attract migrants to their shores in the largest planned movements of peoples in human history, and must now come to terms with the outcomes of large-​ scale migration in socio-​political as well as interethnic and interpersonal terms. The cultural perspective “seeks to provide a conceptual framework that recognises the complex diversity of a plural society while at the same time [203] suggesting bridges of shared concern which bind culturally different persons to one another”. “Bridges of shared concern” are precisely what mediators try to assist parties to construct. Here is a way to explore, or assist others to explore, the common ground between them, no matter how different they appear or actually are … Ethnicity and nationality are important to individual and familial identity as one subset of culture but culture as a construct, broadly defined, goes beyond ethnic boundaries. Persons from the same ethnic or nationality group may still experience cultural differences. No particular group is unimodal in its perspective. Suddenly, there seems to be a place for reconciling the individual and the group approach; for taking into consideration one person’s life experiences, attitudes, views and fears. These are the kind of social experiences that so often appear to separate individuals or family members along generational lines, and are then treated as inter-​generational conflict, the cross-​cultural ramifications of which go unnoticed simply because the participants share an ethnic background.

 [12.140]  Kalowski’s critique of the simple pluralist model of culture is a powerful one, and it

helps to understand the depth of complexity inherent in having a cross-​cultural perspective in dispute resolution. Another important link she draws is between culture and power: how one distorts the other, and how the dispute resolver’s intervention needs to be culturally sensitive. For Kalowski, one challenge the dispute resolver faces in a cross-​cultural context is finding common ground. She explores this in the next extract.

A Cross-​Cultural View of Mediation [12.145]  J Kalowski, “In a Manner of Speaking: A Cross-​Cultural View of Mediation” (1996) 2 Commercial Dispute Resolution Journal 200 at 204. The broad cultural perspective advocated in this article combines the extremes of same and different by explaining behaviour both in terms of those culturally learned perspectives which are unique to a particular group and in the search for common ground universals which are shared across groups. [12.145]  695

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A Cross-​Cultural View of Mediation cont. The American “melting pot” metaphor mistakenly overemphasized the universal common ground generalizations which are shared across cultures to the neglect of culturally unique perspectives, in the same way as the “cultural differences” approach failed to take into account universals, and the impact of age, gender, class and education level on the behaviour of individuals within groups. Armed with this knowledge, a mediator may successfully assist parties to identify common ground by focusing on their expectations and ultimate goals, rather than the behaviours that arise out of their differences in approach.

 [12.150]  Kalowski refers to and relies on the work of Pedersen, who challenges Western

conceptions of conflict and encourages us to be aware of how our own culture shapes how we perceive conflict, and then urges a deeper understanding of the cultural constructions of conflict.

The Cultural Constructions of Conflict and Peace –​Western and Non-​Western Perspectives [12.155]  P Pedersen, The Cultural Constructions of Conflict and Peace (paper published online at http://​www.soeweb.syr.edu/​chs/​pedersen/​report/​conflictandpeace.pdf (viewed 19 January 2009)) pp 2-​4. Culturally shared patterns of attitudes and beliefs reflect the ways that conflicts are perceived and managed. These patterns are typically based on culturally learned assumptions, which are seldom challenged. “The importance of culture and cultural symbols in facilitating or hindering cross-​cultural communications dictates a need to incorporate cultural attitudes and perceptions into models and theories of conflict analysis and conflict resolution. Models that were produced by Western specialists have continued to lack the proper tools to deal with non-​Western nations, and thus they have remained largely irrelevant … There has rather been an assumption that conflict-​resolution models and techniques of modern complex societies of the West are generally applicable elsewhere”. [p 3] Western and non-​Western cultures provide an example of contrasting cultural perspectives in managing conflict. Non-​Western cultures have typically been described as “collectivistic” while Western cultures have typically been associated with “individualistic” value systems. Individualistic societies maintain loose connections between people who are expected to be independent. Collectivistic societies include strong cohesive group relationships and networks of interdependencies. The concept of individual freedom would be viewed quite differently in these two contrasting cultures. Katz describes conflict management in the more collectivistic Pacific Island cultures as a process of “disentangling” or “straightening” with spiritual dimensions that include both the individuals and their societies in a shared context. … A second example of how Western and non-​Western cultures provide contrasting perspectives is with regard to their “high” or “low” emphasis on context. “Low context cultures generally refer to groups characterized by individualism, overt communication and heterogeneity. The United States, Canada and Central and Northern Europe are described as areas where low context cultural practices are most in evidence. High context cultures feature collective identity-​focus, covert communication and homogeneity. This approach prevails in Asian countries including Japan, China and Korea as well as Latin American countries”. Low context cultures tend to emphasize the individual more than the group, autonomy more than inclusion, direct more than indirect, control more than obliging and competitive more than collaborative. High context cultures are associated with collectivism and Low context cultures with individualism. Thus Low context cultures will judge indirect methods as weak, cowardly, and evasive while High context cultures judge direct methods as impolite and clumsy. Low context cultures separate the 696 [12.150]

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The Cultural Constructions of Conflict and Peace – Western and Non-Western Perspectives cont. message from the person and High context cultures see the persons and their issues as related. Low context cultures seek an “objective” and “fair” solution to the problem while High context cultures focus on the subjective, affective and relationship aspects. Low context cultures prefer a linear and logical problem-​oriented viewpoint while High context cultures describe the conflict as a holistic and [p 4] inclusive reality. Low context cultures value independence, autonomy, freedom and personal rights while High context cultures value inclusion, approval and association … Table 13.1.  Differences between low and high context cultures in conflict management LOW CONTEXT

HIGH CONTEXT

Individual participants must first accept and acknowledge that there is a conflict before resolution/​mediation can begin.

Traditional groups must first accept and acknowledge that there is a conflict before resolution/​ mediation can begin.

Conflict and resolution/​mediation process must often be kept private.

Conflict is not private and must be made public before the resolution/​mediation process can begin.

Conflict management trains an individual to negotiate/​ mediate or resolve conflict reactively.

Social conflict management emphasizes monitoring or mediating stress in a proactive manner.

Resolution and mediation are individually defined by the individuals involved in the conflict.

Conflict and its resolution/​mediation are defined by the group or culture.

Settlements are usually devoid of ritual and spirituality.

Settlements are most often accompanied by ritual and spirituality.

Negotiations are face-​to-​face and confidential.

Negotiations are indirect, through intermediaries and public.

Preference for court settlements.

Relying on courts to resolve/​mediate conflict is regarded as a failure.

In some ways the science of conflict management seems to be moving toward Asian models. Rubin, Pruitt and Kim provide a framework for classifying conflict across cultures in terms of general strategies that vary according to outcomes and feasibility. “The strategies include contending (high concern for one’s own outcomes and low concern for other’s outcomes), problem solving (high concern for both one’s own and the other’s outcomes), yielding (low concern for one’s own outcomes and high concern for other’s outcomes) and avoiding (low concern for both one’s own and other’s outcomes)”. Integrative solutions were judged the most desirable, longer lasting and most likely to contribute to the relationship of parties and contribute to the welfare of the broadly defined community than compromises or arbitration.

 [12.160]  In this first extract (at [12.155]), Pedersen refers to culturally learned assumptions

that dictate how conflict is perceived and managed. These assumptions belong not just to the disputing parties, but also to the dispute resolvers. In Western countries such as Australia, as a general proposition Western values underpin these assumptions. But, as Pedersen argues, Western cultures are individualistic and low context cultures, whereas Eastern cultures tend to be collectivist and high context. Understanding the meaning of these concepts is a first step towards challenging our culturally learned assumptions, and thereby becoming more effective intercultural dispute resolvers. But we should not be lulled into the false sense that these issues only arise when the dispute raises overt issues of cultural difference such as in an Indigenous land title dispute. These issues are just as important when cultural issues are far more subtle, and this can be in many situations. Pedersen, at [12.165], considers the importance of a culture-​centred approach to resolving conflicts. [12.160]  697

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A Culture-​Centred Approach to Conflict Resolution [12.165]  P Pedersen, “The Cultural Constructions of Conflict and Peace” (paper published online at http://​www.soeweb.syr.edu/​chs/​pedersen/​report/​conflictandpeace.pdf (viewed 19  January 2009)) pp  5-​7. Cultural systems are not abstract models of reality but are primarily guidelines for action through patterned activities that create or construct reality. Conflict and Peace are examples of cultural constructions that are different in each society. Culture resembles what Ury calls a “third side” of the conflict. “The third side is people –​from the community –​using a certain kind of power –​the power of peers –​from a certain perspective –​of common ground –​supporting a certain process –​ of dialogue and nonviolence –​and aiming for a certain product –​a triple win”. By reframing conflict into cultural categories, the perspective of “commonground” allows the parties to disagree (in their behaviors) without either party being “wrong” (in their culturally learned core expectations). Attending to the cultural context channels the destructive escalation of conflict and provides guidance for prevention of destructive conflict or resolution of overt and inappropriate conflicting behaviors, so that destructive conflict can be prevented at best or at least resolved/​ contained. A culture-​centered approach to conflict management provides an alternative to culturally encapsulated conflict management. First, groups in conflict will not limit their choices to those prescribed from within their specific cultural perspectives. Second, recognizing the complexity of cultures in contact discourages quick and easy answers on the one hand or an externally enforced solution on the other. Third, including the variety of culturally different alternatives for managing conflict is increased by sharing the different cultural perspectives. Fourth, as people from different cultures learn to understand and respect one another, principles of common ground can emerge and peaceful coexistence becomes more possible. Duryea describes conflict management in Asian countries as guided by face maintenance, face saving, face restoration or face loss. The concept of “face” comes from the [p 6] Chinese term “lian” indicating the confidence of society in the integrity of a person’s moral character. When persons fail to meet the requirements of their socially defined role they have lost face. Face is essential to identity and can be more important than life itself. What one thinks about self is less important than what others think. The process of conflict management requires saving face for all parties on both sides of the conflict. When a subordinate is in conflict with a superior he or she must protect the superior’s face to maintain interpersonal harmony, consistent with Confucian guidelines. In conflict with in-​group members face saving will involve compromises on both sides, and may require the intervention of a third party. In families, the members may be polite to protect the family’s face in front of outsiders and maintain superficial harmony by obeying publicly and defying privately. All behaviors are learned and displayed in a cultural context. Accurate assessment, meaningful understanding and appropriate intervention must therefore attend to that cultural context. The importance of culture in research on conflict and conflict management is becoming increasingly apparent. Culture-​centered models that incorporate culturally sensitive assessments and examine each cultural context separately have become more appropriate than any universal intervention model. “A broken leg is a broken leg in Papua New Guinea or Stockholm, and aspirin is an effective analgesic in both places. But the same cannot be said of a broken marriage, a broken friendship or a broken promise. Marriages, friendships and promises, among many other things, are constituted not by the pan species biology of Homo sapiens, but by culture”. …. The more cultural differences there are between people in conflict the more difficulty they will have communicating or understanding why they are failing to communicate. “Diverse human interests and needs, largely incompatible religious social beliefs and competing individual and group goals cause conflict to arise and prevail. Moreover, different loyalties, cultural values, ideologies and geopolitical considerations provide a fertile ground for the planting and nurturing of conflict within and between states. Disparities in wealth, natural resources, technology and power among social 698 [12.165]

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A Culture-​Centred Approach to Conflict Resolution cont. classes and within ethnic groups and states have also been a cause of increased grievances and conflict. …” … A culture-​centered approach to conflict management and peacekeeping is required for us to survive the challenges of a Post-​global society. … One implication of understanding the cultural construction of conflict is that those typical ways of responding to or perceiving conflict are based on underlying assumptions that will be invisible to insiders. Contrasting or contrary assumptions from other cultural contexts are typically disregarded in favor of a “self-​reference-​criterion” of the construct. The implication of this insight is that we need to be careful in generalizing conflict management strategies from one cultural context to another. Each culture has its own “culture of conflict” which defines how culture is perceived, evaluated and managed. Conflict and Peace are cultural constructions in the minds of people so that managing conflict requires managing people’s attitudes about conflict and peace. Rather than allow parties in conflict to impose their own Indigenous cultural standards to interpret the actions of the other, a culture-​centered approach will include both contrasting cultural systems as viable but different worldviews. When each party can articulate the cause of conflict from the other’s viewpoint the cultural constructions of both conflict and peace will become more apparent. Combining the cultural contexts can result in the construction of a unified and meaningful platform for discussion. By failing to consider one another’s cultural perspective both parties will become increasingly unwilling or unable to move toward resolution of the conflict. This process does not diminish cultural differences between the two parties but preserves the cultural integrity of all parties as a bridge to the island of common ground.

 [12.170]  One of the most important points made by Pedersen at [12.165] relates to the con-

cept of “face” –​face maintenance, face saving, face restoration or face loss (for more about this see [12.375]-​[12.395] on an Asian Perspective of conflict resolution). While it may have its origin in Chinese culture, its application seems to be across all cultures. An important point made by Pedersen is to engage in a culture-​centred approach to conflict resolution which moves away from stereotypes and overgeneralisation and requires each party to analyse the conflict from other parties’ cultural viewpoints. In the extract at [12.175], Pedersen provides some practical and theoretical tools for managing conflict in its cultural context.

The ARIA Framework [12.175]  P Pedersen, “The Cultural Constructions of Conflict and Peace” (paper published online at http://​www.soeweb.syr.edu/​chs/​pedersen/​report/​conflictandpeace.pdf (viewed 19  January 2009)) pp  7-​10. [C]‌onflicts between culturally different groups has increased as special interest groups compete for limited global resources. Frequently the conflict itself is attached to and polarized by the cultural categories of ethnic, demographic, status and affiliations of those [p 8] persons in conflict. Conflict is a natural response to these competing relationships and that conflict may have a positive or negative consequence in the community … Transforming conflict into peacemaking requires finding that even the worst of enemies share common human needs in their identity. The very identity issues which are the basis for the conflict can also become the basis of common ground between enemies. “To creatively manage a conflict when individual and group identity is at stake, core concerns –​survival, recognition, dignity –​must be surfaced and addressed. When conflict is rooted in the protection of [12.175]  699

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The ARIA Framework cont. identity needs, the stakes are far greater than in interest-​based conflict born out of competition over resources. In identity conflict, groups struggle for their basic physical and moral survival”. Rothman suggests an ARIA framework to manage identity conflicts which is based on Antagonism, Resonance, Invention and Action. Antagonism makes explicit the terms of “what” the conflict is about. Resonance, expresses the identity needs of all sides about “why” the sides are in conflict. Invention involves brainstorming integrative solutions about “how” both sides can benefit. Action implements a new agenda for cooperation. Identity conflict goes directly to people’s basic core needs and values through interactive introspection to discover that many of these core needs and values are shared by both parties, even though their behaviors and expression of those needs and values may be very different.

 [12.180]  It is important to identify the core needs and values of parties in a conflict in

order to manage or resolve that conflict. In the next extract also by Pederson, the Cultural Grid is presented as a way of unravelling the complexity of culture in a conflict and also as framework for linking behaviour, expectations and values in order to find appropriate solutions.

The Cultural Grid [12.185]  P Pedersen, “The Cultural Context of Peacemaking” in D J Christie, R V Wagner

and D A Winter (eds), Peace, Conflict, and Violence: Peace Psychology for the 21st Century (Prentice-​Hall, New Jersey, 2001) pp 11-​16. (https://​cpb-​us-​w2.wpmucdn.com/​u.osu.edu/​dist/​b/​7538/​files/​2014/​10/​Chapter-​16-​The-​Cultural-​ Context-​of-​Peacemaking-​Pedersen-​2ihjo9s.pdf accessed 03 September  2018) Hines and Pedersen (1980) introduced and developed The Cultural Grid to help identify and describe the complexity of a cultural context in a way that would suggest research hypotheses and guide the training of people to manage conflict in multicultural settings. Table 16.2 presents the Within-​Person Cultural Grid. The grid provides a conceptual framework that demonstrates how cultural and personal variables interact in a combined context, linking each behavior (what you did) to expectations, each expectation to values (why you did it), and each value to the social system (where you learned to do it). Each cultural context is complicated and dynamic so that each value is taught by many teachers, with different values becoming salient in different situations. Multicultural self-​awareness means being able to identify what you did (behavior), why you did it (expectation and value), and where you learned to do it (culture-​teachers). The Within-​Person Cultural Grid is intended to show the complex network of culturally learned patterns behind each behavior in a chain of logic from teachers to values and expectations to the behavior. The dangers of interpreting behaviors “out of context” are apparent once the contextual linkage of behaviors to expectations, values, and social systems has been demonstrated. Cultural conflict can arise when the context of behavior is not interpreted appropriately. For example, our cultural teachers may have taught us the value of being fair and might have communicated that we should “do unto others as you would have them do unto you”. Someone from another culture might share the same value (ie, being fair), but there may be differences in which behaviors are viewed as indications of fairness. If you focus only on the behavior out of context, a misunderstanding may occur. In order to examine interpersonal processes, we now consider another cultural grid. The Between-​ Persons Cultural Grid is illustrated in Table 16.3. This grid describes the relationship between two people or groups by separating what was done (behaviors) from why it was done (expectations). 700 [12.180]

Culture and Dispute Resolution  Chapter  12

The Cultural Grid cont. Table 16.2  Within-​person cultural grid Personal Variables Cultural Teachers

Where you learned to do it (teachers)

Why you did it (values and expect.)

What you did (behavior)

1. Family relationships: relatives fellow country persons ancestors shared beliefs

 

 

 

2. Power relationships: social friends sponsors and mentors subordinates supervisors and superiors

 

 

 

3. Memberships: co-​workers organizations gender and age groups workplace colleagues

 

 

 

4. Non-​family relationships: friendships classmates neighbors people like me

 

 

 

The Between-​Persons Cultural Grid includes four quadrants. Each quadrant explains parts of a conflict between two individuals or groups, recognizing that the salience of each quadrant may change over time and across situations (Pedersen, 1993). In the first quadrant (same behavior, same expectation), two individuals have similar behaviors and similar positive expectations. The relationship is congruent and harmonious and there are positive shared expectations behind the behavior. Both persons are smiling (behavior) and both persons expect friendship (expectation). There is little conflict in this quadrant. Table 16.3  Between-​persons cultural grid Why It Was Done (expectation)

What Was Done? (behavior) Same action

Different action

Perceived same and positive reason Perceived different and negative reason  

[11] In the second quadrant, two individuals or groups have different behaviors but share the same positive expectations. There is a high level of agreement in that both persons expect trust and friendliness. However, if behavior is interpreted out of context, it is likely to be incorrectly seen as different and possibly hostile. This quadrant is characteristic of cultural conflict in which each person or group is applying a self-​reference criterion to interpret the other person’s or group’s behavior. Both expect respect but one shows respect by being very formal and the other by being very informal. In another example, two people may both expect harmony but one shows harmony by smiling a lot and the other by being very serious. If the behaviors are not perceived as reflecting shared, positive, common-​ ground expectations, the conflict may escalate as each party perceives the other as hostile. The conditions described in the second quadrant are very unstable and, unless the shared positive expectations are quickly found and made explicit, the salience is likely to change toward the third quadrant. In the third quadrant, the two persons have the same behaviors but now they have different or negative expectations. The similarity of behaviors gives the appearance of harmony and agreement, but the [12.185]  701

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The Cultural Grid cont. hidden expectations are different or negative and are not likely to bode well for the relationship. While you may have cross-​cultural conflict when the behaviors are the same and expectations are different, the salient feature here is no longer the shared cultural value, meaning, or expectation, but rather the similar behaviors outside their cultural context. When I interpret your behavior from my own cultural perspective, I impose my culture on you and interpret your behavior out of context. Although both persons are now in disagreement this may not be obvious or apparent to others. One person may continue to expect trust and friendliness while the other person is now distrustful and unfriendly, even though they are both behaving similarly, both smiling and glad-​handing. If these two people can be guided to remember an earlier time when they shared positive expectations, they might be able to return to the second quadrant and reverse the escalating conflict between them. If the difference in expectations is ignored or undiscovered, the conflict may move to the fourth quadrant. In the fourth quadrant, two people have different and/​or negative expectations and they stop pretending to be congruent. The two persons are at war with one another and may not want to increase the harmony in their relationship any longer. Their disagreement is now obvious and apparent, and they may just want to hurt one another. This condition would describe intimate violence, hate crimes, ethnopolitical violence, terrorism, and other extreme forms of conflict. It is very difficult to retrieve conflict from the fourth quadrant because one or both parties have stopped trying to find shared positive expectations. Unfortunately, many conflicts between people and groups remain undiscovered until reaching the fourth quadrant. An appropriate prevention strategy would be to identify the conflict in behaviors early in the process when those differences in behaviors are in a context of shared positive expectations, allowing both parties to build on the common ground they share without forcing either party to lose integrity. Therefore, two people may both share the positive expectation of trust but one may be loud and the other quiet; they may share respect but one may be open and the other closed; they may both believe in fairness but one may be direct and the other indirect; they may value efficiency but one may be formal and the other informal; they may seek effectiveness but one may be close and the other distant; or they may want safety but one may be task-​oriented and the other relationship-​oriented. Only when each behavior is assessed and understood in its own context does that behavior become meaningful. Only when positive shared expectations can be identified will two individuals or groups be able to find common ground without sacrificing cultural integrity.

 [12.190]  Pedersen’s cultural grids are useful tools for conceptualising and understanding

the cultural aspects of conflict resolution, and his final paragraph is a poignant and powerful reminder of the complexity of dispute resolution when cultural issues are present.

BECOMING CROSS-​CULTURALLY FLUENT [12.195]  To use the words of the authors of the next extracts ([12.200] and [12.205]), is it

possible for dispute resolvers to become cross-​culturally fluent?

Concrete Steps to Develop Cultural Fluency [12.200]  M LeBaron and V Pillay, Conflict Across Cultures: A Unique Experience of Bridging Differences (Intercultural Press, Boston, 2006) pp 79-​80. To build anticipatory capacity: • observe patterns of being and doing demonstrated by cultural others, taking into consideration how they characterize who they are and what they care about; 702 [12.190]

Culture and Dispute Resolution  Chapter  12

Concrete Steps to Develop Cultural Fluency cont. • articulate what their patterns of meaning-​making are, while always treating our template of cultural interpretation as tentative and subject to continuous revision; • reflect on how our own meaning-​making patterns have been shaped, by reflecting carefully on how we have come to perceive who we are and what we care about; • consider how the meaning-​making patterns of cultural others interact with our own, acknowledging that cultural understanding is always co-​created by constant interaction between self and others; • remain willing to reshape our interpretive lenses by incorporating new insights gained from self-​ reflection, as well as from observation of cultural others. To understand embeddedness: • acknowledge that there are deep-​seated assumptions affecting our habitual way of being and doing at the subconscious and unconscious levels of meaning-​making; • ask ourselves why we feel unfamiliar with cultural outsiders when a difference is felt, keeping in mind that our own cultural assumptions have helped shape the perceived difference; [80] • explore what cultural assumptions we have adopted to form our meaning-​making process, by way of sustained self-​reflection and dialogue with cultural others; • reflect on how our experiences in childhood as well as at later stages of our life have shaped and reshaped who we are and what we care about; • also reflect on how cultural others have come to develop their assumptions, by applying the same way of thinking in our dialogue with them. To develop expressive capacity: • articulate why we care about what we care about, by unpacking the meanings embedded in our ways of being and doing; • encourage cultural others to articulate their meaning-​making processes the same way; • suspend value judgments and probe each other’s assumptions as deeply and broadly as possible, exploring the kind of empathic language that will allow us to bridge our meaning-​making patterns with theirs. To expand navigational capacity: • recognize what cultural expectations affect us in a given social context, as well as what meaning-​ making patterns we have brought with us into the context; • decide how we want to co-​create a future together with the cultural others in the context of interdependence, building on both differences and commonalities between our meaning-​making patterns and theirs; • take the first step forward with courage, and flexibly adjust our actions to the unfolding reality.



Overview of Capacities and Skills for Intercultural Conflict Resolution [12.205]  M LeBaron and V Pillay, Conflict Across Cultures: A Unique Experience of Bridging

Differences (Intercultural Press, Boston, 2006) pp 112-​113. A multitude of capacities and skills are available to assist us in intercultural conflict resolution. Many have been mentioned in previous chapters. In this chapter, we focus on three important and necessary [12.205]  703

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Overview of Capacities and Skills for Intercultural Conflict Resolution cont. capacities, as well as nine specific skills that give these capacities expression. Table 6.1 outlines the capacities and corresponding skills. Relationships and interdependence are at the center of successfully bridging conflict. Capacities for flexibility, creative engagement, and momentum help us recognize our interdependence and strengthen our relationships, moving beyond a sense of ourselves as isolated and disconnected from each other. The capacity for flexibility asks that we remain open to difference. Through the skills of pattern interruption, sitting with discomfort, and dancing with surprises, we cultivate this capacity. The capacity for creative engagement encourages us to be inventive in encountering and interacting with others. The three skills which facilitate creative engagement are metaphor, storytelling, and ritual. As we apply these capacities and skills, we build the third capacity: momentum for moving forward. Momentum keeps engagement and interaction alive as we build relationships. Revealing uncertainty, pausing, and intuition are skills that help sustain momentum. [113] Table 6.1  Overview of capacities and skills for intercultural conflict resolution Capacities

Skills

Flexibility

Interrupting Patterns Sitting with Discomfort Dancing with Surprises

Creative Engagement

Metaphor Storytelling Ritual

Momentum

Revealing Uncertainty Pausing Intuition

 [12.210]  The benefits of becoming culturally fluent are axiomatic, but is it possible to achieve it

by reference to a series of steps and processes, as suggested by the author in the following extract?

How do Negotiating Parties Acquire Cross-​Cultural Fluency? [12.215]  K Reid, “Negotiating Strategies and Cross-​Cultural Considerations” (1996) 3 Commercial Dispute Resolution Journal 37 at 39-​43. The following four step approach is recommended. The aim of this approach is to gain a sufficient degree of fluency in reading one’s own and the counterparty’s culture so that cross-​cultural connections can be forged through the recognition of shared interests and concerns. [40] Step 1: Cultural due diligence Adopt a framework for analyzing one’s own and the counterparty’s culture. Trompenaars has developed such a framework by identifying five dimensions of how people relate to each other. They are listed below, together with his translations in brackets. (a)

Universalism v Particularism (rules v relationships).

(b)

Collectivism v Individualism (the group v the individual).

(c)

Neutral v Emotional (the range of feelings expressed).

(d)

Diffuse v Specific (the range of involvement).

(e)

Achievement v Ascription (how status is accorded).

An exposition of the five dimensions of how one relates to another in a negotiating environment follows. Each person should be able to access which exposition best describes his or her negotiating repertoire. 704 [12.210]

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How do Negotiating Parties Acquire Cross-Cultural Fluency? cont.

Universalist (Rules)

Particularist (Relationship)

Focus is more on rules than relationships.

Focus is more on relationships than on rules.

Legal contracts are readily drafted.

Legal contracts are readily modified.

A trustworthy person is one who honours his or her word or contract.

A trustworthy person is one who honours changing mutualities.

There is only one truth or reality agreed to.

There are several perspectives of reality relative to each participant.

A deal is a deal.

Relationships evolve.

The aim is to reach agreement in as short a time as possible.

Time is not the essence in reaching agreement; developing the relationship is paramount.

Courts readily resorted to in event of conflict.

Parties resort to negotiation in event of conflict.

Individualist (Individual)

Collectivist (Group Based)

Quick decisions and sudden offers are made without referring the matter to headquarters.

Time is taken to gain consent and consult before decisions are made by the group.

Negotiation has authority to settle and is very reluctant to go back on an undertaking.

Negotiator can only give a tentative undertaking and may withdraw that undertaking after consultation with superiors.

The toughest negotiations were probably already done within the organization prior to the actual meeting.

Toughest negotiations are with the counterparty, in that the counterparty must be persuaded to cede to the multiple interests behind the collectivist’s negotiating team.

[41] Conducting business alone means that the negotiator has the respect and esteem of his or her employer.

Conducting business surrounded by helpers means that the negotiator has high status within his or her company, as evidenced by the number of helpers.

A quick deal is the aim.

A lasting relationship is the aim.

Neutral (Rational and Reasoned)

Emotional (Affective)

Thoughts and feelings are not revealed.

Thoughts and feelings are revealed, verbally and non-​verbally. Tension released through transparency and expressiveness.

May unwittingly reveal tension on face and in posture. Emotions often repressed; will occasionally explode.

Emotions flow easily, efflusively, vehemently, and without inhibition.

Cool and self-​possessed conduct is admired.

Heated, vital, animated expression admired.

Physical contact, gesturing or strong facial expressions taboo.

Touching, gesticulation and strong facial expressions common.

Statements often made in a monotone.

Statements declaimed fluently and dramatically.

Specific (Range of Involvement)

Diffuse (Range of Involvement)

Direct, to the point, purposeful.

Indirect, circuitous, seemingly “aimless”.

Precise, blunt, definitive, and transparent.

Evasive, tactful, ambiguous, even opaque.

Principled and consistent moral stance independent of the person being addressed.

Highly situational morality, dependent upon the person and context encountered.

Achievement Oriented

Ascription Oriented

Use of titles only when relevant to the competence you bring to the task.

Extensive use of titles, especially when the title clarifies your status within the organization.

Respect for superior in hierarchy is based on performance.

Respect for senior in hierarchy seen as a measure of commitment to the organization and its mission.

Senior managers are of varying age and gender, and have shown proficiency in specific jobs.

Most senior managers are male, middle-​aged, and qualified by their background. [12.215]  705

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How do Negotiating Parties Acquire Cross-Cultural Fluency? cont. Step 2: A search for context; explore the cultural tapestry As far as is practicable, build a knowledge bank of information about one’s own party and the counterparty, including the following: [42] (a)

values, interests, perceptions of appropriateness;

(b)

how milestones in life are marked, such as a birth, a marriage; how the dead are buried; and explore the significant rituals in each culture;

(c)

recognize what aspects of emotional brilliance are peculiar to each culture and how neuro-​ linguistic programming and effective listening skills are practised in each culture;

(d)

in each culture learn from an understanding of the history and art;

(e)

discover how conflict is resolved, and where appropriate how parties are reconciled in each culture;

(f)

determine the characteristic behaviour which denotes the boundary between being a host or a guest, and a potential business partner; and

(g)

search for the traits in behaviour that make up the negotiating psychology and repertoire of each party. For instance, traits which have been identified as an integral part of the Malaysian negotiating repertoire include:



(i)



(ii) superstition;

protocol, custom and etiquette; adat;



(iii)

team negotiating, (group approach rather than individual);



(iv)

shadow play; (politeness and consideration of others is paramount);



(v)

personal relationships are more important than written agreements; and



(vi)

dispute resolution (by negotiating and informal meetings in preference to litigation).

Step 3: Keep exploring; continue to question, and test all assumptions; manage the knowledge Never assume that the counterparty’s behaviour and culture are completely understood. Culture is a dynamic; it is not static. Indeed some cultures are more syncretic than others; that is, they are exposed to a greater pot pourri of influences, which impact on the culture and result in cultural evolution, with the result that those influences are accommodated to a greater extent than in other cultures. … Be prepared to keep building on and refining your understanding of all relevant cultures. Keep asking questions to explore the cultural tapestry. Ask [43] questions like: When you did that, what did you intend? What did you hope would happen? In your opinion, what is required for this transaction to be successful? Remain attuned to your own cultural biases, and ready to challenge your assumptions as rigorously as the counterparty’s. Given the dynamics of each culture, knowledge management is imperative. Where practicable ensure appropriate debriefings are conducted after each negotiation session. … Step 4: A network of advisers Establish a network of advisers so that as much information as possible can be accessed from as diverse a range of resources …

 [12.220]  Reid’s four-​step approach is open to criticism because of its simplistic approach to

culture, which fails to recognise its dynamism and diversity as well as a recognition of power structures within cultures. Nonetheless, it is a useful starting point for dispute resolvers seeking to become more skilled in cross-​cultural and intercultural contexts. A final extract provides a useful summary of the complex relationship between culture and conflict resolution. 706 [12.220]

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Exploring Alternative Scenarios for the Journey Ahead [12.225]  M LeBaron and V Pillay, Conflict Across Cultures: A Unique Experience of Bridging Differences (Intercultural Press, Boston, 2006) pp 103-​104. Having journeyed through the travelers’ interactions at the oasis, their recollections of personal histories, and numerous other contexts of cross-​cultural dramas, we have learned how conflict dynamics evolve, how culture influences conflict, how conflict affects culture, and finally, how these two things, culture and conflict, are intertwined. Following is a brief summary of what we have learned so far about conflict dynamics: • The potential for conflict may exist but remain unnoticed when differences between people do not hurt or trigger them in places where they make meanings and sense their evolving identities; [104] • Conflict emerges when people realize that their differences matter in the context of interdependence: • Conflict polarizes relationships, sharpening a sense of “we-​ness” and “they-​ness”; • Conflict de-​humanizes adversaries, making them seem unworthy of human treatment; • Conflict deepens when there are more issues involved; • Conflict spreads in scope when more parties are involved; Culture shapes and reshapes conflict in the following and other ways; • Culture frames the possibilities for conflict behaviors; • Culture tells us what kind of behaviors are preferable in a given conflict, and why; • Culture tells us who “we” are and who “they” are in conflict; • Culture connects the past, present, and future of conflict dynamics; • Culture helps spread conflict across social contexts, catalyzed by shared symbols; Conflict shapes and reshapes culture in the following and other ways: • Conflict changes cultural carriers that deliver meanings; • Widespread violence reshapes culture by generating traumas and glories; • Forced relocation of people often leads to envisioning an idealized image of home; • Mergers of cultural groups inspire the creation of cultural confluence symbols; • Social institutions and ideologies create and perpetuate cultural symbols and continuity; Culture and conflict are inextricably intertwined in the following and other ways: • Culture shapes our sense of time, and conflict facilitates its transformation: • Culture frames preferred patterns of relationship, and conflict reshapes them; • Culture makes us feel who we are, and conflict reshapes our identities.



REFLECTIVE PRACTICE [12.230]  In the extract at [12.235], Avruch stresses that conflict resolution practitioners need to

engage in reflexive practice, a notion expanded by Sue Armstrong in the family context at [12.245].

Preliminary Notes for Practitioners [12.235]  K Avruch, Context and Pretext in Conflict Resolution: Culture, Identity, Power and Practice (Paradigm Publishers, Boulder, 2012) pp 19-​20. [12.235]  707

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Preliminary Notes for Practitioners cont. Near the beginning of their Handbook for running problem-​solving workshops for conflict resolution, Mitchell and Banks point to a key requirement of sound practice for third parties, professionalism. This “involves, as a first step, making oneself aware of one’s own goals and values in undertaking any problem-​solving exercise” … A good part of this involves a cultural analysis of oneself: one’s own metaphors and schemas, images and encodements. Such autoethnography is possible, though not easy, and the reflexivity it demands and brings forth is central to an effective, engaged, [20] and ethical practice. Indeed, one of the key issues for intercultural conflict resolution is the extent to which our very conceptions of effective and ethical practice –​negotiation, mediation, facilitation and so on –​ are determined by our culturally constituted assumptions and presuppositions about the world. And because so much of conflict resolution theory has arisen from the crucible of reflective practice, as we more closely examine our practice, in the end we have a culture too –​several of them, in fact. Culture is not just something “they”, the “others” –​the parties –​possess, while you have … natural and self-​ virtuous intentions –​and the English language … Culturally sensitive conflict analysis and resolution begins with this insight –​though it hardly ends there.

 [12.240]  In the following extract, Sue Armstrong considers reflective practice in the context

of multicultural family mediation.

Responding to Culture in Mediation [12.245]  S Armstrong, “Developing Culturally Reflexive Practice in Family Dispute Resolution” (2011) 22 Australasian Dispute Resolution Journal 30 at 30-​36. Culture features in most dispute resolution scholarship and practice as an issue which should be considered in the diagnosis of the dispute and in the practitioner’s estimation about how to proceed in mediation. Culture, however, is a “notoriously vague and imprecise term”. Eagleton and Williams [31] have both remarked that it is one of the most complex words in the English language. Others have located 87 different meanings of this term. The subsequent analysis of the treatment of culture in dispute resolution in this article draws extensively on the work of anthropologist Kevin Avruch and Australian conflict resolution scholar and practitioner Morgan Brigg. Whilst not the only scholarship to consider the interplay between culture and dispute resolution, their work presents some of the most nuanced and theorised considerations of the relevance of and response to culture in the dispute resolution field. Avruch and Brigg identified two common approaches to culture which have influenced the conflict resolution literature. These have rendered: • culture as custom –​this is the most simplistic approach to culture, reducing it to social etiquette, traditions and customs, often in relation to gender, family or relationships and frequently associated with national, religious or ethnic groupings; and • culture as communication –​this approach identifies the importance of the perceptual, cognitive and linguistic features of culture which frame conflict and its resolution. Some approaches highlight cultural orientations towards time, risk, space, affect, hierarchy, power or authority. These orientations are often illustrated in opposing “dimensions of culture”, including high or low context communication styles; and tendencies towards individualism or collectivism, universalism or particularism; and high or low power distance. Brigg suggests that these approaches represent “culture-​as-​behaviour”. There is no doubting the importance of sensitivity to and awareness of different cultural styles and their influence on [32]

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Responding to Culture in Mediation cont. perception, communication processes and approaches to conflict resolution. However, behaviourist approaches can tend to produce binary categories of cultural difference which can mask exceptions to these categories and obscure the importance of cultural meaning and symbolism. A behaviourist approach to culture may also ignore the importance of experience, context and social location, and thus power, in shaping and reshaping an individual’s experiences of culture. Brigg concluded that such approaches risk “overstating the difference and separateness of cultural groups” and, because their reference point is generally Western culture, these approaches may also “unwittingly devalue cultural difference”. Ultimately, he argued, they cannot come to terms with the complexity, subtlety and diversity of human existence. Whilst scholars in this field caution the need to develop fluency in reading cultural signs, and avoiding common traps of cultural thinking, the practical application of these approaches can reify culture, and present it as something homogenous, timeless and uniformly distributed, obscuring heterogeneity within cultures and an individual’s attachment to many cultures. The weaknesses of some “culture-​as-​ behaviour” approaches, and their imperfect application, are tellingly evident in generalised and stereotypical assertions about expected cultural behaviours. Culture is conflated with geography, ethnicity or, more problematically, race. This can result in “cookbook” thinking which diverts attention from a more “constructive approach to exploring the impact of cultural diversity on mediation”. As Brigg observed, “culture-​as-​behaviour” approaches are “oriented more toward ordering than responding to human difference”. Avruch argued that for mediators who are working under stresses and time pressures, and without deep ethnographic knowledge, “lists” of behavioural traits may have limited usefulness. He suggested that mediators can more effectively respond to cultural difference if they develop a general sensitivity to and awareness of the relevance of different cultural styles on communication and, possibly more importantly, cultivate “a framework for thinking about culture and why it is important”. This framework should be characterised by: • an appreciation of conceptual complexity; [33] • a critical stance toward stereotyping others; • a capacity for empathy; • a critical awareness of one’s own ethnocentrism; • a tolerance for difference plus a capacity to suspend judgment; • a sense of humour (although this is “often notoriously culture-​bound”); and • skills in collaborative problem solving. He concluded that the most important attribute is a mediator’s self-​knowledge. Other commentators have confirmed that a key characteristic of culturally competent professionals is not knowledge, but self awareness of the relevance of their own cultural contexts and a “genuine willingness and desire” to learn about and be respectful of cultural difference. … Elements of intercultural dialogue are evident, for example, when dispute resolution practitioners examine and discuss how their own cultural values influence their practice and in learning from local and Indigenous “ways of knowing, approaching and managing conflict”. This recognition that culture matters, although there may not necessarily be agreement about what it means, is aligned with anthropologist Patrick Sullivan’s concept of “culture without cultures” and political theorist Anne Philips’ arguments for “multiculturalism without culture”. [34] Reflexive responses to culture Brigg … pointed to the need for an ethical process of inquiry and exchange about the values and beliefs that are important to the people concerned. Conflict resolution is well suited to such ethical inquiry, Brigg argued, because of its “longstanding commitment to engaged practice and responsiveness to people in conflict”. [12.245]  709

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Responding to Culture in Mediation cont. Reflexive practice or reflexivity may assist practitioners to more fully realise the potential of an ethical and responsive process of intercultural dialogue in family dispute resolution. Reflexivity is a term widely used in social science scholarship and sometimes in professional practice. It extends the concept of reflective practice originally developed by Schon, in which practitioners pause to respond to an issue in the course of their work (reflection in action) and later consider this experience to draw insight for future practice (reflection on action). After analyzing more than 20 different conceptualisations of reflexivity, Lynch concluded that there is no agreement about its meaning, purpose or practice. He concluded that reflexivity has no special epistemological, moral or political virtue and that it is an “unavoidable feature” of the way actions are “performed, made sense of and incorporated into social settings”. However, his analysis underplays the significance of some forms of reflexive critique. Sociologist Pierre Bourdieu’s reflexivity intended to “critically revalue what others take for granted” and feminist philosopher and standpoint theorist Sandra Harding proposed to “step back from ‘culturally laden prejudice’ to see the social order from the perspective of an outsider”. Both implied the need to make apparent what is obscured, and to do so from a critical distance. Whilst the meaning, significance and practice of reflexivity is contested, most discussions of it have in common a commitment to: • critical analysis of the influence of social contexts on experience and perspective; • creating problems from the intersections between personal narrative, knowledge creation and professional practice; • scrutiny of the power dynamics created by the relationships between these factors. Whilst not specifically concerned with culture, reflexivity may assist mediators to interrogate and make explicit the cultural assumptions, context and dynamics inherent in the mediation process. It may foster the kind of intentional and reflective practice suggested by Lang and Taylor who argued that mediators should change: how you think about practice … [by] making explicit … your theories, beliefs, information, ideas and knowledge … [d]‌eveloping habits and methods of reflective practice … [and giving] attention to and use of critical moments in mediation. Reflexivity may assist practitioners to engage in dialogue with themselves about the influence of their own professional and personal cultures on the values and assumptions they bring to and the [35] interventions they make in mediation. Culture is generally an unquestioned and naturalised aspect of the self, often hiding “much more than it reveals … [and hiding it] most effectively from its own participants”. Because tacit cultural knowledge is frequently “outside our awareness”, our responses to situations, including professional responses, are often “automatic and deeply embedded”. Reflexivity may “make visible the personal biases and the cultural, political and social influences which impact on their neutrality”, and help mediators “to understand the standpoint of the ‘other’ ”. A reflexive approach recognises that mediation is “culturally specific, not neutral”, and involves the mediator “being explicit about the operation of power … [and] … mindful of their power position in the mediation process” and of their response to the intersections between culture and power. Mediators might build on Avruch’s framework to analyse the power of conflict resolution ideology and practice to manage the parties involved in its processes, particularly in the context of cultural difference. This awareness may be particularly important in family dispute resolution which is a highly structured compulsory mediation process operating within a legal framework which affirms a culturally specific form of post-​separation parenting. It may thus assist family dispute resolution practitioners (FDRPs) to address some of the challenges that commitment to neutrality may present in FDR and also promote party control of the process. FDRPs are also concerned to protect the interests of vulnerable third parties like children, including children’s right to enjoy their culture. Reflexive practices may highlight the cultural assumptions embedded in social science theories of attachment and self regulation that may influence FDR practice about children, the ways 710 [12.245]

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Responding to Culture in Mediation cont. in which culture informs parenting practices and the varying cultural constructions of best interests. Reflexivity will, among other things, assist FDRPs to recognise and address cultural and power dynamics in the FDR process and of their cultural selves in it. This fostering of an awareness of and ethical critique about the cultural and power dynamics of the FDR process is necessary for developing a culturally reflexive FDR practice, but it is not sufficient. Brigg observed that to sustain ethical engagement with and dialogue about culture in conflict resolution, practitioners must go beyond reflexivity as it is commonly known. Reflexivity must not only be focused inwards on the practitioners’ personal resources and experience of and response to [36] cultural difference. It also requires a turning outward to one’s professional peers and to those individuals whose disputes they are assisting to resolve. Insights gained through reflection must be “communicated … challenged, debated and discussed”, as well as informed by and measured against the scholarly literature in this field and more widely. He noted that “communities of practice and scholarship, including processes of peer review and assessment are important for this purpose”. A central aspect of this turning outwards is fostering “relatedness” with the individuals whom practitioners are seeking to assist. Relatedness requires a vulnerability to affective encounters with cultural difference on the basis of mutuality and in a spirit of inquiry and humility. Dispute resolution professionals must ask “after unique individuals”, so that a personal understanding of the individual’s place in and attachment to their cultural contexts, and their relevance to the dispute, is explored. Astor remarked that important skills for cross cultural mediation are: Listening for narratives that are based on quite different value systems and ways of thinking and being than those of the dominant culture, surfacing those narratives and helping make them coherent. In their engagement with cultural difference, mediation professionals must combine their cognitive understandings and elicitive and analytical skills with their empathic qualities. Brigg observed that “to respect and appreciate participants, and to attend to their welfare and empowerment, third parties must be affected by participants”. These imperatives are also present in LeBaron’s process of dynamic engagement and dialogic spirit: a mindful awareness of and open receptivity to cultural difference in conflict resolution. Some of these key dimensions of culturally reflexive practice –​engaging in dialogue about culture and reaching outward empathically to parties; and an introspective turning inward and critical self-​ reflection –​were evident in the way that some FDR practitioners responded to cultural difference in their dealings with clients in the research undertaken by this author. Whilst not all elements were present with each practitioner, and their presence would be enhanced by sustained development of these capacities, a reflexive approach was implicit in their account of working with the individuals and families whom they sought to assist. Collectively, the practice illustrated by these FDR professionals provides a useful template for developing culturally reflexive practice in FDR. Some of these capacities are illustrated in more detail after a short explanation about the research focus, methodology and findings.

 [12.250]  Reflexive practice is important due to the possibility of uncovering cultural

assumptions in a conflict or a conflict resolution process, and, as Armstrong noted in extract at [12.245], the importance of identifying cultural and power dynamics in a conflict. The identification of cultural and power dynamics in a cross-​cultural conflict resolution process is important as power may be used to maintain the status quo of injustice and repression where a conflict resolution practitioner fails to identify this or is powerless to address the situation. Below extract at [12.255] discusses approaches to culture in conflict resolution practice and the possibility of demonising culture in a conflict. [12.250]  711

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Dispute Resolution and the Demonisation of Culture [12.255]  L Akin Ojelabi “Dispute Resolution and the Demonisation of Culture” (2014) 25 Australasian Dispute Resolution Journal 30 pp 30, 33-​36. The term “demonisation of culture” as used in this article refers to the manner in which culture may be exploited and abused in dispute situations. The term was used by Merry in the context of human rights to argue that culture is misunderstood by human rights lawyers as an obstacle to enforcement of human rights because of the perception that culture is “static, coherent and [consists of] an unchanging set of values”. The demonisation of culture also occurs where there exists a complete refusal to make moral judgments about cultural practices regardless of any inhumane consequences of such practices. On this premise, the “demonisation of culture” in this article describes situations in which culture has been or is being labelled an obstacle, one way or another, to the resolution of disputes; where culture is used by perpetrators of abuse as an excuse for human rights violations or atrocious acts, and the deprivation of basic needs in dispute situations; and where culture is used by victims of abuse to excuse perpetrators’ actions. Culture influences the path of dispute, making it intractable and prolonged, most of the time with little or no respect for human dignity and worth. This article aims to raise the awareness of dispute resolution practitioners to the fact that culture may be negatively deployed in ways which inhibit a dispute resolution process by undermining real issues and thereby preventing lasting outcomes. In addition, the article highlights the need for dispute resolution practitioners to design processes and employ skills which, rather than preserve the status quo, deconstruct negative deployments of culture. This will involve adopting an approach that values human dignity and worth. No doubt culture shapes values, morals and institutions but it is not static; it adapts to changing circumstances. While an understanding of cultural practices and values of a particular community is critical for dispute intervention, culture discourses may also inhibit intervention … Cultural explanations of behaviour in disputes should not be taken at face value, particularly where such behaviour infringes human dignity and worth. An analysis of how culture influences dispute and to what extent culture is being demonised in any dispute is important. Although dispute resolution practitioners are not capable of ending all social injustices, recognition of a situation where culture is being demonised is critical. [33] Culture discourse in dispute resolution The culture discourse in dispute resolution derives from anthropological and sociological theories of culture, and there are two dominant approaches. One approach to culture is that it is considered to be socially constructed. The social constructionist theory presents dispute as a consequence of social interaction, and as such cultural factors are critical to the construction and deconstruction of dispute. On the other hand, the socio-​biology theory argues that dispute is a product of unsatisfied human needs. Burton argues that these are universal needs, which when not satisfied, generate dispute. To resolve disputes therefore, needs must be met. This theory does not take into account cultural factors as determinants of basic needs. The human needs theory, which was an early and popular theory of dispute, has been criticised by many authors. Of these, a number have considered the impact of culture on dispute engagement, and some in particular have researched different dispute and dispute resolution practices in non-​western cultures. [34] …the culture discourse in dispute resolution can be grouped into three broad categories: (1) research into different cultural practices relating to dispute and resolution for the purpose of learning about practices outside western culture; (2) research into whether western developed theories and practices of dispute analysis and resolution are transportable to non-​western societies, and whether mainstream dispute resolution models are suitable for assisting migrant/​indigenous communities in resolving their disputes in multicultural societies; and (3) theoretical analyses of the role of culture in dispute resolution. 712 [12.255]

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Dispute Resolution and the Demonisation of Culture cont. Whilst the relevance of culture has been recognised in dispute resolution, as evidenced by the foregoing discussion, there is no consensus on the extent to which culture influences dispute, or on its relative importance in dispute resolution. How much does cultural difference in itself cause dispute, and to what extent can it foster dispute resolution? Wanis-​St John identifies four different ways of looking at culture in negotiation: universalism, stereotyping, determinism, and relativism. He describes the universalism school as viewing culture as an impediment to resolution; the stereotyping school as making assumptions about particular cultural groups which are taught to others as rules of behaviour when those group members are encountered; the relativist school as viewing dispute analysis and resolution as an avenue for cultural fluency; and the determinist school as seeing culture as an explanation for action and reaction in dispute situations. The universalist school, in Wanis-​St John’s analysis, ignores the values underpinning dispute resolution practices, and does not consider whether these values may be at variance with the cultural values of a different society. The stereotyping school appears to accord culture some importance, but the generalisation and the classification of culture according to nationality ignores individual and other differences. The relativist school attempts to avoid the errors of the universalist school, explaining action and behaviour in cultural terms, arguing that there is no absolute truth and that each culture should be allowed to maintain its practices and beliefs. But absolute relativism can make culture become an obstacle to dispute resolution by maintaining the status quo, preventing positive cultural changes and promoting power imbalance. Relativism can, in this way, present culture as a barrier to successful negotiation between different cultural groups because it sees processes, values, beliefs and practices that differ across cultures as making it impossible to reach any consensus. The determinist school views culture as the cause of dispute, and explains every dispute situation in cultural terms, thereby entrenching cultural difference and ignoring any political and economic factors underpinning dispute. None of these approaches are helpful for dispute resolution. A similar analysis of cultural variation for the purpose of dispute resolution is offered by Ramsbotham et al who identify three responses to the culture debate in this area. The first, which is the view that culture is irrelevant, is ascribed to the dispute resolution theorists, researchers and practitioners, Burton and Zartman. The second, which is the view that culture is relevant only as a variable in dispute resolution, is said to be held by Bercovitch, Cohen and Gulliver, and the third, the view that culture is fundamental to dispute resolution is said to be held by Avruch, Black, Lederach and Galtung. Ramsbotham et al further argue that no dispute resolution theorist or analyst is a determinist, and that cross-​cultural generalisations should not be made. They conclude, correctly, that the issue of culture remains unsettled in dispute resolution. Furthermore, these categories do not create an awareness of specific deployments of culture in dispute analysis and resolution. They are far too narrow and, as stated above, a board view of culture is also not enough. Analysis of the role of culture in dispute resolution should involve political, socio-​economic and ideological considerations. A broad view will fail to identify individual variations in any given situation. Whilst a positive acknowledgment of differences is important, culture may also be exploited negatively in dispute, thus becoming an obstacle to peace. This will occur where cultural practices and beliefs are presented as justifications or explanations for varying levels of violence. It is imperative that such negative deployments are addressed so that an analysis of the underlying causes of dispute can take place, and joint problem-​solving approaches can be adopted. Galtung’s concept of cultural violence appears to strike the right chord. He refers to “negative aspects of collective subconscious”, which result in cultural violence embracing “those aspects of culture, the symbolic sphere of our existence –​exemplified by religion and ideology, language and art, empirical science and formal science (logic, mathematics) –​that can be used to justify or legitimize direct or structural violence”. Structural violence relates to community or government institutions which permit injustice, discrimination, and inequality. Galtung argues that cultural violence intersects with structural and direct violence in the sense that it not only legitimises structural violence, but often also legitimises direct violence, via, for example, religious beliefs, stereotypical assumptions about other cultural groups, ethnocentrism, cultural imperialism and various forms of ideology. [12.255]  713

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Dispute Resolution and the Demonisation of Culture cont. But negative deployments are not in any way limited to institutions alone; they occur at all levels of society and in any type of dispute: inter-​personal, inter-​community, or inter-​state. They range from restrictions on who one is allowed to associate with (for example, on the basis of skin colour or different cultural background), and the bad treatment of the “other” on the basis of culture at the interpersonal level, to the demonisation of groups and nationalities on the basis of cultural differences at both the inter-​group and the international level. An example of the negative exploitation of culture is the notion of cultural supremacy, which may generate dispute, and the resistance to cultural supremacy may become violent. Disputes may arise when one cultural group views another as inferior, barbaric, savage or primitive, and attempts to impose its own group culture on the other. When this is the situation, what follows may involve the violation of rights, deprivation of basic needs, abuse of power, a lack of trust and defiance on the part of the weaker party. It is important, therefore, to identify any negative deployments of culture. Cultural variation may not be a problem in peace-​time, when it can be celebrated; it becomes a problem when it is used as a weapon during disputes.

 [12.260]  Akin Ojelabi in the extract at [12.255] draws attention to the dangers that may

arise when giving attention to culture in a conflict resolution process. Negative deployments of culture may legitimise practices that violate others’ well-​being particularly in alternative dispute resolution processes that move away from a rights-​based approach to consensus between the parties. In these processes, power may camouflage as culture, and dispute resolution practitioners need to be aware of this. In the next extract, Akin Ojelabi discusses an approach which may assist in addressing demonisations of culture.

Dispute Resolution and the Demonisation of Culture [12.265]  L Akin Ojelabi “Dispute Resolution and the Demonisation of Culture” (2014) 25 Australasian Dispute Resolution Journal 30 at 37-​38. Dispute resolution involving cultural issues should involve making a full assessment of the deployment of culture in dispute. Avruch has identified two kinds of error that can be made in a culturally sensitive dispute resolution process: Type I and Type II errors. Type I errors relate to disregarding culture in dispute analysis and resolution altogether. Avruch suggests that the way to avoid this is to become culturally sensitive, using culture as an analytical tool for disputes, and acknowledging culture in the process of dispute resolution. Type II errors involve overvaluing culture, and occur where certain cultural practices permitting abuse of rights, violations, denial of basic needs and discrimination are not addressed because of strict adherence to multiculturalism. Practitioners fear that pointing out such abuses might be viewed as racism. They may also feel constrained because of the requirement of neutrality. The more powerful party perpetrating abuse may vehemently oppose any attempt to address inequality, and claim such attempts to be forms of racism and a denial of multiculturalism. However, asking questions that can identify the root causes of a dispute is critical but may be obstructed by a particular deployment of culture. To encapsulate this point, Chanock argues: Culture [is] therefore employed both as a defence for, justification of, and positioning for advantage in a field of dispute over resources, as well as a metaphor for handling and resisting change in ways of living. Conclusion –​implications for practice The foregoing discussion has certain implications for dispute resolution practice. Dispute resolution practitioners must understand what culture is, as well as the relationship between culture and dispute, and how culture may be deployed in dispute resolution. 714 [12.260]

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Dispute Resolution and the Demonisation of Culture cont. Culture may be deployed negatively in dispute. Dispute resolution practitioners must: • be able to identify instances where culture is being exploited in a dispute situation; as such, the issue of who speaks for culture must be taken seriously; • have an eye for how culture contributes to the balance of power between the parties and how that balance of power is impacting on the dispute; • not validate or legitimise the more powerful party to the disadvantage of the less powerful; • understand the nature of negative deployments of culture in dispute situations. Such instances include disputes which involve discrimination, deprivation of basic needs and opportunities, unequal distribution of the common good and cultural power imbalance among others; and • be willing to analyse the dispute from cultural, social, economic and political perspectives. Dispute resolution practitioners need to acquire skills that will enable them to identify the role of culture in the dispute, as well as the real issues. This involves a willingness to investigate rather than stand back with the aim of being non-​judgmental and non-​discriminatory. It is a willingness to identify and engage the real issues to the advantage of the parties into the future. Addressing demonisations of culture also requires projection of values which could assist in transcending negative culture discourses in dispute situations. The values which the author has identified as critical in such circumstances include justice, equality, freedom and peace and an understanding that peace requires some form of justice, equality and freedom. This may involve a discussion with parties on how they perceive these values, what it means within their culture and how it may affect the positions they have taken in the dispute. These values should be seen as underlying principles that drive practice, promoted in a manner understood by the parties and in necessary proportions based on an assessment of the dispute. These values promote constructive and tolerant behaviour, encourage mutual recognition and respect and can assist in the analysis of the dispute with the aim of identifying and addressing underlying issues. In addition, they may promote dispute prevention. To be successful in this endeavour, the dispute resolution practitioner must be empathetic, passionate and self-​and other-​aware. They must also promote respect and recognition in the process.

 Dispute resolution and aboriginal communities [12.270]  As noted at [12.265], conflict resolution processes abound in all societies. Modern

processes have also been developed considering or building on traditional processes. Indigenous communities in Australia have traditional dispute resolution processes which are now being embedded in the civil justice system (for example, the Koori Courts). In the preamble to the Federal Court of Australia’s Indigenous Dispute Resolution and Conflict Management Case Study Project, Solid Work You Mob Are Doing:  Case Studies in Indigenous Dispute Resolution and Conflict Management in Australia (Commonwealth of Australia, Melbourne, 2009, p xiii), the authors noted that: Indigenous perspectives on conflict management often differ markedly from mainstream understandings of “dispute resolution”. Some Indigenous practitioners identify their practice as “peacemaking” or use other terms in describing what they do which embrace a deeper level of healing and renewal of relationships. Increased interest in Indigenous approaches to dispute resolution and conflict management is both welcomed and regarded with a degree of apprehension by Indigenous communities and practitioners who have worked for years to develop meaningful and effective processes. There is concern that Indigenous ownership of dispute management or “peacemaking” processes [12.270]  715

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could be inadvertently lost if research findings are taken out of context from the cultural and community dimension of effective practice.

This section of the chapter explores the role of culture in Indigenous conflict management and resolution, process design for conflict resolution involving Indigenous Australians, and what makes an effective practitioner in this context. The chapter also considers the example of Native Title Mediation as a context in which many of these factors converge. The authors have referenced resources prepared by Indigenous authors as the most authoritative and appropriate commentators on this area of dispute resolution. Role of culture in indigenous dispute management [12.275] In their chapter Conflict Murri Way:  Managing through Place and Relatedness,

Graham et  al explore some Aboriginal conflict management practices. They note that while these practices have shifted and changed over time with the impacts of colonisation, “Aboriginal people in rural, remote and urban contexts strive to manage conflicts skilfully, in ways that restore balance by drawing upon their traditions” (p 75). The authors go on to describe several principles that inform Aboriginal conflict management practices: Dreaming and Law, and the accompanying notions of relatedness, balance, autonomy, self-​regulation, and becoming human (p 76). The following extract focuses particularly on multiplicity and balance.

Conflict Murri Way: Managing through Place and Relatedness [12.280]  M Graham, M Brigg and P Walker, Conflict Murri Way: Managing through Place and Relatedness in R Bleiker and M Brigg, Mediating Across Difference: Indigenous, Oceanic and Asian Approaches to Conflict Resolution (University of Hawaii Press, USA, 2010) Ch 4, pp 83-​84. Pursuing multiplicity and balance within a relatively nonhierarchical social order is not easy. It requires extensive exchange of varied and sometimes competing perspectives until an understanding or agreement is reached. This serves as the negotiated truth at a particular point in time. Michael Christie describes how Yolngu people of Arnhem Land negotiate multiple views to formulate acceptable decisions: “Everyone has a chance to contribute, and the negotiation, rehearsal and presentation of knowledge cannot be tied down to a timetable. Everyone needs a chance to speak if they want to, and a second and a third time until agreement is reached. Everyone’s perspective must be respectfully recognised so it requires tact, patience and time”. Senior Aboriginal people weave contesting perspectives together to promote consensus that signifies that the competing perspectives have been adequately considered. Christie refers to Yolngu “Galtha” as a process of pursuing situated and negotiated truth that relies on knowledgeable persons to shape outcomes in ways that establish balance and harmony. “Galtha prioritises the knowledge of those who best understand our life in the context of everything that makes meaning in everyday life, (the economics, politics, spirituality), and gives us a picture of ourselves in terms of the ecology (including each other)”. Negotiating a consensus may be more than difficult: it can be tense and frustrating … When balance is a key principle, issues may not be immediately addressed or may remain unresolved for long periods. Balance may be more important than resolution, and individuals may become very frustrated as a result … Pursuing balance may not be easy, but it has clear benefits. The interplay of multiple perspectives within a network of extended relationships allows a lively … range of views to circulate and interact … [84] Rather than emotions simply being tolerated, people are supported and “held” in their feelings and actions. The freedom to openly express one’s perspective and grievances helps manage conflict for, as we know of human societies more broadly, those who consistently fail to have their perspectives heard 716 [12.275]

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Conflict Murri Way: Managing through Place and Relatedness cont. often turn to violence. Vocal and sometimes violent expression helps manage conflict by allowing people to publicly voice grievances and have them addressed as part of a communal decision-​making process. The practice of accepting and working with multiple perspectives to retain balance is one of the key ways in which Aboriginal people manage conflict. Conflict is normal and accepted, as is the lively juxtaposition of many viewpoints. To say that conflict is normal and accepted is not to say that it is natural or preferable. The desirable state is one where there are no incidents that disturb the balance of the community. Yarralin people term this state punyu, a situation in which “nothing happens that can be marked as significant change”. But it is the case that there is little focus among Australian Aboriginal people on living in a state of anything that might be approximated by the term “peace”. Rather, there is a generally accepted notion that if small tensions and conflicts are allowed to be aired and to occur, then larger conflicts are prevented.

 [12.285]  In 2009 the Federal Court of Australia’s Indigenous Dispute Resolution and Conflict

Management Case Study Project provided its report entitled Solid Work You Mob Are Doing to the National Alternative Dispute Resolution Advisory Council (NADRAC). The project aimed to provide evidence-​based research and resources to support the development of more effective approaches to managing conflict involving Indigenous Australians. The report considered the role of “culture” in Indigenous dispute management, and noted that Indigenous Australian cultures are diverse, and that cultural factors must be carefully and respectfully addressed in the design and implementation of effective dispute management processes.

The Role of “Culture” in Indigenous Dispute Management [12.290]  Federal Court of Australia’s Indigenous Dispute Resolution and Conflict Management Case Study Project, Solid Work You Mob Are Doing: Case studies in Indigenous Dispute Resolution and Conflict Management in Australia (Commonwealth of Australia, Melbourne, 2009) pp 99-​104. In any dispute management process, including those involving Indigenous and other culturally diverse communities, there is a need to take into account a range of factors contributing to the conflict context, not only those related to culture. In identifying factors contributing to a dispute, it is important to remember that Indigenous Australian cultures are diverse. Cultural understandings, priorities and responsibilities to land and kin differ markedly between and amongst Indigenous communities across Australia. Culture is not a fixed, bounded entity: it is produced by interactions and interplays between people in context. Cultural meanings are embedded in the social, economic, and political dynamics of a community and in individual emotional, personal and psychological needs and understandings. There is no single, immutable Indigenous culture, nor are there pre-​existing “traditional” dispute resolution processes which can be used as a formula to manage all conflicts involving Indigenous peoples. As the case studies and snapshots show, every dispute is different, and every process is a site of collaboration and negotiation. Whether living in urban, regional or remote locations, Indigenous peoples have distinct cultural identities, values and beliefs, emerging from their past and present conditions. This fundamental aspect of Indigenous life must be carefully and respectfully addressed in the design and implementation of effective dispute management processes. 7.2.1. The importance of history Understanding Australia’s history of colonisation and its impacts on Indigenous peoples can help dispute management practitioners appreciate the underlying reasons for disputes and the ways in which disputes manifest in Indigenous communities. History may also contain elements critical to the [12.290]  717

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The Role of “Culture” in Indigenous Dispute Management cont. management of conflict. For example, the Ali-​Curung snapshot explains that a “three-​tier” dispute resolution process was developed to govern relations between four Aboriginal language groups that settled there when the community was established by government in the 1950s. Similarly, the situation in the Thetown snapshot is contextualised by the forced settlement of Aboriginal groups in the area, and the consequent politics of local groups in an isolated and disadvantaged community seeking to establish new forms of power to deal with a new cultural, social and economic order. In recent decades, there have been significant changes in government policies of engagement with Indigenous peoples and laws which affect their lives. Despite such changes, Indigenous people continue to experience conditions of poverty, social dysfunction, unemployment and illness, which are a major cause of conflict within Indigenous communities, and between Indigenous and non-​Indigenous people, groups and institutions. The NSW and Tiwi case studies exemplify how conflict can be fuelled by circumstances of disadvantage, such as where people are living in overcrowded and inappropriate housing, in stressful or culturally isolated conditions, and where family members are experiencing compounding financial and health related problems. 7.2.2. Kinship and other relationships between the parties Relationships -​and in particular kinship –​are central aspects of contemporary Indigenous societies. Kinship systems can allow for the extension of kin relationships to locate everyone (including non-​ Indigenous people) in some form of relationship. Kinship relationships define inter-​personal obligations, rights and privileges. They form a vital and intimate component of community governance, providing commonly recognised forms of constraint on inter-​personal behaviour and promoting broad community cohesion. Kinship relationships can result in disputants holding a complex range of responsibilities and duties towards each other. The prioritisation of relationships in Indigenous dispute management processes contrasts to many non-​Indigenous processes, where the emphasis is often on the dispute itself and resolution outcomes … [101] Economic, social and political conditions have a significant bearing on the manner in which kinship and other relationships are played out. 7.2.3. Reinforcing local authority and owning disputes Managing conflict is a part of everyone’s lives. Indigenous communities, like all communities, experience a range of conflict, although many Indigenous communities experience levels of violence and conflict that are exceptional and often lethal. The sources of exceptionally intense conflict in Indigenous communities in part stem from, and in part are sharpened by, historical and contemporary sources of disadvantage and alienation from the formal justice system. The ability of Indigenous communities to deal with conflict in ways that reflect their local practice and reinforce local community authority not only help make communities safer and more enjoyable places to live, they also go some way to addressing the sources of dysfunctional and systemic conflict. As Indigenous mediators and facilitators at an AIATSIS workshop in 2005 noted: The most powerful thing is when a community is assisted in developing processes that are their own. 7.2.4. Rituals and ceremony Rituals and ceremonies can provide opportunities for parties to build mutual understandings and respect, to restore fractured relationships and to mark the “end point” of a dispute –​celebrating the outcome of a dispute resolution process in a culturally meaningful way. Ceremonial events also have the potential to contribute to broader processes of reconciliation and healing among communities and cultural groups. 7.2.5. Role of elders Much has been written about the role of Indigenous Elders in decision-​making and dispute management146 and it is clearly important to respect Elders’ authority. While Elders can be essential to the 718 [12.290]

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The Role of “Culture” in Indigenous Dispute Management cont. effectiveness of a dispute management process, their function will differ from context to context, community to community … 7.2.6. Gender It has often been noted that there is a separation of men’s and women’s business in Indigenous communities. Processes which involve male and female staff, working together and/​or separately, can be effective in delivering services which are relevant and accessible to men and women respectively. … In general the case studies and snapshots suggest that, while there are specific factors affecting the involvement of men or women in any particular case, dispute management services that offer processes in which both men and women can participate may be more effective, because they offer inclusivity and are able to cater for the distinct needs of men and women. Effective practice in any dispute requires negotiating the approach to gender issues with men and women, separately and together as appropriate, as an explicit part of the process design. 7.2.7. Dispute resolution and conflict management “models” … the effectiveness of any particular model or variation is dependent on a range of factors, including the ability of practitioners to deal with cultural differences within the process and to understand socioeconomic and linguistic conditions of Indigenous peoples.

 [12.295]  The report goes on to make some specific recommendations about what is required

for effective Indigenous dispute resolution and conflict management (at p 104): • Recognise that cultural issues are inseparable from other issues affecting Indigenous peoples’ lives, including historical and contemporary issues. • Ensure that local services include staff members from each relevant cultural group in the community to enable greater local ownership of the service. • Manage conflicts in negotiation with parties in ways that are congruent with the parties’ cultural values, priorities and governance structures –​including kinship protocols, respect for Elders and traditional owners, use of ceremony, and approaches to gender. • Assist the community to develop processes that are owned by the community. • Evolve processes and services in response to local needs and issues. • Adapt and modify approaches according to the context in which they are employed. [12.300]  Beherendt and Kelly suggest that, for any conflict management or resolution pro-

cess to be suitable for Indigenous participants, it should be built on cultural values and provide Indigenous participants with opportunity to foster authority, control and responsibility.

Resolving Indigenous Disputes: Land Conflict and Beyond [12.305]  L Behrendt and L Kelly, Resolving Indigenous Disputes: Land Conflict and Beyond (Federation Press, Sydney, 2008) pp 12-​13. Reasserting authority and resuming responsibility One of the advantages of employing dispute resolution processes that are built upon Aboriginal cultural values is that they reinforce those values and reassert Aboriginal authority. In this way, dispute resolution processes that actually empower Aboriginal people can be seen as nurturing Aboriginal self-​ determination and sovereignty. This reassertion of authority is particularly important at the [12.305]  719

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Resolving Indigenous Disputes: Land Conflict and Beyond cont. community and family levels, where Aboriginal people are often conflict-​saturated and outcomes are going to fundamentally affect the people involved. Control over the important aspects of our lives is a key aspect of the notion of Aboriginal sovereignty. This increased feeling of control over people’s own lives is even more important in an era which has seen increasing attacks on Aboriginal people’s ability to make decisions on behalf of their communities on many issues. The abolition of the Aboriginal and Torres Strait Islander Commission, and its network of elected regional councils, was illustrative of this shift. Even when Federal Government policies are focused on “shared responsibility agreements”, many questions are raised about the capacity of communities to organise and represent themselves in these negotiations –​particularly since the abolition of the regional council system in 2005. A further marker of the shift in federal policy was the Federal Coalition Government’s “national emergency response to protect Aboriginal children in the NT [Northern Territory]”. This followed the release of the NT Government’s “Little Children are [13] Sacred” Report, regarding child sexual abuse in NT Aboriginal communities. The national emergency response was criticised by a number of Indigenous and non-​Indigenous people, but generally supported by the Labor opposition. The most notable criticism related to the deployment of the Australian Defence Force to Aboriginal communities in the NT, the suspension of the Racial Discrimination Act, the NT Anti Discrimination Legislation and appeals to the Social Security Appeals Tribunal. Not long after taking office, Kevin Rudd, Prime Minister of the Federal Labor Government, said: “We’re prepared to back this intervention”. In such an environment, it is all the more important that Aboriginal communities are given opportunities to assert their authority, and take responsibility, in a wide range of issues and areas. The resolution of disputes is a key place in which this assertion of authority and assumption of responsibility should be fostered. ADR would, particularly in relation to native title, benefit from building models and processes that start with assumptions of Aboriginal sovereignty and cultural authority. These models would not only recognise and empower Aboriginal people, they would create processes that fundamentally shift this post-​colonial power imbalance, which works against Aboriginal claimants.

 [12.310]  Bauman and Williams discuss the importance of choosing appropriate processes to

meet the needs of Indigenous people. They acknowledge the complexity of native title disputes and the diversity of approaches that have been used in that context.

The Business of Process –​Research Issues in Managing Indigenous Decision-​Making and Disputes in Land [12.315]  T Bauman and R Williams, The Business of Process –​Research Issues in Managing Indigenous Decision-​Making and Disputes in Land (Research Discussion Paper #13, first published in 2004 by the Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, GPO Box 553, Canberra, ACT 2601) pp 4-​16. Introduction The relationships between and within groups and individuals are the fundamental building blocks of a functioning society. They require maintenance and ongoing negotiation and re-​negotiation. The nature of any negotiation, decision-​making, dispute management and agreement-​making processes applied, will have consequences for relationships and the social fabric as well as for the sustainability of outcomes. Disputes are a normal part of relationships and decision-​making processes. All societies and individuals experience conflict and disputes and Indigenous societies are no exception. All societies have a range of mechanisms for managing and dealing with disputes, and for bringing to account those whose disputes impact on the social cohesion and structure of the group or society as a whole. 720 [12.310]

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The Business of Process –​Research Issues in Managing Indigenous Decision-​Making and Disputes in Land cont. Adversarial approaches will often achieve outcomes at the expense of relationships and sustainability whereas collaborative and cooperative decision-​making approaches seek to position relationships at the heart of inclusive and sustainable outcomes. For Indigenous peoples, and indeed many other stakeholders, it may be that a primary goal of any dispute management and decision-​making process is one of maintaining relationships rather than a single-​minded focus on finalising or producing discrete outcomes. This does not mean that Indigenous stakeholders do not wish to achieve substantive outcomes, but it does mean that the process may require considerable time and must evolve from, or have a sense of being owned by the group themselves. Achieving a match between the range of Indigenous needs and expectations and models of decision-​making and dispute management is important. Critical to these processes is the recognition that informed decisions are important but not easily achieved and that all decisions will have repercussions, both for those directly involved and for others, including future generations. [6]‌ … Native title disputes can encompass an extraordinarily complex set of circumstances and require consistent and coherent “best practice” approaches from the dispute management professionals involved, Indigenous or otherwise. The broad practice of mediation, including that arising under the NTA [Native Title Act 1993], has been characterised by great diversity in approach and outcome. There is little agreement between practitioners as to what constitutes a “best practice” approach and how such approaches are affected and shaped in Indigenous contexts. Under the rubric of “mediation” and “facilitation”, Indigenous peoples have been subjected to a variety of dispute management and decision-​making processes ranging from highly structured adjudications through to unstructured casual conversations. Stakeholders and service providers do not seem to have a set of shared understandings and expectations of mediation and facilitation processes and, what they can and should deliver. The difference between the range of processes and their consequences are often not clear either to those managing proceedings, or to others involved in and affected by the proceedings. It is also important to recognise that, on the whole, dispute management and facilitation professionals have not been Indigenous peoples and this has procedural ramifications for Indigenous parties. Indigenous peoples have not been passive in these processes, and, in many instances, their agency has transformed the processes as they have asserted their rights to be active players in the management of their own decision-​making and disputes. However, those implementing the processes have often been frustrated by such independent action, seeing it as a negative force which impedes progress, rather than recognising it as legitimate and influenced by Indigenous values and imperatives. It is not surprising that complex, contradictory and unworkable processes that impact on and exacerbate conditions of poor governance and fundamental pressures and tensions within Indigenous groups are sometimes implemented. These processes often ignore the power relations that exist within and between Indigenous groups and with broader “non-​Indigenous” communities. The consequent de-​stabilisation of existing structures, including Indigenous decision-​making and dispute management mechanisms, is a cost borne by Indigenous peoples. The failure of processes often results in the problematising of Indigenous peoples and Indigenous practices. It can lead to the perception that Indigenous peoples are “always fighting”, rather than to the recognition that it is inappropriate processes that are the source of difficulties. It also encourages the idea that disputes between Indigenous peoples are the principal obstacle to achieving native title outcomes and agreements. This ignores the fact that there are disputes within and between other stakeholder groups, including Governments, NTRBs, the National Native Title Tribunal (“NNTT”), mining companies, local farmers and pastoralists and others, which also impede agreements. … [13] Unless there is appropriate facilitation of decision-​making processes, there can be considerable distress which, at times, can harden into animosity and group feuds. Individuals may perceive that they are excluded by inappropriate structures and processes and experience these as direct attacks on their identity. This can be a cause for shame, the effects of which often ripple across wide-​ranging Indigenous networks. Native title places demands on Indigenous peoples to frame their identities in particular ways and this can be a source of significant conflict. [12.315]  721

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The Business of Process –​Research Issues in Managing Indigenous Decision-​Making and Disputes in Land cont. In order to be effective in managing native title issues, there is a need for a far better understanding of the meaning of conflict in Indigenous communities. In our research, we emphasise the need for theory and practice to be mutually informing, and aim to engage both native title practitioners and researchers in a dialogue with the goal of achieving practical and meaningful outcomes. For this to occur, we need to develop a theoretical cultural framework, which sees “culture” not only in terms of “Indigenous” and “non-​Indigenous” differences, but also in terms of the range of differentiations within and between Indigenous groups. Achieving accepted definitions and theoretical frameworks for culture is extraordinarily complex, and is the subject of much debate amongst cultural theorists. It is far easier to say what culture is not than to say what it is. Nevertheless, it is important to develop a theoretical approach which can inform the practice of mediation and facilitation. Perspectives on designing dispute management in indigenous communities [15] There has been little research carried out in Australia as to the critical elements of responsive dispute management systems in Indigenous contexts. Of particular note, however, is the book titled Aboriginal Dispute Resolution, by Indigenous Professor and lawyer, Larissa Behrendt, and the use of the works of Edward T Hall by mediation practitioners in Australia. Both Behrendt and Hall rely upon binary oppositions, which, as noted previously, is problematic. However their work is included here as it informs mediation practice in Australia. Behrendt’s book, which has become a standard text, has been drawn on by a number of organisations in their thinking about dispute system design, including the NNTT. In parallel to a schema developed by Hall, she suggests that it is important to consider “differences” between the “traditional” values of Aboriginal people and those of non-​Aboriginal Australians. Hall argues that all cultures encode and decode information and communication in a variety of different ways. He ascribes a range of values to different cultural contexts such that Indigenous peoples with “collective” cultures conform to “high context” values, and non-​Indigenous peoples with “individualistic” values to low context ones. Many of Behrendt’s “traditional Aboriginal values” correspond to Hall’s “high context” values and his “low context” values correspond to her “non-​Aboriginal values”. Australian mediators such as Rhiân Williams, have used Hall’s work to argue that a fundamental tension exists between the “low context” value of “time dominating”, and the “high context” value of “focus on relationships”. She argues that designing mediation and facilitation processes under extreme time constraints may significantly disadvantage the needs and interests of Indigenous disputants. This is particularly the case, since such time limited processes have usually been framed to exclude historical contexts and concerns and to instead emphasise future agreements and outcomes. As outlined earlier, in interest-​based processes, procedural needs are interwoven and inter-​dependent with substantive and emotional needs. Anything that impacts on procedural acceptability will have a concomitant impact on the parties’ perception of how their substantive and emotional needs and issues are being dealt with. What is fair, respectful, or inclusive for one group may not be the case for another. So how then do mediators and facilitators design processes that accommodate the range of needs, including cultural needs, that parties bring to the negotiating table? The starting point is to recognise that the process itself is the first site of negotiation and that there are differences which will impact on the process. In order to be effective in “intercultural” settings it has been suggested that mediators and facilitators need to have a high degree of comfort with ambiguity as well as the ability to create an inclusive communicative framework to enable the fullest participation of all parties. A genuinely inclusive process demands the recognition that process design cannot be assumed to be culturally neutral, and that preferencing a particular procedural approach may significantly advantage the needs and interests of one group over another. It is also critical that mediators and facilitators recognise that they, themselves, are the product of many forces including cultural ones, and that this has consequences 722 [12.315]

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The Business of Process –​Research Issues in Managing Indigenous Decision-​Making and Disputes in Land cont. for the imperatives that shape the design of their dispute management process. Mediators and facilitators need a self-​reflexive approach which [16] works to make explicit the logic of their procedural approaches so that all stakeholder groups can engage in the negotiation of a mutually acceptable, relevant and responsive process.

 [12.320]  Baumann and Williams acknowledge the difficulty in identifying “best practice” in

intercultural dispute resolution contexts and suggest that reflective practice will assist conflict resolution practitioners to work with different cultural groups effectively. Other examples of what makes an effective dispute management practitioner in Indigenous dispute resolution were provided in the Solid Work You Mob Are Doing report, extracted at [12.325].

What Makes an Effective Dispute Management Practitioner? [12.325]  Federal Court of Australia’s Indigenous Dispute Resolution and Conflict Management Case Study Project, Solid Work You Mob Are Doing: Case studies in Indigenous Dispute Resolution and Conflict Management in Australia (Commonwealth of Australia, Melbourne, 2009) p 118. • Respect for those participating in the process and confidence in their ability and right to manage their own disputes. • Ability to: • build rapport with and gain the trust, confidence and respect of parties; • examine one’s own cultural assumptions; • communicate with a range of people and facilitate conversations between those with diverse communication styles and approaches; • recognise personal limitations of one’s own understanding and experience, including of local and regional socio-​cultural contexts and protocols; and • acquire information and understanding as required. • Being acceptable to parties, including being known to the parties if this is important to them. • Personal qualities such as fairness, non-​judgementally, compassion, empathy, humility, flexibility, impartiality, even-​handedness, patience and a sense of humour. • Focussing on relationships, including kinship, and being able to balance the parties’ substantive, procedural and emotional interests. • Strong ethics, and commitment to: • work effectively with co-​mediators and debrief; • work in partnership with other services in an interagency approach; • recognise the limits of a process, including when it is inappropriate; • identify and allocate appropriate timeframes rather than focussing on personal needs; • apply a range of techniques in comprehensive planning, preparation, relationship building, and process design; • evolve the process as determined by the needs of parties; and • listen.

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[12.330]  The Solid Work You Mob Are Doing report also provided the following recommen-

dations for process design.

Process Design [12.335]  Federal Court of Australia’s Indigenous Dispute Resolution and Conflict Management Case Study Project, Solid Work You Mob Are Doing: Case studies in Indigenous Dispute Resolution and Conflict Management in Australia (Commonwealth of Australia, Melbourne, 2009) p 114. • Build on work carried out in preparation to design effective processes. • Engage with, and respond to, the parties’ preferred ways of doing things and confirm the appropriateness and acceptability of the approach with the parties. • Use team, co-​mediation or panel approaches to: • better account for the broad range of interests and needs in multi-​party disputes; • offer parties a choice of mediators including Indigenous practitioners that allows for matching their gender, cultural background, and other relevant factors such as localness; and • provide practitioners with mutual support and debriefing and offer opportunities for developing the skills of emerging practitioners. • Establish local and regional infrastructure to facilitate access to services and to enable quick responses to referrals or requests for assistance to avoid disputes escalating to the point of intractability. • Work cooperatively with other agencies to deliver complementary interventions in cases where parties are experiencing a range of problems. • Consider who should be invited to attend any events or meetings after extensive discussion with parties. Bringing everybody together in “big meetings” without adequate preparation will be ineffective. • Ensure that all parties agree to the venue. • Create physically safe places in which people feel comfortable to express their feelings, including the venting of strong emotions. • Create culturally safe places which: • use language and communication styles that are understood; • involve appropriate support people for Indigenous parties, including interpreters; and • are located in casual environments, and childcare facilities and playgrounds. • Promote and model effective non-​violent ways of managing conflict. • Respect the importance and complexity of relationships in the Indigenous context and design processes to build positive relationships between the parties. • Allocate sufficient time to reduce the risk of repeated interventions which increase the overall cost of processes. • Negotiate confidentiality and witnessing protocols with the parties.

 Native title mediation [12.340] The Native Title Act specifically provides for mediation of Native Title disputes, and the

Native Title Tribunal has the function of providing assistance including mediation to disputants.

Native Title Act 1993 (Cth), s 108 [12.345]  Native Title Act 1993 (Cth), s 108

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Native Title Act 1993 (Cth), s 108 cont. Function of the Tribunal Applications, inquiries and determinations (1)

The Tribunal has the functions in relation to applications, inquiries and determinations given to it by Part 3 and Division 5.

Mediation for Federal Court proceedings (1A)

The Tribunal has the functions in relation to Federal Court proceedings given to the Tribunal by Division 4 of Part 4 and Division 4AA of this Part.

Reconsideration of claims (1AA) The Tribunal has the functions in relation to applications for the reconsideration of claims made to the Tribunal under section 190E that are given to it under that section. Assistance and mediation generally (1B)

The Tribunal has the functions of:



(a)

providing assistance, mediating or conducting a review in accordance with any provision of this Act; and



(b)

entering into agreements as mentioned in subsection 203BK(3) in relation to assistance of the kind referred to in that subsection.

 [12.350]  The legislation also provides, at s 109, that the Tribunal, in carrying out its func-

tions, may take into account the cultural and customary concerns of Indigenous parties.



Tribunal’s way of operating Objectives (1) The Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way. Concerns of Aboriginal peoples and Torres Strait Islanders



(2) The Tribunal, in carrying out its functions, may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any party to any proceedings that may be involved. Tribunal not bound by technicalities etc.



(3) The Tribunal, in carrying out its functions, is not bound by technicalities, legal forms or rules of evidence.

[12.355]  However, Behrendt and Kelly critically analyse the suitability of mediation for disputes involving Aboriginal people.

Resolving Indigenous Disputes: Land Conflict and Beyond [12.360]  L Behrendt and L Kelly, Resolving Indigenous Disputes: Land Conflict and Beyond (Federation Press, Sydney, 2008), p 57-​67. The preference for mediation As we have seen, there is an emphasis on mediation as the preferred way to reach outcomes in native title disputes. This emphasis is not only the result of its mandatory status in the Native Title Act 1993 (Cth) (NTA); it is also the result of the reduced chances of success, for claimants, of a litigated determination of native title. … [58]

[12.360]  725

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Resolving Indigenous Disputes: Land Conflict and Beyond cont. ADR processes such as mediation are especially attractive to parties who feel that justice would not be achieved through the court system –​perhaps because they don’t have the funds for adequate representation or feel that their claims will be trivialised. Aboriginal people often feel that there is both an institutional and an overt racism in the court system –​some of which is an historical legacy. This contributes to the high level of distrust that the Aboriginal community has towards the legal system. Given the historical injustices the legal system has displayed towards Aboriginal people –​a system that is symbolised by the court –​there is an argument that there needs to be a practical alternative to the court system through which Aboriginal people can resolve disputes. If fairness and justice are to be achieved, an environment must be created in which Aboriginal disputants feel that they will not automatically be disadvantaged. However, in the context of Aboriginal and non-​Aboriginal relations, there needs to be greater input by the parties involved as to what fairness, justice and workability mean in practice. … Despite the advantages that mediation and other forms of ADR provide for non-​Aboriginal disputants, their benefits are not so easily transferable to Aboriginal disputants. ADR methods are undoubtedly more flexible than the court system, and facilitators [59] of these forms of dispute resolution can be trained so that they are sensitive to cultural, psychological and gender issues. However, there are some fundamental issues that need to be addressed before adopting ADR methods for disputes involving Aboriginal people or communities. Given the increasing reliance on mediation as a mechanism for attempting to create better outcomes in disputes involving Aboriginal people, there is a need to analyse the capacity for mediation to meet those expectations. The following is a discussion of the key characteristics of mediation and issues that arise from their application in Aboriginal contexts. Mediation as a voluntary process … In an Aboriginal community, an Elder (or another person, such as a family member) may attempt to influence the outcome of the mediation by, for example, speaking to a party in between mediation sessions. In such a case, the mediator would need to work with the party concerned. The mediator would use appropriate questioning to ensure that the outcome of the mediation is fair, practicable and liveable for the party concerned –​given this [60] cultural dynamic of pressure exertion from extended family and community. One must be careful, however, to ensure that Elders and community leaders are not ignored in disputes, the outcome of which will have a bearing on the extended family or community. A dispute over native title is an obvious example. Any ADR model that does not feature the involvement of Elders is one step away from undermining cultural values. Mediation as a confidential process … The nature and culture of Aboriginal community life are often antithetical to confidentiality. Privacy of related individuals within small communities may be difficult to sustain because of the community’s knowledge of the dispute from the “Murri grapevine”. This cultural dynamic has led some critics to dismiss the use of mediation [61] in Aboriginal communities. However, as pointed out above, even in mainstream mediation where confidentiality is not possible or appropriate, parties can make an exception to confidentiality. Why should this be any different when the parties are Aboriginal? … The guarantee of mediator confidentiality, especially when the mediator lives and works in the Aboriginal community concerned, is reassuring not only for the parties, but also for the mediator. In response to demands, say from extended family or the parties, to divulge what was said in the mediation, the mediator can simply respond with: “it’s not for me to say –​go and ask [the party]”. [62] Mediation as a process facilitated by a neutral third party [63] Resolving disputes in Aboriginal communities may necessarily involve appointing a mediator who is interested in the outcome of the dispute –​but not in the sense of having a financial or legal 726 [12.360]

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Resolving Indigenous Disputes: Land Conflict and Beyond cont. interest in a particular outcome. Rather, it may be that the mediator has a cultural and social interest in maintaining community harmony. Furthermore, the fact that a mediator is related to the parties, or has direct knowledge of the situation, may be regarded by the parties as beneficial in assisting them to reach a settlement. On the other hand, Aboriginal mediators “have rightly declined to handle mediations because family expectations required them to take the side of the favoured friend or family member”. Kelly’s experience as a mediator suggests that Aboriginal disputants display considerably more emotion than do non-​Aboriginal disputants. During Aboriginal family mediations, in particular, emotions can reach such profound levels that Kelly –​even as an Aboriginal person familiar with such strong expressions of emotion –​has found the need to develop strategies to deal with the impact these emotions have on her … In Aboriginal communities, there is “a recognition that certain people are respected for their impartiality within the community, and may be suitable to deal with some disputes”. It would be inaccurate and presumptuous to assume that Aboriginal people are unable to act impartially because of an interest in a dispute. Rather, the precise nature of the mediator’s interest –​including anything that could give rise to a suspicion of mediator bias –​should be clearly articulated to the parties. The fact that the mediators have an indirect involvement in the dispute, but are nevertheless trusted by the disputants, can be seen as an advantage, not a disadvantage. Mainstream mediation services sometimes have difficulty finding a “neutral” Aboriginal mediator to appoint to a dispute –​perhaps because they are applying a strict definition of neutrality. This is in addition to other difficulties they experience in recruiting, training, retaining and appointing Aboriginal mediators. These difficulties sometimes lead them to appoint non-​Aboriginal mediators –​ or abandon the mediation altogether and refer the dispute back to court. Part of the answer may be to adopt a form of dispute resolution that acknowledges the closeness of disputants to each other and to the rest of the community. Aboriginal communities today are still closely connected (in terms of kin relations and shared experiences, not economic interdependence), though not as close as in pre-​invasion communities. Yet the closeness of pre-​invasion clans did not prevent effective dispute resolution. The fact that the dispute manager knew the disputants well was not seen as a [65] conflict of interest –​an Elder from a neighbouring clan was not usually brought in to resolve conflict between members of another clan. Intra-​clan conflict was managed by the clan itself. Mediation as a process between individuals with equivalent power … [66] The acute and chronic disadvantage suffered by Aboriginal people subsequent to the colonial forces of oppression, discrimination, and violence, has placed many of us in a psychological state similar to a victim of domestic violence. The inter-​generational transmission of trauma means that the current generation, who may be several generations removed from (for example) a massacre, continue to experience the impact of the atrocity. Some Aboriginal people find themselves concreted into a victim mindset, and are unable or unwilling to negotiate disputes that require them to shift that mindset. This is especially true for disputants suffering emotional distress (perhaps due to factors unrelated to the dispute), “for example denial, anger or severe depression, or where one of the disputants does not want to take responsibility for any ultimate decision and wants to deflect blame away from themselves”. It may be that only an arbitrated decision, backed by the force of law, can resolve disputes involving such parties. Mediation in a cross-​cultural context Although much of this book concerns mediation in a cross-​cultural context, it is worth emphasising that where the parties and mediator do not share a common culture, the mediation is always going to differ from a mediation where all the concerned are of the same culture. This should not be a surprise, yet it often comes as a shock to mediators from the dominant culture: [12.360]  727

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Resolving Indigenous Disputes: Land Conflict and Beyond cont. Conflict in one’s own culture is invariably confusing, and culture assists us in establishing some basic ground rules. The confusion experienced when involved in a second culture’s conflicts is so great [67] that mediators, consultants, and counselors tend either to withdraw helplessly or plunge in heedlessly. A mediator from a dominant culture must avoid (often conflicting) desires to either control or preference a party from a minority culture. The former urge becomes apparent where, for example, that party’s emotional behavior does not fit the mould of the calm, rational disputant on which the dominant mediation model is based. The latter urge arises where, for example, the party plays upon the mediator’s guilt (or awkwardness) about a history of injustice to the minority culture, in order to gain a greater share of mediator time and attention. A mediator who is familiar with, and respectful of, the cultures of the parties is better able to tap into a reservoir of wisdom for possible resolution. As Augsberger says: So-​called primitive societies often have conflict solutions that are more effective in bonding adversaries and blending goals than those groups who designate themselves as advanced, developed, or possessing far more data about human relations … In traditional cultures, pathways exist in tribal wisdom for channeling the search for conflict resolutions. However, they often have been lost in the blending of cultures in modern society, a blending that reduces cultures towards the common denominator of legal social contracts … [R]‌ecognizing, enhancing, and utilizing each culture’s conflict wisdom are preferable to creating a universal science of conflict and dispute negotiation. Enhancement, not elimination, of human diversity must be our goal. This approach, which we favour, can dramatically alter the mediation landscape: Mediation may be an imported process, a catered affair. It may bring theory, methodology, and praxis from another culture, another vocabulary, another world of thought. Or mediation may begin with, build on, and construct from local insight, understanding, and experience. One can cook with local peppers knowing that they suit the palate better.

 [12.365]  Behrendt and Kelly go on to discuss some of the particular issues for Aboriginal

claimants in native title mediation (pp 73-​85), including that: • It is a foreign process; • It may avoid the bigger issues; • Lack of Aboriginal professionals; • It takes a long time and imposes personal costs on claimants; • Government parties commonly fail to negotiate in good faith; • It is a disempowering process for claimants; and • Tangible outcomes are lacking. They argue that there is a need for Aboriginal dispute resolution, and, in Chapter 5 of their book they set out suggested principles of Aboriginal dispute resolution. In Chapter 6, they introduce a preferred model for intra-​cultural dispute resolution and in Chapter 7, a model for inter-​cultural dispute resolution. 728 [12.365]

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AN ASIAN PERSPECTIVE ON DISPUTE RESOLUTION [12.370]  With the increased focus Australia’s relationship with Asia in what has been called

“the Asian Century” and continuing globalisation, there is a growing need for Australian conflict resolution practitioners to develop Asian culture competency. Singaporean academics and mediators (in the extract at [12.375]) consider the applicability of the typical Western mediation model to an Asian context, and how it might be adapted to take into account different Asian cultural values.

The Quest for an Asian Perspective on Mediation [12.375]  J Lee and H H Teh (eds), An Asian Perspective on Mediation (Academy Publishing, Singapore, 2009) pp 3-​6. The quest for an Asian perspective on mediation [3]‌In the course of our study and practice of mediation, we often encounter amorphous references to an Asian model of mediation. Indeed, the debate on the influence of culture on the practice of mediation, and on whether there is or should be an Asian brand of mediation started almost at the same time as the modern mediation [4] movement in Singapore. Commentators agree that mediation is part of the Asian culture and tradition. However, they have yet to ascertain or pinpoint conclusively any particular approach to mediation that is “Asian”, or to describe any specific model of mediation that is uniquely suitable for the Asian context. We believe that the debate is an important one, increasingly so because of the widespread use and teaching of models in dispute resolution that are based on cultural assumptions in the western societies from which they originate. An example is the interests-​based approach to negotiation and mediation … Presence of mediation in Asia The concept of mediation is not an unfamiliar one in different parts of Asia, particularly in places like China, South Korea and Japan, where Confucianism has a certain influence, and social order, harmony and face-​saving are highly valued. For example, China has an established history of resolving disputes through the intervention of a respected third party by way of mediation. In South Korea, it was found that [5]‌mediation is well established and mediators steer parties not only towards keeping peace but also saving face. For the Japanese, their attitude towards conflict is well-​reflected in a Japanese proverb, “In a quarrel both parties are to blame”. The Japanese society expects tolerance and empathy for others, and the duty to save and give face. In fact, open confrontation, such as litigation in court may be viewed as an admission of personal failure. Mediation is also practised in Malaysia, Indonesia, Thailand and the Philippines. In Malaysia, it is conducted by village headmen known as ketua kampong, mosque leaders known as imans, as well as clan leaders in the Chinese community. This is hardly surprising, considering the Malay majority’s cultural approach to good deeds, which comprises adab and rukun. Adab requires one to show courtesy in word, deed and [6]‌action to others; while rukun directs one to encourage social harmony in the family, community and society. In the neighbouring countries of Indonesia, consensual procedures for decision-​making and dispute resolution have traditionally been used. Disputes have been handled by judicial procedures in which an authoritative decision-​maker met with the disputing parties to negotiate a settlement with his advice, using customary standards and criteria. In addition, group consensual-​based deliberative procedures known as musyawarah, which aim to achieve an acceptable solution for all involved, have traditionally been employed. The Thais have been observed to turn to village elders, monks and other leading figures to mediate their disputes. Similarly, the Filipinos use committees of mediators in villages or barangays as a form of institutionalising their preference for a collectivist, face-​saving and peaceful approach to dispute resolution.

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[12.380]  Furthermore, Lee and Teh review the appropriateness of the interest-​based model

of dispute resolution for the Asian context. They note that while the interest-​based model of conflict resolution may not be one and the same as the “Western” model, if a “Western” model exists, the model nevertheless originates from the West and has inherent Western-​oriented cultural assumptions that may not be appropriate in the Asian context (p 22). They suggest that at least the following four cultural assumptions exist in the interests-​based model: • The primacy of individual and individual’s expectations of autonomy; • The priority of the interests of the individual; • Direct and open communication constructive for conflict management; and • An unconditionally constructive approach to maintaining a good relationship for an optimal outcome. They distinguish between the functional and operational paradigms of the interests-​based model, arguing that the functional paradigm can be utilised effectively in a cross-​cultural context, but that the operational paradigm is more problematic.

Interests-​based Model: A Cross-​Cultural Context [12.385]  J Lee and H H Teh (eds), An Asian Perspective on Mediation (Academy Publishing, Singapore, 2009) pp 41-​42. One conclusion that can be drawn is that the interests-​based model, with its inherent cultural assumptions, is only suitable in compatible cultural contexts. This would mean that other cultural contexts would require the creation and application of a different conflict resolution model. Those at the cultural end of the cultural continuum would probably take this view. As mentioned earlier, we believe that there is value in the interests-​based model and that it is possible to preserve this value in different cultural contexts. It is submitted that the interests-​based model has two levels to it. This distinction has been hinted at earlier. The first level involves the functional paradigm or model for dispute resolution, which is universal. This functional paradigm involves the typical discussion of positions, moving beyond positions to interests, and finding optimal solutions that meet those interests within an environment that promotes constructive communication and relationship building. This is nothing new to anyone familiar with the interests-​based model. This is the level which we believe can be preserved and applied cross-​culturally, particularly the seven elements of the interest-​based model, namely interests, options, alternatives, legitimacy, communication, relationship and commitment in the dispute resolution process. The second level is the operational paradigm or methods by which the model is put into practice, which is sensitive to the context in which the interests-​based model operates. This is the level at which [42] culture operates, often silently and unnoticed as assumptions. It is submitted that when applying the interests-​based model to a culture that operates on a set of different assumptions, it is possible to replace the incompatible assumptions with appropriate ones … While the interests-​based model may lend itself to facilitative methods, we have observed its application in a far more involved manner. For example, the mediators of the Singapore Mediation Centre are trained in the interests-​based model, but a significant number do not confine themselves only to the facilitative role of a process manager. As can be seen from the survey findings on the types of intervention set out in ­chapter 4, a significant percentage of them was involved in one manner or another in pointing the way forward for the resolution of substantive issues in dispute, and to good effect. When seen this way, it becomes clear that this approach does not fit easily into the cultural continuum. At the functional level, it would not be incorrect to say that we are nearer the universalist end 730 [12.380]

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Interests-​based Model: A Cross-​Cultural Context cont. of the continuum. At the operational level, it would be more accurate to say that we are closer to the cultural end of the continuum. It is hoped that thinking about the interests-​based model in this way allows for a more nuanced way of dealing with the issue of culture while still preserving the value of an essentially useful dispute resolution model. If this perspective is the way forward, the question then that arises is what cultural assumptions should operate in Asia?

 [12.390]  Later in their book, they identify some particular Asian values and beliefs that have

an impact on how mediation is conducted.

Incompatible Cultural characteristics and the Tensions They Create [12.395]  J Lee and H H Teh (eds), An Asian Perspective on Mediation (Academy Publishing, Singapore, 2009) pp 54, 61-​70. We suggest that there are three core themes which may be gleaned from the literature on Asian culture that correspond to the cultural assumptions of the interests-​based model. They are: (a)

Confucianism;

(b)

Collectivist inclination; and

(c)

Prevalence of face concerns.

For ease of reference, when we refer to the “Asian context”, we will be referring to any situation wherein elements of the core themes identified in the paragraph above are present. Otherwise, depending on the extent to which they are absent, the Asian perspective on mediation that we will be describing may have to be modified accordingly for application or may not be applicable, even if one is mediating in Asia. This is an important point, as calling what we will be describing in ­chapter 4 an “Asian perspective” may mislead readers into thinking that we are suggesting that it will be applicable so long as mediation takes place in Asia or involves Asians. … [61] F. Incompatible cultural characteristics and the tensions they create In a collectivist context, because of the importance of hierarchical relationships and the desire to obey and respect those higher in the hierarchy, not only are the needs of the individual less than paramount, it is anathema for an individual to be the sole locus of decision-​making. Even if one does not abdicate the making of the decision to authority figures, it would be no surprise that one would accord value and respect to the opinions of these authority figures. [62] … [A]‌uthority figures, like the village headmen, religious elders and clan and community elders, act as mediators in Indigenous forms of mediation in various Asian communities. It is a mark of social recognition to be called upon to act as a mediator. A mediator is usually senior to the individual disputants and expected to assume a leading role to guide them out of their problems. The disputing parties are junior to the mediators and are expected to look to the mediator for advice and direction … A mediator who purely facilitates and holds back on providing guidance and directions to the disputants may be seen to have abdicated his duties as a senior person. Further, as individuals are not accustomed to being the sole locus of decision-​making, a mediator who consistently prompts the parties to “own” the mediation process and mediated outcome by taking decisions on their own may cause them no measure of frustration. [12.395]  731

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Incompatible Cultural characteristics and the Tensions They Create cont. In short, a mediator who stays clear of substantive issues and leaves them entirely in the hands of disputants, when the disputants expect some input that may propel them towards settlement, may be viewed as ineffective or may lose the confidence of the parties. In counterpoint to this first assumption of the interests-​based model, we consider it useful to examine more closely the importance of hierarchy and authority and their impact on conflict resolution, decision-​making and communication. There are two key aspects to this. The first involves the impact of hierarchy and authority on the structure of the dispute resolution process, the roles of the participants in that process and the way decisions will be taken throughout that process. The second involves the impact of hierarchy and authority on the selection of the mediator and mediator attributes and behaviour that will engender confidence and trust … [63] 2. Priority in observing proper conduct A collectivist worldview produces a set of priorities that is different from one that is individualistic. This has two implications. Firstly, the definition of “self” may include not only the individual and his immediate family, but also those related to him in other ways. Accordingly, “interests” may cover a correspondingly broad scope. Proper conduct may require those wider interests of the group to be accounted for. As such, they are relevant unless otherwise excluded by the individual. In fact, they may even take priority over the interests of the individual. Using an individualistic approach will produce an overly narrow definition and incorrect prioritisation of “interests”. Secondly, proper conduct requires the individual to think in terms of “we” and not “I”, especially when the dispute is between “in-​group” members. As pointed out earlier, being overly concerned for one’s own interests may not be considered dutiful. Instead, self-​sacrifice and compromise may be expected as harmony is valued more than personal achievement. The Thais, for example, believe that overt, aggressive competition within the group, and unwillingness to conform to group behavioural norms is evil. Another example may be found in the reluctance to commence legal action against one’s family member for the sake of enforcing one’s legal rights. That will lead to a loss of face for everyone concerned and is generally not considered an option. Any assumption of priority of individual interests that leads to the prevalence of personal preferences, and that gears the mediation process toward helping individual disputants find a resolution that will maximize only their own satisfaction and gain, may therefore not be culturally appropriate. [64] 3. Communication and conduct gearing towards preserving harmony, relationships and face Open debate and confrontation is the norm in the pursuit of individual rights in Western democracies. The preference for direct and open communication that is assumed in the interests-​based model of mediation is therefore a given in that context. However, such a communication culture clashes with the Asian one where the goal to seek a collaborative solution would not justify a confrontational stance. Indeed, the core concepts of Confucianism, collectivism and face may make it difficult for the parties in dispute to be explicit about their interests, perceptions and feelings, especially if any overt expression is perceived to be aggressive or overly emotional, or if it is likely to cause embarrassment to anyone. Besides, it is a breach of social etiquette to engage in any discourse that may cause someone higher in the social hierarchy to lose face or that harms relationships within the collective. The conservative and reserved nature of the Asian society means that overt communication or disagreement or displeasure is avoided. For example, in an interesting discussion about the role of the formal meetings in Korea, it is noted that the Koreans do not regard formal meetings as “hot debate places” but regard them as opportunities to express group harmony and mutual trust. Similarly, in Japan, formal meetings are places where harmony is demonstrated and relationships are restored, and table negotiations are often ritualised as agreements may be secured informally behind the

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Incompatible Cultural characteristics and the Tensions They Create cont. scenes. In Thailand, confrontation is considered “rude, damaging and undesirable”, and expressing ambitions openly is regarded as inappropriate. A mediator who attempts to unearth issues, concerns and feelings for discussion that by convention should be left unspoken, or who seeks to draw the [65] parties into a process requiring them to speak their mind plainly is therefore likely to create discomfort for them. In this regard, we consider it useful to examine a form of communication that is more indirect and highly dependent on context, one that is more subtle, where what is stated is as important as what is not … 4. Context-​dependent relationship maintenance as a way of life The Asian view towards relationships varies according to the in-​group /​out-​group status of a person: In individualist societies, the distinction between out-​groups and in-​groups is relatively unimportant, and self-​sufficiency is emphasized more. In collectivist societies, behavior toward in-​group members may be markedly different from behavior toward out-​group members, and values such as interpersonal harmony and group solidarity are more emphasized. Such a distinction means that there are different standards for building and maintaining relationships –​ one gives and expects more from in-​group members and vice versa in relation to out-​group members. Unlike Western societies, relationship building moves will differ and will depend on the nature of the relationship between the parties. Take the concept of “guanxi”, roughly translated to mean personal connections based on familiarity, similarity and friendship in the Chinese society for example, the type of guanxi determines the proper response to a situation. Confucian ethics dictate, inter alia, that a person exists through, and is defined by, his relations to others, and that social order is ensured through each one honouring the duties in his role relationship. The focus on duty and propriety has direct implications on how relationships are valued, cultivated and maintained. The duty an individual owes to his group or social network would require him to maintain good relationships as an integral part of his existence, not merely as a means to an end. Put simply, maintaining good relations with in-​group members is an end unto itself and a way of life. In such a situation, the cultural assumption in the interests-​based model, which essentially promotes the maintenance of relationships to achieve a good outcome for a particular matter or to facilitate future dealings, is only a subset of how the maintenance of relationships may be viewed. Securing an acceptable agreement or facilitating future deals may be less important, or at least at the very most, as important as building and maintaining a relationship with an in-​group member for its own sake. As for out-​group members, any interest in establishing relationships would likely be more similar to the approach in the interests-​based model. In relation to how relationships are maintained, a crucial part of that is accomplished through facework in the Asian context. Ting-​Toomey’s study shows that the management of face is quite different in collectivist and individualist societies. Collectivists focus on positive-​face needs. Due to their concern for maintaining face for both self and others, they engage in greater indirect face-​negotiation and use more mutual-​and other-​face strategies. These translate into face-​giving (for example, compliments and expression of appreciation) and avoiding humiliation or face threats to others through the use of indirect and high-​context communication. Individualists, on the other hand, focus on negative-​face needs and use more self-​face strategies. These manifest in actions to safeguard one’s rights and to save face (for example, explanation to justify one’s actions). … [67]-​[70] In the table that follows, we juxtapose the Western-​oriented cultural assumptions of the interests-​based model with Asian-​oriented ones, and explain the tensions created by incompatible cultural characteristics when the features and strategies of the interests-​based model are transplanted into the Asian context. The discussion in the preceding section can be summarized thus: [12.395]  733

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Incompatible Cultural characteristics and the Tensions They Create cont. Western-​oriented Cultural Assumptions of the Interests-​based Model

Resulting Features /​Strategies of the Interests-​based Model

Suggested Asian-​ oriented Cultural Assumptions

Tensions Created by Incompatible Cultural Characteristics

Primacy of the individual and the individual’s expectations of autonomy.

Western-​oriented assumption puts disputing parties first and in the centre.

Primacy of social hierarchy and the individual’s expectations to fulfill roles in hierarchical relationships.

Asian-​oriented assumption requires mediator to be at the heart of the mediation. A party-​centric process may leave mediator and parties feeling out of place.

 

Mediator is an external neutral party who facilitates the process and has low substantive authority.

 

Mediator has high social status and is expected to lead and guide. Mediator who does not assume position of authority may be deemed ineffective.

 

Parties know best and therefore most well placed to decide on form of mediation process and shape of mediated outcome.

 

Parties expect guidance from mediator, and are expected to value and respect his opinions. A mediator who holds back on such guidance may be viewed to have abdicated his responsibilities.

 

 

 

Individuals not accustomed to being the sole locus of decision-​making. They may be frustrated if prompted to take decisions without any assistance in the form of inputs from an authoritative source.

 

Interactions are kept informal to encourage parties to negotiate and take decisions.

 

Interactions with an authority figure in the form of mediator on egalitarian terms may be a breach of social etiquette.

Priority of interests of the individual.

Western-​oriented assumption gears mediation process towards helping parties maximize and satisfy individual interests.

Priority in observing proper conduct.

Satisfying and maximising individual interests may not be considered “proper conduct”.

 

Interests include those of self and immediate family members.

 

Interests include those of self, immediately family members and wider groups, and group interests may have priority, especially in a dispute with another in-​group member.

Direct and open communication constructive for conflict management.

Open debate and confrontation acceptable.

Communication and conduct gearing towards preserving harmony, relationships and face.

Pursuit of individual rights and search for collaborative solution to problems do not justify open confrontation.

 

Explicit expression of feelings, views and concerns encouraged to “air” grievances.

 

Disputants may be more reserved and reticent, and prefer to communicate through non-​verbal cues or in more subtle ways.

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Incompatible Cultural characteristics and the Tensions They Create cont. Western-​oriented Cultural Assumptions of the Interests-​based Model

Resulting Features /​Strategies of the Interests-​based Model

Suggested Asian-​ oriented Cultural Assumptions

Tensions Created by Incompatible Cultural Characteristics

 

Joint sessions perceived to be beneficial as flow of information may create new levels of understanding and create options for settlement.

 

Joint sessions for open discussion may be perceived as face threatening.

 

Mediator facilitates process by asking questions to surface underlying interests and hidden emotions and turn them into issues for joint discussion.

 

Unearthing issues that should be left unspoken may lead to embarrassment and disengagement from the process.

Unconditionally constructive approach to maintaining good relationship for optimal outcome

Cultivation and maintenance of good relations to secure a good outcome or facilitate future dealings.

Context-​dependent relationship maintenance a way of life.

Cultivation and maintenance of good relations with in-​group members a matter of priority and an end unto itself.

 

 

 

Any interest in cultivating or maintaining relationships with out-​group members would likely be more similar to the original interests-​based model.

 

In view of objective, same approach to relationship building generally taken for one and all.

 

Nature of relationship (in-​ group /​out-​group) dictates appropriate approach to issues of relationship.

 [12.400] QUESTIONS

1.

Consider the various examples of cultures discussed in the first half of this chapter. What are some different “cultures” that you identify with?

2.

Consider one of the cultures with which you identify. What are some of the norms, values, etc. relevant to that culture?

3.

Why is it important that a conflict resolution practitioner understands (as much as possible) the cultures with which disputants identify?

4.

What is the relationship between culture and conflict?

5.

Think of a real-​life conflict involving disputants from different cultures. Using Moore and Woodrow’s “Wheel of Culture Map” (at [12.85]), identify the different variables for this conflict.

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6.

Are there any aspects of a culture with which you identify (norms, values, customs and behaviour patterns) that are likely to impact on how someone who identifies with that culture thinks about and behaves in conflict? What are those aspects and how do they impact on conflict resolution?

7.

How does culture impact on conflict resolution?

8.

How do the cultures with which a mediator identifies impact on the mediator’s ability to support disputants?

9.

What are some cultural issues that need to be considered in family dispute resolution?

10. What are some ways to develop cross-​cultural fluency? 11. Critique the effectiveness of cross-​cultural dispute resolution in the context of Australian native title disputes. 12. Critique the effectiveness of the Western mediation model in Asian societies.   

736 [12.400]

CHAPTER 13

Legal Issues [13.05] INTRODUCTION......................................................................................................... 737 [13.10] CONFIDENTIALITY AND PRIVILEGE............................................................................. 738 [13.15] The public policy rationale.......................................................................... 738 [13.20] Without prejudice privilege......................................................................... 739 [13.25] Lukies v Ripley (No 2)....................................................................... 740 [13.35] 789TEN v Westpac........................................................................... 742 [13.45] Field v Commissioner for Railways (NSW).............................................. 744 [13.50] Legal professional privilege.......................................................................... 746 [13.55] Australian Crime Commission v Stewart................................................ 747 [13.60] Statutory privilege....................................................................................... 751 [13.65] Rajski v Tectran Corporation Pty Ltd..................................................... 752 [13.75] Wentworth v Rogers......................................................................... 755 [13.80] Exceptions to statutory privilege.................................................................. 758 [13.85] The Silver Fox Co Pty Ltd (as Trustee ...) v Lenard’s Pty Ltd........................ 759 [13.95] Contractual confidentiality.......................................................................... 761 [13.105] Cannon v Griffiths (No 2).................................................................. 762 [13.110] LIABILITY AND IMMUNITY........................................................................................... 764 [13.110] Common law liability.................................................................................. 764 [13.120] McCosh v Williams........................................................................... 764 [13.130] Tapoohi v Lewenberg (No 2).............................................................. 767 [13.140] Exploring Mediator Liability in Negligence............................................. 771 [13.145] Statutory immunity..................................................................................... 775 [13.150] Von Schultz v Attorney-​General of Queensland....................................... 776 [13.155] ENFORCEABILITY OF SETTLEMENT CONTRACTS......................................................... 777 [13.155] Generally.................................................................................................... 777 [13.160] Pittorino v Meynert.......................................................................... 777 [13.165] The requirement of writing......................................................................... 784 [13.170] Reporting to court and court orders............................................................ 785 [13.175] Hart v Kuna.................................................................................... 785 [13.180] ENFORCEABILITY OF DISPUTE RESOLUTION CLAUSES................................................ 788 [13.185] Drafted in Scott v Avery form...................................................................... 789 [13.190] Scott v Avery................................................................................... 789 [13.195] Drafted to avoid uncertainty....................................................................... 791 [13.200] Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd........... 791 [13.210] Aiton Australia Pty Ltd v Transfield Pty Ltd............................................. 793 [13.215] To What Degree of Certainty Must a Dispute Resolution Clause Be Drafted?...... 796 [13.220] Drafted to avoid a reference to “good faith negotiation”............................ 800 [13.225] The Good Faith Element in Alternative Dispute Resolution......................... 801 [13.235] Drafted with a provision for a remedy......................................................... 805 [13.240] Remedies: A Bar to the Enforceability of Dispute Resolution Clauses............. 805 [13.250] QUESTIONS................................................................................................................ 811

INTRODUCTION [13.05]  One of the consequences of dispute resolution being practised in the shadow of the

law and its increasing popularity and formalisation is the extent to which the law impinges on its practice. There is now a body of law that has developed, and continues to develop, around the various legal issues that impact on the practice of dispute resolution. For example, when [13.05]  737

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parties reach a settlement that is embodied in a written document or verbal agreement, the law of contract is invoked. Therefore, the law of contract becomes inextricably intertwined with dispute resolution. Further, the rise of statutory schemes of dispute resolution now require judges to address their minds to how the various statutes should be interpreted and applied to various factual and procedural situations within dispute resolution contexts. An example of this is statutory privilege, an issue to be discussed below. This chapter will seek to touch on some of the more topical legal issues arising from the practice of dispute resolution in Australia. First it will deal with confidentiality and privilege, which are said to both enshrine and at times compromise the philosophical tenets of dispute resolution. Secondly, it will address the issue of the liability and immunity of third party neutrals, which has been an ongoing concern since the formalisation of dispute resolution. Thirdly, it will deal with the enforceability of settlement agreements reached at dispute resolution –​also an area of concern given the increasing number of settlements now coming before the courts where parties are claiming they were coerced into signing a settlement agreement at the conclusion of dispute resolution. Finally, the chapter will discuss the enforceability of dispute resolution clauses in contracts, which continues to be a problem for the courts in some jurisdictions, but an issue that seems to have been solved in the Victorian Supreme Court, with other courts in Australia yet to decide the fate of such clauses.

CONFIDENTIALITY AND PRIVILEGE [13.10]  One of the hallmarks of dispute resolution is that the process is confidential. This

most commonly means no party will be able to use information disclosed in a dispute resolution process in subsequent court proceedings. Organisations often see confidentiality as a reason to use dispute resolution ahead of litigation, the latter being a process conducted in a public forum because of the open court system in Australia. For example, corporations sometimes favour a dispute resolution process over litigation to protect sensitive areas of their commercial operations from public scrutiny in open court. There are a number of different types of confidentiality, but each has its basis in a common public policy rationale. The public policy rationale [13.15]  When assessing confidentiality and privilege, the courts generally weigh up compet-

ing public policy interests. This means that when the courts are determining if certain evidence should be revealed in open court, they will try not to cause injury to the public good by allowing that evidence to be revealed or not revealed. First, the courts generally consider the public interest in encouraging parties to resolve their disputes outside the court system. If the courts did not encourage this, then the legal system would possibly break down for its inability to handle the increased case load. In this respect, it can be stated that only those matters deserving adjudication should end up in court, that is, only those matters that contribute to the body of law already in existence or create new law should be litigated. So the courts have a genuine interest in seeing parties at least attempt to solve their own disputes prior to coming to court. Further, parties themselves have a genuine expectation that information disclosed in a dispute resolution process will not be disclosed to the public. Parties also have a genuine expectation that information disclosed in a dispute resolution process should not be able to be used against them in subsequent litigation –​otherwise, parties may choose not to participate in open and frank discussions during a dispute resolution process. This concept was expertly summarised when the Court of Appeal of England and Wales stated: 738 [13.10]

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That the rule rests, at least in part, on public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy. It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings. They should, as it was expressed by Clauson J in Scott Paper Co v Drayton Paper Works Ltd (1927) 44 RPC 151 at 157, be encouraged freely and frankly to put their cards on the table.1

The other competing interest to be weighed against the public interest in encouraging parties to resolve their own disputes in private is that the administration of justice requires that the best possible evidence be put before a court to ensure a just, fair and legal outcome. In this respect the courts must be careful not to exclude evidence that will ensure that justice is done and seen to be done. Further, parties should not be allowed to take advantage of confidentiality in a dispute resolution process by being able to quarantine evidence that may be detrimental to their case. Thus, the courts have to weigh up these two competing public policy interests and decide whether evidence should be admissible based on whichever of the competing interests carries the greatest weight and serves the interests of the general public. This is not an easy task and judges are required to decide the admissibility of evidence, which could have a great bearing on the success or failure of a plaintiff or defendant’s case based on these competing public policy interests. Without prejudice privilege [13.20]  Without prejudice privilege has its roots in the common law and is defined as being

a communication made during the course of genuine negotiations conducted with a view to settling an existing dispute. Such communications attract without prejudice privilege and prevent disclosure of the communication. There are three important requirements to be satisfied before a communication, made as part of a negotiation, can be classed as being “without prejudice”: (i) there must be a litigious dispute between the parties or contemplated by the parties; (ii) the communication must be made with the express or implied intention that it would not be disclosed to the court in the event that negotiations fail; and (iii) the purpose of the negotiation must be to attempt to effect a settlement. Without prejudice privilege applies whether or not there is litigation on foot between the parties, so litigation may be merely contemplated for “without prejudice” privilege to apply. It is a rule of evidence that “without prejudice” communications are not admissible without the consent of both parties to the communication. Statute has codified the common law protection of without prejudice privilege. In particular, s 131(1) of the Evidence Act 1995 (Cth) (the Evidence Act) states:

(1) 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

1 Cutts v Head [1984] 1 All ER 597 at 605. [13.20]  739

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(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.

In an effort to have uniform legislation governing the rules of evidence, the following States have passed the Evidence Act and with it the s  131(1) provisions as to without prejudice privilege: • Australian Capital Territory –​ Evidence Act 2011 • New South Wales –​ Evidence Act 1995 • Northern Territory –​ Evidence (National Uniform Legislation) Act • Tasmania –​ Evidence Act 2001 • Victoria –​ Evidence Act 2008 Other States rely on either other legislation or the common law to provide the appropriate tests for without prejudice privilege.2 The following extract illustrates the court’s weighing of public policy in relation to what sort of evidence should be admissible and what sort of evidence is inadmissible based on the protection of discussions that seek resolution of a dispute.

Lukies v Ripley (No 2) [13.25]  Lukies v Ripley (No 2) (1994) 35 NSWLR 283 at 287-​289. [Facts: Lukies agreed to purchase a house at Lake Illawarra which burnt down between exchange and settlement. In previous proceedings, Young J found for Lukies on their claim for abatement of the purchase price. The issue before the court in this matter was whether the court should receive in evidence two letters that could go to the issue of costs –​the only remaining substantive issue before the court. The first letter was from the plaintiffs’ solicitors to the insurer’s solicitors suggesting that a proposed conference between the parties should be postponed until the plaintiffs offered a sum of money that the plaintiffs would compromise the claim for. The second letter was from the defendants’ solicitors to the plaintiffs’ solicitors requesting that the plaintiffs have a firm figure in mind so that “matters can be swiftly agreed to”. Held: The court inferred that the parties had intended that the correspondence was to be on a without prejudice basis. His Honour, Young J based his judgment on public policy reasons. In particular, that it was in the interests of the public that parties be encouraged to resolve their disputes outside of court adjudication. Further, where negotiations were designed to agree only on matters of figures and values so as to shorten litigation, they were within the protection of the privilege.] [287] Young J: In my view the true rule is as follows: 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. I must admit the rule is nowhere so stated but it seems to me that it fits in with the authorities, some of which I will now proceed to examine. In Kurtz & Co v Spence & Sons (1887) 58 LT 438, a decision referred to with approval by the High Court in Field’s case (at 292), Kekewich J said (at 441): … These letters and these interviews were “without prejudice”. I shall not attempt to define the words “without prejudice”, but what I understand by negotiations without prejudice is this: The plaintiff or defendant, a party litigant, may say to his opponent, “Now, you and I are likely to be engaged in severe warfare. If that warfare proceeds, you understand I shall 2 See for example, Evidence Act 1929 (SA) s 67C. 740 [13.25]

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Lukies v Ripley (No 2) cont. take every advantage of you that the game of war permits. You must expect no mercy, and I shall ask for none; but, before bloodshed, let us discuss the matter, and let us agree that, for the purpose of this discussion we will be more or less frank. We will try to come to terms, and that nothing that either of us says shall ever be used against him so as to interfere with our rights at war if unfortunately war results”. The parties need not actually use the magic words “without prejudice” if it can be seen from all the circumstances that claims have been made and that negotiations have taken place bona fide with a view to compromise: see Rodgers v Rodgers (1964) 114 CLR 608 at 614. In the instant case, the parties did not make it clear what exactly they were doing. It would seem from PX 1003 that the conference was to try to reach agreement as to the value of the fire affected property and a fair quantification of loss of income referred to in the plaintiffs’ claim. The parties did not indicate that their discussion was to be without prejudice. However it seems to me, doing the best I can, that the conference was without prejudice. I infer this first from the words “informal conference”. If there was to be a conference which was “on the record”, why would the adjective “informal” be used. Secondly, when one sees that parties have solicitors and that there is a court case pending and they are endeavouring to reach agreement on some of the issues, then it seems to me that in the spirit of decisions such as AMEV Finance Ltd v Artes Studios Thoroughbreds Pty [288] Ltd (1988) 13 NSWLR 486, one should lean towards the inference of a without prejudice discussion rather than the other way … Passing now to a different type of case, what happens after a failed mediation, it is useful to look at two decisions given in the AWA litigation, the first AWA Ltd v Daniels (t/​a Deloitte Haskins and Sells) (Rolfe J, 18 March 1992, unreported) and secondly, AWA Ltd v Daniels (t/​a Deloitte Haskins & Sells) (1992) 7 ACSR 463, a decision of Rogers CJ Comm D. In that case the Commercial Division had directed the parties to undertake mediation. The judgment of Rolfe J shows that the parties could not agree on the terms of the mediation, but at the commencement the plaintiff’s solicitor said: “Upon the basis that what I am about to say is without prejudice and confidential to this Mediation I state …” The mediator, a retired Supreme Court judge, then said that he hoped that the mediation agreement could be signed during the day, but in the meantime he asked whether there was an agreement that the mediation could proceed on a without prejudice and confidential basis. The parties and their solicitors agreed and the mediation proceeded. In the course of the mediation, various documents were produced. It may have been that the existence of these documents only became apparent during the course of the mediation. When the mediation failed and the matter resumed its hearing before the court, no party suggested that evidence could be given of anything said at the mediation whether by way of an admission or otherwise. However, subpoenas were issued for production of the documents whose existence was revealed at the mediation. Rolfe J (at 6) of his judgment, said that mediation was somewhat analogous to without prejudice discussions, but there were significant differences which he detailed. The judge held that the subpoenas should be enforced because they did not seek to prove directly or indirectly what was said at the mediation: They seek to prove, by admissible evidence, a fact to which reference was made at mediation not by reference to the statement but to the [289] factual material which sourced the statement. A finding to the contrary would mean that irrespective of relevance to issues the statement at mediation made the factual material upon which it was based immune from subsequent consideration by the Court … His Honour then made it quite clear that nothing in his reasons was intended to cast doubt upon the proposition: … that admissions or statements made at mediation, which is being carried out on a confidential and without prejudice basis, or at without prejudice settlement negotiations, can [13.25]  741

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Lukies v Ripley (No 2) cont. be proved in court, unless, of course, the parties consent … If frankness and disclosure at mediation discloses a previously unknown strength or weakness in the case for a party, the other party may call properly admissible evidence to seek to negate such strength or expose such weakness if litigation follows. The second AWA decision given by Rogers CJ Comm D showed that as a matter of fact the defendant’s solicitor was aware of the possibility of the existence of the documents before the mediation and in any event they should have been discovered. Accordingly, the question did not arise but his Honour said (at 467-​468): If the fact be that the other side has absolutely no inkling of some matter, which, if known about is capable of being established by objective evidence, but which would not ordinarily come to the knowledge of the other side in the normal progress of litigation and its existence is revealed only by a statement made in the course of, and for the purposes, of the mediation, I would hesitate long before concluding that the objective evidence so revealed is admissible … That is not to say that there are no powerful arguments the other way. One of the matters to which Rogers J then referred was that the court must avoid the situation where a party sterilised otherwise admissible objective evidence simply by saying something about it in the course of a failed mediation. Rogers CJ Comm D also (at 469) drew attention to s 28 of the Community Justice Centres Act 1983 which made inadmissible “evidence of anything said or any admission made in a mediation session”. He rightly indicated that this section gave some force to the view that it was public policy that statements made in mediation should not be admitted in evidence …

 [13.30]  Not only does Young J state the balancing of public policies issues when it comes to

courts considering the admissibility of evidence that may be protected by without prejudice privilege, but his Honour also draws attention to the fact that without prejudice privilege can be implied as well as express. The following extract explores the difference between without prejudice communications and the admissibility of objective facts.

789TEN v Westpac [13.35]  789TEN v Westpac [2004] NSWSC 594 at [24]-​[31]. [Facts: The plaintiff, 789TEN, claimed an amount of more than $9.9 million plus interest, expenses and costs against the first defendant, Westpac Banking Corporation and the second defendant, Colin Alexander, a director of the plaintiff, for the unauthorised use of its bank account. 789TEN conducted a bank account with Westpac by whom Alexander was authorised to operate up to a limit of $4,999 on his own or over $5,000 with the two directors’ signatures. 789TEN alleged that Alexander operated the bank account in excess of his authority and that Westpac made payments accordingly. The total amount paid by Westpac was $11.6 million of which only $1.7 million had been recovered. Westpac cross-​claimed against the two directors and 789TEN, alleging a conspiracy between the three cross-​defendants. Alexander alleged that Westpac used privileged information from a mediation conducted in the matter to draft its cross-​claim pleadings. Held: The relevant paragraphs of the cross-​ claim should not be struck out because the confidentiality clauses in the mediation agreement made privileged only documents from the mediation not information brought into the mediation from the parties to it. In this respect the parties had deliberately drafted the mediation agreement to distinguish between the two issues. Further, at general law only admissions are privileged in mediation and not objective facts disclosed in mediation.] [24] McDougall J: One point of significance that emerged from the judgment of Rogers CJ Comm D, at 467, is that his Honour considered that the decision in Field “concerned the admissibility of an 742 [13.30]

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789TEN v Westpac cont. admission and not of objective evidence to which earlier reference had been made”. Accordingly, his Honour said that the proposition upon which Rolfe J had relied as stating the law, as to proof by extrinsic evidence, was strictly obiter. Rogers CJ Comm D said: In my respectful view the judgment of the High Court is not determinative of the present question although, without a doubt, a judge at first instance is hardly likely to take a view different from a statement, even if obiter, in a joint judgment in the High Court. [25] The decisions of Rolfe J and Rogers CJ Comm D were consider by Young J in Lukies v Ripley (No 2) (1994) 35 NSWLR 283, 288-​289. His Honour expressed no view upon the apparent difference of opinion between them. [26] The two decisions were also considered by Lee J in Williamson v Schmidt [1998] 2 Qd R 317, 332-​336. His Honour quoted extensively from each decision and referred to the decision of Young J in Lukies. At 336, his Honour adopted the approach of Rolfe J. He concluded that the plaintiff was “entitled to prove if it can by admissible evidence, subject to any without prejudice considerations, the existence of any fact or matter disclosed at the mediation proceedings, although the plaintiffs cannot lead in evidence, in those later proceedings, anything done or said or any admission made at the mediation proceedings”. [27] I think that the analogy between without prejudice discussions and mediation is compelling. I do not think that the relative formality of the latter process affords a relevant ground of distinction. Nor do I think that the perceived need for greater frankness in the latter process does so. There is no compulsion on a party to disclose information for the purposes of mediation. If a party wishes to protect itself from the consequences of disclosure, it is open to it to seek to do this by an appropriately drafted mediation agreement. If the parties do not do so, I do not think that, on policy grounds, the Court should do it for them. [28] I, therefore, like Rolfe J take the statement by the High Court in Field, to which his Honour referred, as being decisive. I do not need to consider whether, as Rogers CJ Comm D suggested, that statement was strictly obiter because, as his Honour pointed out, a judge at first instance is hardly likely to take a different view. [29] In any event, if I were to consider the matter on the basis that I was not bound, in the circumstances of this case, by the statement of principle in Field, I would conclude that the relevant privilege requires a distinction to be drawn between communications (written or oral) and the information contained in them. I think that the balancing considerations to which both Rolfe J and Rogers CJ Comm D pointed require that conclusion. Any attempt to extend the common law privilege from statements or documents to information contained in them would raise well nigh insuperable problems. They would include both the sterilising effect to which Rolfe J referred and the diversion of court resources into lengthy, complex and perhaps insoluble enquiries into the nature and sources of information that a party to mediation possessed apart from the information said to have been provided under the protection of the mediation. Further, I think that acceptance of the proposition for which Mr Alexander contends would have the practical effect of discouraging parties from mediating early, so as to avoid the sterilising effect of disclosure at mediation. The inevitable consequence would be that parties would feel compelled to prepare their cases fully before attempting mediation. That would be likely to make mediation less acceptable, and less likely to succeed for at least two reasons: namely, the substantial expense incurred in preparation, and the inevitable entrenchment of attitudes that preparation produces. Particularly where the parties have not sought by the terms of their bargain to protect information, as opposed to statements or documents, I do not think that the law should contemplate the diversion of curial resources and the diminution of the appeal of early mediation by imposing a more restrictive standard. In short, with respect, I adopt the reasoning of Rolfe J. [30] I therefore conclude that the relevant paragraphs of the cross-​claim should not be struck out as being an abuse of process. [13.35]  743

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789TEN v Westpac cont. [31] In the circumstances, given that 789TEN sought (among other things) to enforce the mediation agreement, I think that the better course is to admit the relevant affidavit, namely that of Gregory James Henry sworn 4 June 2004, but to order that it be kept confidential and that it be placed in a sealed envelope, not to be opened or inspected without the leave of a Judge of the Court. I also think it appropriate to admit into evidence the exhibit to that affidavit, which was marked for identification 1, but to order that it likewise be kept in a sealed envelope, not to be opened or inspected without the leave of a Judge of the Court.

 [13.40]  Common law provides a number of exceptions to without prejudice privilege which

may make certain communications admissible in evidence. The following is a non-​exhaustive list of those exceptions: (i) communication is not objectively part of the negotiations for settlement; (ii) statement is an unqualified admission concerning objective facts; (iii) statement is not concerned with the same subject matter as the negotiation; (iv) party engages in misleading and deceptive conduct contrary to s  18 of Sch 2 of the Competition and Consumer Act 2010 (Cth) which triggers an action under that Act; (v) communication creates an offer and acceptance thereby creating a contract; (vi) communication constitutes criminal conduct; (vii) communication prevents the court from being misled; and (viii) communication constitutes tortious conduct. The following extract explores the first of the above listed common law limitations of without prejudice privilege, in particular the admissibility of without prejudice communications where the communication is not objectively part of the negotiations for settlement.

Field v Commissioner for Railways (NSW) [13.45]  Field v Commissioner for Railways (NSW) (1957) 99 CLR 285 at 291-​293. [Facts: Field was injured when alighting from a train at Daroobalgie in western New South Wales and sued the Commissioner for negligence claiming he was thrown on to the platform by the negligent driving of the train. Field attended a medical examination arranged by the defendant and during that examination told the medical officer that he alighted the train whilst it was still moving. The medical examiner reported this to the lawyers acting for the Commissioner. Negotiations did not settle the dispute and it went to trial. The medical examiner was called and asked to recount the discussion with Field. The issue became whether the admission by Field was admissible given that it had been made during settlement negotiations. Held: The evidence was admissible because the admission was not reasonably incidental to the settlement negotiations. The role of the doctor’s examination was to help the doctor form an opinion to be reported to the court if negotiations broke down. The medical examination had nothing to do with the settlement negotiations.] [291] Dixon CJ, Webb, Kitto and Taylor JJ: It can hardly be doubted that both parties understood that, if, as in the event happened, the negotiations for settlement should break down, then Dr Teece might give the evidence of his actual observations of the plaintiff’s bodily condition and the opinion he formed of his injuries. In this sense the examination had a double aspect. 744 [13.40]

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Field v Commissioner for Railways (NSW) cont. Primarily it was to enable the defendant to obtain a medical report in order to form an estimate of his injuries for the purpose of making an offer of settlement. Failing settlement, the purpose was to enable the defendant’s medical expert to give evidence of what he saw. The law relating to communications without prejudice is of course familiar. As a matter of policy the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation. The purpose is to enable parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put in evidence subsequently might impose upon them. The law relieves them of this embarrassment so that their negotiations to avoid litigation or to settle it may go on unhampered. This form of privilege, however, is directed against the admission in evidence of express or implied admissions. It covers admissions by words or conduct. For example, neither party can use the readiness of the other to negotiate as an implied admission. It is not concerned with objective facts which may be ascertained during the course of negotiations. These may be proved by direct evidence. But it is concerned with the use of the negotiations or what is said in the course of them as evidence by [292] way of admission. For some centuries almost it has been recognised that parties may properly give definition to the occasions when they are communicating in this manner by the use of the words “without prejudice” and to some extent the area of protection may be enlarged by the tacit acceptance by one side of the use by the other side of these words: see Thomas v Austen (1823) 1 LJ (OS) KB 99 (1); Kurtz & Co v Spence & Sons (1887) 58 LT 438 (2); Paddock v Forrester (1843) 3 Man & G 903; 133 ER 1404 (3); Hoghton v Hoghton (1852) 15 Beav 278; 51 ER 545 (4); In re River Steamer Co; Mitchell’s Claim (1871) LR 6 Ch App 822 (5) Walker v Wilsher (1889) 23 QBD 335 (6). Needless to say, the privilege is a matter to be raised by objection to the admissibility of the evidence. For the purpose of deciding such an objection the judge may take evidence on the voir dire. The problem in the present case is whether what according to Dr Teece the plaintiff said to him as to the manner in which the accident occurred is within the protection of the privilege. Looked at antecedently the question may be stated as being whether what he might unexpectedly say to Dr Teece should be regarded as within the area of protection. In the first place as a matter of ordinary knowledge it must have been within the contemplation of the parties that some statement would be made by the plaintiff to Dr Teece concerning the nature of his injuries. It could hardly be expected that an orthopaedic surgeon would not ask questions about symptoms, pain, capacity to move and so forth, and such matters must have formed part of the material upon which Dr Teece would form his opinion. Clearly enough, these were not matters which were considered by the parties to fall within the protection of without prejudice negotiations. For it is plain that Dr Teece was expected to give evidence of the opinion he formed should the negotiations for settlement break down. The question, however, does not depend altogether upon the expectations of the parties. It depends upon what formed part of the negotiations for the settlement of the action and what was reasonably incidental thereto. On the one hand it is contended that it was reasonably incidental to the negotiations to place the plaintiff without reserve in the hands of Dr Teece and allow him to talk freely. On the other hand it is pointed out that Dr Teece’s function was wholly medical, that no one anticipated the plaintiff discussing the cause of action with him, that he had no function to perform in relation to the settlement except to report his medical judgment of the [293] plaintiff’s condition, past, present and future, and that he was not a general agent of the defendant but was appointed only ad hoc to make a medical examination. Further, for purposes of the medical examination it was not necessary or reasonable that the plaintiff should state anything touching his cause of action. The question really is whether it was fairly incidental to the purposes of the negotiations to which the medical examination was subsidiary or ancillary that the plaintiff should communicate to the surgeon appointed by the Railway Commissioner the manner in which the accident was caused. To answer this question in the affirmative stretches the notion of incidental protection very far. The defendant’s contention that it was outside the scope of the purpose of the plaintiff’s visit to the doctor to enter upon such a question seems clearly right. On the whole the conclusion of [13.45]  745

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Field v Commissioner for Railways (NSW) cont. the Supreme Court that the plaintiff’s admission fell outside the area of protection must command assent as correct. It was not reasonably incidental to the negotiations that such an admission should be protected. It was made without any proper connexion with any purpose connected with the settlement of the action. In these circumstances it appears that the evidence of Dr Teece on this subject was admissible.

 Legal professional privilege [13.50]  At common law, legal professional privilege attaches to confidential communications

brought into existence for the dominant purpose of existing or contemplated legal proceedings (see Esso Australia Resources v FCT (1999) 201 CLR 49; (2000) 168 ALR 123). The “dominant purpose” test allows for a communication to attract legal professional privilege providing one, not insubstantial, purpose was that of obtaining legal advice or assistance. Such privileges generally apply to communications made between lawyers and their clients although they can extend to communications made between a lawyer and a third party or a client and a third party. Like without prejudice privilege, legal professional privilege has its genesis in public policy that provides that for the proper administration of justice, parties must have effective and complete legal representation over the competing public interest which requires that all relevant evidence should be available in order to facilitate a fair trial. The public policy rationale was clearly stated in Carter v Managing Partner, Northmore Hale Davy & Leake where the Court observed: By protecting the confidentiality of communications between lawyer and client, the doctrine protects the rights and privacy of persons including corporations by ensuring unreserved freedom of communication with professional lawyers who can advise them of their rights under the law and, where necessary, take action on their behalf to defend or enforce those rights. The doctrine is a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that equal protection under the law is a reality.3

Section 118 of the Evidence Act 1995 (Cth) codifies the dominant purpose test for general disclosure of confidential communications when it states: Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a)

a confidential communication made between the client and a lawyer; or



(b)

a confidential communication made between 2 or more lawyers acting for the client; or



(c)

the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

Further, s 119 of the Evidence Act 1995 (Cth) adopts the dominant purpose test for the purpose of potential or existing litigation when it states:

3 Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121 at 161 (per McHugh J). 746 [13.50]

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Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a)

a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or



(b)

the contents of a confidential document (whether delivered or not) that was prepared;

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

Pursuant to s  117 of the Evidence Act 1995, a “confidential communication” is defined as being: a communication made in such circumstances that, when it was made the person who made it or the person to whom it was made was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. A confidential document is defined as being: a document prepared in such circumstances that, when it was prepared the person who prepared it or the person for whom it was prepared was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. The following extract illustrates the courts’ interpretation of the dominant purpose test in establishing legal professional privilege.

Australian Crime Commission v Stewart [13.55]  Australian Crime Commission v Stewart (2012) 286 ALR 713 at 727-​731. [Facts: The applicant, the Australian Crime Commission (the ACC), in exercise of powers under the Australian Crime Commission Act 2002 (Cth) (the ACC Act) and warrants issued under the Crimes Act 1914 (Cth) (the Crimes Act), obtained a large number of documents that related to business transactions conducted by all four respondents. The respondents’ claimed legal professional privilege in respect of many of the documents and the ACC sought declarations that legal professional privilege did not apply to the claimed documents. Held: Some documents attracted legal professional privilege while some did not. It is for the respondents, as the parties claiming the benefit of legal professional privilege, to prove that the applicable criteria has been met. Critical to determining whether legal professional privilege applies to a communication is an inquiry into the purpose for which it was created. Seeking or obtaining legal advice must be the dominant purpose. Whether a purpose is the dominant purpose is a question of fact. A document need not contain legal advice if it has been created for the dominant purpose of obtaining or giving legal advice. Similarly, as long as the requisite dominant purpose is made out, legal professional privilege may extend beyond communications directly between lawyer and client to documents created by third parties. The dominant purpose must be determined objectively. Further, the evidence showed that the lawyers had a mixed role of providing both legal and commercial advice to the respondents and that the documents were created for that mixed purpose. Certain documents were not created for the dominant purpose of providing legal advice, and those documents could not attract legal professional privilege.] [727] Australian legal professional privilege [67] The principles of legal professional privilege under Australian law are well established and are not in contention between the parties. They were set out clearly and comprehensively by Kenny J in Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266; [2005] FCA 1247 (Pratt). Her Honour, at [30], articulated 12 propositions which, though tailored to the particular questions before her are none the less generally applicable to the present inquiry: see also AWB Ltd v Cole (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46; [2006] FCA 571 (AWB). Relying as I do on the principles identified in these authorities, it is not necessary to traverse this well-​trodden path other than briefly to comment on aspects that are especially pertinent to the status of the disputed documents. [13.55]  747

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Australian Crime Commission v Stewart cont. [728] [68] While it is common to speak of whether a document is subject to legal professional privilege, such a comment must be understood as referring to the communication contained in the document. It is well accepted that the privilege attaches to a communication, written or oral, not to a physical document, or indeed, to an electronic form: Propend at CLR 525; ALR 562 per Toohey J; Grant at CLR 690; ALR 590 per Jacobs J. Onus of proof [69] It is for the respondents, being the parties who claim the benefit of legal professional privilege to prove that the applicable criteria have been met: AWB at [63]. The evidence necessary to discharge the onus will depend on the circumstances and context in which the communications were made or the documents created. It may be that the dominant purpose behind the creation of a document is apparent on the face of the document which the court may inspect. In Grant at CLR 689; ALR 589, Stephen, Mason and Murphy JJ made the following comment: It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence. Legal advice [70] A preliminary issue in any inquiry concerning legal professional privilege, and one that is particularly pertinent to the present matter, is what qualifies as legal advice. While there may be some uncertainty in particular instances, it is clear that not all communications between lawyer and client may be so characterised. In Balabel v Air India [1988] Ch 317 at 330; [1988] 2 All ER 246 at 253, Taylor LJ observed that privilege may also attach to information passed between lawyer and client where it is “aimed at keeping both informed so that advice may be sought and given as required” and that, “legal advice is not confined to telling the client the law: it must include advice as to what should prudently and sensibly be done in the relevant legal context”. [71] Lord Justice Taylor cautioned however that dicta in the authorities to the effect that privilege extended to all solicitor and client communication on matters within the ordinary business of a solicitor and referable to that relationship are too wide. His Lordship added, at AC 331–​2; All ER 254: It may be that the broad terms used in earlier cases reflect the restricted range of solicitors’ activities at that time. Their role then would have been confined for the most part to that of lawyer and would not have extended to business adviser or man of affairs. To speak therefore of matters “within the ordinary business of a solicitor” would in practice usually have meant the giving of advice and assistance of a specifically legal nature. But the range of assistance given by solicitors to their clients and of activities carried out on their behalf has greatly broadened in recent times and is still developing. Hence the need to re-​examine the scope of legal professional privilege and keep it within justifiable bounds. [729] [72] In Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610; [2005] 4 All ER 948, the House of Lords upheld the Bank of England’s claim of privilege over documents which provided information to lawyers who had been retained to assist the bank. The Bank of England required the lawyers’ assistance in relation to its presentation of evidence to an inquiry into the collapse of another bank said to be subject to supervision by the Bank of England. In doing so their Lordships approved Taylor LJ’s comment that legal advice extended to “what should prudently and sensibly be done in the relevant legal context”: see in particular per Lord Scott of 748 [13.55]

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Australian Crime Commission v Stewart cont. Foscote at [43], Lord Rodger of Earlsferry at [59]–​[60], Baroness Hale of Richmond at [62]. Lord Carswell at [114] and Lord Brown of Eaton-​Under-​Heywood at [120], without mentioning Taylor LJ’s comment, took a similarly broad approach as did Anderson J in Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 at 332–​3; 6 ACSR 498 at 505–​6. [73] Lord Justice Taylor’s views were amplified and explained in Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976 at 982–​3. Justice Colman stated that Taylor LJ’s view of the scope of privilege did not “disturb or modify” long-​established clear law: that if a solicitor is instructed for the purpose of getting legal advice in relation to a particular transaction or series of transactions, then all the communications between the solicitor and the client relating to that transaction will be privileged notwithstanding that they do not contain advice on matters of law or construction, provided that they are directly related to the performance by the solicitor of his professional duty as legal adviser of the client: … As Taylor LJ observed, a solicitor’s professional duty or function is frequently not exclusively related to the giving of advice on matters of law, or, in the context of this kind of case, on drafting or construction of documents. It not infrequently relates to the commercial wisdom of entering into a given transaction in relation to which legal advice is also sought. [74] The distinction between a lawyer, in the performance of his or her professional duty as legal adviser, giving advice as to what may prudently and sensibly be done in the relevant legal framework and giving advice as to the commercial wisdom of entering into a particular transaction may be difficult to draw. In DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151; 203 ALR 348; [2003] FCA 1191 at [45], Allsop J recognised the distinction and that privilege does not extend to pure commercial advice. His Honour commented that: [45] … In any given circumstance, however it may be impossible to disentangle the lawyer’s views of the legal framework from other reasons that all go to make up the “advice as to what should prudently and sensibly be done in the relevant legal framework”. [75] As is evident from the discussion below, the difficulty to which Allsop J referred has been especially significant in relation to the claims made in this proceeding. That difficulty relates to the threshold question of whether the communications claimed to be privileged involve or are associated with the giving or receiving of legal advice. Only then does the question of dominant purpose arise. [730] The dominance of dominant purpose [76] The critical question in determining whether legal professional applies to a communication requires an inquiry into the purpose for which it was created. In Esso the High Court held that for the purpose of seeking or obtaining legal advice to attract privilege it must be the dominant purpose. The court did not explain or define “dominant” however some guidance can be obtained from the fact that in his dissenting judgment in Grant Barwick CJ rejected both “primary” and “substantial” in favour of “dominant” which, the Chief Justice said, “in my opinion satisfies the true basis of the privilege”. In Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416; 141 ALR 92 at 98, Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ said in their joint judgment that, “in its ordinary meaning, dominant indicates that purpose which was the ruling, prevailing or most influential purpose”. Whether a purpose is the dominant purpose is a question of fact to be determined as a matter of judgment. It is an issue on which informed minds may differ however such differences are not able to be avoided by further exegesis of the meaning of “dominant”. [77] It is, of course, possible for one document to contain multiple communications some of which have the relevant dominant purpose and some of which do not. There may be some differences of opinion concerning whether in such a case it is possible to sever or redact the privileged part of the document and allow the remainder to be inspected: see Prattat [17]–​[18] where Kenny J discussed but did not need to decide the issue. [13.55]  749

Dispute Resolution in Australia: Cases, Commentary and Materials

Australian Crime Commission v Stewart cont. [78] Theoretically I do not see that there should be much difficulty provided that one keeps in mind that legal professional privilege attaches to communications not documents. If there is only one communication, albeit having multiple purposes, then the issue is the dominant purpose of that communication. If the dominant purpose is such as to attract privilege then the whole of that communication must be privileged and no question of severance arises. If there is more than one communication in the document then the same test must be applied to each. If the communications are sufficiently independent as to be characterised as two communications then it is unlikely that there will be much difficulty in redacting or otherwise maintaining the confidentiality of one and retaining the other. [79] It is not necessary for a document to contain legal advice if it has been created for the dominant purpose of obtaining or giving legal advice. Thus the drafts, notes, memoranda or other documents prepared by the lawyer or the client will be privileged if they were created with the requisite purpose. [80] Similarly, as long as the requisite dominant purpose is made out, legal professional privilege may extend beyond communications directly between lawyer and client to documents created by third parties. In Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357; 207 ALR 217; [2004] FCAFC 122 (Pratt (FC)) the issue was whether a report valuing the appellant’s losses prepared by an independent firm of accountants and forwarded to the appellant was privileged. The appellant had asked the accountants to prepare the report for the information of the lawyers to assist them in providing legal advice to the appellant. On receipt of the report the appellant passed it to the lawyers. The Full Federal Court held that the fact that the accountants were not the appellant’s agents did not preclude the documentary communication from being privileged. All members of the court were of this opinion. Justice Finn said at [42]–​[43]: [731] [42] There are in my view, clear reasons of policy that support extending the privilege to such third party authored documentary communications. Whether a natural person or a corporation, a party seeking to obtain legal advice may not have the aptitude, knowledge, skill and expertise, or resources to make adequately, appropriately or at all such communications to its legal adviser as is necessary to obtain the advice required. Such is commonplace today where advice is sought on complex and technical matters. To deny that person the ability to utilise the services of a third party to remedy his or her own inability or inadequacy unless he or she is prepared to forego privilege in the documents prepared by the third party, is to disadvantage that person relative to another who is able adequately to make the desired communication to a legal adviser by relying on his or her own knowledge, resources, etc. [43] For the law to provide such an incentive not to utilise the services of third parties in such circumstances is to undercut the privilege itself. It would not facilitate access to effective legal advice nor would it facilitate effective communication with legal advisers for the purpose of obtaining legal advice. [81] Justice Merkel, at [52], agreed with Finn J, as well as with the view I expressed at [105] that as long as it can be established that the document was created with the requisite dominant purpose there is no reason why privilege should not extend to such a communication. [82] Provided it is created with the requisite dominant intention a document may also attract legal professional privilege even if it is a copy of a document that is not privileged: Propend at CLR 509; ALR 549 per Brennan CJ, at CLR 543–​4; ALR 576–​7 per Gaudron J and at CLR 554; ALR 585 per McHugh J. Purpose to be determined objectively [83] As noted above, for a document or other form of communication to attract legal professional privilege it must have been brought into existence for the dominant purpose of giving or obtaining legal advice. The purpose must be determined objectively. In AWB Young J made the point as follows at [110]: 750 [13.55]

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Australian Crime Commission v Stewart cont. [110] In Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd, Kenny J observed at [30], correctly in my view, that the dominant purpose must be determined objectively, having regard to the evidence, the nature of the document and the parties’ submissions. Kenny J added that the evidence of the intention of the document’s maker, or of the person who authorised or procured it, is not necessarily conclusive of that purpose: see GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146; [2001] QSC 180 (GSA Industries) at [28] per Holmes J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 545; 153 ALR 393 at 411–​12 per Goldberg J; Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 at 1036 per Slade LJ; Hartogen Energy Ltd (in liq) v Australian Gas Light Company (1992) 36 FCR 557 at 568–​569; 109 ALR 177 at 186–​8 per Gummow J; and Sparnon v Apand Pty Ltd (1996) 68 FCR 322 at 328; 138 ALR 735 at 741 per Branson J. As these cases make clear, it may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-​making or consultation that lead to the creation of the document and its subsequent communication.

 Statutory privilege [13.60]  There are many pieces of legislation in each jurisdiction of Australia that provide for

privilege over certain elements of statutory dispute resolution schemes. In addition to s 131(1) of the Evidence Act 1995 (Cth), s 53B of the Federal Court of Australia Act 1976 (Cth) states: Evidence of anything said, or of any admission made, at a conference conducted by a mediator in the course of mediating anything referred under section 53A is not admissible:

(a)

in any court (whether exercising federal jurisdiction or not); or



(b)

in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence.

Each State has statutory privilege for dispute resolution processes that largely prevent most verbal or documentary forms of communication from being used outside the dispute resolution process particularly in a court of law in subsequent proceedings. The following is a non-​exhaustive list of State and Territory legislation providing superior courts with statutory privilege over dispute resolution processes. • Australian Capital Territory –​ Evidence Act 2011 s 131(1); Court Procedures Rules 2006 r 1184 (secrecy over information for neutral evaluators) • New South Wales –​ Evidence Act 1995 s 131(1); Civil Procedure Act 2005 s 31 (secrecy over information for mediators) • Northern Territory  –​ Evidence (National Uniform Legislation) Act s 131(1); Supreme Court Rules r 48.13(8) and (14) • Queensland –​ Civil Proceedings Act 2011 s 36 (pertaining to conferences), s 53 (pertaining to evidence from an alternative dispute resolution (ADR) process) and s 54 (pertaining to ADR Convenors); Dispute Resolution Centres Act 1990 s 37 • South Australia –​ Evidence Act 1929 s 67C; Supreme Court Act 1935 s 65(3) and (6) • Tasmania –​ Evidence Act 2001 s 131(1); Alternative Dispute Resolution Act 2001 s 11 • Victoria –​ Evidence Act 2008 s 131(1); Supreme Court Act 1986 s 24A • Western Australia –​ Supreme Court Act 1935 ss 71 and 72 [13.60]  751

Dispute Resolution in Australia: Cases, Commentary and Materials

Few of the State and Territory statutory provisions as to privilege have been tested by their respective courts in a dispute resolution setting. However, there have been some discussions of the strength of the statutory confidentiality provisions in some jurisdictions as the following extracts illustrate.

Rajski v Tectran Corporation Pty Ltd [13.65]  Rajski v Tectran Corporation Pty Ltd [2003] NSWSC 476 at [4]‌-​[32]. [Facts: In this case there was an application before the New South Wales Supreme Court to extend a mediation order. At the commencement of the hearing of the Notice of Motion, the first plaintiff tendered a letter from the mediator to the legal representatives of the parties to which the first to the fourth defendants objected on the grounds that their admission was prohibited by the terms of s 110P(4) and (5) of the Supreme Court Act 1970 (NSW) (now ss 30 and 31 of the Civil Procedure Act 2005 (NSW)). Held: The letter in question was clearly a document within the description of s 110P(4) and (5) and as it did not advise the court of the outcome of mediation under s 110Q of the Act, it should be protected from admission into evidence in the current proceedings before the court.] [4]‌ Palmer J: … Section 110P is in the following terms: (1)

In this section, “mediation session” … includes any steps taken in the course of making arrangements for the session or in the course of the follow-​up of a session …

(2)

Evidence of anything said or of any admission made in a mediation session … is not admissible in any proceedings before any court, tribunal or body.

(3)

A document prepared for the purposes of, or in the course of, or as a result of, a mediation session or neutral evaluation session, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body.

(4)

Subsections (4) and (5) do not apply with respect to any evidence or document:



(a)

if the persons in attendance at, or identified during, the mediation session or neutral evaluation session and, in the case of a document, all persons identified in the document, consent to the admission of the evidence or document, or



(b)

in proceedings instituted with respect to any act or omission in connection with which a disclosure has been made under section 110Q(c). ...

[9]‌Mr Hill [for the fifth to the seventh defendants who supported the plaintiff’s submissions in this application] concedes that the words of s 110P(4) and (5) are unequivocal, but he says that they could not be intended to apply to a case where the Court is supervising the conduct of an existing mediation for the purpose of determining whether it should continue. He says that those subsections are intended to apply only to prevent what is said or done in a mediation from being used as an admission against the party in the proceedings which are being mediated, or in associated proceedings. [10] Mr Hill has not cited any authority in support of this submission, and I am unable to accept it. The clear words of the subsections do not admit of any such gloss. It seems to me that the terms of the subsections are designed to exclude the Court from going into what occurs within the mediation, save in the circumstances described in subsection (6) and in s 110Q(b). Section 110Q(b) is as follows: A mediator … may disclose information obtained in connection with the administration or execution of this Part only in any one or more of the following circumstances … (b) in connection with the administration or execution of this Part … [11] That is so, it seems to me, in order to avoid the very thing that is occurring in this case; that is that instead of the mediation affording a haven from litigation in which parties may negotiate frankly and informally towards settlement of their dispute, the mediation itself becomes yet another area of conflict generating another whole set of proceedings in court. 752 [13.65]

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Rajski v Tectran Corporation Pty Ltd cont. [12] That such a circumstance can come about, as it has come about in this case, is enormously counterproductive not only for the parties themselves, but it is an enormous waste of the resources of the Court, which Pt 7B of the Supreme Court Act 1970 was designed to prevent. [13] Mr Hill’s second submission is that there has been an implied consent to the admission of the document now tendered, for the purposes of s 110P(6). He says that this is so because the First to Fourth Defendants have filed an affidavit annexing a number of documents produced in the course of, and for the purposes of, the mediation so that they thereby are impliedly assenting to the tender of all such other documents as may enable the Court to evaluate properly the documents which the First to Fourth Defendants tender. [14] This submission is linked, in a sense, to a submission which Mr Rajski makes, founded upon s 131 of the Evidence Act 1995 (NSW). That section provides as follows: (1)

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.

(2)

Subsection (1) does not apply if …



(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 …



(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 ...

[15] Mr Rajski says that the evidence which he now seeks to tender, in particular the letter dated 25 November 2002, is evidence of a communication between parties in the dispute, in connection with an attempt to negotiate a settlement of the dispute, but that that document is not excluded from admission into evidence by virtue of s 131(2)(c) and (g). [16] It seems to me that s 131(1) and (2) of the Evidence Act 1995 (NSW) are concerned with the exclusion from and admission into evidence generally of matter which may otherwise attract the principles of the common law relating to “without prejudice” communications between parties made for the purposes of negotiating settlement; they are not intended to apply to the special process of settlement negotiation provided by a mediation ordered by the Court under the provisions of Pt 7B of the Supreme Court Act 1970. Pt 7B contains its own rules as to the evidentiary use which may be made of what is said and done in and for the purpose of settlement negotiations in a mediation under that Part and, in my view, those rules override the general provisions of s 131 of the Evidence Act 1995 (NSW). [17] Mr Hill’s third submission is that s 110P(4) and (5) cannot be intended to prohibit evidence of what happened at a mediation. So, for example, he says the Court would need to know whether a mediation commenced, whether it concluded, and whether it concluded successfully or unsuccessfully. For that purpose there must, he says, be some limitation upon the broad words of s 110P(4) and (5). [18] While the Court would obviously need to know whether a mediation has concluded successfully or unsuccessfully I think that, absent consent under s 110K(6)(a), the means by which the Court becomes aware of that circumstance are as provided in s 110Q(b) or by the very fact that, after a reference to mediation, the parties appear in Court to announce either that the proceedings are to be disposed of by consent orders or else are to proceed to trial. Beyond such a disclosure, which in any event could hardly be described as “evidence” in the proceedings within the contemplation of [13.65]  753

Dispute Resolution in Australia: Cases, Commentary and Materials

Rajski v Tectran Corporation Pty Ltd cont. s 110P(4) and (5), it is not for the parties themselves, in my opinion, to tender in Court material for the purpose of giving their own versions, and competing versions at that, of what happened during the course of the mediation. [19] Section 110P(4) and (5) clearly prohibit the tender into evidence in any proceedings of a document prepared for the purposes of, or in the course of, or as a result of the mediation session; it seems to me that the letter of 25 November 2002 is, unquestionably, a document within that description. It is not a document which tells the Court what the result of the mediation was, as would a report to the Court by the mediator under s 110Q(b). It is a document tendered in aid of proving in proceedings seeking the extension of the mediation a contested version of what was done at the mediation and why … [26] It seems to me, in addition, that even if the material which is directed to that purpose, and contained in various documents which the parties seek to tender, including the letter of 25 November, were admissible for that purpose, that material should be excluded pursuant to s 135 of the Evidence Act 1995 (NSW) on the ground that the probative value of such evidence in relation to the real issue to be determined in this application is substantially outweighed by the danger that the evidence would either be confusing within subparagraph (b) of the section, or else would cause or result in undue waste of time within the meaning and operation of subparagraph (c) of that section. [27] I say that the evidence may be confusing because, as seems clear from what has transpired so far, Mr Girard consents to the tender of certain material, but not to the tender of other material. He says that if he consents to the tender of certain material, that material can be admitted pursuant to s 110P(6)(a). But he says he is nevertheless entitled to object to other material, and that if he does object to that other material, it cannot be admitted. [28] That argument, in my opinion, demonstrates the unreality of this sort of exercise. Obviously if that submission be correct, and if that sort of result may be permitted under s 110P(6)(a), the Court will be presented with a very selective picture of what happened at the mediation, and that is likely to confuse at the very least, if not lead at worst to a substantial miscarriage of justice. [29] The second and more powerful reason is that such evidence should be excluded because an investigation, and a “finger-​pointing exercise” in particular, as to what went wrong with the mediation in the past will, in my view, result in an undue waste not only of time but also of the Court’s resources. The parties will either achieve a voluntary settlement of their disputes, or they will not. At the end of the day, parties who are unable to resolve their disputes voluntarily by extracurial procedures are entitled to have their dispute determined by the Court. It is not the function of the Court to drive litigants from its doorstep and to compel them to resolve their disputes elsewhere when it has become clear that they cannot. The Court can compel them to enter into negotiations within the process afforded by Pt 7B of the Act, but there comes a time when the Court must determine whether, the mediation process not having reached a successful conclusion, there is any utility in continuing the mediation. [30] I have not yet, as I say, determined that issue in this case, but it seems to me for the reasons that I have given, that I cannot and should not admit the document which is tendered at “H” of Mr Rajski’s bundle, being the letter dated 25 November 2002. [31] I suspect that the reasons which I have given at some length here will apply to a great many of the other documents in the tender bundle, but I will leave each document to be tendered and to be ruled on separately, if that is the course which the parties desire to take. [32] For those reasons, I will refuse the admission of the letter of 25 November 2002. The letter of 22 November 2002, which is attached to the letter of 25 November 2002, was not objected to by Mr Girard. I think that this letter should be excluded on the discretionary ground under s 135 of the Evidence Act 1995 both under subparagraphs (b) and (c). It is a letter which gets further into the debate as to the conduct of the mediation, which I do not think is permissible, and if admitted on its own even with Mr Girard’s consent, it may very well tend to produce a distorted picture of the events which are in contest.

 754 [13.65]

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Rajski v Tectran Corporation Pty Ltd cont. [13.70]  The first Rajski case extracted above dealt with the issue of what documentation was

admissible under the then Supreme Court Act 1970 (NSW) (now under the Civil Procedure Act 2005 (NSW) regime). The day after this decision was handed down the New South Wales Supreme Court passed judgment on another bundle of documents entitled, “Information Disclosed to the Court Pursuant to s 110Q of the Supreme Court Act”.4 This involved the admissibility of the mediator’s report to the court on the outcome of the court ordered mediation. The court found that the mediator’s report was admissible as s 110Q of the Supreme Court Act 1970 (NSW) permitted disclosure by a mediator of communications in connection with the administration or execution of Pt 7B of the Act.5 His Honour Palmer J stated at [13]-​[14]: In my view, a report by the mediator to the Court under s 110Q(b) is not only admissible in proceedings relating to the administration of Pt 7B of the Act but, as a general rule, it ought to be admitted: it is a document to which the Court, generally speaking, ought to have regard where a matter arises which calls for the supervision of the Court in a particular mediation. Whether such a report is relevant or helpful or unduly prejudicial are amongst the considerations which will determine whether it is admitted in each particular case. In particular, the fact that a report by the mediator is admitted into evidence in an application such as this does not necessarily make every matter which is referred to, or every document which is included in that report, a ground for contest between the parties, if they so desire. As I say, there are still questions of relevance and utility to be considered. There is still a question whether debate on issues raised in documents included in the report will produce the tender of evidence which should be excluded under the general discretionary ground conferred by s 135 of the Evidence Act.

Wentworth v Rogers [13.75]  Wentworth v Rogers [2004] NSWCA 109 at [18]-​[35]. [Facts: The claimant, Katherine Wentworth, put on a Notice of Motion seeking vacation of directions made by the court regarding steps in the appeal case between the parties that had arisen since the claimant had applied to the court for an order for specific performance of a mediated settlement agreement. That application was supported by the tendering of the Agreement and that tendering was objected to by the second opponent, Ms Toni Rogers, on the basis of the requirements for confidentiality under section 110P of the Supreme Court Act 1970 (NSW). The complainant’s submissions centred on the argument that s 110P was designed to encourage frankness amongst disputing parties in negotiations and not to prevent the enforcement of a mediated settlement agreement and that such documents were not within the purview of s 110P because such a document was not prepared for the purpose of mediation or in the course of mediation and they offered Freeman’s case in support. The opponent’s submissions centred on distinguishing Freeman’s case on the grounds that it dealt with mediated settlement agreements that were intended by the parties to be final and binding. The opponent argued that in the instant case the Agreement was only interim or draft –​not final, and was signed before the mediation had ended, and it did not, as a matter of fact, bring the mediation to an end, there having been a further mediation. Further, the opponent submitted that the uncertain 4 See Rajski v Tectran Corp Pty Ltd [2003] NSWSC 477. 5 Note: There is no longer a requirement for a mediator to report to the NSW Court the outcome of mediation other than as required by r 20.7 of the Uniform Civil Procedure Rules 2005 (NSW) which states: “Within 7 days after the conclusion of the last mediation session, the mediator must advise the court of the following: (a) the time and date the first mediation session commenced, and (b) the time and date the last mediation session concluded”. [13.75]  755

Dispute Resolution in Australia: Cases, Commentary and Materials

Wentworth v Rogers cont. nature of the terms of the Agreement was additional evidence that the Agreement was not final and binding. Held: The Agreement did not constitute a final and binding agreement because of the lack of evidence of an intention to be bound by the parties to the Agreement. Therefore, the Agreement could not be admitted into evidence and the court dismissed the application of the complainant for an order for specific performance of the Agreement.] [18] Hodgson JA: In Freeman, Badgery-​Parker J merely expressed an opinion, obiter, that a document recording an agreement reached at a mediation was not to be regarded as prepared for purposes of in the course of or pursuant to a mediation session but “… as a document which came into existence after the mediation session had concluded”, though he recognised that this opinion was difficult to reconcile with the words “pursuant to” appearing in s 15 of the Farm Debt Mediation Act 1994. [19] In McConnell, Rolfe J expressed the opinion that Badgery-​Parker J’s view was prima facie correct, because otherwise a party could reach an agreement at a mediation and later refuse to abide by it, and preclude the agreement being tendered. However, again, this was obiter. In that case, it was not contended that s 15 prohibited the tender of a final agreement reached at mediation. Rolfe J discussed the problem that arose if one party submitted that a written document was affected by what had been said at the mediation, and suggested that the solution might be to exclude the written agreement under s 136 of the Evidence Act 1995, unless the party tendering it consented to evidence of what was said being also admitted. [20] In Bell, Barr J was dealing with a magistrate’s decision concerning a Notice to Produce, seeking production of any document evidencing terms of settlement or compromise in relation to certain specified proceedings. It appears that the terms of settlement or compromise were reached at or following a mediation session, and it appears that the proceedings to which the mediation related were in fact disposed of in accordance with that settlement. The question concerning the notice to produce arose in relation to later proceedings brought by a person who had acted for one of the parties in relation to the mediation, against that party. It is not clear whether the document or documents being called for by the notice to produce was a document or were documents actually produced at the mediation or, rather, were documents filed in court in order to dispose of the proceedings that had been settled as a result of the mediation. In any event, after referring to the two earlier decisions, Barr J said this: Bearing in mind the purposes of the Act and the section, namely to make attendance at mediation in appropriate circumstances a condition precedent to the enforcement of a farm debt and, in order to further the parties’ chances of agreeing at mediation, to preserve the confidentiality of things said and written, I think that their Honours’ approach is correct. I acknowledge the difficulty referred to by Badgery-​Parker J about what subs (2) means in its reference to steps taken “in the course of the follow-​up of a mediation session”, but I do not think that that expression includes the preparation of heads of agreement or terms of settlement. That is because by the time that step is taken, the mediation session has come to an end. The preparation of such documents does not “follow-​up” the mediation session. Such documents are not prepared pursuant to a mediation session. I think that to construe the section so as to exclude from evidence terms of a settlement reached at a mediation would go beyond the purposes of the Act and might even defeat them, as Rolfe J has observed. [21] Finally, in Ciavarella, Macready AJ considered the admissibility of correspondence concerning a proposed settlement that had been engaged in after the mediation had concluded; and he held that these documents were not a follow up to a mediation session or prepared pursuant to a mediation session, so that s 15 did not apply. [22] In the present, case the document was signed at the mediation session itself, so in my view Ciavarella is distinguishable on that basis. As I have said, it is not clear whether the documents being dealt with in Bell were documents filed in court to dispose of the proceedings that had been settled, or documents signed at the mediation, or both. If the documents were in the former category, 756 [13.75]

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Wentworth v Rogers cont. I would respectfully agree with Barr J that they were not documents relevantly prepared pursuant to a mediation session. However, if the documents were documents actually signed at the mediation I would respectfully disagree. If documents signed at the mediation session are to be considered as not affected by s 15 of the Farm Debt Mediation Act 1994, it must be, in my opinion, on some basis other than that they are not prepared in the course of or pursuant to a mediation session. [23] In my opinion these decisions, and also the other two decisions in which there was obiter generally in favour of Mr Officer’s submissions, have to be considered in the light of the Court of Appeal decision in Gain. In that case, the Court of Appeal held that, although exclusion of all evidence of matters said at a mediation session would place very severe limits on the ability of a party to challenge a mediation certificate given under the Act, nevertheless the provisions of s 15 excluding that material must be given effect to. [24] I do not think I am constrained by the cases to approach s 110P in any particular way. I think that what I have to do is to consider the words of s 110P and apply them as best I can. In my opinion, the document that has been tendered in this case is plainly a document prepared in the course of a mediation session and is also plainly a document prepared as a result of a mediation session. Accordingly, at least prima facie, it falls squarely within s 110P(5). If that prima facie position is to be overcome it must, I think, be because of some implied exception arising from the terms of s 110N, or alternatively by reason of some expressed or implied consent which activates the exception provided by s 110P(6)(a). [25] As to the former, it is put that, unless a document prepared as a result of the mediation session, which gives effect to an agreement between the parties concluded at the session, is admissible, then no effect can be given to s 110N. To put this around the other way, it is submitted, in effect, that s 110N disclosed a legislative intention that such documents should be admissible, an intention which should be considered as prevailing over s 110P(5). [26] There is considerable force in that submission, but I think it should be rejected. In the first place, work can be given to s 110N through the consent exception in s 110P(6)(a), to which I will come. Accordingly it seems to me that s 110N is not sufficient to create an implied exception to the plain words of s 110P(5). In addition, such an implied exception would not be limited to documents: if it existed, it would permit evidence of conversations at a mediation, said to constitute an agreement, to be tendered on the voir dire, and then admitted if the Court concluded that they did constitute an agreement. That position would not sit comfortably with s 110P and the policy underlying it. [27] Although the case of Gain was dealing with quite a different question, the Court of Appeal in that case considered the circumstance that it might be considered a denial of justice that a person, seeking to have invalidated a certificate gravely affecting that person’s rights, should be unable to lead evidence of matters said to be the basis of the certificate; but the Court held that that consideration was not enough to outweigh the plain words of s 15 of the Farm Debt Mediation Act 1994 excluding the admission of that kind of evidence. [28] Turning then to s 110P(6)(a), in my opinion a document prepared and signed at a mediation session may itself express or imply consent that it be admitted into evidence in proceedings taken with a view to enforcing an agreement contained in that document. Certainly that could be an express term of such a document. Consent could well be implied: for example, if the document is prepared in the form of terms of settlement ready to be filed in the proceedings being mediated, one may, in those circumstances, perhaps imply a consent that the document be used in this way. Similarly, in my opinion, such a document may express or imply a promise not to withdraw that consent. [29] If that is the case, then a party tendering such a document can rely on the consent expressed or implied in the document itself, and can rely on an express or implied promise not to withdraw that consent. If a person who has given that consent and promised not to withdraw it, does purport to withdraw the consent, then, it seems to me, it would be a matter for the court dealing with the tender to decide whether or not it would, in effect, specifically enforce the promise not to withdraw the consent. [13.75]  757

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Wentworth v Rogers cont. [30] Applying that approach to this case, I think I must refuse admission of the document unless I am satisfied that the parties consented to the admission of this document in evidence, and perhaps also promised not to withdraw that consent. I do not think I can be so satisfied from this document. The document, in its terms, plainly contemplates the drawing up of a later deed, so the question whether the document itself is an immediately binding agreement raises issues of the kind discussed in Masters v Cameron (1954) 91 CLR 353. [31] From the terms of the document itself, there is a real question whether what it amounts to is a consensus as to the substance of terms which are to be included in a future deed which is, if it is made, to be the agreement between the parties; or whether this document itself is intended to be an agreement that is immediately binding, albeit contemplating a more formal document to further formalise the agreement. [32] In considering this question on the basis of the document itself, I think there are aspects of the document that point towards the document being a consensus as to the substance of terms to be included in a later agreement, rather than a final agreement intended to be binding immediately. I think there are real questions as to the form and effect of terms purporting to release future claims and exclude the Contracts Review Act 1980. The existence of these terms, and the questionability of their effect having regard to the principles discussed in Novamaze, rather points to a need for these matters to be further considered before a final agreement is reached. [33] In circumstances where the document itself does not give a clear indication as to whether it is a concluded agreement or a consensus as to terms to be included in a later agreement, and perhaps if anything points to the latter, the Court deciding the Masters v Cameron (1954) 91 CLR 353 question would plainly be assisted by evidence of the circumstances in which the document was made in the way discussed in the Air Great Lakes case. The claimant does not seek to present such evidence. [34] Having regard to all these considerations, I am not affirmatively satisfied that this document did constitute a final agreement manifesting an intention to be bound. A fortiori, I am not satisfied that there was consent to this document being tendered in legal proceedings, nor that there was a promise not to withdraw any such consent. [35] For those reasons, I would not admit the document into evidence.

 Exceptions to statutory privilege [13.80] Like common law, parliament has developed exceptions to statutory privilege in

order to take account of those situations where it is not in the public interest to prevent the admission of communications. Section 131(2) of the Evidence Act 1995 (Cth) provides for the following exceptions to the privilege rule:

(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 758 [13.80]

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(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

(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 the 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 following extract explores the courts’ interpretation of a statutory exception to privilege pursuant to s 131(2)(h) of the Evidence Act 1995 (Cth).

The Silver Fox Co Pty Ltd (as Trustee ...) v Lenard’s Pty Ltd [13.85]  The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenards Pty Ltd [2004] FCA 1570, [30]-​[39]. [Facts: The applicants, Mr and Mrs Baker, entered into a franchise agreement with the respondents, Lenard’s Pty Ltd. The franchise failed and the applicants sued the respondents for a breach of s 52 of the Trade Practices Act 1974 (Cth) claiming misleading and deceptive conduct in relation to representations made regarding likely profits to be earned from the franchise which induced the applicants to enter the franchise agreement. The applicants were successful against the respondents on the substantive issue before the court and in this application sought, amongst other things, their costs on an indemnity basis. In support of their claim for indemnity costs, the applicants relied on two affidavits of their solicitor which referred to mediation between the parties and specifically mentioned final proposals put by the applicants and the respondents at the point when the mediation broke down. The mediation appointment agreement expressly stated that the parties and the mediator would keep the mediation process confidential and included any information or document provided during the mediation unless disclosure was required by law. However, notwithstanding the confidentiality clauses in the mediation appointment agreement, the applicants sought to rely on communications of final offers made in mediation and submitted that such reliance was authorised by s 131(2)(h) of the Evidence Act 1995 (Cth) which provides an exception to the confidentiality rule in negotiated settlement discussions where the communication or document is relevant to determining liability for costs. Held: The Court found that s 131(2)(h) of the Evidence Act 1995 (Cth) applied to the mediation agreement regardless of the unambiguous nature of the wording of the agreement. Confidentiality in mediation operates to prevent evidence from mediation being adduced in court that would affect the outcome on the primary matters in issue. In this case the disclosure only affected the issue of costs. Therefore, the Court allowed the two affidavits into evidence as the information contained therein would not be unfairly prejudicial to the objecting party as it only goes to the issue of costs.] [30] Mansfield J: 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 [13.85]  759

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The Silver Fox Co Pty Ltd (as Trustee ...) v Lenard’s Pty Ltd cont. 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. [31] 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). [32] 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. [33] It may nevertheless be assumed that the terms of the offers made during the mediation are relevant to determining liability for costs, so that prima facie s 131(2)(h) of the Evidence Act 1995 (Cth) would remove the prohibition in s 131(1) from adducing evidence of communications in an attempt to negotiate a settlement of a dispute. Section 131(1) reflects the long standing principle, recognised for example in Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285 at 291-​292. [34] There have been cases where s 131(2)(h) has operated to permit the reception of settlement offers. In Bruinsma v Menczer (1995) 40 NSWLR 716, Santow J admitted such evidence, which was in the form of an offer of compromise made under Part 22 r 6 of the Supreme Court Rules 1970 (NSW), and was not expressed to be “without prejudice”. In Marks v GIO Australia Holdings Ltd (No 2) (1996) 66 FCR 128, Einfeld J admitted without prejudice correspondence between the solicitors for the parties exchanged to explore the prospects of settlement of the matter. See also Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) (2002) ATPR 41-​901; [2002] FCA 1294 (Safeway); and Australian Competition and Consumer Commission v Black on White [2002] FCA 1605 (Black on White). [35] In Safeway, Goldberg J was required to address two arguments advanced to avoid the apparent operation of s 131(2)(h) of the Evidence Act. The first was based upon the public policy of encouraging parties to endeavour to settle disputes without disclosure of communications directed to that end. It was the public policy argument which was unsuccessfully adopted in the other cases referred to. Indeed, in the context of O 23 of the Federal Court Rules, Spender J in Black on White referred to the Court’s policy of encouraging litigating parties to undertake genuine settlement negotiations and to seriously consider offers of settlement, so that a reasonable compromise proposal which was not accepted may provide a basis for other than the usual order as to costs. The other argument was based upon preserving the integrity of the agreement between the parties to negotiations not to disclose those negotiations. Goldberg J at [16] in Safeway determined that the designation of the communications as “without prejudice” did not amount to an agreement that they were not relevant, so as not to be probative evidence, and so his Honour admitted them into evidence on the issue of costs. His Honour concluded: … the policy lying behind s 131 of the Evidence Act is twofold. First, it is to lay down a statutory basis for excluding evidence of communications relating to attempts to settle disputes. Secondly, it is to provide specific exceptions to such exclusion. The exception found in s 131(2)(h) relates to the probative value or probative nature of the contents of the communication and not to the manner in which the communication came initially to be subjected to the protection from being adduced into evidence found in subs (1) of s 131. Although a consensual arrangement or agreement underlies the basis or part of the basis upon which “without prejudice” communications are protected from admissibility, that consensual aspect does not determine the issue of relevance for the purposes of s 131(2)(h) of the 760 [13.85]

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The Silver Fox Co Pty Ltd (as Trustee ...) v Lenard’s Pty Ltd cont. Evidence Act. The relevance there provided for is to be judged and determined by reference to legal principle rather than the decision of the parties. [36] I do not consider that the authorities referred to deal directly with the present contention of Lenard’s. The argument put to Goldberg J, based upon the agreement of the parties, was that the agreement was as to the relevance of the communications, rather than directly applying to their admissibility (assuming relevance, as the argument at this point does) by reason of the agreement to preserve confidentiality. Perhaps the argument in those terms was not put because it was thought the clear words of s 131(2)(h) did not allow for it. I think those words are quite clear. Moreover, the relevance to be addressed is relevance to determining liability for costs. Section 131(1), subject to its exceptions, gives effect to the policy of ensuring the course of negotiations –​whether private or by mediation –​are not adduced into evidence for the purpose of influencing the outcome on the primary matters in issue. 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) 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. [37] In my judgment, s 131(2)(h) on its terms applies to the Mediation Agreement. I propose to receive into evidence the two affidavits referred to. I have not overlooked the arguments based upon ss 135 and 138 of the Evidence Act 1995. I do not consider s 138 applies. The applicants could not be said to be acting improperly by using an enabling provision of the Evidence Act 1995 (Cth). Section 135 relevantly empowers the Court not to receive certain evidence if its receipt would be “unfairly prejudicial” to a party or parties. I do not regard the terms of the Mediation Agreement per se to demonstrate such prejudice. I would be reluctant to accede to such a general proposition. There may be particular circumstances in which the exposure of the course of settlement negotiations may be unfairly prejudicial to a party. Such circumstances may appear from the facts recorded in the agreement, or from other evidence. No such circumstances have been identified in this matter.

 [13.90]  Note that this decision was reversed on appeal in Poulet Frais Pty Ltd v Silver Fox Co

Pty Ltd (2005) 220 ALR 21 however, only in relation to the issue of misleading and deceptive conduct not the application of s 131(2)(h) of the Evidence Act 1995 (Cth). Contractual confidentiality [13.95]  Another problematic issue is the situation many parties find themselves in when they

agree by contract to submit themselves to a dispute resolution process with a confidentiality clause in the agreement. This situation arises in two ways –​first, under the original contract that establishes the relationship between the parties and secondly, by agreement between the parties once a dispute has arisen and they agree to submit the dispute to a dispute resolution process and the dispute resolution practitioner asks the parties to enter into an agreement to conduct the dispute resolution process. An example of the former is cl 28.2(g) of the contract between the parties in dispute in Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236; [1999] NSWSC 996, reported at 239, which stated: Statements made by either Party or the mediator in the course of the mediation process shall not be disclosed to any third party and shall not be introduced by either Party in the Expert Resolution process or judicial proceedings, whether or not those proceedings relate to the Dispute that was the subject of the mediation. [13.95]  761

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An example of the latter is cll 15 and 16 of the New South Wales Law Society’s Mediation Appointment Agreement6 which states: 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.

[13.100] In the following extract, the NSW Supreme Court weighs the public interest in

preserving confidentiality against the public interest in open justice in a case of contractual confidentiality.

Cannon v Griffiths (No 2) [13.105]  Cannon v Griffiths (No 2) [2015] NSWSC 1329, [12]-​[17]. [Facts: The plaintiff was employed in the investment banking division of Citigroup Pty Ltd (“Citibank”). A series of hoax emails were sent from his office computer which were circulated within Citibank and spread rapidly throughout professional and social email networks across the world, causing him significant psychological harm, emotional distress and reputational damage. He commenced proceedings against four former employees of Citibank who were said to be responsible for the creation and dissemination of the hoax emails. Mediation took place between the plaintiff, the defendants, Citibank and their legal representatives. Mediation was successful and a settlement agreement was executed. Both the mediation and settlement agreements contained confidentiality clauses. The defendants drafted deeds of release for the plaintiff’s execution that contained deductions from the settlement sums that included, amongst other things, tax payable on the employment termination payment pursuant to the Income Tax Assessment Act 1997 (Cth). The plaintiff asserted that no tax should be paid and sought a declaration from the Court as to the taxation status of the payment. The entire proceedings and reasons for the judgment (Cannon v Griffiths [2015] NSWSC 1055) were subject to an interim order under s 10 of the Court Suppression and Non-​Publication Orders Act 2010 (NSW) to preserve the confidentiality of mediation and the settlement agreement. In this proceeding, the parties took the opportunity to make submissions on the appropriate form of final orders. The plaintiff supported the defendants’ position regarding confidentiality obligations imposed by settlement agreement only. Held: Orders made for all previous orders under s 10 of the Court Suppression and Non-​publication Orders Act 2010 (NSW) be set aside and for limited suppression order be made regarding relevant evidence and documents.] [12] Beech-​Jones J: Fourth, while contractual obligations of confidentiality imposed on parties are relevant to an assessment of whether the public interest warrants an order, they are not determinative. In Rinehart a clause of a Trust Deed which required that disputes arising under it would be resolved by “confidential” arbitration did not of itself warrant the making of a suppression order in respect of proceedings instituted in this Court of the same character. The Deed was held not to be determinative (at [51] per Bathurst CJ and McColl JA) and the subject matter of the proceedings was said to give rise to matters that warranted “close public scrutiny” which “was a proper factor to take into account in determining whether a suppression order was necessary” (at [52] per Bathurst CJ and McColl JA). 6 See NSW Law Society’s, “Dispute Resolution Kit-​ December 2012” p 29, http://​ www.lawsociety.com.au/​ cs/​ groups/​public/​documents/​internetcontent/​675694.pdf (accessed 23 December  2013). 762 [13.100]

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Cannon v Griffiths (No 2) cont. In Rinehart the party seeking a suppression order had sought to rely on s 8(1)(a) of the Act but the Court’s reasoning is nevertheless apposite to s 8(1)(e). [13] The written submissions made on behalf of the defendants and Citibank pointed to the public interest in holding parties to their contractual agreements (Baltic Shipping Co v Dillon [1991] NSWCA 19; 22 NSWLR 1 at 9 per Gleeson CJ). This can be accepted but it does not advance the argument for a suppression order very far. If the Court were to refuse to make such an order in this case it would not mean that either party had failed to honour their contractual obligations or that the Court sanctioned them doing so. Instead the public interest in open justice would have simply required that their dispute be litigated publicly despite their wishes to the contrary. [14] The written submissions also pointed to the public interest in the preservation of the confidentiality of the mediation process and the process of negotiation over the settlement of litigation (see Sharjade Pty Ltd v RAAF (Landings) Ex-​Servicemen Charitable Fund Pty Ltd [2008] NSWSC 1347 at [34] per Bergin CJ in Eq). This is a significant matter. I accept that there is a potential to undermine that aspect of the public interest, and the broader public interest in parties settling disputes by agreement, if the communications that led to the settlement and which relate to its documentation are made public if the parties litigate a dispute over one aspect of the settlement they arrived at. Further I also accepted that, in this case, there is a minimal or at least a reduced affectation of the public interest in open justice by making the orders sought to the extent they relate to the mediation process and the ensuing correspondence. This is so because, as events transpired, most of the material is of no great moment to the dispute that arose. To the extent that it is of significance its general character can be ascertained by reading the modified version of the judgment in Cannon (No 1). [15] The last aspect of the application concerns aspects of the settlement that was in fact achieved. As noted the parties bound themselves to preserve the confidentiality of the settlement as recorded in their heads of agreement. In their submissions the defendants and Citibank placed reliance on the judgment of the Full Court of the Federal Court in Australian Broadcasting Commission v Parish and Others [1980] FCA 33; 43 FLR 129 (“Parish”). In Parish the primary judge had declined to make an order restricting publication of an agreement despite finding that its dissemination would “seriously weaken” the negotiating strength of one party to the agreement and “may well require” the other party to “reconsider their adherence to the agreement” (at 134). On appeal a majority, Bowen CJ and Franki J, held that an order under s 50 of the Federal Court of Australia Act 1976 (Cth) was warranted. After referring to the primary judge’s finding as to the effect of disseminating the agreement, Bowen CJ concluded (at 134): While falling short of a finding that disclosure of the confidential parts will destroy the efficacy or value of the agreement, this conclusion comes not far short of that. The position appears to me to be analogous to the position in those cases where confidential information is the subject matter of the proceedings. It is in the interests of the administration of justice that the very proceedings before the court should not be permitted to destroy or seriously depreciate the value of such confidential information. If it were otherwise, not only might the parties and members of the public consider the court was not paying proper regard to confidentiality but also it might open the way to abuse. (emphasis added) [16] This passage was approved of in Hogan at 667. [17] In my view it is quite clear from reading the materials that a critical aspect of the successful resolution of the proceedings was the agreement of the parties to keep the terms of settlement confidential as far as possible. It is not necessary or appropriate to speculate as to why that is so. In my view the public interest in respecting that settlement would tend to be undermined by removing an assumption on which the settlement was arrived at, namely the confidentiality of its terms. Against that I do not consider that the public interest in open justice is much affected by making the proposed orders. The nature of the dispute that arose as well as the fact of and reasons for its resolution will still be publicly available. Accordingly, the criteria in s 8(1)(e) has been satisfied in respect of the proposed orders.

 [13.105]  763

Dispute Resolution in Australia: Cases, Commentary and Materials

LIABILITY AND IMMUNITY Common law liability [13.110]  Given the rise of dispute resolution over the last 40 years the issue of mediator lia-

bility has been raised on numerous occasions. Although there are no known cases in Australia of a third party neutral being successfully sued for breach of contract, fiduciary duty or negligence, there is always the possibility that proceedings will be brought against a third party neutral under one or more of these causes of action. This type of proceeding needs to be distinguished from a mere failure to advise where the third party neutral is for example a lawyer, which would possibly attract sanctions under the various State and Territory based legislation that govern the legal profession, for unprofessional conduct or professional misconduct. Perhaps one of the reasons that there has not yet been a case where a third party neutral has been successfully sued is because if, in the case of non-​adjudicative forms of dispute resolution, the third party neutral is doing her or his job according to the facilitative model of dispute resolution, then she or he rarely intervenes in the process to the point of determining the outcome, thereby allowing the parties to drive the process and arrive at a resolution of their own making. Therefore, there is nothing to sue a third party neutral over if the parties themselves have made a bad deal. Even though it is unlikely that a third party neutral could be sued over the substantive issues associated with dispute resolution, it may be possible to sue a third party neutral for negligence in the conduct of the procedures of dispute resolution. For example, a mediator could be accused of a breach of confidentiality after disclosing information gleaned in a separate session during mediation that ultimately causes the dispute to head back to court. This clear breach of mediation process could be actionable on the basis of the mediator being negligent and possibly breach of contract (depending on what the mediation agreement states in relation to this type of procedural matter). The third party neutral is employed because of her or his expertise in the process of dispute resolution. If such a person falls short of that expectation, then perhaps there may be a cause of action. Again, this is an untested proposition. [13.115]  The following New Zealand case provides an example of where a mediator proba-

bly acted beyond the role of mediator but was not judged by the court to have breached the standard of care expected by a mediator.

McCosh v Williams [13.120]  McCosh v Williams [2003] NZCA 192 at [28]-​[40]. [Facts: A dispute existed between the appellant, Robert McCosh, and three daughters of his first marriage over entitlements to certain dairy farming property in New Zealand. Mediation was held on 11 June 1998 and a mediated settlement agreement (Agreement) was drawn up by counsel representing the parties with input from the mediator. A term of the Agreement was the transfer of 21,530 shares in New Zealand Dairy Group Ltd from the appellant to the daughters. A few days after the mediation solicitors for the daughters advised the appellant that the number of shares to be transferred should have been 59,430 because a bonus issue had occurred prior to mediation. The appellant denied this and the daughters’ solicitors requested the mediator to provide an expert determination over the new dispute pursuant to the Agreement. After receiving certain documents from the parties, the mediator, now expert determiner, issued a Summary Determination (Determination) on 29 September 1998 declaring that the Agreement should be read as transferring 56,954 shares and that the appellant’s failure to so transfer the increased number of shares would result in the daughters 764 [13.110]

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McCosh v Williams cont. being entitled to seek summary judgment for specific performance of the Agreement. The appellant resisted an application before the court by the daughters for summary judgment however, before the matter came on for hearing, counsel advised the court that all matters were settled and all proceedings would be discontinued. The appellant then commenced proceedings against the mediator alleging negligence and breach of the Fair Trading Act 1986 (NZ). The substance of the claim was not whether the mediator/​expert determiner’s Determination was correct rather, whether the mediator had jurisdiction to embark on the Determination pursuant to clause 13 of the Agreement at all. Held: Appeal dismissed. The mediator did act beyond his jurisdiction because he rectified the Agreement rather than resolving a dispute relating to the interpretation or implementation of the Agreement as clause 13 empowered the mediator to do. However, while the mediator fell into error acting in the way he did, the mediator did not depart from the standard of care expected of a reasonably careful mediator.] [28] Blanchard J: We have reached the view that the argument Mr Houston made to us concerning the limits on the jurisdiction conferred on Mr Williams under cl 13 must be upheld. We consider that Mr Williams did exceed his jurisdiction. He cannot properly be said to have been engaged in interpreting the document. It was quite clear that 21,530 shares were, pursuant to an express provision of the document, to be transferred. Nor was he determining a question of how the agreement should be implemented, in the sense of transferring property in terms of the agreement, discontinuing proceedings and so on. Rather, Mr Williams undertook the task of making a determination about whether the document required correction (of a more than clerical kind, which might well fall within “interpretation”) by substituting for the figure of 21,530 a figure which added in some bonus shares. That was an exercise of rectification of contract and cannot properly be said to have been merely a matter of interpretation or implementation. [29] In coming to this conclusion we reject Mr Gilbert’s argument that “this Agreement” in cl 13 means in context the underlying agreement. Although the document, prepared in haste, was not entirely internally consistent in its use of language, it seems reasonably plain that “Agreement” (with an initial capital) was intended to refer to the document itself, and that it was only a dispute concerning the interpretation or implementation of the document which was the subject of cl 13. In other words, only if there were a dispute about the meaning of the words in the document or the obligation of the parties concerning the mechanics of putting it into effect, could Mr Williams be asked to make a summary determination. [30] It might possibly have been different if he had been acting under cl 12 to adjudicate upon a dispute “regarding any suggested omission or uncertainty” in the terms of the agreement. But he was resolving the dispute only under cl 13. [31] We take the point made by Mr Williams himself in his “Summary Determination” that the words “in relation to” are of broad import, but the relationship still must be to an interpretation or implementation of the document and the issue which arose was not of that nature. [32] We are therefore of the view that Mr Williams acted without jurisdiction. [33] But although Mr Williams fell in this respect into error, we do not consider that what he did departed from the standard of care to be expected of a reasonably careful mediator, even a Senior Counsel as well versed in alternative dispute resolution as Mr Williams, and that he can be said to have acted negligently, ie in breach of a duty of care owed to Mr McCosh, in embarking on the determination. We ourselves have not found the question of jurisdiction straightforward. It involved looking closely at the words of cl 13 in the context of a document which, as we have said, was not of perfect consistency in its choice of words. Although Mr Williams had some input into the construction of the document, so did Mr Houston and counsel for the daughters. [34] It is true that Mr Houston gave Mr Williams advance warning that he considered that Mr Williams was exceeding his jurisdiction. But, significantly we think, he put that objection on a different and it, would seem, erroneous ground, namely that it was too late to raise a question [13.120]  765

Dispute Resolution in Australia: Cases, Commentary and Materials

McCosh v Williams cont. concerning the shares because a conveyancing settlement had already occurred in which the specified number of shares had been passed over to the daughters. Mr Williams was of the opinion, which seems to have been justified, that the two daughters had reserved the right to contest the number of shares which ought to come to them. [35] The objection actually raised by Mr Houston at the time may in fact simply have distracted Mr Williams from the real doubt about his jurisdiction which was not taken up by Mr Houston until after the determination had been made. If another experienced counsel himself did not seem to appreciate the limitations of the words “interpretation or implementation” until looking at the matter more closely, that reinforces our view that what Mr Williams did was mistaken but did not fall short of the standard of care to be expected of a person in his position. Fair Trading Act [36] It is quite hopeless for the appellant to say that merely because a professional person accepts an appointment under a document providing for them to take a particular role in the event of a dispute, and it may therefore be inherent in that acceptance that they intend to do so in terms of the appointment, that they are then to be taken to have made at that time a deceptive and misleading statement if it transpires that later they exceed the terms of their appointment. It would be different if the person concerned had at the time of accepting the appointment a concealed intention to so exceed its terms. The inherent or implied statement of present intention might then be found to have been misleading or deceptive. But there is and could be no such allegation in the present case. This ground of appeal also fails. The Exclusion Clause [37] Because we have held that Mr Williams was not negligent in taking upon himself jurisdiction to decide the dispute over the shares, he does not need to have recourse to the exclusion clause. It is appropriate, however, that we should record that we do not share O’Regan J’s view that cl 9 protected the respondent from liability for negligence in connection with the summary determination. We agree with Mr Houston’s submission that the protection of cl 9 was only in relation to acts and omissions of Mr Williams when acting as a mediator. The actions complained of cannot be said to have been related to the mediation. They were, instead, acts taken by him after the mediation had concluded by the execution of the Settlement Agreement and were purportedly done in pursuance of the Settlement Agreement. Mr Gilbert drew attention to cl 11 of the Mediation Agreement in which there was an undertaking by the parties to give effect to and implement any formal Settlement Agreement, but if cl 9 had really been intended to relate to actions which Mr Williams might take pursuant to the Settlement Agreement, surely cl 9 would have said so directly. Clause 9 is an exclusion clause appearing in a separate document and one put forward by the mediator himself. Clear and unambiguous language would be required for it to be effective beyond the scope of the mediation process. On the natural meaning of the words used in cl 9, that clause does not extend to a process of adjudication concerning the Settlement Agreement. The Duty of Care/​Causation [38] If Mr McCosh had been able to establish that Mr Williams’ conduct fell short of the appropriate standard he would still have had to show that in the circumstances Mr Williams owed him a duty of care to protect him from the particular losses said to have arisen from the erroneous assumption of jurisdiction. There would also have been an issue concerning whether any proven breach of duty had actually been causative of the claimed losses. Those appear to be matters of some difficulty. In particular, it is clear that Mr McCosh himself did not rely on the summary determination. He at once, through Mr Houston, rejected it as having any validity. He would therefore have had to have shown that the duty of care extended to refraining from an action in breach of jurisdiction which might cause the other party, the daughters, to embark on further litigation, thereby causing him expense and distress. In other words, he would have to show that the duty 766 [13.120]

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McCosh v Williams cont. of care owed by Mr Williams encompassed not issuing a determination, in excess of jurisdiction, which might be acted on as valid by the other party. [39] We express no view on that question, nor on whether Mr Williams’ action could be said actually to have caused the claimed losses by encouraging the independent action of the daughters in bringing a further proceeding and applying for summary judgment. There is, at the very least, a respectable argument on the facts of the case that if Mr Williams had declined to act under cl 13 the daughters would still have pursued the bonus shares by way of litigation. Result [40] In the result, the appeal fails and is dismissed. The appellant must pay the respondent’s costs on the appeal in the sum of $6,000 together with his reasonable disbursements, including travel and accommodation costs of counsel, to be fixed if necessary by the Registrar.

 [13.125] In the following extract the court did not have to decide whether the mediator

had been negligent in his conduct of mediation as the plaintiff dropped her claim against the mediator and pursued her solicitors instead. However, the case is a good example of the type of facts that may give rise to a claim of negligence against a mediator.

Tapoohi v Lewenberg (No 2) [13.130]  Tapoohi v Lewenberg (No 2) [2003] VSC 410 at [57], [65], [69]-​[71] and [80]-​[88]. [Facts: A dispute arose between the plaintiff daughter, Mrs Tapoohi and the defendant executrix and trustee, Mrs Lewenberg, over the will of the plaintiff’s deceased mother. Mediation was conducted despite the fact that the plaintiff was overseas although represented at mediation by her lawyers and a commercial settlement was arrived at around 8pm the same day between the parties which included the transfer of some real estate and shares whose nominal value was entered as being $1 at the insistence of the mediator until the shares could be valued. The plaintiff’s solicitors made it clear to the mediator that they could not enter a binding agreement without seeking taxation advice on the implications of the proposed settlement. However, the mediator went ahead and drafted the settlement agreement without the requirement of taxation advice being an express term of the agreement. It was alleged that the mediator forced the parties to sign the settlement agreement and upon reaching verbal agreement said words to the effect: You have got to stay, you have got to do the terms of settlement tonight. No, we are doing it now. We are signing up tonight as that is the way that I do it, that’s how I conduct mediations. Given the acrimony between these two sisters we must go away with something that is written. It is in the interests of all the parties to sign up tonight. All the parties present at mediation read the agreement and signed it, the plaintiff so executing the settlement by facsimile from Israel under the advice of her lawyers. Later the plaintiff and her lawyers asserted that at no time did they consider themselves bound by the agreement because of the lack of an express term to seek taxation advice prior to considering themselves so bound. Held: The plaintiff dropped her action to have the settlement agreement set aside and pursued her action against her solicitors through an amended statement of claim to be filed in the future. While the court left open the possibility that there may be evidence of breaches of contractual and tortious duties by the mediator, the court was not required to make a finding on these issues as the application sought summary judgment on the grounds that the defendants had a good defence on the merits and that action had been withdrawn.] [13.130]  767

Dispute Resolution in Australia: Cases, Commentary and Materials

Tapoohi v Lewenberg (No 2) cont. [57] Habersberger J: In paragraph 22 of the third party statement of claim it is alleged that the mediator knew or ought to have known a large number of specified matters. It is not necessary that I set them all out in detail. I note, however, that they included the following: … (e) any settlement between the Parties would, alternatively was highly likely to, involve consideration of tax issues worth potentially millions of dollars to the Parties, or one or more of the Parties; (f) none of Denton, Shiff or Adams was a tax expert and none of them was in a position to give tax advice to Tapoohi on 20 September 2001; (g) the Parties, alternatively Tapoohi, did not intend to enter into any legally binding agreement at the Mediation, but only intended to reach an agreement in principle, with any such agreement being subject to the Express Terms; … (n) at the time that Golvan insisted that the Alleged Terms of Settlement be drafted that night he represented to Shiff in substance that it was in the interests of all of the Parties that a written agreement be prepared and executed that night; … (q) during the drafting of the Alleged Terms of Settlement by Golvan it became apparent that there had been no negotiations between the Parties as to what consideration should be paid to Tapoohi for the proposed transfer of Tapoohi’s shares in EOS Holdings; … (r) none of the legal representatives of the Parties still present at the Mediation expressed an opinion as to what the appropriate consideration was for the proposed transfer of shares in EOS Holdings; (s) Golvan then represented that a figure of $1.00 should be inserted as the consideration for the proposed transfer of the shares in EOS Holdings; … (v) the drafting of the Alleged Terms of Settlement was completed without any of the legal representatives of the Parties obtaining, or seeking to obtain, tax advice; … (x) Golvan represented to Shiff and Adams that the Alleged Terms of Settlement should be faxed immediately to Tapoohi for execution; (y) the Alleged Terms of Settlement were faxed to Tapoohi in Israel for execution that night; … … [65] In paragraph 31, it is alleged that the mediator acted negligently and in breach of the tortious duties alleged in paragraph 20. The breaches are identical to those alleged in paragraph 25 plus yet another which is in these terms: (i) Advising to insert a figure of $1 for the consideration of the proposed transfer of Tapoohi’s shares in EOS Holdings without properly considering, alternatively without considering at all, the possible adverse tax consequences to the Parties, alternatively Tapoohi. These breaches are said to arise by reason of the matters alleged in paragraphs 27 to 31 of the third party statement of claim. I assume that this reference to paragraph 31 is an error and must be read as a reference to paragraph 30. What appears to be pleaded here is that, by reason of the mediator’s knowledge of the matters alleged in paragraph 22, his conduct alleged in paragraph 23 and the advice given by him in paragraph 27, he was in breach of the tortious duty owed by him to the disputants. In my opinion, it is arguable that the alleged breaches could be said to arise out of the conduct of the mediator and an assumption of responsibility and the giving of advice alleged in paragraphs referred to … [69] Much of the evidence of Mr Shiff, Ms Adams [solicitors for the plaintiff] and Mr Denton [counsel for the plaintiff at mediation], not surprisingly, suggested that no final agreement was ever reached by the parties at the mediation. This was, of course, the primary position adopted by Mrs Tapoohi in this proceeding. It is put, and I must accept, that this was a complex and bitter dispute between the sisters, that the mediator had been made aware by Mr Denton and Mr Shiff that it would be necessary to have regard to the taxation and stamp duty implications of any settlement reached and that this would require Mrs Lewenberg to seek specialist advice on those matters, which advice was not then available to her. I must accept, too, that during the time that Mr Golvan [the Mediator] was dictating the terms, Mr Shiff protested that the consideration for the transfer of the EOS Holdings shares should be subject to review and that he was not comfortable with the unwinding of pre-​ existing structures which had been put in place under various agreements and trusts established by 768 [13.130]

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Tapoohi v Lewenberg (No 2) cont. Mrs Lewenberg in order to minimise adverse taxation consequences to the deceased, Mrs Lossak. Mr Denton, Mr Shiff and Ms Adams say that, when Mr Golvan dictated the terms, these reservations had not been resolved or withdrawn and that they were never resolved or withdrawn. The Terms of Settlement are not expressed to be conditional and I must assume for present purposes that, by executing them, Mrs Tapoohi bound herself by their terms. [70] Put baldly, what is contended on behalf of the solicitors is that these objections were either ignored or swept aside by the mediator who insisted that the parties must that night execute a document recording their agreement. His objective was achieved. It is put that no concluded agreement had been reached at the mediation because the details and revenue implications of the agreement required further consideration. It is then put that the mediator ought to have inserted this fact in the document to be executed, or should, in the circumstances, not have insisted upon its execution forthwith, but rather he should have given the parties time to consider it further. [71] The mediator’s position in response to this is that Mrs Tapoohi was well represented by those who were qualified to protect her interests and that she, herself, was a qualified lawyer and well able to make decisions on the terms and implications of the agreement. It was not for him in these circumstances, to offer her legal advice. Moreover, she voluntarily executed the document in circumstances where she was not under any improper pressure. Accordingly, he owed no duty to protect her interests and, if she is bound by the document, this is not the result of any breach of contractual or tortious duty on his part … [80] Mr Sifris submitted that any tortious duty and the content thereof must be assessed in the context of the facts of this case. In particular, he referred to the following propositions which, he submitted, must lead to the conclusion that, even on their own version of what happened at the mediation, the solicitors could not succeed: (a)

It could not be said that there was, and the evidence did not establish, any assumption of responsibility by the mediator in the circumstances of this case, in particular, given that Mrs Tapoohi was represented by three legal practitioners.

(b)

It could not be said that there was, and the evidence did not establish, reasonable reliance by Mrs Tapoohi on the mediator. She had not deposed to any reliance. She relied on her legal advisers. She was not even present.

(c)

It could not be said that there was, and the evidence did not establish, vulnerability on the part of Mrs Tapoohi. She was able to, and did, look after her own interests and she was represented by three experienced legal practitioners.

(d)

Clearly the mediator did not have any control in the relevant sense. Simply because the mediator dictated the Terms did not mean that the plaintiff’s lawyers could not have added the express terms.

[81] Mr Sifris further submitted that, in the circumstances of this case, it could not be suggested that a reasonable mediator would have insisted that the parties have further time to consider the Terms of Settlement where there had been agreement in principle and the Terms had been drafted together, read by the parties and their legal advisers and signed. This submission ignores Mr Shiff’s evidence that he repeatedly stated that everything was subject to the obtaining of taxation advice. [82] Mr Sifris emphasised in the strongest terms that Mr Shiff and Ms Adams (and Mr Denton) had read the Terms of Settlement and despite the claimed constant reiteration that the Terms were subject to the obtaining of taxation advice had overlooked the fact that there was no clause in the Terms of Settlement to this effect. He then asked rhetorically why it was the mediator’s fault that this occurred. He pointed out that Mr Shiff’s evidence seemed to suggest a mistake on his part and yet mistake had not been pleaded. Mrs Tapoohi’s problem was caused, Mr Sifris submitted, not by Mr Shiff being forced to continue with the mediation or by the mediator dictating the Terms of Settlement that night, but by Mr Shiff making the admitted mistake of not appreciating that the desired express term was not contained in the Terms of Settlement before he advised Mrs Tapoohi to sign. [13.130]  769

Dispute Resolution in Australia: Cases, Commentary and Materials

Tapoohi v Lewenberg (No 2) cont. [83] Mr Elliott submitted that there were two key ways of looking at what the mediator had done wrong. First, on the assumption that it was intended to be (and there was) a binding settlement, Mr Golvan allowed the matter to proceed to that stage when he should not have because he knew and had been told that Mrs Tapoohi had not received any taxation advice about the settlement. Either he should have stopped the mediation or he should have advised the parties of the risk of concluding a binding agreement without such advice. On the other hand, if it was not intended to be a binding settlement (but it had become one) then the mediator was at fault because he did not include in his dictation of the Terms the express term. Moreover, the mediator gave bad advice about the insertion of the figure of $1.00 in the Terms as the consideration for the transfer of the shares. [84] Mr Elliott disputed Mr Sifris’ submission that there had been no assumption of responsibility by the mediator. He pointed to the allegations of various advice given by Mr Golvan. It was also open to conclude, he submitted, that through her solicitors Mrs Tapoohi relied on what Mr Golvan said to them. Mr Elliott also stressed that it was arguable that Mrs Tapoohi was vulnerable in the relevant sense. She was in Israel, not present at the mediation. Further, the settlement involved substantial sums of money where none of her legal representatives professed any expertise in the area of taxation. Finally, Mr Elliott submitted that the facts showed that the mediator did exercise control, including over Mrs Tapoohi’s counsel, in that he agreed to stay on at the request of Mr Golvan. [85] In response to Mr Sifris’ rhetorical question as to why it was the mediator’s fault that the express term was not included in the Terms of Settlement, Mr Elliott submitted that the eleventh defendant was not saying it was all the mediator’s fault, simply that he was to some extent at fault. Mr Shiff admitted he made a mistake in not picking up the omission of the express term, but he sought contribution from the mediator should Mrs Tapoohi succeed in her claim against the solicitors. [86] In considering these competing submissions, I must remind myself of the caution which must attend my determination of this application. I have reached the conclusion that it is not beyond argument that some at least of the breaches of the contractual and tortious duties might be made out. I consider that it is possible that a court could find that there was such a breach constituted by the imposition of undue pressure upon resistant parties, at the end of a long and tiring mediation, to execute an unconditional final agreement settling their disputes where it was apparent that they, or one of them, wanted to seek further advice upon aspects of it, or where it was apparent that the agreement was not unconditional, or where the agreement was of such complexity that it required further consideration. I emphasise that it is not for me to conclude that any of these things occurred in the present case and I do not do so. It is sufficient that I conclude, as I do, that on the evidence before me such a contention is not plainly hopeless. [87] A claim of the kind presently under consideration raises formidable difficulties of causation. These are illustrated by the decision of the Missouri Court of Appeals in Lange v Marshall 622 SW 2d 237 Mo Ct App (1981). Nevertheless, I think this is a matter, too, which must go to trial. It is only when all the facts are known and examined that this question can be determined. I would certainly not conclude, as things stand, that it is so plainly hopeless that the solicitors should be denied a trial of the issue. [88] It was also submitted by Mr Sifris that the damage suffered by Mrs Tapoohi, assuming her success on all other issues, was at best highly speculative. If the settlement had not occurred, or even if Mrs Tapoohi has incurred a substantial taxation liability, it was impossible to say what would have happened if all of the disputes had gone to trial and whether Mrs Tapoohi would have been better or worse off. I would not give summary judgment on this basis. Mrs Tapoohi will have to prove her loss in her proceeding against the solicitors. It would be undesirable that I should conclude here that she must inevitably fail to do so without having heard what she has to say about this issue.

 770 [13.130]

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[13.135] In Tapoohi’s case the court suggested that there may well have been breaches of the

contractual and tortious duties of the mediator and that those breaches may well have been made out if pursued. The court suggested that the primary breach was the undue pressure exerted by the mediator on the plaintiff and her lawyers to sign the settlement agreement on the evening of the mediation. The following extract looks at mediator liability in negligence from the perspective of the English courts however addresses issues that are relevant to how Australian courts view the same issue.

Exploring Mediator Liability in Negligence [13.140]  A K C Koo, “Exploring Mediator Liability in Negligence” (2016) 45(2-​3) Common Law World Review 165 at 165-​166, 171-​172, 174-​180 (references omitted). The common law has traditionally regarded the duty of a professional person to exercise reasonable skill and care as a contractual obligation, in the tort of negligence or as a statutory duty. In the context of mediation, parties to a dispute and their jointly appointed mediator sign an agreement to mediate, by which the former pays a specified fee for the latter to conduct a structured process with a view to resolving the dispute. In such a contract, there are generally no express terms as to what the neutral will do during the process. [166] But it invariably includes an exclusion clause to exempt the mediator from being liable unless in case of fraud or wilful misconduct. Mediation parties may rely on a term implied by law that the mediator will carry out mediation service with reasonable skill and care. The tort of negligence is therefore arguably a more obvious, flexible, useful and important theory to impose liability on mediators for breach of duty of care. Yet existing literature regards it as a mere theoretical risk, due to the lack of standard of care, the difficulty to prove causation of damage and the principle of confidentiality that protects mediation communications from being disclosed and admitted as evidence. Over the last three decades, governments and judiciaries in the common law world promoted mediation as an adjunct to litigation in the reformed civil justice system. Accompanying this trend, people of diverse backgrounds jumped on the bandwagon to receive mediation training. Some of them sought accreditation from alternative dispute resolution service providers or national accreditation bodies to demonstrate competence in process, communication and negotiation skills. Contrary to popular belief, existing legislation specific to mediation does not require practitioners to be accredited. Nor does it articulate the minimum practice standards. It is left in the hands of the industry to regulate the knowledge, skills and behaviour of mediators … [171] First, the common law concept of duty of care is capable of extending the list of situations, giving rise to a duty to be careful in the mediation context. Hence, the questions in each case are whether the mediator owes a notional duty not to carelessly inflict on mediation parties the kind of damage sustained and whether the particular claimant comes within the scope of that duty so as to render the damage actionable at his or her suit. Secondly, the law of negligence has been reluctant to allow the recovery of pure economic loss in a mediator-​client relationship. Yet the common law has not laid down a single formula that will serve as the general test for liability ... Thirdly, another key issue that remains to be resolved in the law of negligence is the level of care and skill reasonably demanded of mediators, according to which breach of duty of care is to be ascertained. It is open to a future court to take up the challenge to determine whether a mediator “acted in accordance with a practice accepted as proper by a reasonable body ... skilled in that particular art”. Common practice based on published professional standards for mediators of American Arbitration Association, American Bar Association and [172] Association for Conflict Resolution, Law Council of Australia (2011), Mediator Standards Board of Australia (2012) and Arbitrators’ and Mediators’ Institute of New Zealand (2011) are of increasing significance, though not all of them can be translated readily into legal obligations owed to mediation parties. Any legal framework must reflect these concerns … [174] Applying the above in the context of mediation, mediation parties belong to members of an ascertainable class. They typically defer to the mediator to control settlement negotiations and draft a settlement agreement if reached. They cannot easily protect themselves against the risk of loss by obtaining contractual warranties. Drafted from the perspective of the mediator, an agreement to [13.140]  771

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Exploring Mediator Liability in Negligence cont. mediate does not generally state in express terms what the neutral will do during the process. Even if it does, the few contractual obligations contain statements of broad principles rather than specific promises. But it always incorporates an exclusion clause to exempt the mediator from being liable to the parties unless in case of fraud or wilful misconduct. Further, imposing a duty of care does not unreasonably interfere with the mediator’s pursuit of his or her own commercial interests to make a profit in conducting the process. Therefore, it can be argued that the mediator owes a duty not to carelessly inflict on mediation parties the kind of pure economic loss that is reasonably foreseeable. Once a notional duty and a factual duty are accepted, the question becomes whether the mediator’s conduct in the particular circumstances falls below the standard required by the law. A sufficient body of cases from which it is possible to discern what constitutes breach of duty has not yet been developed. The court skirted the issue of breach altogether in Lehrer. It focused on causation of damage based on an assumption of breach in Lange. It dismissed an application for summary judgment in Tapoohi, as it was arguable that the mediator was in breach of his duty by exerting undue pressure on mediation parties to execute unconditional final settlement agreement prematurely. In McCosh, the court found that the mediator had exceeded his jurisdiction to rectify the terms of a mediated settlement but did not do so negligently. While an approach to the standard of care for mediators on a case-​by-​case basis may seem plausible, conformity to common practice in the profession can stand as prima facie evidence that reasonable care was taken and non-​compliance provides strong evidence of breach. Mediators manifest the characteristics of a profession, which involves the use of mental skills, commitment to moral principles, organisation of practice associations and a high status in the community. First, managing a structured process to facilitate negotiations demands intellectual skills. Generally, a reasonably competent beginner attends a 40-​hour basic mediation training and completes two successful practical assessments for the purpose of accreditation. Mediators are expected to enhance their process skills through training, continuous education or debriefing. Secondly, mediators usually comply with one or more ethical codes of conduct, depending on the jurisdictions, practice associations and mediation programmes that they belong to. These moral principles go beyond the general duty of honesty, imposing obligations of confidentiality and wider scope of responsibilities to the community and public at large. Thirdly, it is not uncommon that mediators become members of several professional associations. Such organisations regulate admission, set out core competencies, issue ethical codes of conduct and uphold practice standards. The extent of self-​regulation, coupled with increasing sophistication and specialisation in the mediation sector, helps mould public perception of mediators as professionals and expectation of professional mediation services. Lastly, mediators enjoy a high status in the community. Some jurisdictions confer privilege and immunity on mediators by statute ... “[T]‌he mediator, regardless of his institutional [175] environment, would owe a duty to ensure that neither disputant was allowed to abuse the contractarian process”. In other words, reasonably competent mediators should prevent procedural unfairness in the process by acting impartially, non-​ coercively and thoroughly. Critics argued that it is impractical to define a single standard of care, due to diverse background of mediators, models of mediation, variations adopted by individual mediators and areas of practice. Among them, Schulz advocated the development of a standard of care specific to each mediation style and practice area, using customs. This approach appears to be feasible at least in what is collectively known as facilitative mediation practice. Despite there being currently no responsible set of labels for mediation practices, academic writers have recognised and framed such a sub-​category in terms of “elicitive”, “facilitative”, “problem-​solving” or “professional”. More significantly, reputable legal professional bodies and mediation organisations in the United States, Australia, New Zealand and the United Kingdom established the minimum standards of conduct for mediators who practise the dominant model to facilitate, assist disputants to reach a negotiated decision in all contexts. A close examination of the ethical codes for mediators in these jurisdictions reveal the following five common themes, which are a testament to accepted facilitative mediation practice irrespective of the subject matter of the dispute. 772 [13.140]

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Exploring Mediator Liability in Negligence cont. Facilitative mediators should conduct mediations in an impartial manner without favouritism, bias or prejudice. Impartial mediators conduct the process fairly and even-​handedly as between parties. They do not have any significant personal interest in the outcome of the mediation. Words, acts or the omission of such that may give the appearance of partiality include favouring a party over another based on that party’s personal characteristics, background, values, beliefs or conduct at the mediation, expressing an opinion on the merits. Closely related to the impartiality principle, facilitative mediators should avoid a conflict of interest during and after mediation which may undermine the integrity of the process. [176] This requires mediators to reasonably inquire whether there are any facts that would give rise to an actual or potential conflict of interest for them and, if so, disclose all such conflicts before or as soon as reasonably practicable during mediation. They should only proceed with the process with the consent of all parties and to their own satisfaction that the conflicts of interest will not affect their independence and neutrality. A conflict of interest can arise from a mediator’s involvement with the subject matter of the dispute, relationship with a mediation participant or recommendation of the services of others. The primary role of impartial, disinterested facilitative mediators is to manage a fair process in which they facilitate disputing parties to communicate, negotiate and make voluntary decisions as to process and outcome. They should not determine the dispute, impose their preferred outcome on the parties or exert pressure on the parties to reach an agreement. Rather, they should encourage party participation by providing an opportunity to speak and to be heard. They should raise party competency by ensuring understanding of the process and awareness of the importance of consulting other professionals to help make informed decisions in appropriate circumstances. They should not advise the parties. But they may provide information based on their training or experience, such as assisting the parties in understanding the principles of law applicable to the circumstances and the way in which those principles are generally applied. They should not knowingly misrepresent any material fact or circumstance in the course of a mediation. They should have sufficient time and attention to prepare for, conduct and follow up a mediation. And they should take appropriate steps, including postponing, withdrawing from or terminating a mediation, where the mediation is being used in the furtherance of a crime, where the mediators are made aware of domestic abuse or violence among the parties, or other participant conduct that jeopardises conducting the mediation, where a settlement being reached appears illegal or unconscionable. Although mediation is a form of settlement negotiations, its outcome remains in the hands of the parties. Facilitative mediators should refrain from coercive conduct in an effort to achieve an outcome. They should not enter into a fee agreement which is contingent upon the terms of a mediated settlement. What they should do is to ascertain the parties’ authority to settle, support the parties to comprehend and assess the feasibility and practicality of any proposed settlement options, as well as encourage the parties to address enforceability issues and record terms of settlement in writing. If a settlement is in sight, facilitative mediators should address any instances of deceit, fraud and misleading statements and formalise enforceable settlement terms, bearing in mind that direct involvement in drafting settlement terms may be construed as providing legal advice. Facilitative mediators should maintain the confidentiality of information obtained from any party in private sessions, except with prior authorisation to disclose any such information. They should also keep confidential all communications arising out of or in connection with the mediation, such as the fact that mediation took place, how the parties acted in the process, the merits of the case, settlement offers, agreed outcomes, and storage and disposal of mediation records, notes and files. However, they may disclose mediation communications in exceptional circumstances, for example, with all parties’ consent, when required by law, under a duty to report as to the attendance and success of mediation, for research and education purposes, in case of an actual or potential threat to human life, or when information is otherwise available to the public. [178] In addition, they should promote understanding among mediation participants of the extent to which the latter will maintain confidentiality of information obtained in mediation. [13.140]  773

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Exploring Mediator Liability in Negligence cont. Before accepting these five themes as being a responsible, reasonable or respectable body of opinion, the court must be satisfied that “such opinion has a logical basis and ... the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter”. As in the vast majority of professional negligence cases, the fact that distinguished practice associations in the field are of a particular opinion would demonstrate the reasonableness of that opinion. If these themes receive judicial recognition as accepted facilitative mediation practice, the level of care reasonably required of a mediator in any particular circumstance would involve a balancing exercise of objectivity, costs and benefits. The objective standard relates to the type of activity in which the mediator is engaged, rather than to the category of actor to which he or she belongs. Taking Tapoohi as an example, the experienced commercial mediator was also a senior barrister specialising in commercial litigation. His higher level of mediation skills did not raise the standard. He only had to conform to the standard to be expected of the reasonably skilled mediator in the relevant situation. The cost-​benefit analysis considers whether it is reasonable for the mediator to bear the cost of a particular form of precautionary conduct in light of the level of protection and benefit to be conferred on the claimant and others. The cost and practicality of precautions is minimal on the part of the mediator, in that they could simply encourage the parties to seek independent advice or opinion. The lack of resources available to the parties and their ultimate choice are not relevant in deciding whether the mediator used reasonable care or not. On the benefit side of the equation, it depends on the degree of likelihood that the harm will occur but for the precaution and the magnitude of the consequences that are likely to ensue. The state of knowledge of the mediator and the vulnerability of potential claimants of which the mediator knew or should have known will increase the risk of damage. Would these suggested contents of the standard of care for facilitative mediators offer an answer to the issue of breach if the alleged conduct in Lange, Lehrer and Tapoohi occurred in England and Wales today? A mediator who fails to disclose a pre-​existing professional relationship with the legal representative of a mediation party will still not be in breach, if they relied on the other party’s constructive notice imputed from the knowledge acquired by that party’s legal representative in the course of the retainer. But prudent mediators should ensure disclosure of facts that would give rise to an actual or potential conflict of interests to all parties and obtain their consent before the commencement of mediation. A mediator who obtains confidential information during the process but chooses not to make use of it in negotiating a settlement will not fall below the level of care reasonably required of him or her, if there is sufficient evidence of facilitating party self-​determination in mediation, promoting full and frank disclosure of information and encouraging the parties to obtain independent advice or opinion where appropriate. A mediator who omits to incorporate a condition of a settlement term which requires the parties to seek independent advice and further negotiate on that basis can constitute breach, if the settlement agreement raises wide-​ranging and complex technical issues that demand careful research of an expert and reconsideration of the parties. However, the parties’ deference to the mediator’s persistence of and expertise in drafting the settlement [179] agreement and the opportunity for their lawyers to advise clients and make modifications may militate against such a finding. By contrast, a mediator who fills in the gaps of a settlement agreement on his or her own accord can be negligent, as tidying up the loose ends of parties’ agreement goes beyond the jurisdiction of the mediator … [180] Conclusion Lawsuits against mediators on liability in negligence are uncommon. And not all of them have proceeded to trial. Some claimants decided to settle out of court again. For those who pressed on, courts in America and Australasia spoke with one voice: none of the mediators in question were found negligent. With the application of mediation in a wider context, mediators of divergent background, training and style, and participants of different expectations, an increased [181] risk of dissatisfaction with mediation can no longer be ignored. However, existing literature expressed reservations over the tort of negligence as a basis for mediator liability. Proof of breach was insurmountable due to a lack of 774 [13.140]

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Exploring Mediator Liability in Negligence cont. clear standards against which to measure a mediator’s performance. Causation of damage was hard to establish, whether it be no mediated settlement, unfavourable settlement terms or injuries unrelated to the substantive mediated outcome. While the tort of negligence focuses on the likelihood of success in securing compensation, it also allows mediation parties to vindicate their rights and deters mediators from engaging in particular forms of conduct that may attract potential liabilities. Beyond understanding why negligence-​based claims are difficult to prove in the mediation context, a more pertinent issue is to fill such rights with contents. Having examined the position in English, American and Australasian law, a number of conclusions may be drawn as to the potential role of tort law in mediator liability. The English and Australian courts have adopted similar approaches to determine the imposition of a duty of care in a mediator-​client relationship. This derives from the common acceptance of two key policy considerations: freedom of contract and reluctance to award damages for pure economic loss in tort. Further, reputable practice associations in the United States, Australia, New Zealand and the United Kingdom established ethical codes of conduct for mediators over the past ten years. A careful review of these codes points to five common themes of accepted facilitative mediation practice. Facilitative mediators should conduct mediations impartially without favouritism, bias or prejudice. They should avoid a conflict of interest during and after mediation which may undermine the integrity of the process. They should manage a fair process in which they facilitate disputing parties to communicate, negotiate and make voluntary decisions as to process and outcome. They should empower disputants to reach their own settlement. And they should maintain confidentiality of mediation communications in the process and in caucuses unless in exceptional circumstances. These themes do not provide an antidote to all negligence claims against facilitative mediators. But non-​compliance could serve as strong evidence of breach of duty of care or a basis for disciplinary action. It becomes paramount for practitioners to conduct mediations accordingly. Some responded by taking out professional indemnity insurance to protect themselves against potential claims. Mediation parties should also manage their expectations before contemplating to sue the mediator, who could escape civil liability on the basis of quasi-​judicial immunity granted under the common law or statutes in the United States and Australia in appropriate circumstances.

 Statutory immunity [13.145] There are a number of statutes throughout Australia that provide immunity for

third party neutrals from any action, liability or demand as a result of the conduct of a dispute resolution process (predominantly mediation). The protection afforded to third party neutrals by this legislation generally provides the same kind of immunity as a judge has in performing her or his judicial duties. The extent of the immunity is best represented by s 53C of the Federal Court of Australia Act 1976 (Cth) which states: A mediator or an arbitrator has, in mediating or arbitrating anything referred under s 53A, the same protection and immunity as a Judge has in performing the functions of a Judge.

The following is a non-​exhaustive list of some of the key legislation providing for the immunity of third party neutrals in the superior courts of the States and Territories of Australia: • Australian Capital Territory  –​ Court Procedures Act 2004 s 52D (mediators); Court Procedures Rules 2006 r 1185 (neutral evaluators); Commercial Arbitration Act 2017 s 39 (arbitrators and arbitrators acting as mediators pursuant to s 27D) • New South Wales –​ Civil Procedure Act 2005 s 33 (mediators); Civil and Administrative Tribunal Regulations 2013 Sch 1, reg 2 (mediators and conciliators); Commercial Arbitration Act 2010 s 39 (arbitrators and arbitrators acting as mediators pursuant to s 27D) [13.145]  775

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• Northern Territory  –​ Supreme Court Act s 83A(9) (mediators); Commercial Arbitration (National Uniform Legislation) Act 2011 s 39 (arbitrators and arbitrators acting as mediators pursuant to s 27D) • Queensland –​ Civil Proceedings Act 2011 s 52 (ADR Convenor); Dispute Resolution Centres Act 1990 s 35(1) (mediator); Commercial Arbitration (National Uniform Legislation) Act 2013 s 39 (arbitrators and arbitrators acting as mediators pursuant to s 27D) • South Australia –​ Supreme Court Act 1935 s 65(2) (mediator); South Australian Civil and Administrative Tribunal Act 2013 s 79(1) (mediator); Commercial Arbitration (National Uniform Legislation) Act 2011 s 39 (arbitrators and arbitrators acting as mediators pursuant to s 27D) • Tasmania  –​ Alternative Dispute Resolution Act 2001 s 12 (mediator and evaluator); Commercial Arbitration Act 2011 s 39 (arbitrators and arbitrators acting as mediators pursuant to s 27D) • Victoria –​ Supreme Court Act 1986 s 27A (special referee, mediator or arbitrator); Victorian Civil and Administrative Tribunal Act 1998 s 143(6) (mediator) and (7) (expert and special referee); Commercial Arbitration Act 2011 s 39 (arbitrators and arbitrators acting as mediators pursuant to s 27D) • Western Australia –​ Supreme Court Act 1935 s 70 (mediator); State Administrative Tribunal Act 2004 s 163(7) (mediator); Commercial Arbitration Act 2012 s 39 (arbitrators and arbitrators acting as mediators pursuant to s 27D) Statutory immunity has not been tested to any great extent in the courts of Australia. The following short extract merely affirms the court’s view that there is no issue as to the enforceability of statutory immunity for third party dispute resolution practitioners operating under statutory schemes.

Von Schultz v Attorney-​General of Queensland [13.150]  Von Schultz v Attorney-​General of Queensland [2000] QCA 406 at [18]-​[19]. [Facts: The applicants, von Schultz, alleged that during 1995, their landlords and a pest company caused them to deliberately ingest arsenic trioxide, during a termite extraction process at the unit that they rented. After numerous interlocutory applications, the court ordered mediation. The mediator was, at the time, a barrister, since elevated to the Queensland Supreme Court Bench. The mediator had to discontinue the mediation and a new mediator was appointed. The mediation concluded with agreement being reached, although the applicants dispute this, and almost three weeks after the mediation, the applicants repudiated the settlement agreement. The settlement required the applicants to file a notice of discontinuance of the action, which they failed to do. Applications were made to compel the applicants to file the notice, which culminated in an appeal that effectively held that the appellant’s action against the landlords was ended. The applicants contended that the change in mediator was a conspiracy against them. They further contended that the mediator had falsely signed the mediator’s certificate filed in court to the effect that a settlement had been reached between the parties. Held: As to the issue of immunity, a mediator under s 113 of the Supreme Court of Queensland Act 1991 (Qld) has the same immunity from prosecution as a judge of the court. Section 113 stated that, “in performing the functions of mediator or case appraiser, an ADR convenor has the same protection and immunity as a judge performing the functions of a judge”.] [18] White J: … So far as the action against the firstnamed judge is concerned, the law is clear: “… no action may be brought under our legal system against judges for acts done in the course of hearing or deciding cases which come before them”, per Aicken J in an unreported decision, Durack v Gassior (High Court of Australia, 13 April 1981) quoted by Priestley JA in Rajski v Powell (1987) 11 NSWLR 522 776 [13.150]

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Von Schultz v Attorney-​General of Queensland cont. at 538. Kirby P in that case referred to numerous authorities in other countries to the same effect at 529 and following. This immunity from suit of judges when carrying out their public duty as judges is for the benefit of the public and not the judges. It is in the interest of the public that the judges should be at liberty to exercise their functions with independence and without fear of the consequences, Pierson v Ray (1967) 386 US 547 per Warren CJ at 553 to 554. Litigants with a grievance about how their case has been conducted have access to appeal procedures to ventilate those concerns. [19] So far as the secondnamed judge is concerned, she has the same immunity from suit as a mediator as a judge has, s 113 Supreme Court Act 1991 and further the issue of the settlement of the action at mediation has been amply ventilated on numerous occasions. There is no additional factual basis advanced for the allegations against her or the allegations of a widespread conspiracy by all members of the legal profession, court officers and the judges who have had anything to do with the applicants in the course of their many applications and appeals, and now the Attorney-​General, to cover up the alleged fraud. It is all assertion.



ENFORCEABILITY OF SETTLEMENT CONTRACTS Generally [13.155]  Given the fact that most settlements arising from a dispute resolution process are

classified as agreements to compromise the claim by way of settlement, the law of contract is invoked when it comes to entering into, performing, discharging and enforcing such agreements. Contracts can be: in writing; or they can be oral; or they can be partly oral and partly in writing. Most commonly in dispute resolution initiated settlements, the parties write up the settlement as either a contract or a deed. A contract requires consideration, in other words something of value that is the price paid for the promises swapped by each party in the settlement agreement. While in some circumstances consideration can be the mere swapping of promises, most commonly it is in the form of a cash payment (for example, sometimes called a “deposit”), even if it is a token payment of a small amount of money. Parties often feel that given they are in dispute they should not have to pay a price for the settlement, so as a matter of simplicity and to avoid a dispute within a dispute over the payment of consideration, the parties draft a deed to record their settlement which does not require the payment of consideration. Deeds do not require consideration although it should be noted that equity will not assist a volunteer with specific performance so there are limitations to entering a deed of settlement at the conclusion of dispute resolution if enforcement is of concern. The following case examines the situation where a party sought to overturn a mediated settlement agreement for a variety of reasons.

Pittorino v Meynert [13.160]  Pittorino v Meynert [2002] WASC 76 at [80]-​[130]. [Facts: The plaintiff was one of four children of deceased parents. The first defendant was the executrix of both wills. The second and third defendants are the daughters and the fourth defendant is the only son of the deceased parents. The deceased parents operated a crayfishing business with a number of boats. The estate, after the usual payment of debts and funeral expenses, was used to establish a family trust which held two pieces of real property and a number of rock lobster pot [13.160]  777

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Pittorino v Meynert cont. entitlements. Following the death of the parents, the plaintiff and the third defendant each brought proceedings under the provisions of the Inheritance (Family and Dependants Provision) Act 1972 (WA), seeking a more favourable distribution of the estates. Following the instigation of proceedings, mediation was held at the Supreme Court of Western Australia on 7 and 25 September 2000 at which the Registrar of the court acted as mediator. The plaintiff was represented at both mediation sessions by senior counsel and an instructing solicitor. At the conclusion of the second mediation session a hand written document was prepared embodying the terms of the settlement that was signed by all the parties including the legal representatives. Before the court, the plaintiff sought to have a mediated settlement set aside. The plaintiff’s summons sought to set aside the mediated settlement agreement on the grounds that: (a)

The plaintiff was not effectively legally represented at the mediation conference on 25 September 2000 in that she had lost the confidence of her former solicitors prior to the conference and received no advice or proper advice;

(b)

The purported agreement made on 25 September 2000 was and is unconscionable;

(c)

The learned Deputy Registrar, who presided over the said conference, was aware at all material times of the said loss of confidence referred to in (a) abovementioned;

(d)

The learned Deputy Registrar was wrong in law when she sought to influence the plaintiff by giving her advice on the compromise in her position as Deputy Registrar;

(e)

The mediation conference was conducted at an excessive length of time and with acrimony, and most of it directed to the plaintiff;

(f)

The plaintiff suffered a ruptured cyst during the said conference and her request for an adjournment and to be excused from further attendance should have been granted;

(g)

The first defendant, as trustee for the estates, had failed to provide all of the parties prior to the said conference with a full and accurate statement of all accounts of assets and liabilities, including a full statement of accounts of income received by the estate since the dates of death of both deceased.

Held: The court dismissed the plaintiff’s application. The court accepted the executrix’s evidence that when the agreement was signed, there was no pressure on the plaintiff to sign the agreement, but because the matter was settled at around about 7 pm at night, the parties were anxious to finalise the matter once the plaintiff had decided to sign the agreement. At no time was the executrix told by the plaintiff that the plaintiff was in pain or that she was not a willing party to the agreement.] [80] Scott J: I turn then to the plaintiff’s evidence. In dealing with the plaintiff’s evidence, I should make it clear that I prefer the evidence called on behalf of the defendants to the evidence of the plaintiff. That is not to suggest, and I do not suggest, that the plaintiff has in any respect told lies or that any of her evidence was deliberately untruthful. As will become apparent in the course of these reasons, in my view, the plaintiff was prone to distort and exaggerate matters because she had become so intensely emotionally involved with them. That is apparent both from remarks that she attributed to the Registrar which, in my view, were not said and in relation to the way in which she distorted a remark made by counsel for the first defendant at the end of the mediation conference when the parties were about to leave via the lift. I am also of the view that the plaintiff grossly exaggerated her pain and suffering on the day in question and exaggerated the confusion which she says that she felt. [81] It is to be kept in mind that at the proceedings on 7 September and on the morning of 25 September the plaintiff was represented not only by a solicitor but also by an eminent Queen’s counsel. It is clear from Mr Guerrini’s evidence that she had received advice, particularly from senior counsel, so that she was well aware of her legal position. No doubt the likely outcome of any proceedings in the Supreme Court would have been coloured by the fact that Mr and Mrs Pittorino left their estates to trustees of discretionary trusts so that the outcome of the plaintiff’s claim was by no means certain. 778 [13.160]

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Pittorino v Meynert cont. [82] The plaintiff, in her evidence, said that two weeks prior to giving evidence in the Supreme Court, that is, two weeks prior to 12 February 2002, she had what she described as a relapse of the same pain that she had had on the afternoon of 25 September 2000. She said that on this latter occasion she had been taken by ambulance to the Royal Perth Hospital and received treatment. Counsel for the plaintiff produced a medical report from the Royal Perth Hospital in which a number of possible causes were outlined. That report, of course, related to the plaintiff’s condition when admitted to that hospital on 28 January 2002. [83] The report from Dr Mincham was marked for identification in the course of these proceedings and I indicated that I would later rule upon its admissibility. I have reread the report and the plaintiff’s evidence concerning her symptoms on 25 September 2000 and I am quite unable to conclude that the report marked for identification D has any relevance to the plaintiff’s condition on 25 September 2000. In any event, there was no definitive diagnosis made on 28 January 2002 of any assistance in determining whether or not the plaintiff suffered from any illness on 25 September 2000. The report will not be admitted into evidence. [84] The substance of the plaintiff’s evidence was that on the afternoon of 25 September 2000 after senior counsel left the mediation conference, she said, “All the acrimony and the whole stance of the whole day changed and all the tension was pointed towards myself” (transcript 286). The plaintiff’s evidence was that in her eyes the Registrar had sided with the other parties at the mediation conference. She was of the view that the Registrar was telling her what was best for her in terms of reaching a settlement. [85] The plaintiff’s evidence was that when she signed the document, she was not sure what she signed and that she was stupefied. The plaintiff said that she pleaded with the Registrar for an adjournment and that she was desperate to get out of the building. She said that she was bemused, confused and in a traumatised state and, as she expressed it, she would have signed her own death warrant. She said she did not even remember signing the agreement. [86] The plaintiff’s evidence was that she had taken two Panadeine Forte tablets in the course of the afternoon and that she was just very, very frightened and that she had pleaded and pleaded with the Registrar to let her go home but that she could not get out of the building. She said in her evidence that she was feeling so poorly that she did not understand what was going on and that she did not know what she was doing. [87] The plaintiff’s evidence given at trial, particularly under cross-​examination, should be compared with her affidavits. What is clear, in my view, is that the plaintiff, because of her highly emotionally charged state, has convinced herself that some of the things which she says in her evidence happened, in fact did happen. A comparison between the plaintiff’s evidence in her affidavits and her evidence under cross-​examination reveals the extent to which the plaintiff has distorted the events of the afternoon of 25 September 2000. [88] In the course of her evidence the plaintiff stressed the excruciating pain that she suffered on the afternoon of 25 September. As I have said, it is remarkable that, if she was in such pain, she never told either of her sisters about it and she never sought any medical treatment for it. [89] The plaintiff, in her affidavit sworn 6 July 2001, exhibit C, said of her medical condition: I was in extreme stomach pain. I began to get very painful stomach cramps. I was in extreme pain and pleaded to my solicitor to advise the learned deputy registrar that I could no longer continue and to seek an adjournment not only because the pain began to worsen but to seek further advices from senior counsel concerning the latest turn of events. I pleaded to be allowed to go home but this fell on deaf ears as far as my former solicitor was concerned. [90] In her evidence the plaintiff said that it was her solicitor who said to her, “It’s probably a ruptured cyst”, that was causing her pain. Significantly, the plaintiff did not call her solicitor to give evidence [13.160]  779

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Pittorino v Meynert cont. and her conclusion that she suffered from a ruptured cyst appears to have been a suggestion that emanated from her then solicitor … [93] The plaintiff’s evidence was that she was not aware of the value of the property that was assigned to her by the mediated agreement, but her evidence was that it was well under a quarter share of the estate. Again with respect to that evidence, in my view, it is clear that the plaintiff went to the mediation conference on 25 September 2000 with a list of values of the properties in the estates and she would have been well aware of the value of the offer that was ultimately made to her. In that respect, of course, I accept that the total value of her share under the mediation agreement was less, and considerably less, than a quarter of the value of the estate, but nonetheless it was well within the range of settlement that senior counsel had indicated to the plaintiff that her claim was worth. [94] Significantly, as well, in my view, the plaintiff did not terminate the services of her solicitors after the mediation conference. The correspondence produced in evidence indicates that the solicitors who were acting for the plaintiff at the conference continued to act for her for a considerable period after the conference was concluded. It was only some time the following year that the plaintiff engaged her present solicitors. [95] The plaintiff’s evidence was that at the time of the mediation and in the course of the settlement discussions she was extremely confused. I accept that it is likely that she was confused because, having heard her evidence, it is clear that her emotional involvement with the matters the subject of the litigation was such that it is likely that she became confused about the significance of many of the things that were being said to her on that day. Nonetheless, I am of the view that the plaintiff would have been well aware of the value of the offers that were made to her and the offer that she ultimately accepted after consultation with her solicitors … [97] The plaintiff also contended in her evidence that she asked the Registrar conducting the mediation for an adjournment on many occasions. She said that her request in that respect was refused. Again in relation to that evidence I am of the view that the plaintiff may well have asked her solicitor to adjourn the mediation conference. Her evidence, however, suggests that it was not the solicitor that she asked for the adjournment but that she directly asked the Registrar to adjourn the conference. In my view, in that respect the plaintiff’s evidence is confused and it is more likely that any such request was made to her solicitor and not to the Registrar. I do not accept her evidence that the Registrar was told either that she was in extreme pain or that she required an adjournment. [98] The plaintiff also said in the course of her evidence that when she was in excruciating pain and in circumstances where she was sitting in a room with her own solicitor and the Registrar, her solicitor said to her, “Come on, Elizabeth. Come on”, and when she replied, “I want to go home”, her solicitor said, “Stop acting like a spoilt child”. [99] As I have already said, the plaintiff’s evidence was the Registrar said to her, “If I was a 36-​year-​ old single female and had been offered the sum of $1,000,000 and some real estate on top of it … This was something that the average 36-​year-​old female does not have and I should look very carefully at the position and accept the offer”. [100] As I have already said, in my view, the comment about the plaintiff’s age and her position was a comment made by her sister Vicki who would have had that information. I do not accept that it was said by the Registrar and, in my view, the plaintiff has transposed this remark to the Registrar in support of her case … [103] The plaintiff also says in her evidence that the Registrar had tried to comfort her when she asked the other parties to come back. She said in her evidence that the Registrar “just sort of hugged me and was sort of telling me, in other words, to say, ‘Look, for a girl your age that’s pretty good money. No-​one else has got that and you can’t guarantee (that you would get that sort of money)’ ”. Again, in my view, this is another example of the way in which the plaintiff has distorted events to suit the point of view that she wishes to present. It may well be on the totality of the evidence that when the plaintiff was showing some signs of distress, the Registrar touched her on the shoulder, but I do not accept either that the Registrar was giving her advice, or was acting towards her, in what the 780 [13.160]

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Pittorino v Meynert cont. plaintiff would say, was a motherly fashion. On the evidence, I am satisfied that the Registrar did put her arm around the shoulder of the plaintiff’s solicitor when the plaintiff’s solicitor was in tears, but I do not accept that anything beyond that occurred … [105] I would add that, in my view, after signing the mediation agreement in the presence of her solicitor and after going home and having a night’s sleep, the plaintiff decided that she had not received what she then considered was her fair share of her parents’ estate. She says that the following day she phoned Mr McCusker, but I note that he was not called as a witness. She says that she told him that she was not happy with the agreement. In my view, that is consistent with the plaintiff having signed and accepted the agreement and the following day after sleeping on it, having decided that the agreement was no longer acceptable to her … [107] If, as the plaintiff says, she had lost confidence in her solicitor before the mediation agreement was finalised, it is remarkable that she did not tell anybody of that loss of confidence or seek an adjournment on that basis. In addition, in my view, it is also remarkable that she continued to use the services of the same solicitor for some months after the mediated agreement was finalised. That is evidenced by the correspondence which the same firm of solicitors wrote on her behalf in the months following the mediation agreement. [108] It is significant also that the plaintiff, following the mediation agreement, sent a fax to her brother saying that she would accept $2.5 million in settlement of her claim. In my view, that is also consistent with the plaintiff having had second thoughts after the mediation agreement was entered into. [109] Having determined the factual issues in the case, it is then necessary to turn to the legal principles that govern this matter. In doing so, it should be kept in mind that the plaintiff’s case is that the mediation agreement should fall in its totality. Should that happen, the settlement reached by the third defendant would also fall away. That is important in the context of this case where the third defendant has, in her evidence, indicated that she is quite content with the agreement that was reached on her behalf. [110] So far as I am aware, this is the first time in Western Australia that an agreement reached at a mediation conference has come under challenge. Counsel have been unable to find any case that deals with the circumstances presently under consideration. [111] Counsel referred to the matter of W J Green & Co (1984) (as Trustee for the W J Green Family Trust) & Ors v Wilden Pty Ltd & Ors, unreported; Library No 970186; 24 April 1997 which concerned an offer of settlement said to have been made at a mediation conference but where acceptance was not concluded at that conference. That is, of course, a different factual situation to the one under consideration here where it is said that an agreement was reached at mediation, reduced to writing, signed by each of the parties concerned and concluded at the end of the mediation hearing. With that distinction in mind, however, in Green’s case Parker J said at 16: The issue of whether the offer to settle was sufficiently certain such that its acceptance could constitute a binding agreement is raised for determination. A concise statement of the relevant law to be applied in order to determine this issue can be found in Thorby v Goldberg (1964) 112 CLR 597. At 607 Menzies J said: I would say that I do not think the law to be applied is in any doubt and I agree with and will apply the following statement of that law from the dissenting judgment of Sugerman J. He said: “It is a first principle of the law of contracts that there can be no binding and enforceable obligation unless the terms of the bargain, or at least its essential or critical terms, have been agreed upon. So, there is no concluded contract where an essential or critical term is expressly left to be settled by future agreement of the parties. Again, there is no binding contract where the language used is so obscure and incapable of any precise or definite meaning that the Court is unable to attribute to the parties any particular contractual intention”. [13.160]  781

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Pittorino v Meynert cont. [112] I would add, however, that in this case whilst there is a challenge to the construction of the agreement and a challenge as to the binding nature of the agreement following from the uncertainty of its terms, that issue does not fall for consideration on the present summons. [113] For present purposes it is sufficient to note that the mediation agreement was signed, as I have said, by all the parties bar one and by their solicitors at the end of the mediation conference. [114] If, as the plaintiff says, when the mediation agreement was signed she had lost confidence in her solicitor, that is not apparent from the mediation agreement itself. The agreement was signed, as I have said, not only by the plaintiff but also by Ms O’Sullivan, her solicitor. The only party who did not sign the agreement was the second defendant who, with the consent of the Registrar, authorised counsel to sign on her behalf. [115] In Queensland in Von Schulz & Anor v Morriello [1998] QCA 236 the Full Court of Queensland, comprising Pincus and Thomas JJA, Mackenzie J, had occasion to deal with a case where a party to a mediation conducted before a Queen’s counsel sought to set aside the mediation agreement on the basis that there was no valid settlement of the case in circumstances where an agreement was concluded at the end of the mediation and signed by the respective solicitors for the parties. A number of grounds were raised by the appellants in that case to challenge the validity of the settlement reached. [116] In the judgment of the Court their Honours said at page 5: On the material which has been presented to the Judges against whose orders the appellants seek to bring appeals no error is shown. A settlement agreement is proved along with apparent assent and affirmation of the appellants followed by their repudiation of it and the assertion of gross impropriety against the appellants’ former solicitors. On any view those solicitors had the ostensible authority to bind the appellants to a settlement (Waugh v H B Clifford & Sons Ltd [1982] Ch 374; Insbury v Craig [1990] 1 Qd R 309) and they did so. As between the appellants and the respondents there is no basis to challenge the agreement on the ground of lack of authority. Insofar as the appellants’ desire to invalidate the agreement on the ground of fraud or conspiracy, no evidence was presented or foreshadowed that could make out these allegations. [117] As indicated by the grounds of the application, the plaintiff also contends that she was not effectively legally represented at the mediation conference on 25 September 2000 in that she had lost confidence in her former solicitors prior to the conference and received no advice or proper advice. [118] As I understand that ground of the application, it is contended by counsel for the plaintiff that she was incompetently represented by her solicitor on the afternoon of 25 September 2000 in reaching the mediated agreement. There is no ground of the application which suggests that the plaintiff’s solicitors displayed flagrant incompetence in their conduct of the mediation: 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. [119] In any event, I am of the view that the plaintiff has failed to establish either loss of confidence in her solicitors or that she was not properly represented at the mediation conference on 25 September 2000. [120] The amended ground for the plaintiff’s application, ground (a)(i), challenges the mediated agreement on the grounds of unconscionability. [121] In the Commercial Bank of Australia Ltd v Amadio & Anor (1983) 151 CLR 447 the High Court had occasion to deal with a case where the respondents were Italian migrants of advanced years with limited knowledge of written English. The respondents were asked by the appellant bank to execute a mortgage to guarantee moneys owing to the bank by their son. The bank was aware that the son was in a parlous financial situation and the respondents were mistaken about the extent in duration of their liability under the guarantee. They would not have executed the document had they known the truth of its contents. 782 [13.160]

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Pittorino v Meynert cont. [122] In that case Mason J said at 461: But relief on the ground of “unconscionable conduct” is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage, eg, a catching bargain with an expectant heir or an unfair contract made by taking advantage of a person who is seriously affected by intoxicating drink. Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position. [123] In the same case Mason J said at 466: In deciding whether the bank took unconscientious advantage of the position of disadvantage in which the respondents were placed, we must ask, first, what knowledge did the bank have of the respondents’ situation? Mr Virgo was aware that the respondents were Italians, that they were of advanced years and that they did not have a good command of English. He knew that Vincenzo had procured their agreement to sign the mortgage guarantee. He had no reason to think that they had received advice and guidance from anyone but their son. In cross-​examination he conceded that he believed that Vincenzo had acted in the “role of adviser/​explainer” in relation to the transaction and referred to him as acting “in his capacity as dominant member of the family”. Mr Virgo also knew that, in the light of the then financial condition of the company, it was vital to Vincenzo to secure his parents’ signature to the mortgage guarantee so that the company could continue in business. It may have been obvious to Mr Virgo, as to anyone else having knowledge of the facts, that the transaction was improvident from the viewpoint of the respondents. In these circumstances it is inconceivable that the possibility did not occur to Mr Virgo that the respondents’ entry into the transaction was due to their inability to make a judgment as to what was in their best interests, owing to their reliance on their son, whose interests would inevitably incline him to urge them to sign the instrument put forward by the bank. [124] Similar views were expressed by Deane J at 474 and 477. [125] For the plaintiff’s ground of unconscionability to be made out, one of the matters that the plaintiff needs to establish is that the defendants had knowledge of the plaintiff’s disability. For the reasons that I have already expressed in dealing with the facts, even if the plaintiff did suffer from some disability on the day in question, such as the ill-​health from which she said she suffered and her lack of confidence in her solicitors, there was no acceptable evidence that any of the defendants were fixed with knowledge of that disadvantageous position of the plaintiff. In view of the findings of fact which I have made earlier in these reasons, I do not accept that the plaintiff’s physical disabilities were such that she could not properly be party to the agreement and I do not accept that the legal advice given to her throughout the day on 25 September 2000 was in any way inadequate. Nor do I accept that the plaintiff communicated to anybody at the conference either the fact that she was ill, if that was the case, or a loss of confidence in her solicitor. [126] As to the third ground of the application, there is no evidence apart from the plaintiff, whose evidence I reject, that the Registrar was aware of any loss of confidence between the plaintiff and her solicitor. [127] As to ground (c), I do not accept that the Deputy Registrar sought to influence the plaintiff by giving her advice on the compromise. As to that aspect, counsel have brought to my attention the textbook Mediation: Principles Process Practice by Laurence Boulle and, in particular, ch 5 which deals with the roles and functions in mediation. I accept that it would not be proper for a mediator to bring improper pressure to bear on any party to a mediation. That is a difficult and sometimes delicate role [13.160]  783

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Pittorino v Meynert cont. 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. In this case, however, having heard all of the evidence, I am quite unable to conclude that the mediator conducted herself other than with the utmost propriety. The fact that the plaintiff expressed concern about the way in which the mediator conducted the mediation, in my view, is a reflection on the plaintiff’s own emotional instability and the fact that she visited upon the Registrar the consequences of her own emotional shortcomings. [128] As to ground (d) of the grounds of the application, I accept that the mediation in this case was conducted over a long period of time. As I have already said, the mediation was conducted over two separate days and on the second of those days the mediation did take a long time. I do not, however, accept that the mediation was conducted with acrimony nor that acrimony was directed to the plaintiff. [129] As to ground (e), there is no evidence of any description that the plaintiff suffered a ruptured cyst during the mediation conference. As I have said, the suggestion of a ruptured cyst allegedly came from the plaintiff’s solicitor and the plaintiff did not seek any medical treatment at the conclusion of the conference on 25 September 2000. I do not accept that the plaintiff sought an adjournment from the Registrar, although it may well be that the plaintiff asked her solicitor to seek an adjournment. There is no acceptable evidence to suggest that the Registrar was ever asked to adjourn the mediation conference either because of the plaintiff’s health or for any other reason. [130] The final ground for the application set out earlier in these reasons deals with the failure by the first defendant to provide proper accounts of the assets and liabilities of the estates of Mr and Mrs Pittorino. As to that ground of appeal, in my view, adequate information was provided at the conference. The plaintiff brought along her own valuations of the real estate and the first defendant had a statement of assets and liabilities from which all of the parties worked on the day in question. I am quite unable to conclude that this ground for the application is made out. In addition, I would add that the fact that the plaintiff accepted the sum of $250,000 pursuant to the terms of the agreement after the agreement was reached and after any duress or pressure upon her had subsided is a further indication that she accepted the terms of the agreement: Haines v Carter [2001] NZLR 167 at 191; North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd & Anor [1979] 1 QB 705.

 The requirement of writing [13.165] At common law there is no requirement that a settlement agreement struck as a

result of a dispute resolution process must be in writing. However, it is wise to embody any agreement made at a dispute resolution process in writing as an aide memoire in order to avoid a further dispute because of people’s failing memories of what was agreed to. In some jurisdictions there is a statutory requirement that agreements struck as a result of a dispute resolution processes must be evidenced in writing. Further, there is a requirement in every jurisdiction in Australia that certain agreements about the transfer of, for example, real property, must be evidenced in a written note or memorandum (see, for example, s  54A of the Conveyancing Act 1919 (NSW)). An example of a statutory requirement for a written agreement as a result of a court-​annexed dispute resolution process is s 48 of the Civil Proceedings Act 2011 (Qld) which states:

(1) If, at a mediation, the parties agree on a resolution of their dispute or part of it, the agreement must be written down and signed by or for each party and by the mediator.



(2) The agreement has effect as a compromise.

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Reporting to court and court orders [13.170]  As would be expected, most Commonwealth, State and Territory statutory dispute

resolution schemes have a reporting mechanism that ensures the court or tribunal is kept informed of the progress of disputes that have been sent to a dispute resolution process. In addition, most schemes have the ability to transform any agreement struck at a dispute resolution process into consent orders of the court or tribunal. Consent orders are those orders made by the court that have the force of law and have been consented to by all the parties to the court proceedings. For example, s 34D(2) of the Administrative Appeals Tribunal Act 1975 (Cth) states: If the agreement reached is an agreement as to the terms of a decision of the Tribunal in the proceeding, the Tribunal may, without holding a hearing of the proceeding, make a decision in accordance with those terms.

The following table sets out the requirements of superior courts of those jurisdictions that require settlement agreements to be reported to court and allow them to be embodied in court orders. Table 13.1  Reporting of and making orders for settlement agreements Cth

ACT

Reporting of settlement agreements to Court

Making orders from settlement agreements

Federal Court Rules 2011 r 28.23, 28.33

Federal Court Rules 2011 r 28.25

Federal Circuit Court Rules 2001 r 27.02

Federal Circuit Court Rules 2001 r 10.01

Native Title Act 1993 s 94N

Native Title Act 1993 s 86C

(no requirement to report)

Court Procedures Rules 2006 r 1182

NSW

Uniform Civil Procedure Rules 2005 reg 20.7

Civil Procedure Act 2005 s 29

NT

Supreme Court Rules 1987 r 48.13(16)

Supreme Court Act 1979 s 20

Qld

Civil Proceedings Act 2011 s 49

Civil Proceedings Act 2011 s 50

SA

(no requirement to report)

Supreme Court Act 1935 s 65(7)

Tas

Supreme Court Rules 2000 r 521

Alternative Dispute Resolution Act 2001 s 8

Vic

Supreme Court (General Civil Procedure) Rules 2005 O 50.07(4)

Supreme Court Act 1986 s 33ZF

WA

Rules of the Supreme Court 1971 O 4A, r 8(4), (5)

Rules of the Supreme Court 1971 O 24A, r 3(9)

The following extract is an example of a statutory scheme that allows for the settlement agreement to be embodied in consent orders but also allows for the reinstatement of the tribunal proceedings should one party breach the mediated settlement agreement.

Hart v Kuna [13.175]  Hart v Kuna [1999] VCAT 626 at [6]‌-[​ 29]. [Facts: This was an alleged breach of equal opportunity legislation in Victoria. Prior to a formal hearing, the parties attended a compulsory conference at which the matter was referred to mediation before a member of the Tribunal. The mediation took several hours and resulted in settlement with the complainant agreeing not to proceed any further with the complaint and the respondents agreeing to pay a certain sum of money to the complainant. The mediated settlement agreement was to be reduced to writing by the respondents and all parties were to sign it. At the conclusion of the mediation, the mediator ordered the complaint struck out with the right of reinstatement [13.175]  785

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Hart v Kuna cont. pursuant to s 93 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic)(“VCAT Act”) which gives the Tribunal wide powers to make any such orders it sees fit. Subsequent to the mediation, the respondents wrote to the complainant and the Tribunal advising that they no longer wished to be bound by the settlement agreement. There were no reasons for the respondents’ change of heart mentioned in the judgment. In the meantime the complainant treated the complaint as no longer on foot and cancelled witnesses who were due to appear at the hearing of the matter. The complainant submitted to the Tribunal, amongst other things, that there was in existence a valid and enforceable mediated settlement agreement, albeit oral, on which the complainant had relied and that the Tribunal should make orders to give effect to the settlement. The respondents submitted, amongst other things, that there was no mediated settlement agreement between the parties. Held: The Tribunal found for the complainant and reinstated the complaint. The Tribunal considered that the original order that resulted from the settlement was drafted so as to strike out the complaint with the right of reinstatement. The original order was made with a contingency should the settlement fall through –​the contingency being reinstatement of the complaint. Deputy President McKenzie was concerned that if the Tribunal did not reinstate the complaint it would be changing its own orders, that is, the orders originally made. The Deputy President was satisfied that the original order made by the Tribunal was what was agreed to between them and therefore, the complaint was reinstated.] [6]‌ McKenzie, Deputy President: The complainant makes a number of alternative submissions about this situation. First the complainant submits that there has been an enforceable settlement agreement, albeit oral, on which the complainant has acted by cancelling arrangements for witnesses and consenting to the Tribunal’s order to strike out the complaint with a right of reinstatement. [7]‌It is submitted that under s 93 of the VCAT Act I should make further orders to give effect to this settlement and require the respondents to pay to the complainant a certain sum in accordance with what is said to be that settlement agreement. Alternatively, the complainant submits that I should reinstate the complaint and then because the complaint has settled either under s 93 of the VCAT Act or under s 136 of the Equal Opportunity Act 1995 which I will call the Equal Opportunity Act 1995 order the respondents to pay a certain sum due under the settlement agreement, it is alleged. [8]‌Thirdly, the complainant asks for an order for costs under ss 78 and 109 of the VCAT Act, because of what the complainant submits is the unreasonable way in which the respondents have conducted this part of the proceeding. The respondents [sic] answering submissions are these. [9]‌First they say that there is no settlement agreement, they say that an agreement to settle proceedings of this kind must be in writing and that this agreement was not. They say that now they clearly do not agree to settle this matter and so there is no settlement agreement. Since there is no settlement, there is they say no power under s 93 of the VCAT Act to make orders giving effect to a settlement. The only course they say is to reinstate the complaint and have it heard in the ordinary course of things. [10] They submit that s 136 of the Equal Opportunity Act 1995 does not authorise the Tribunal to order the respondents to pay compensation to the complainant where the Tribunal has not heard evidence and representations from the party and has not then made a finding that the respondents contravened the Equal Opportunity Act 1995. None of this it is agreed has yet happened. [11] Finally, the respondents argue that no costs should be ordered against them because they say as soon as the respondents decided not to go through with the settlement they immediately informed the complainant and the Tribunal and then proceeded to comply with the timetable previously set by the Tribunal at the compulsory conference. They say that because they did these things if the complaint were reinstated there would be no delay in the matter proceeding to hearing according to the original timetable. [12] I turn briefly to the provisions of the relevant legislation, s 88 of the VCAT Act permits the Tribunal or the principal registrar to refer the matter to mediation. The effect of s 88 subs 7 is that subject to the Act and the Rules the procedure at mediation is at the mediators [sic] discretion. The 786 [13.175]

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Hart v Kuna cont. effect of ss 90 and 91 is that the mediator must report the outcome of the mediation to the Tribunal, that is where it has been successful or unsuccessful. [13] By Clause 26 of Schedule 1 of the VCAT Act, s 92 of that Act which relates to the admissibility of evidence of what happened during mediation is inapplicable and different rules apply to mediation in proceedings under the Equal Opportunity Act 1995. In brief, those rules are that evidence of anything said or done in the course of mediation is inadmissible in any hearing of the proceeding whether or not the parties agree that the evidence should be admitted. [14] Under s 93 of the VCAT Act if the parties agree to settle a proceeding, the Tribunal may make orders necessary to give effect to the settlement. Where the settlement is reached through mediation or at a compulsory conference the member who conducts these may make the order. But in any case the power is exercisable by any member of the Tribunal. [15] I must first consider whether, as the complainant argues, I can make orders under s 93 or make further orders under s 93. VCAT does not have general jurisdiction to declare whether or not a valid contract exists between people or to enforce a contract. Its jurisdiction is limited to that given by the VCAT Act and the various enactments conferring jurisdiction on it. [16] One of these provisions is s 93 of the VCAT Act. It permits VCAT to make orders necessary to give effect to a settlement of a proceeding before it, here the proceeding is a complaint under the Equal Opportunity Act 1995. Before VCAT can do this it must be satisfied that the parties have agreed to settle the proceeding. In most cases this will not be in dispute nor will the terms of the order sought. But here there is a dispute. To determine whether I can exercise the power to make orders under s 93 I must determine this dispute. In other words the dispute about whether or not there has been an agreement to settle. This is not the same as deciding some general question or making some general inquiry about the validity of an agreement or the enforceability of an agreement. [17] It is true that s 93 does not require a settlement agreement to be in writing, but in my view the scheme of the Act necessarily implies that if the settlement is intended to be achieved only through a settlement agreement and without any order of the Tribunal under s 93, it seems to me that the scheme of the Act is that that agreement must be in writing. A complaint must be in writing, see s 105 of the Equal Opportunity Act 1995. [18] The withdrawal of a complaint must be by written notification to the parties, see s 74 and Clause 21 of Schedule 1 of the VCAT Act. It seems to me a necessary implication of this scheme that as I have said, a settlement agreement which intends, for example, to bring proceedings to an end, and intends to operate in the absence of any other order of the Tribunal, also needs to be in writing. But an oral settlement agreement may be given effect to by an order of the Tribunal under s 93. [19] Here there was an oral settlement agreement. There was an agreement that its terms be put into writing and the Tribunal struck out the complaint with the right of reinstatement. That striking out order was made because of a concern that the settlement may fall through and not be complied with. [20] I am satisfied that the parties intended that the way in which the Tribunal should deal with this difficulty, the difficulty of a settlement agreement falling through and not being complied with, was by reinstating the complaint. I do not think that the parties intended that the Tribunal should in effect be able to change this regime put in place at the time of the mediation, and make a different regime under which rather than reinstating the complaint because of some non-​compliance with the settlement or because the settlement had broken down, the Tribunal would make orders to in effect enforce whatever agreement there might be. [21] To do this, it seems to me in this way we involve the Tribunal in effect changing its task. It would involve the Tribunal in deciding after it had already made orders setting out a particular regime and immediately after mediation, do a different task of making quite different orders, envisaging a different scenario and it would, to some extent it seems to me, involve it in some general inquiry about the validity or enforcement of whatever agreement there might be. [13.175]  787

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Hart v Kuna cont. [22] I am satisfied that the Tribunal’s original order reflects what was agreed between the parties, whether one says that that agreement no longer exists as the respondents do or has not been complied with as the complainant do, I am satisfied that the agreement was that if these things happened the complaint should be reinstated. That was the course contemplated by the parties. [23] Because of the view I have taken, I do not have to determine whether s 93 would, in other circumstances, authorise the making of different orders at different times to give effect to the one settlement, although I would say that generally there seems to be no reason why it should not authorise this. Particularly in the light of s 131 subs 2(e), which permits orders necessary or desirable to give effect to an earlier order. The earlier order would, I would presume, have in some [sic] to contemplate the making of the later orders. [24] I should also add that I agree with the respondents [sic] submission that s 136 of the Equal Opportunity Act 1995 does not permit the making of an order giving effect to a settlement where the Tribunal has heard no evidence or representations from the parties and has not made a finding that the respondents have contravened the relevant provisions of the Equal Opportunity Act 1995. Orders for compensation under s 136 are predicated on those two criteria being met. [25] It follows from what I have said that I conclude that the complaint in this case must be reinstated. These of course are unusual circumstances and I do not intend that this decision should be followed where the circumstances are different. In this case the complainant has asked for costs, costs of today and costs thrown away because of the need to vacate the hearing dates and rearrange the timetable for the hearing of the complaint. [26] I am satisfied that under s 109 of the Act it is fair to depart from the normal rule that costs lie where they fall and to award costs in favour of the complainant on these grounds. The award would be under s 109(3)(a) on the basis that the respondents have conducted this part of the proceeding in a way that unnecessarily disadvantages the complainant. If the respondents had considered the matter earlier and had advised the complainant during or shortly after the mediation that they did not wish to settle the matter, the complainant then it seems to me would have been able to comply with the Tribunal’s original timetable for hearing and today’s hearing would not have been necessary. [27] Finally, I would say that I do not mean by my decision to devalue the mediation process or the Tribunal’s power to make orders giving effect to settlements, rather I intend to indicate by my decision and in the facts of this particular case the importance of considering carefully whether or not to reduce settlement agreements to writing, when that should occur, the terms of those agreements and what orders should be sought from the Tribunal to give effect to settlements. [28] I have been careful in this decision not to deal with anything said or done in the course of the mediation, but I have taken the view that in order to determine whether the Tribunal can exercise its powers under s 93 it must be able to look at any terms of settlement whether oral or written that are put before it, so they can determine whether there has been an agreement to settle. [29] The orders that I intend to make are that the complaint is reinstated, I will set a new timetable for the dates of witness statements and for the hearing. I intend to order, as I have said, costs in favour of the complainant and against the respondents in respect of today’s hearing and costs thrown away because of the making of the new timetable.



ENFORCEABILITY OF DISPUTE RESOLUTION CLAUSES [13.180] Dispute resolution clauses appear in just about every contract used in business

today. Parties agree to refer disputes that arise under the contract to a non-​curial form of dispute resolution which will provide them with some control over the outcome of the dispute. The difficulty with these clauses is that there are few courts in Australia that have 788 [13.180]

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directly enforced a dispute resolution clause. One such court is the Victorian Supreme Court in Computershare Ltd v Perpetual Registrars Ltd [2000] VSC 233, discussed below in Spencer (2003) 14 Australasian Dispute Resolution Journal 153. In New South Wales a number of cases have come before the courts and on some occasions the court has ordered a stay of proceedings by virtue of the court’s inherent jurisdiction to prevent an abuse of process –​the abuse of process being the fact that a party is using the court’s unwillingness to enforce such a clause as a reason to avoid performing the contracted dispute resolution clause: see Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194. Four problems have been identified by the courts in enforcing dispute resolution clauses in contracts: (i) the clauses must not oust the jurisdiction of the court; (ii) the clauses must not lack certainty in their drafting; (iii) the clauses must not refer to “good faith negotiation”; (iv) the courts have had difficulty in finding a remedy for breach. Each of these issues will be discussed below. Drafted in Scott v Avery form [13.185]  The first problem in enforcing dispute resolution clauses is that the drafting of the

clause must not oust the jurisdiction of the courts. Such clauses can only be a condition precedent to commencing proceedings in the courts and not a substitute for it. The principle of drafting dispute resolution clauses in such a fashion was established in a case called Scott v Avery (1856) 10 ER 1121.

Scott v Avery [13.190]  Scott v Avery (1856) 10 ER 1121 at 1133-​1134. [Facts: The plaintiff and the defendant were shareholders in an insurance company who underwrote an insurance policy on a particular ship. The policy stated that a committee, appointed by the insurer, shall determine any sum paid to a policyholder. Also, should the policyholder dispute the amount determined by the committee, then the policyholder was prevented from going to court until such time as the dispute had been arbitrated. There was a claim against the policy and before the committee had finished ascertaining and settling the claim the owner of the ship disputed the extent of the repairs carried out on the ship then refused to have the dispute arbitrated. Held: Under the contract no cause of action had arisen until the arbitrator had made an award, so the plaintiff’s claim could not be upheld. Also, parties may not contract to oust the jurisdiction of the courts but may make a dispute resolution process a condition precedent to litigation.] [1133] Coleridge J: The principle of law which is relied on by the Plaintiff in Error is agreed on. The difference between the parties is upon the question whether it governs the present case; and this must be decided by determining the true construction of the agreement. If two parties enter into a contract, for the breach of which in any particular an action lies, they cannot make it a binding term, that in such event no action shall be maintainable, but that the only remedy shall be by reference to arbitration. Whether this rests on a satisfactory principle or not may well be questioned; but it has been so long settled, that it cannot be disturbed. The courts will not enforce or sanction an agreement which deprives the subject of that recourse to their jurisdiction, which has been considered a right, inalienable even by the concurrent will of the parties. But nothing prevents parties from ascertaining and constituting as they please the cause of action which is to become the subject-​matter of decision by the courts. Covenanting parties may agree that in case of an alleged breach the damages to be [13.190]  789

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Scott v Avery cont. [1134] recovered shall be a sum fixed, or a sum to be ascertained by A B, or by arbitrators to be chosen in such or such a manner; and until this be done, or the non-​feasance be satisfactorily accounted for, that no action shall be maintainable for the breach. This position has not been questioned in the argument before the House; nor was it, I think, in the Court below. Now, applying to the rule in question the ordinary principles of construction, that you are to look to the whole instrument, and to the expressed intention of the parties, and are not to be fettered by a too close adherence to form or order, or the strict literal meaning of expressions, where to do so would violate intention, it seems to me clear that the Defendant in Error gives to it the meaning which a court of law ought to uphold. It begins thus: “That the sum to be paid to any suffering member for any loss or damage shall in the first instance he ascertained and settled by the committee”. The subject-​matter, therefore, is the amount of compensation to be paid where the existence of some loss or damage is assumed, and the rule specifies how first that amount shall be ascertained. It proceeds thus: “The suffering member, if he agrees to accept such sum in full satisfaction of his claim, shall be entitled to demand and sue for the same as soon as the amount to be paid has been so ascertained and settled, but not before”. This supposes the amount to be recovered agreed to by the suffering member, but the cause of action not admitted by the association, and in such case leaves the former his recourse to the courts of law for establishing it, and for enforcing the payment of the damages so ascertained. And in so doing, it is added, that he can only claim “according to the customary mode of payment in use by the society”. If the rule had stopped at this point, I confess I do not see on what grounds it could have been contended that it ousted the jurisdiction of the courts, which would not equally apply to the common case of contracts for work to be done, in which it is made a stipulation that the remuneration shall not be payable until the work be first approved, or the amount first ascertained by an engineer or surveyor, or some appointed referee. But the rule proceeds to the alternative of a difference between the committee and suffering member; and it uses large terms respecting the subject-​matter of the difference. These large terms, however, do not carry the case farther than those before used; for the difference must, of necessity, be in respect of some or one of the matters before in discussion between the committee and the member, in which they were sifted with a view to ascertaining the amount to be ultimately sued for, if not paid after ascertainment. This provision therefore falls within the same principle precisely as the preceding one. Indeed it provides only an alternative tribunal of the same kind as the first named, and constituted for the same purpose, namely, for the preliminary ascertainment of the amount to be recovered at law if the society will not pay. In the first place, the committee is to arbitrate between the society and the member, and if he will not agree in the judgment, selected arbitrators in the second. And the submission to one or other of these modes of preliminary inquiry is made a part of the contract, a term in it, which limits the cause of action ultimately to be brought into court. It is true that in arriving at the sum to be sued for, the committee, or the arbitrators, may have to consider the nature of the claim, and the proofs of it; but, so in settling the amount to be recovered by a builder or a railway contractor, the architect or engineer, or whoever may be the preliminary referee agreed on for the purpose, must examine and decide that which may really be the very point in dispute between the parties, namely, the quantity or the goodness of the work, or the quality of materials used; yet no one objects that on this account the stipulation for submission to this previous inquiry is void as ousting the jurisdiction of the courts. I certainly am not disposed to extend the operation of a rule which appears to me to have been founded on very narrow grounds, directly contrary to the spirit of later times, which leaves parties at full liberty to refer their disputes at pleasure to public or private tribunals. And I think the judgment of the Court of Exchequer Chamber stands on a safe distinction between an agreement which would close entirely the access to the courts of law and that which only imposes as a condition precedent to the appeal to them, that the parties shall have first settled by an agreed on mode the precise amount to be recovered there.

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Drafted to avoid uncertainty [13.195]  One of the basic rules of contract law is that the terms of a contract must be drafted

with requisite certainty. Dispute resolution clauses in contracts are no different. This means drafting terms so that the parties know with some precision what is required of them under the contract. Where it has not been possible to attribute a clear meaning to the words used in a contract so that the rights and liabilities of the parties are clearly stated, courts have generally held such contracts as being void for uncertainty. Dispute resolution clauses pose a unique problem when it comes to the requirement of certainty. On the one hand parties need to know with some certainty what is required of them under a dispute resolution clause in a contract. But on the other hand, part of the cache of dispute resolution is its flexibility and party control regarding procedure. In this respect, it has been difficult to draft precisely the exact terms of a dispute resolution procedure when the aim of dispute resolution is to empower the parties to be flexible as to the procedure to be followed in order to achieve a consensual outcome.

Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd [13.200]  Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995) 36 NSWLR 709 at 714-​716. [Facts: Contracts for the construction and construction management of a housing development were entered into by the parties. The contracts contained dispute resolution clauses in almost identical terms which stated: (i)

If a dispute arises out of or relates to this agreement or the breach, termination, validity or subject matter hereof, the parties agree to first endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC).

(ii)

In the event that the dispute has not been settled within 28 days (or such other period as agreed to in writing between the parties hereto) after the appointment of the mediator the dispute shall be submitted to arbitration administered by and in accordance with the Arbitration Rules of the ACDC.

(iii)

The arbitrator shall be a person agreed between the parties. ACDC will assist the parties by providing a list of suggested arbitrators. Failing agreement, the arbitrator shall be a person appointed by ACDC. The arbitrator shall not be the same person as the mediator.

(iv)

The arbitration shall be held in Sydney or in such other place as the parties may agree in accordance with and subject to the laws of the State of New South Wales.

(v)

The decision of the arbitrator shall be final and binding upon the parties.

A dispute arose and the defendant attempted to invoke the dispute resolution clause, which the plaintiff resisted. The plaintiff unnecessarily conceded that guidelines setting out procedures for the running of mediation under the auspices of the Australian Commercial Disputes Centre (ACDC) were incorporated into the dispute resolution clauses. The guidelines made reference to the parties executing a Mediation Appointment Agreement, which set out the terms of engagement of the mediator as well as some procedural issues. Held: An agreement to mediate whereby parties merely agree to sign a mediation appointment agreement the terms of which have not been agreed upon as between the parties is not sufficiently certain to be given effect.] [714] Giles J: Despite the first paragraph of the guidelines, there was not complete consistency between the guidelines and the mediation agreement: for example, the guidelines called for attendance by the individual or an authorised company representative but the mediation agreement permitted attendance by a representative, the statements of issues required differed, the mediation [13.200]  791

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Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd cont. agreement did not call for the signing of “confidentiality forms”, and the events of termination of the mediation differed. More generally, there were differences in scope and terminology, and the relationship between the guidelines and the form of mediation agreement was far from clear. As I have said, Elizabeth Bay expressly conceded that ACDC’s guidelines were incorporated by reference into the mediation clauses. Because of the conclusion to which I have come in any event, I am prepared to act on that concession, but I am by no means certain that the concession was correctly made. The mediation clauses referred only to “mediation administered by” ACDC, and did not confine that administration to administration in accordance with the guidelines. In contrast with what they said about arbitration (“arbitration administered by and in accordance with the Arbitration Rules of the ACDC”), the guidelines were not mentioned in the clauses, and I repeat that there was no evidence that the parties or either of them had in mind the guidelines or were even aware of the guidelines in September 1993; nor was there evidence that the guidelines were of such common knowledge that it could be taken that both Elizabeth Bay and Boral were aware of them or subjected themselves to them notwithstanding that they were not aware of them. The guidelines themselves cannot improve this position by their statement that the parties are deemed to have incorporated the guidelines upon agreement to mediate through ACDC … [715] Elizabeth Bay acknowledged that there was power in the Court to enforce indirectly an agreement to mediate in the manner considered in Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194, and that it bore the practical burden of persuading the Court that it should not be held to an apparent agreement to endeavour to settle its dispute with Boral by mediation. Both parties took as their starting point that an agreement to mediate might be indirectly enforced in the manner discussed in Hooper Bailie Associated Ltd v Natcon Group Pty Ltd if it required of the parties participation in the process by conduct of sufficient certainty for legal recognition of the agreement, and addressed whether in the present case there was sufficient certainty and, if there was, whether the Court’s discretion should be exercised in favour of or against an adjournment or stay. No submissions were made that what was said in that case was incorrect, nor do I see any reason to depart from what was there said. In the present case, even on the assumption that the guidelines were incorporated by reference into the mediation clauses it seems to me that there are compelling reasons to decline to adjourn or stay the proceedings. At first sight the guidelines did not take up ACDC’s form of mediation agreement, since although par 6 of the guidelines spoke of terms which “are” consistent with the guidelines it did not otherwise identify that form and the form was not wholly consistent with the guidelines. In par 6 and elsewhere the guidelines contemplated some kind of agreement, but its terms were left to be settled. If this be so, then by the incorporation of the guidelines the parties had agreed (inter alia) to sign mediation agreements the terms of which were not settled beyond the necessity that they be consistent with the guidelines. The agreements to mediate were open-​ended, indeed unworkable because the process to which the parties had committed themselves would come to an early stop when, prior to the mediation, it was asked what the parties had to sign and the question could not be answered. No doubt it would be possible to prepare an agreement consistent with the guidelines, but there would be an infinite combination of provisions which would not be inconsistent with the guidelines, and for this reason alone the agreement of the parties fell down for lack of certainty in the process which they should follow in their mediation. The deficiency was not overcome by regard to other provisions in the guidelines, because the guidelines themselves called for signature of a mediation agreement as to what was clearly an important step in the process. Whether the guidelines otherwise stipulated with sufficient certainty the conduct required of the parties for the process of mediation itself was perhaps open to question, but it is not necessary to express a view upon that … [716] In my opinion, to adjourn or stay the proceedings so that Elizabeth Bay could be required either to sign an unknown agreement as an important step in the process of mediation, or to commit itself to attempting in good faith to negotiate towards achieving a settlement of the dispute, would require of Elizabeth Bay conduct of unacceptable uncertainty.

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[13.205]  In the following extract the same court that decided Elizabeth Bay (see [14.200])

took a consistent view on the requirement of certainty in the enforcement of dispute resolution clauses. However, the court on both occasions dealt with two very different dispute resolution clauses and on this basis Elizabeth Bay is distinguishable from Aiton Australia as the following extract highlights.

Aiton Australia Pty Ltd v Transfield Pty Ltd [13.210]  Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236; [1999] NSWSC 996 at 250-​253. [Facts: The parties entered three contracts over the construction of a power plant in South Australia. The contracts contained lengthy dispute resolution clauses the relevant parts of which stated: 28.2 Mediation If the Dispute is not resolved pursuant to the process established in Section 28.1 [General], either Purchaser or Supplier shall submit the same for mediation and the parties shall expressly agree upon the following process and subject to Section 28.5 [Limitation Periods] agree that Mediation shall be compulsory before either Party may commence legal action or initiate the Expert Resolution process, as the case may be:

(a)

The Party initiating shall provide Notice of that request to the other Party, including a summary of the Dispute, a written statement of its position and a list of 4 mediators acceptable to it.



(b)

Within 5 business days following receipt of the above Notice, the recipient Party shall provide the other Party with a written statement of its position on the Dispute, any objections and amendments that it may have to the other Party’s above mentioned summary of the Dispute and a list of 4 mediators acceptable to it if it does not accept an individual from the other Party’s list.



(c)

If the Parties are unable to agree on a mediator within 5 business days following delivery of the material mentioned in Subsection (b) above, then either party may apply on a expedited basis to have the mediator appointed by the President for the time being of the New South Wales Bar Association (or paramount officer of any successor organization). The mediator shall have suitable qualifications and standing to mediate the Dispute.



(d)

The place of any mediation proceeding shall be in Sydney, New South Wales.



(e)

The mediator may conduct the proceedings in any manner he considers appropriate, taking into account the circumstances of the Dispute, any desires expressed by the Parties, and the desire for speedy resolution of the Dispute. The mediator may communicate with the Parties orally or in writing and may meet with the Parties together or individually. The Party initially referring the Dispute to mediation is entitled to make the first opening statement to the mediator.



(f)

The mediator shall not act as a representative or witness of either Party or otherwise participate in any Expert Resolution or judicial proceedings related to a Dispute that was the subject of mediation.



(g)

Statements made by either Party or the mediator in the course of the mediation process shall not be disclosed to any third party and shall not be introduced by either party in the Expert Resolution process or judicial proceedings, whether or not those proceedings relate to the Dispute that was the subject of the mediation.



(h)

The parties agree to use all reasonable endeavours in good faith to expeditiously resolve the Dispute by mediation.

A dispute arose over representations made prior to the contract and the plaintiff invoked the dispute resolution clause regarding some issues and litigated others. The defendant sought an order from the court for a stay of proceedings to allow the dispute resolution clause to be performed according to its terms. Held: A stay of proceedings will not be available to allow parties to follow a dispute resolution [13.210]  793

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Aiton Australia Pty Ltd v Transfield Pty Ltd cont. clause if the procedures are not sufficiently detailed to be meaningfully enforced. As a minimum requirement of an enforceable mediation clause, the administrative processes for selecting the person to conduct any dispute resolution process, and to determine his or her remuneration, should be provided for in the dispute resolution clause.] [250] Einstein J: In Hooper Bailie, Giles J stated (at 206): What is enforced is not co-​operation and consent but participation in a process from which consent might come. (Emphasis added.) It is for this reason that the process from which consent might come must be sufficiently certain. This is not to suggest that the process need be overly structured. Certainly, if specificity beyond essential certainty were required the dispute resolution [251] procedure may be counter-​productive as it may begin to look much like litigation itself. In Elizabeth Bay, Giles J noted (at 714) that apart from the express agreement in cl 11 to enter into negotiation in good faith, the agreement to mediate did not lay down a procedure for the mediation process other than the parties’ presence or representation, the mediators discretion to hold private sessions with any party to the mediation and the stipulation that, unless otherwise agreed, the parties would within 14 days of the agreement provide to each other and to the mediator, a short statement of issues outlining the nature of the dispute and the various matters in issue. His Honour concluded that the agreement to mediate being so open-​ended was unworkable, as the “process to which the parties had committed themselves would come to an early stop when, prior to the mediation, it was asked what the parties had to sign and the question could not be answered” (at 715). In a similar vein, the plaintiff submits that beyond the alleged uncertainty of the “good faith” requirement, the process of mediation set out in cl 28.2 lacks sufficient certainty to be given legal effect in that: (1)

there are no provisions dealing with the remuneration to be paid to a mediator, if agreed or appointed pursuant to paragraph (c) of clause 28.2;

(2)

there are no provisions dealing with what is to happen if one or both of the parties do not agree with the fees proposed by any such mediator, or what is to happen if the nominated (or agreed) mediator declines appointment for this or any other reason.

The mediation agreement is indeed silent about the remuneration to be paid to the mediator and the effect of a declined appointment. To my mind of particular difficulty is the lack of a provision in the clause setting out a mechanism for apportionment of the mediator’s costs. Whilst it may be arguable that a term should be implied to the effect that the parties would jointly share the reasonable remuneration of the mediator, in my view that term may not be implied. The well-​known conditions necessary to ground the implication of a term are as follows: (1)

it must be reasonable and equitable;

(2)

it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;

(3)

it must be so obvious that “it goes without saying”;

(4)

it must be capable of clear expression;

(5)

it must not contradict any express term of the contract.

(Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 347 per Mason J applying BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 at 281-​283.) To my mind, the suggested implied term does not satisfy the third of these conditions. There is a strong argument that the parties may have intended that the same regime as that stipulated in cl 28.3(h) apropos the costs, upon the invocation of cl 28.3 of an expert, was to apply in respect of the costs of a mediator. One can easily imagine that the parties may have intended that the mediator be 794 [13.210]

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Aiton Australia Pty Ltd v Transfield Pty Ltd cont. given power to determine costs. Equally the parties may have intended that they be obliged to share the mediators [sic] costs. Hence the suggested implied term is not so obvious that “it goes without saying”. A further question going to certainty relates to the method of determining the mediator’s remuneration. In this regard whilst it would have been preferable to [252] stipulate the procedure to be followed to achieve such determination, I do not see the matter as affecting the enforceability of the agreement. I note that in view of decided Australian case law, commentators such as L Boulle and R Angyal have noted that for a mediation clause to be enforceable, it must satisfy the following minimum requirements (I interpolate to note that in my opinion, these minimum requirements ought be seen as applying to any stage in a dispute resolution clause as the case may be, not just to mediation): • It must be in the form described in Scott v Avery (1856) 10 ER 1121. That is, it should operate to make completion of the mediation a condition precedent to commencement of court proceedings. • The process established by the clause must be certain. There cannot be stages in the process where agreement is needed on some course of action before the process can proceed because if the parties cannot agree, the clause will amount to an agreement to agree and will not be enforceable due to this inherent uncertainty. • The administrative processes for selecting a mediator and in determining the mediator’s remuneration should be included in the clause and, in the event that the parties do not reach agreement a mechanism for a third party to make the selection will be necessary. • The clause should also set out in detail the process of mediation to be followed –​or incorporate these rules by reference. These rules will also need to state with particularity the mediation model that will be used. (Emphasis added.) (See Australian Law Reform Commission, Review of the Adversarial System of Litigation, Issues Paper 25, June 1998, Chapter 6, par 6.20.) It follows that the subject mediation clause is unenforceable. To my mind, the mediation clause is not severable from the negotiation clause. The two are intended to walk together as a staged procedure, constituting the dispute resolution process as agreed between the parties. As such, the agreement to negotiate must also be unenforceable. In deference, however, to the detailed submissions advanced on other aspects of the matter and against the possibility that my view of the inability to imply the above term be incorrect, I propose to deal with the other issues raised. As to the plaintiff’s submission relating to the absence of provisions dealing with what is to happen if the nominated (or agreed) mediator declines appointment for any reason, it is to be noted that cl 28.2 provides a clear mechanism for the appointment of a mediator and in the event of disagreement as to his or her identity, then the mediator is to be appointed by the president for the time being of the New South Wales Bar Association. If a nominated mediator declined appointment on some basis then presumably, the nomination process would merely be reactivated. The plaintiff’s submission on this issue is without substance. To my mind, where parties agree to follow a dispute resolution procedure as a condition precedent to either party commencing proceedings, it is important that the parties be able to determine when that procedure has come to an end. Clearly, conclusion of the procedure is not to be equated with resolution of the issues in dispute: see Hooper Bailie (at 203). While this question might be thought to be academic, ability to determine the conclusion of the process and thus, the point at which the parties may be free to [253] pursue litigation or expert resolution, must be a telling indicium of the certainty and thus enforceability of the agreement. This is because conclusion of the procedure must surely be determined by the terms of the agreement itself: see R Angyal, The Enforceability of Agreements to Mediate (1995) 12 Australian Bar Review 1 at 10. [13.210]  795

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Aiton Australia Pty Ltd v Transfield Pty Ltd cont. I read the words “exchange of the pertinent information” in cl 28.1 as requiring to be exchanged within the 15-​day period between submission of the first and second dispute notices. Clause 28 clearly stipulates time frames within which the staged procedures for attempting dispute resolution are to be followed in the absence of agreement to the contrary. As such, it cannot be said that in the absence of agreement, the parties would not know when the condition precedent is satisfied and when they thus have the option of instituting proceedings. But for the matter identified above in relation to the allocation of the mediator’s costs, I am satisfied that the remainder of the procedure provided for in the subject contracts (disregarding the good faith requirement for the moment) would be sufficiently certain to be enforced. My finding that the remainder of the procedure is in fact sufficiently certain is in part informed by what I see to be the parties’ ability to determine when the procedure provided for in cl 28 has concluded.



To What Degree of Certainty Must a Dispute Resolution Clause Be Drafted? [13.215]  D Spencer, “To What Degree of Certainty Must a Dispute Resolution Clause Be Drafted?” (2003) 14 Australasian Dispute Resolution Journal 153 at 157-​164. Let us now have a look at the dispute resolution clauses that have failed the test of certainty and how that might have been avoided. The criteria used by the courts to establish uncertainty is listed in the “Problem” column with some suggested solutions that could have avoided said findings of uncertainty. Case

Problem

Solution

1. Elizabeth Bay

a) The terms of the Appointment Agreement had not been agreed to between the parties other than they had to be consistent with the Guidelines.

A. Agree on the terms of the Appointment Agreement prior to executing the contract and annex them to the contract or recite that the parties have agreed on the terms of the Appointment Agreement (use standard [158] form terms so that the third party neutral will not seek to add further terms unless with the agreement of the parties and even then, treat any such alterations as a variation to the contract).

 

b) The Guidelines had not been incorporated into the contract (other than by the plaintiff’s unnecessary concession).

B. Agree on the terms of the Guidelines and annex them to the contract or recite that the parties agree on the terms of the Guidelines and are holding copies of the said Guidelines pending a dispute triggering their use.

 

c) The Guidelines were inconsistent with the Appointment Agreement.

C. Draft Guidelines that are consistent with the Appointment Agreement ensuring that the material procedures are identical.

2. Aiton

d) The dispute resolution clause failed to apportion the third party neutral’s costs.

D. Draft the apportionment of the third party neutral’s costs and all other foreseeable costs (such as venue, transcript costs, drafting of settlement agreement etc), as is possible, into the dispute resolution clause.

3. Banabelle

e) Failure of nomination mechanism

E. Ensure that the third party nomination mechanism actually lists a third party and operates with certainty.

 

f) The specified cooperation in that the parties had to agree on the appointment of a third party neutral was not reasonable.

F. Avoid the parties to the contract having to agree on the identity of the third party neutral. Instead have an independent third party appoint the third party neutral.

796 [13.215]

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To What Degree of Certainty Must a Dispute Resolution Clause Be Drafted? cont. Case

Problem

Solution

 

g) Avoid using words that can connote more than one meaning.

G. Observe the fundamental drafting rule that a court [159] will give words their natural and ordinary meaning.

 

h) The requirement of the parties having to agree on the appointment of a neutral third party had no obligation to use best endeavours

H. Draft a requirement that the parties will use best endeavours (not good faith) in the appointment of the third party neutral or observe solution B above.

 

i) The lack of a mechanism to unlock the appointment deadlock indicates a lack of attention to be legally bound

I. Do not draft an appointment term where the parties are required to agree on the appointment of a neutral third party without having a mechanism to unlock the deadlock by having a third party appoint the neutral third party or observe solution B above and recite the parties’ intention to be legally bound to the dispute resolution clause (perhaps draft a damages clause specifying nominal and possibly expectation damages).

 

j) Severance of the uncertain element of the term is inappropriate as it displays lack of intention on behalf of the parties

J. Drafting for severance does not mean that parties lacked the requisite intention to be bound. Recite the intention of the parties to be bound by the dispute resolution clause but should any provision in the contract not comply with law then it may be read down so as to give it as much effect as possible. However, if it is not possible to give the provision any effect, then it must be treated as [160] severable from the rest of the contract

 

k) Severance of the uncertain element of the term is inappropriate as the remainder of the term must be capable of independent operation. Further, the remainder should not be able to be categorised as constituting an agreement to agree or be uncertain in relation to the procedures to be followed.

K. Draft for severance by ensuring that the deadlock mechanism is independent of the initial selection mechanism. Advise the court, through the drafting of the term, that the term has been drafted for severance but that the parties’ intentions remain the same that is, to have the dispute resolution clause performed prior to the parties embarking upon litigation (draft it as a condition precedent only). Or, observe solution B above. As a general observation simply avoid any agreements to agree. Attempt to have the procedures certain in every respect (which is why solution B above should be seriously considered by drafters of dispute resolution clauses).

Heart Institute

(same as Elizabeth Bay)

(same as Elizabeth Bay)

From the above, a number of simple drafting propositions can be restated. First, when drafting a dispute resolution clause, drafters should avoid leaving any element of it to the future agreement of the parties. In Aiton, Einstein J stated: Provided that no stage of the dispute resolution mechanism is itself an “agreement to agree” and therefore void for uncertainty, there is no reason why, in principle, an agreement to attempt to negotiate a dispute may not itself constitute a stage in the process. In other words, providing there is nothing in the drafting of the dispute resolution clause that leaves it up to the parties to the contract to agree on a procedure to be followed or a price to be set or the appointment of a third party neutral or the agreement of a third party neutral’s fees, then the contractual terms [161] will not be classed as an agreement to agree and therefore should be capable of enforcement. The difficulty with drafting dispute resolution clauses is that drafters generally seek to give the parties some control over the procedures to be followed in the dispute resolution process. This is part of the attraction of dispute resolution. However, if the choice is between having a dispute resolution [13.215]  797

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To What Degree of Certainty Must a Dispute Resolution Clause Be Drafted? cont. clause that leaves the procedures to the parties but that could be void for uncertainty and a clause that is precise as to the procedures to be followed that will be classed by a court as being certain, then probably the latter is more desirable. Second, because of the above, drafters should avoid allowing parties to select the third party neutral themselves. This will avoid any uncertainty issue over the selection of the third party neutral. Also, given that the outcome of most dispute resolution processes, such as negotiation, conciliation and mediation, is controlled by the parties, then the choice of the third party neutral should be of little significance. Again, parties giving up the right to choose the third party neutral must be weighed against the potential of having the appointment of a third party neutral declared void for uncertainty resulting in the entire dispute resolution clause being so declared. However, if parties are passionate about selecting their own third party neutral, then a deadlock mechanism needs to be drafted with requisite certainty. The deadlock mechanism should list a person who holds a certain office, for example, the President for the time being of the State or Territory Law Society or Law Institute or the President of the respective State or Territory Bar Association. Remember, do not list the person, rather the office, because you do not know when a dispute will arise and a specific person may no longer be available to act as the third party neutral. Third, when using other documents that seek to import terms into the contract, those terms or documents should be annexed to the contract or the parties should recite that they agree to the terms in a named document and that each party has a copy of those additional negotiated terms imported into the contract. This overcomes the problem in Elizabeth Bay and Heart Institute where, leaving aside the inconsistencies between two sets of documents sought to be imported into the contract, the documents had been unsighted at the time of execution of the agreement and therefore the parties were agreeing to additional terms in the contract that neither party had sighted, let alone agreed upon. The result was a declaration by the court that the dispute resolution clause was void for uncertainty. Finally, if parties are agreeing to import multiple sets of terms and documents that govern the dispute resolution process then ensure that the terms and documents are not between themselves inconsistent. The courts understandably have difficulty in deciding which of the contradictory terms disclose the true intention of the parties –​an unenviable task for anybody, let alone a judge! Do Dispute Resolution Clauses Need to be Drafted with Requisite Certainty –​An Alternative Argument to the Uncertainty Rule As stated above, drafters are caught between “the devil and the deep blue sea” when it comes to drafting dispute resolution clauses in contracts. They quite rightly seek to give the parties the freedom to determine the procedures to be [162] followed should a dispute arise under the contract. However, they must take account of the courts’ views on enforcing the uncertainty rule of contract law. If courts did not enforce such a rule then parties would be breaching contracts regularly because they would not be sure of the procedures they should be following under a poorly drafted contract that leaves performance open to wide interpretation. However, is the application of the uncertainty rule subject to an exception in the case of dispute resolution clauses? Certainly it would appear that the New South Wales Supreme Court adopts a narrow reading of the uncertainty rule when applying it to dispute resolution clauses. Or does it? Einstein J in Aiton stated: It is for this reason that the process from which consent might come must be sufficiently certain. This is not to suggest that the process need be overly structured. Certainly, if specificity beyond essential certainty were required, the dispute resolution procedure may be counter-​ productive as it may begin to look much like litigation itself. This appears to be a view shared by at least one judge in the Victorian Supreme Court. The case of Computershare Ltd v Perpetual Registrars Limited (No 2) [2000] VSC 233 (Computershare) … involved a contract for the supply of share registry services. The contract had a dispute resolution clause which provided that the parties were to try and resolve the dispute themselves prior to it being handed over 798 [13.215]

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To What Degree of Certainty Must a Dispute Resolution Clause Be Drafted? cont. to the Chief Executive Officers of each party for resolution using mediation, conciliation, executive appraisal or expert determination. The construction of the dispute resolution clause did not specify the procedures to be followed for any of the suggested dispute resolution processes. The defendants sought to enforce the dispute resolution clause by way of a stay of proceedings. The plaintiffs submitted that the dispute resolution clause was void for uncertainty. Warren J found that the dispute resolution clause was capable of being enforced. Most importantly, her Honour stated: Logically, parties cannot stipulate principles upon which mediation processes must produce an outcome. Of its very nature, the parties must negotiate and hold discussions to find their own solution. In essence, the parties are required to establish a protocol or framework within which the matters between them are to be negotiated. In essence, that is what mediation and conciliation are all about. Her Honour clearly understood the philosophical nature of dispute resolution in that the power to resolve the dispute using dispute resolution is vested in the parties themselves and it is this element of dispute resolution that separates it from litigation. It also provides the motivation for parties to negotiate a settlement and allows a flexible approach to process that is dependent on the [163] type of dispute and the personalities creating and maintaining the dispute. On the issue of uncertainty, Warren J stated: Furthermore, where parties have made a special agreement requiring them to address a path to a potential solution there is every reason for a court to say such parties should be required to endeavour in good faith to achieve it. In these circumstances the court does not need to see a set of rules layed [sic] out in advance by which the agreement, if any, between the parties may in fact be achieved. So her Honour opened the door to dispute resolution clauses being an exception to the uncertainty rule on the basis that the very essence of such clauses is the lack of certainty as to process and procedure. The lack of certainty being one of the hallmarks of the very processes known as dispute resolution. But the question remains, “Should dispute resolution clauses in contracts be exceptions to the uncertainty rule of contract law?” Given the opinions of the two judges quoted above, the answer is probably “yes”. Einstein J’s warning about certainty in drafting dispute resolution clauses becoming something akin to litigation is a cogent warning that should be taken seriously. A complex set of procedures that wrests control from the disputants themselves is an anathema to the very concept of dispute resolution. The benefits of dispute resolution, particularly from the courts’ perspectives, are its simplicity, cost efficiency and speed that together are said to relieve the pressure on an overburdened court system. If because of the uncertainty rule in contract law, such processes become bogged down in complex and lengthy procedures, its benefit to the court system and the community at large will begin to disappear. Dispute resolution will become just another part of the system of justice that is characterised by complex rules of evidence and court procedures that seek to provide justice, although at times provide an advantage to the well-​resourced litigant. As to the philosophical rationale raised by Warren J, ever since the formalisation of dispute resolution and the rise of the various court annexed programs, the basis of dispute resolution’s success has been party control. That is, parties control who the third party neutral will be, the type of the dispute resolution process employed and the outcome of the dispute resolution process. To impinge on any element of this sort of party control is devaluing dispute resolution and jeopardising the chance for successful outcomes. Already we have seen the parties lose, to a certain degree, the right to choose their own third party neutral through the prescription of a list of certain “court approved” third party neutrals as part of court annexed dispute resolution programs. To further prescribe the procedures of dispute resolution beyond what parties should control themselves can only be seen as a retrograde step in the development of dispute resolution. But perhaps there is some middle ground to be had in this debate. [13.215]  799

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To What Degree of Certainty Must a Dispute Resolution Clause Be Drafted? cont. Conclusion The arguments are clearly drawn on the issue over uncertainty in the drafting of dispute resolution clauses. Advocates of a strict reading of the uncertainty rule would rightly argue that the parties must know with a requisite degree of [164] certainty the processes and procedures they are committing themselves to when signing a contract containing a dispute resolution clause. On the other hand, advocates of the philosophy of party control in dispute resolution would argue that dispute resolution clauses take into account the threshold requirement of party control over process and procedure and that any reduction in the amount of party control puts at risk the very philosophy of dispute resolution and makes the process akin to that of litigation. The middle ground in this debate is surely defining what is an acceptable level of certainty that does not impinge upon the philosophical values of dispute resolution? After all the uncertainty rule and its application should be part of a compromise that drafters of contracts tussle with continually in the process of drafting a contract according to their client’s instructions. Perhaps we are now at the point where, for example, procedural issues such as the apportionment of a third party neutral’s costs is always to be on an equal share basis unless otherwise agreed to between the parties. Or the appointment of a third party neutral is always left to a professional body such as the various Law Society and Institutes or Bar Associations. Most of these organisations already have Presidents well versed in the issues or dispute resolution committees who would be able to act in such a capacity. Even the private agencies could play a role, although they have a vested interest in charging for such services and promoting their own accredited third party neutrals. Like the uncertainty rule itself, perhaps we are at a point where the common law can create a list of indicia accepted as being those procedural elements left to the parties that do not offend the uncertainty rule. Professional bodies could develop skeletal rules that are adopted by the courts that reflect a threshold of process and procedure that firstly satisfies the requirement of certainty and secondly, retain some acceptable level of autonomy for the parties over process and procedure. Many of the State and Territory Law Societies and Institutes and Bar Associations have already developed such rules of procedure that could easily be adapted to become a court endorsed standard applied across all contractually agreed upon dispute resolution processes. No matter what the answer is in the uncertainty debate, one thing is certain courts need to stop declaring dispute resolution clauses in contracts as being void for uncertainty and drafters of dispute resolution clauses need to assist the courts so that they can stop declaring dispute resolution clauses as being void for uncertainty. If this means drafting for certainty and annexing documents to ensure procedures form part of the terms of a contract or courts developing a list of indicia that are immune from the uncertainty rule then so be it. The appalling number of cases where dispute resolution clauses have been held void for uncertainty must cease. The uncertainty such cases produce within the domestic and business community is unacceptable. In the words of Kirby P, as he then was, “… courts should be the upholders, and not the destroyers, of commercial bargains”.

 Drafted to avoid a reference to “good faith negotiation” [13.220]  Prior to the 1995 decision in Elizabeth Bay, many dispute resolution clauses con-

tained a requirement that the parties must perform the dispute resolution process prescribed by the clause in good faith. In Elizabeth Bay the court found that such a term lacked sufficient certainty as the parties may wish to preserve self-​interest at the time a dispute arises under the contract and not wish to negotiate in good faith –​that in itself would lead to the clause being declared void for uncertainty. This decision was challenged four years later in Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236; [1999] NSWSC 996 where the court found 800 [13.220]

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that good faith performance of a dispute resolution clause does not mean having to forfeit self-​interest. These conflicting views are addressed in the following extract.

The Good Faith Element in Alternative Dispute Resolution [13.225]  D Spencer, “The Good Faith Element in Alternative Dispute Resolution” (2000) 38(5) Law Society Journal 58 at 58-​61. Good Faith Retreats In 1995, a further dimension to the drafting of ADR clauses came into play. Along came the case of Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995) 36 NSWLR 709 (“Elizabeth Bay”) … It stated, at 716: It is difficult to regard the parties as having undertaken in 1993 to declare at a future time that they had (at the future time) a commitment to good faith negotiations: first, other than being a laudable emotion the declaration itself would not advance the process of mediation, and secondly by the future time one or other of the parties may well not have had that commitment. In the court’s opinion parties to a contract could not commit themselves to attempting in good faith to negotiate towards achieving settlement of a dispute as they would be committing themselves to conduct of unacceptable uncertainty. Legal practitioners drafting contracts now had to contend with the issue of whether to draft into ADR clauses a reference to the parties acting in “good faith”. Given the decision in Elizabeth Bay, the NSW Law Society’s ADR Committee rightly advocated that any reference to good faith negotiation be removed from its recommended ADR clause for use in contracts. Life for the drafter of ADR clauses returned to normal. But not for long. Good Faith Revisited Enter the NSW Supreme Court, in the case of Aiton v Transfield [1999] NSWSC 996 (1 October, 1999) (“Transfield”). The case is at odds with the Elizabeth Bay decision. It involved three contracts for the construction of the Osborne Co-​Generation Project. The plaintiff commenced proceedings in the NSW Supreme Court for allegedly deceptive and misleading conduct regarding representations made to the plaintiff by the defendant during the tender negotiations. The plaintiff claimed that because of these misrepresentations, it was unable to complete the construction in a manner, sequence, time and cost provided for by the contracts. The contracts contained lengthy ADR clauses, the relevant elements of which stated: 28.1 The Purchaser and Supplier shall make diligent and good faith efforts to resolve all Disputes in accordance with the provisions of this Section 28.1 [General] [sic] before either party commences mediation, legal action or the expert Resolution Process, as the case may be … The Designated Officers shall meet in person and each shall afford sufficient time for such meeting (or daily consecutive meetings) as will provide a good faith, thorough exploration and attempt to resolve issues. If the Dispute remains unresolved 5 Business Days following such last meeting, the Designated Officers shall meet at least once again within 5 Business Days thereafter in a further good faith attempt to resolve the Dispute … 28.2 If the Dispute is not resolved pursuant to the process established in Section 28.1[General] [sic], either Purchase or Supplier shall submit the same for mediation and the parties expressly agree upon the following process and subject to Section 28.5 [Limitation Periods] [sic] agree that Mediation shall be compulsory [59] before either Party may commence legal action or initiate the Expert Resolution process, as the case may be … The Parties agree to use all reasonable endeavours in good faith to expeditiously resolve the Dispute by mediation.

[13.225]  801

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The Good Faith Element in Alternative Dispute Resolution cont. The defendant filed a notice of motion seeking a stay of proceedings on the basis that the contracts contained express procedures for the resolution of disputes prior to mediation or litigation. In his judgment, Einstein J, quoting Part 13 Rule 5 of the Supreme Court Rules 1970, affirmed the Court’s inherent jurisdiction to order a stay of proceedings in order to prevent an abuse of process. The plaintiff made three submissions to the Court. First, that the ADR clauses were not expressed to be mandatory. The Court rejected this submission stating that the words, “shall” and “before” were clearly mandatory. Second, that the plaintiffs claim for quantum meruit did not bring it under the definition of a dispute. The Court rejected this submission on the basis that the plaintiff’s claims for misrepresentation in the tendering process were so closely connected with the terms of the contract that according to the definition of “Dispute” in the contracts, they “… arise with respect to the terms and conditions of this contract”. Einstein J, reviewed case authority and the findings of the Australian Law Reform Commission (Review of the Adversarial System of Litigation, Issues Paper 25, June 1998, Chapter 6, paragraph 6.20) and decided that the ADR clauses were unenforceable because they lacked the requisite certainty in relation to the apportionment of the mediator’s costs between the parties. His Honour found that the mediation clause was not severable from the negotiation clause, and therefore, both clauses must be unenforceable. Also, his Honour accepted that the defendant had frustrated the plaintiff’s attempts to invoke the ADR clauses by not complying with the spirit and intent of the clauses. The plaintiff’s third submission, that the requirement of good faith imposed by the ADR clauses lacked the requisite certainty triggered a detailed discussion on this area of the law that was previously thought to be settled by the same court in Elizabeth Bay. Einstein J, at paragraph 80, began with the well known proposition espoused by the House of Lords in Walford v Miles [1992] 2 AC 128, per Lord Ackner at 138, that stated, in part: However, the concept of a duty to carry on negotiations in good faith is inherently repugnant to the adversarial position of the parties when involved in negotiations. Each party to the negotiation is entitled to pursue his (or her) own interest, so long as he [sic] avoids making misrepresentations. To advance that interest he must be entitled, if he thinks it is appropriate, to threaten to withdraw from further negotiations or to withdraw in fact, in the hope that the opposite party may seek to reopen negotiations by offering him improved terms … A duty to negotiate in good faith is as unworkable in practice as it is inherently inconsistent with the position of the negotiating party. It is here that the uncertainty lies. In my judgment, while negotiations are in existence either party is entitled to withdraw from those negotiations, at any time and for any reason. There can be thus no obligation to continue to negotiate until there is a “proper reason” to withdraw. Accordingly a bare agreement to negotiate has no legal content. His Honour identified that Giles J in Elizabeth Bay had taken a similar view to Lord Ackner in Walford v Miles. However, in the instant case, his Honour disagreed with Giles J, Einstein J, stating, at paragraph 82: With great respect, I disagree –​such tension ought not to be the linchpin in argument that a good faith requirement in negotiation is too vague and uncertain to be meaningfully enforced. His Honour, went on to explain why he disagreed with his brother judge. Einstein J at paragraph 83, began by reviewing the academics in the field and affirmed the view of Dr D Cremean, in Agreements to negotiate in good faith (1996) 3 Commercial Dispute Resolution Journal 61 at 65, [60] that, “… good faith is not co-​extensive with selflessness”. His Honour stated, at paragraph 83, that: It [good faith] does not require a party to make concession upon concession. Clearly good faith negotiation is not the equivalent of agreement, is not a synonym for settlement, and 802 [13.225]

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The Good Faith Element in Alternative Dispute Resolution cont. does not require any particular outcome (see C McPheeters, Leading horses to water: May courts which have the power to order attendance at mediation also require good faith negotiation? (1992) 2 Journal of Dispute Resolution 377 at 391). His Honour was firmly of the view that good faith should not prevent a party from withdrawing from negotiations if appropriate. To practitioners in this area of the law, his Honour canvassed many of the familiar cases that have touched on the issue of good faith negotiation. In particular, Einstein J, mentioned Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 263-​ 264 and Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 at 369, and came to the conclusion that if good faith in performing obligations and exercising rights can be implied into a contract, then there is no reason why it should be struck down as uncertain in cases where there is an express contractual term. In juxtaposing Walford v Miles and Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 (“Coal Cliff”), where Kirby P, (as he then was) and Waddell AJA agreed that a contract to negotiate in good faith was possible (Handley JA, dissenting), his Honour came to the conclusion, at paragraph 100, that, “The law in this area cannot, however, be regarded as settled”. However, Einstein J, goes on to distinguish Coal Cliff by stating that in that case, the issue before the Court was whether the Court would recognise an agreement to negotiate in good faith the drafting of another agreement. Whereas, in the instant case the agreement had already been executed –​the good faith negotiation related to the performance of the agreement. His Honour has distinguished a very important difference between the two concepts of good faith negotiation. In Coal Cliff, the interpretation was one as to process whilst in the instant case, the interpretation was one as to performance. Einstein J, at paragraph 116, explored the various definitions of good faith in domestic and international cases and referred to the UNIDROIT Principles of International Commercial Contracts, Article 1.106(1) that refers to good faith as meaning, “honesty and fairness of mind”. His Honour also canvassed the meaning of good faith according to statute. In particular, his Honour made reference to the Native Title Act 1993 (Cth) and the cases that have flowed from that legislation. His Honour, at paragraphs 143-​149, discussed the case of Western Australia v Taylor (Njamal People) (1996) 134 FLR 211 at 215, where Member Sumner considered the meaning of, “negotiate in good faith” in some detail. Einstein J, at paragraph 148, quoted Member Sumner’s reference to the NSW Attorney General, Jeff Shaw QC MLC in 1996 ALLR (CCH) at 50, where the Attorney General stated that in relation to labour relations: 1. Good faith is an obligation of the parties to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement. A party will be bargaining in good faith if it has an open mind and a sincere desire to reach an agreement. The duty to bargain in good faith does not require that either party must enter an agreement … Finally, his Honour, at paragraph 152, was influenced by the decision of Badgery-​Parker J, in State Bank of NSW v Freeman (unreported, Supreme Court of NSW, 31 January, 1996) … who at 11 stated: An undertaking to mediate in good faith no doubt connotes a willingness on the part of a party to consider such options for resolution of a dispute as are propounded by the mediator or the opposing party; but it does not appear to me that an inference of lack of good faith can be drawn from the adoption of a strong position at the outset and a reluctance to move very far in the direction of compromise, without more. Einstein J, concluded, at paragraph 153: 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 [13.225]  803

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The Good Faith Element in Alternative Dispute Resolution cont. 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. His Honour went on, at paragraph 156, to qualify his own conclusion by suggesting that the certainty requirement of contract law requires the court to spell out, even in non-​exhaustive terms, the “essential or core content of an obligation to negotiate or mediate in good faith”. Einstein J, listed the following elements as going to the core content of an agreement to negotiate in good faith: (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 [61] 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.

Subject only to these undertakings, the obligations of a party who contracts to negotiate or mediate in good faith, do not oblige nor require the party:

(a)

to act for or on behalf of or in the interests of the other party;



(b)

to act otherwise than by having regard to self-​interest.

Given the above core elements, his Honour suggests that even though it may be difficult to prove a breach of an obligation to negotiate in good faith, such difficulty should not be taken as meaning that the obligation lacks certainty and therefore, is unenforceable at law. Transfield’s case is significant to practitioners who draft contracts. Significant, because it rejects the Elizabeth Bay notion of the lack of recognition at law of agreements to negotiate (or mediate) in good faith. That is, it allows a party to contractually agree to negotiate or mediate in good faith at some future time without forfeiting its rights to withdraw from the negotiation or mediation. Despite his Honour distinguishing Coal Cliff, it is this author’s view that the decision in Transfield is consistent with the general view of Kirby P, (as he then was) in Coal Cliff, where his Honour stated, at 26D: … I do not share (the view 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 (Hillas & Co Ltd v Arcos Ltd [1932] All ER Rep 494) that, provided there was consideration for the promise, in some circumstances a promise to negotiate in good faith will be enforceable depending upon its precise terms. Likewise I agree with Pain J, in Donwin (Donwin Productions Ltd v EMF Films Ltd (unreported QED Crown office, 2 March 1984, Pain J)) that, so long as the promise is clear and part of an undoubted agreement between parties, the courts will not adopt a general principle that relief for the breach of such promise must be withheld. Sadly the Transfield case leaves practitioners in a “no win” position as to whether to include or exclude references to good faith in contracts. New South Wales legal practitioners require the contractual requirement to negotiate or mediate in good faith to be argued in front of the NSW Court of Appeal or a higher court. Given the stalemate, the best advice for practitioners, is to exclude any reference to good faith in contracts until the matter is decided in a higher court.

 [13.230]  More recently, the NSW Court of Appeal addressed this stalemate when it disap-

proved of the findings in Elizabeth Bay as to good faith negotiations. Allsop P (with Ipp and 804 [13.230]

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Macfarlan JJA concurring) in United Group Rail Services Ltd v Rail Corporation New South Wales [2009] NSWCA 177 at [76] stated: In Hooper Bailie and Elizabeth Bay Developments, Giles J saw as crucial to his view that an obligation to negotiate in good faith was uncertain the “necessary tension between negotiation, in which a party is free to, and may be expected to, have regard to self-​interest rather than the interests of the other party, and the maintenance of good faith”: see Hooper Bailie at 209 and Elizabeth Bay Developments at 716. This was similar to the consideration that influenced Lord Ackner in Walford v Miles. I do not agree that the posited contradistinction exists, at least in a clause such as the present. First, the obligation to undertake genuine and good faith negotiations does not require any step to advance the interests of the other party. The process is the self-​interested one of negotiation. Secondly, there is, however, a constraint on the negotiation, though this constraint is not one to advance the interest of the other party. Rather, it is a (voluntarily assumed) requirement to take self-​interested steps in negotiation by reference to the genuine and honest conception of the pre-​existing bargain, including the rights and obligations therefrom and of the facts said to comprise the controversy. Within that constraint of those genuinely and honestly held beliefs as to the bargain, the required behaviour is genuine and good faith negotiations with a view to settlement or compromise.

Drafted with a provision for a remedy [13.235]  The final problem the courts have experienced regarding the enforceability of dis-

pute resolution clauses is finding a head and quantum of damages for breach of a dispute resolution clause. As will be seen in the following extract, the courts have grappled with these issues because of the uncertain outcome of dispute resolution. In other words, even if a party breaches the dispute resolution clause, how can a court ascribe a head of damages and quantum when nobody can be certain that the dispute resolution process would have produced a settlement?

Remedies: A Bar to the Enforceability of Dispute Resolution Clauses [13.240]  D Spencer, “Remedies: A Bar to the Enforceability of Dispute Resolution Clauses” (2002) 13 Australasian Dispute Resolution Journal 85 at 86-​96. There are four primary rules to be observed by courts when awarding damages. They are: (i)

there must be a causal connection between loss and breach;

(ii)

damages may not be too remote;

(iii)

damages are only compensatory; and

(iv)

damages must be mitigated.

Dealing with the first of these rules, that there must be a causal connection between loss and breach, it can be said that difficulties arise where there are multiple causes for the plaintiff’s loss or damage. In this respect, the plaintiff [87] cannot recover if an additional factor unconnected with the defendant’s breach breaks the chain of causation between the defendant’s breach and the plaintiff s loss or damage. However, if there are concurrent causes, it is sufficient that one of these is the defendant’s breach … The second rule when awarding damages states that damages may not be too remote. In this respect, it is clearly unfair to hold a defendant liable in damages for every consequence of a breach of contract. Therefore the law says that the damage must not be too remote from the breach … [88] The third rule is that damages are compensatory, that is that only actual loss can be compensated –​loss calculated as if the contract had been performed … [13.240]  805

Dispute Resolution in Australia: Cases, Commentary and Materials

Remedies: A Bar to the Enforceability of Dispute Resolution Clauses cont. The fourth rule is that damages must be mitigated. The law takes the view that plaintiffs who claim damages have a duty to take all reasonable steps to mitigate their loss. That is, plaintiffs have to take positive action to reduce their loss and not allow it to increase or do anything to inflate their loss. The courts will not award any part of a claimed loss that is attributable to a failure to mitigate loss. It is important to note that a plaintiff does not have to go out of her or his way or act unreasonably. A Plaintiff is expected to act in his or her own interests on the issue of mitigation … [89] Dispute Resolution Clauses in Contracts In the case of dispute resolution clauses in contracts the first rule of damages can generally be satisfied. In fact, the issue of loss caused by one party’s failure to conduct itself appropriately at mediation has already been established by at least the courts of Western Australia in Capolingua v Phylum Pty Ltd (1991) 5 WAR 137 In this case the parties were in dispute over the defendants’ allegation that two commercial leases had been surrendered in consequence of the parties entering new leases. Whilst it became apparent that the entire dispute would not be settled, it was referred to mediation under O 31A of the Rules of the Supreme Court 1971 (WA) in order to have the issues narrowed for hearing. At mediation the defendants sought an adjournment after claiming to be prejudiced regarding a discussion about the plaintiff taking notes. Further, the defendants’ counsel disclosed that her instructions were to simply say “yes” or “no” to the various issues raised at mediation. At hearing, the defendants were successful but because the defendants, amongst other things, frustrated the mediation process so that the issues were obscured and a case which should have lasted only two days, eventually ran for four days, the court refused to allow costs to follow the cause as is the custom. Ipp J stated: In my view where, at a mediation conference, a party to an Expedited Proceeding under O 31A adopts an obstructive or unco-​operative attitude in regard to attempts to narrow the issues, and where it is subsequently shown that, but for such conduct, the issues would probably have been reduced, the extent to which the trial is in consequence unnecessarily extended is a relevant factor when deciding upon an appropriate award of costs. Ipp J adopted McHugh JA’s “but for” test to establish that, amongst other things, the defendants’ attempts to frustrate mediation was the cause of certain quantifiable additional costs relating to the extra two days of trial time taken to have the dispute resolved by the court. However, as Mead notes, “Causation is also likely to be an issue as there is no guarantee that, even if the party had complied with its ‘obligations’, the outcome of the mediation would have been any different”. Perhaps then, in relation to the rule requiring a causal link between breach and loss, courts are called upon to do, arguably, what they do best in causes of actions involving contract, that is, judge whether there has been a breach and estimate damages based on the evidence before the court that will adequately compensate the innocent party. Litigants can rely on the experience of judges to determine when performance of a dispute resolution term would have resulted in a diminution of damages thereby ensuring the causal link necessary for the awarding of damages. The second rule is that damages may not be too remote. Using the rule from Hadley v Baxendale, we can safely say that if one party does not comply with a dispute resolution clause in a contract, that damages will arise naturally or be [90] within the contemplation of both parties to the contract. Given that dispute resolution is all about giving the parties the opportunity to settle disputes arising under the contract and/​or narrowing the issues to be ultimately tried, it must be within the contemplation of parties that failure to comply with the contractually prescribed dispute resolution process means that the chances of avoiding additional damages, even if only legal costs, is reduced. Admittedly, there is no guarantee that participating in a dispute resolution process will produce a resolution on all issues. However, if there is a chance of that happening, and parties have agreed by contract to participate in such a process on the possibility that resolution on some or all issues may be achieved, then losses that flow from non-​compliance cannot be too remote from the breach. The author admits that this is an arguable proposition. 806 [13.240]

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Remedies: A Bar to the Enforceability of Dispute Resolution Clauses cont. The third rule is that damages can only be compensatory. This rule presents a problem in the case of dispute resolution clauses because it calls for a precise calculation of the losses based on the performance of the contract. What is the loss if a dispute resolution process is breached? Presumably there would be a reduction in the costs of resolving the dispute(s) arising out of the contract. Are these reductions quantifiable by a court? In truth –​probably not. In Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1, Kirby P (as he then was) faced a similar situation when the court was asked to consider an action for damages for the breach of a heads of agreement document specifying that the parties would proceed in good faith to consult together upon the formulation of a more comprehensive and detailed joint venture agreement. His Honour stated: In the circumstances of the heads of agreement sued upon, there were so many imponderable terms which remained to be concluded at the breakdown of negotiations that it is impossible for the Court to state where negotiations in good faith might have finally led … How, then, the obligation to negotiate in good faith would have led to quite different “fresh” or “additional” terms is a pure matter of speculation. There is too much imponderable data to venture what might have been achieved in good faith negotiations had they continued. At the most, I would consider upon these premises that the respondents would be entitled to no more than nominal damages. However, even given the above-​mentioned problems in calculating precise quantum of compensatory damages, a court always has the discretion to award only nominal damages if a precise calculation of other heads of damages are impossible. In this respect, the third rule of awarding damages can be satisfied in the case of a breach of a dispute resolution clause in a contract. The fourth rule in the awarding of damages is that damages must be mitigated. In the case of dispute resolution clauses, this is the easiest of the four rules to observe. In short, the parties have to take positive action to reduce their loss and not allow it to increase or do anything to inflate their loss by participating in the contractually agreed dispute resolution process. However, an interesting situation arises where one or more parties contend that given the nature of the dispute and/​or the parties to it, that participating in the contractually agreed upon dispute resolution process will only delay the inevitable hearing of the dispute and therefore increase the costs of the matter. In such circumstances [91] such a party will be mitigating their loss by not agreeing to participate in the dispute resolution process and instead force the dispute to court. It can only be argued that participating in a dispute resolution process provides an opportunity to resolve issues in dispute or to narrow them for hearing and therefore, it is probably more correct to assume that participation in such a process mitigates loss. Once again, the well-​worn statement by Rogers CJ (Comm D) is on point: First, in my view, there is clear power in a court to control any abuse of process. To commence proceedings without complying with the requirements of the contractual provision for conciliation is, in my view, an abuse of process. Second, power being there, the question is whether there is any utility in requiring parties, who are clearly bent on being difficult, to submit to conciliation processes. In my view there is. An independent third party can bring a different perspective into such procedures and can bring about a settlement even between parties who are evidently bent on litigation. Associate Professor Lucy Katz of Fairfield University (now Professor of Business Law) acknowledges the abovementioned weaknesses in relation to there having to be a causal link between breach and loss and that damages are only compensatory. Katz takes a similar view to Rogers CJ (Comm D), although for different reasons: The damages argument ignores another major premise of ADR: removing a dispute from the adversary legal process benefits the parties, because it reduces the alienation symptomatic of litigation and allows them to participate actively in settling their disputes. The process itself is therefore inherently valuable, regardless of the outcome or the frame of mind of the participants. [13.240]  807

Dispute Resolution in Australia: Cases, Commentary and Materials

Remedies: A Bar to the Enforceability of Dispute Resolution Clauses cont. The alienation Katz refers to is the fact that in litigation a stranger, in the form of a judge, or strangers, in the form of a jury, make decisions in isolation of the nature of the individuals or their business and make decisions based on evidence tendered under strict doctrinal rules that do not necessarily allow the parties’ version of events to be heard. The theory of most dispute resolution processes is that the parties themselves have some say in the outcome and can have their own version of events recounted to the other side. So it appears that damages would be available given that the four rules surrounding the awarding of damages can be observed. Once having established that damages would provide a remedy for breach of a dispute resolution clause, the question then becomes one of defining the type of damages available. As stated above, there is some dicta that indicates that only nominal damages could be awarded because of the uncertainty of the outcome of any dispute resolution process contractually agreed upon. However, there are some commentators that believe otherwise. Flint believes that, “… assuming that the innocent party could prove the terms of an ultimate agreement, that party would be entitled to claim expectation damages”. Flint cites Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 where the High Court of Australia allowed damages to cover the loss of net profits by the Commonwealth’s repudiation of the contract. The ever-​present [92] problem of proving success at the dispute resolution process may block the recovery of such a head of damages. However, Flint qualifies his hypothesis by stating: At best it would seem, the innocent party has a claim for reliance, or, as they are sometimes called, lost opportunities, damages. In assessing damages, courts regularly have to contemplate the future and evaluate probabilities and even possibilities of loss of chance … If the party in breach were to give evidence that it would not have concluded an ultimate agreement, it being unlikely, the innocent party could produce evidence to the contrary, the innocent party would have the burden of proving any damage resulting from its reliance on the wrongdoer’s promise … this would be impossible if the wrongdoer breached the contract before the innocent party has relied on the agreement to negotiate. Clearly a claim for damages will depend on how far the negotiations progressed from commencement to conclusion. Finally, Flint acknowledges that even if a court were to award damages for wasted expenditure by the innocent party leading up to the dispute resolution process, “… it would be expected that a substantial discounting of damages would be made to take into account the vicissitudes associated with the process of negotiating, including the risk that negotiations may well have legitimately broken down”. Paterson agrees with Flint on the issue of reliance damages, but explains it by the fact that when parties enter a contract to negotiate, should a dispute under the contract arise, they contract to reduce the risk of negotiation without such an agreement and, “… for an improved chance successfully to conclude negotiations in a profitable transaction”. It is for this reason that reliance damages should be awarded to an innocent party to a contract. Most importantly, Paterson reminds us that only if the court cannot find another head of damages, such as reliance damages, should the court settle for nominal damages. If courts are to entertain reliance damages as a valid head of damages for breach of a dispute resolution clause, then such clauses should be drafted with the requisite certainty in order for a court to accurately assess the quantum of reliance damages. If such clauses are drafted with enough detail to show a court the sort of reliance costs incurred by the innocent party, and the promise carries good consideration, then courts should be able to make an objective assessment of reliance damages. Specific Performance An order for specific performance means the court is requiring the defaulting party to perform the contract according to its terms. The court has the power to order specific performance of a particular term of the contract. An order for specific performance is an equitable remedy and therefore at the discretion of the court. In other words, parties cannot seek specific performance as a right and generally, there are six limitations on its use. Specific performance is not available where: 808 [13.240]

Legal Issues  Chapter  13

Remedies: A Bar to the Enforceability of Dispute Resolution Clauses cont. (i)

Damages would suffice; [93]

(ii)

It would cause undue hardship;

(iii)

It is not mutually available;

(iv)

It is being used to enforce contracts of personal service;

(v)

The contract is defective; and

(vi)

It would require constant supervision.

… Breach of a Dispute Resolution Clause –​The Sixth Rule The first five rules are relatively straightforward in their application to an order seeking specific performance of a dispute resolution clause in a contract. That is, a court can generally be satisfied of compliance with the rules when making an order for specific performance of a dispute resolution clause in a contract. It is the sixth rule that has caused Australian courts some problem when considering remedies for breach of a dispute resolution clause. The difficulty is simply ordering participation in a process as opposed to achieving a specific result. According to the courts of Australia, the former requires constant supervision, whilst the latter does not. But does ordering specific performance of a dispute resolution clause require of the court constant supervision? In Co-​operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1, the plaintiff respondents, Co-​operative Insurance Society Ltd, leased to the defendant appellants, Argyll Stores (Holdings) Ltd, in 1979, certain premises within a shopping centre for a term of 35 years so that the appellants could operate a supermarket. Clause 4(19) of the lease stated that the appellants were to “keep the demised premises open for retail trade”. In 1994, the appellants reviewed their business strategy and decided to close down the supermarket as it had lost approximately £70,000 in the previous year of operation. The appellants closed the supermarket and the plaintiffs sought damages and an order for specific performance of cl 4(19). At first instance the judge awarded damages but refused to order specific performance. This was reversed on appeal and the appellants appealed to the House of Lords. The House of Lords allowed the appeal and restored the judgment of the judge at first instance. Lord Hoffmann delivered the judgment of the court and affirmed the existence of the settled practice that courts will not grant mandatory injunctions (specific performance) that require persons to carry on businesses because it would require of the court constant supervision of the injunction. His Honour explained the meaning of the words “constant supervision” by stating: It may at first sight suggest that the judge (or some other officer of the court) would literally have to supervise the execution of the order … supervision would in practice take the form of rulings by the court, on applications made by the parties, as to whether there had been a breach of the order. It is the possibility of the court having to give an indefinite series of such rulings in order to ensure the execution of the order which has been regarded as undesirable. Lord Hoffmann went on to condemn the chief sanction against a defendant breaching an order for specific performance, that being the quasi-​criminal [95] sanction of contempt of court. His Honour opined, “This is a powerful weapon; so powerful, in fact, as often to be unsuitable as an instrument for adjudicating upon the disputes which may arise over whether a business is being run in accordance with the terms of the court’s order”. Lord Hoffmann’s reasons for condemning the remedy that brings on the heavy-​handed sanctions were stated as being: (i)

The defendant has to make business decisions under the duress of a potential contempt order;

(ii)

The seriousness of a contempt order means that enforcement proceedings are likely to be lengthy and expensive; [13.240]  809

Dispute Resolution in Australia: Cases, Commentary and Materials

Remedies: A Bar to the Enforceability of Dispute Resolution Clauses cont. (iii)

Often the contractual obligation is imprecisely worded, therefore leading to an imprecisely formulated court order that will contribute to wasteful litigation initiated by the plaintiff seeking to enforce the order;

(iv)

The plaintiff may enrich themselves by the fact that the defendant may, through complying with the order, suffer greater loss than the plaintiff may suffer through the breach of the contract; and

(v)

Such an order prolongs the hostility between the parties, whereas, for example, damages bring the matter to finality quickly.

In this case his Honour looked closely at the decision of the Court of Appeal and its analysis of cl 4(19) of the lease and found that, “It says nothing about the level of trade, the area of the premises within which trade is to be conducted, or even the kind of trade”. Therefore, his Honour found that the defendant’s obligation in cl 4(19) was not sufficiently precise to be capable of specific performance. Co-​operative Insurance was considered by the High Court of Australia in Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (1998) 195 CLR 1, where the Maritime Union sought various orders seeking, amongst other things, the continuance by Patrick’s administrators of the running of the business and the employment of its members. The court noted that such orders sometimes contain the defect of the court being involved in constant supervision. The court referred to Co-​operative Insurance, by stating: What is significant is the acceptance by the House of Lords that the concept of “constant supervision by the court” by itself is no longer an effective or useful criterion for refusing a decree of specific performance. Rather, Lord Hoffmann placed stress on other propositions. First, a person who is subject to a mandatory order attended by contempt sanction (which “must realistically be seen as criminal in nature”) ought to know with precision what is required; and second, the possibility of “repeated applications for rulings on compliance” with orders requiring a party “to carry on an activity, such as running a business over a more or less extended period of time” should be discouraged. Co-​operative Insurance and Patrick Stevedores can be distinguished when it comes to determining whether a court will enforce a dispute resolution clause by [96] an order for specific performance on the basis that in both those cases, the issue was an order forcing the continued running of a business. In the case of enforcing a dispute resolution clause in a contract, an order for specific performance would seek to force the parties to participate in a dispute resolution process. However, the legal principles espoused in Co-​operative Insurance and Patrick Stevedores still apply. In particular, whether ordering specific performance of a dispute resolution clause would create the possibility of repeat applications for rulings on compliance coming before the court. Providing the dispute resolution clause is drafted with the requisite certainty as to the process to be followed by the parties, there is no reason why parties would need to continually move the court for directions on the execution of the order. Moreover, as in Co-​operative Insurance, the difference between carrying on an activity and achieving a result becomes more acute. Enforcing a dispute resolution clause in a contract by way of an order for specific performance should be a case of the latter and not the former. That is, participation in a dispute resolution process can properly be defined as a process that achieves a definite result as opposed to being classed as an activity of an enduring kind. Even if the dispute resolution process requires several sessions over several months, the process is still designed to achieve a result for the parties as opposed to the continuation of an ongoing activity, such as running a business. In this respect, courts should not be deterred in ordering specific performance of a dispute resolution clause in a contract on the basis that the court will be called upon to constantly supervise its own order …

 [13.245] The major reason for courts being reticent to enforce dispute resolution clauses,

apart from uncertain drafting, has been finding a suitable remedy. The most frequently sought 810 [13.245]

Legal Issues  Chapter  13

common law remedy, damages, has traditionally been difficult to calculate, resulting in the award of nominal damages only. While finding a different head of damages has been challenging, it appears that reliance damages may open up a new head of damages to allow an innocent party to a contract an adequate remedy based upon their expenditure in preparing for a contractually agreed promise to participate in a dispute resolution process. As for the equitable remedy of an order for specific performance, the traditional bar to such an order can now be lifted based on the acceptance of the principle that no constant supervision would be required by a court making the order, providing the contractual obligation on which the order is grounded is precise enough to prevent the parties from continually seeking directions from the court that made the order. [13.250] QUESTIONS

1.

Is it healthy for dispute resolution to take place in the shadow of the law?

2.

What is the rationale for the confidentiality of dispute resolution processes?

3.

Explain “without prejudice privilege”.

4.

What are the exceptions to confidentiality? Cite an example.

5.

Explain “legal professional privilege”.

6.

Has statutory privilege been upheld in any jurisdiction in Australia? Quote your authority.

7.

Can a mediator be sued for negligence?

8. Has statutory immunity been upheld in any jurisdiction in Australia? Quote your authority. 9.

Is it possible to make settlement agreements “unchallengeable”? If so, how?

10. Describe each of the four factors that have led Australian courts to refuse to enforce dispute resolution clauses in contracts. 11. Are dispute resolution clauses merely agreements to agree? 12. What is the current position of the courts in Australia on the issue of express good faith requirements in dispute resolution clauses? 13. What is the English position on the above question? 14. What are the difficulties in obtaining an order for specific performance of a dispute resolution clause in a contract?   

[13.250]  811

CHAPTER 14

Ethics, Standards and Dispute Resolution [14.05] INTRODUCTION......................................................................................................... 814 [14.10] ETHICS AND ETHICAL DILEMMAS............................................................................... 814 [14.15] What is Ethics?................................................................................ 815 [14.25] A Theory of Mediators’ Ethics............................................................. 815 [14.35] Making Ethical Decisions................................................................... 816 [14.40] ETHICS IN DISPUTE RESOLUTION............................................................................... 817 [14.45] Mediation Ethics.............................................................................. 817 [14.55] A Taxonomy of Dispute Resolution....................................................... 818 [14.65] Contemporary Conflict Resolution........................................................ 818 [14.75] Professional ethics....................................................................................... 819 [14.80] Professional Ethics: Roles and Rules...................................................... 819 [14.90] Ethics and Justice in Mediation............................................................ 820 [14.95] Disputant ethics.......................................................................................... 822 [14.100] Disputant Ethics: Underlying Moral Values............................................. 822 [14.110] Social Policy Questions...................................................................... 824 [14.115] Personal experience.................................................................................... 824 [14.120] Personal Experience and Ethical Dilemmas............................................. 825 [14.125] PROFESSIONAL ETHICS FOR DISPUTE RESOLUTION PRACTITIONERS.......................... 825 [14.130] The Development of Standards for ADR................................................ 826 [14.140] The Development of Standards for ADR................................................ 827 [14.150] The Development of Standards for ADR................................................ 830 [14.160] A Framework for ADR Standards.......................................................... 833 [14.170] National Mediator Accreditation System..................................................... 836 [14.180] National Mediator Accreditation Practice Standards (2015), cl 10.............. 837 [14.190] Core Values of Mediation................................................................... 838 [14.195] Mediator Standards Board........................................................................... 840 [14.200] Family Dispute Resolution Practitioner Accreditation Scheme...................... 841 [14.205] Ethical Standards for FDRPs................................................................ 841 [14.210] Ethical guidance for lawyer-​mediators......................................................... 841 [14.215] Ethical Guidelines for Mediators.......................................................... 842 [14.225] THE LIMITS OF ETHICAL AND PRACTICE STANDARDS................................................. 842 [14.230] Applying the Inclusive Model of Ethical Decision Making to Mediation......... 842 [14.240] Why the Codes Are Not Enough.......................................................... 843 [14.245] ALTERNATIVE ETHICAL GUIDANCE FOR DISPUTE RESOLUTION PRACTITIONERS......... 844 [14.250] Applying the Inclusive Model of Ethical Decision Making to Mediation......... 844 [14.255] ETHICAL ISSUES IN PARTICULAR DR CONTEXTS.......................................................... 848 [14.260] Family dispute resolution............................................................................. 848 [14.265] The Ethical Challenges in Family-​Centered Divorce Mediation.................... 848 [14.275] Developing Ethical Practice as a FDRP................................................... 849 [14.285] Evaluative and advisory processes................................................................ 852 [14.290] The Ethics of Mediation Evaluation...................................................... 852 [14.300] Evaluative Mediation: In Search of Practice Competencies......................... 857 [14.310] Mediators and Substantive Justice....................................................... 859 [14.320] Negotiation................................................................................................. 864 [14.325] Ethics and Morality in Negotiation....................................................... 864 [14.335] The Meaning of Good Faith................................................................ 867 [14.340] GENUINE EFFORT IN DISPUTE RESOLUTION............................................................... 869 [14.345] The Genuine Steps Standard.............................................................. 869

 

813

Dispute Resolution in Australia: Cases, Commentary and Materials

[14.355] ETHICS FOR LAWYERS REPRESENTING CLIENTS IN DISPUTE RESOLUTION PROCESSES............................................................................................ 871 [14.360] Ethics in ADR Representation.............................................................. 871 [14.370] Professional conduct rules........................................................................... 872 [14.375] Guidelines for Lawyers in Mediation............................................................ 873 [14.390] Guidelines for Lawyers in Mediation, Ethical Issues.................................. 874 [14.395] Is adversarialism unethical in mediation?..................................................... 875 [14.400] Mediation and Advocacy................................................................... 875 [14.410] On Mediation, Legal Representatives and Advocates: Lawyer’s Roles and Ethical Orientation in Mediation.................................................................... 879 [14.420] Effective and Ethical Negotiations: Some Topical Cases............................. 882 [14.430] Ethics and Professionalism in Non-​Adversarial Lawyering.......................... 886 [14.440] Ethical Principles for Online Dispute Resolution....................................... 887 [14.450] Keeping Pace: On-​line Technology and ADR Services................................ 891

[14.460] QUESTIONS................................................................................................................ 891

INTRODUCTION [14.05]  Conflict resolution ethics and standards have developed with the expansion of the

field of dispute resolution (DR) in Australia. This development is however very limited, and has occurred in relation to some dispute resolution processes and not others. Most notably, ethical standards have developed in relation to mediation but not in relation to processes such as conciliation which is fast becoming a widely used process. The development of conflict resolution standards is of interest to conflict resolution professionals, participants or interested parties and regulators. Ethical standards are necessary to achieve accountability, transparency and best practice in any profession. As is evident from this book, the field of dispute resolution, which has continued to expand, is diverse and includes assisted dispute resolution using a third party neutral, as well as unassisted dispute resolution using negotiation. Furthermore, technology assisted dispute resolution is also expanding. Issues of ethics, values and standards differ between assisted and unassisted dispute resolution. For example, different ethical issues arise between a process involving a third party neutral whose role is to facilitate an agreement that is acceptable to all parties compared with a negotiator whose role is to maximise the individual client’s interest.

ETHICS AND ETHICAL DILEMMAS [14.10] In simple terms, ethics refers to moral principles about what is right and wrong.

Ethical principles are often expressed in terms of fairness and are determined by a person’s values. Values may be based on law, religion or culture, and will vary between individuals. However, even if a person is very clear about their own values, deciding what is right or wrong in any given situation is not always easy. An ethical dilemma often arises where two values or moral principles are in conflict, and the appropriate choice between them is not clear. Baruch Bush (1994) describes an ethical dilemma “as situation in which you felt some serious concern about whether it was proper for you … to take a certain course of action (ie, where you were unsure what was the right thing to do)”. There are a number of different philosophical approaches to ethical decision-​making, including utilitarianism (where the decision is based on an analysis of which action serves “the greater good”) and deontology (where the appropriate action is identified by reference 814 [14.05]

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to the particular individual’s duties). The Ethics Centre website provides a useful overview of ethics and ethical decision making.

What is Ethics? [14.15] The Ethics Centre, “What is Ethics?”, http://​ www.ethics.org.au/​ about/​ what-​ is-​ ethics (accessed 04 September 2018). Ethical beliefs shape the way we live –​what we do, what we make and the world we create through our choices. Ethical questions explore what Aristotle called “a life well-​lived”. Ethics isn’t just an exercise for philosophers or intellectuals. It is at the core of everyday life. We ask ethical questions whenever we think about how we should act. Being ethical is a part of what defines us as human beings. We are rational, thinking, choosing creatures. We all have the capacity to make conscious choices –​although we often act out of habit or in line with the views of the crowd. We could all make conscious and conscientious ethical choices if we wanted to … Ethics … allows us to be consistent in our judgements, provide reasons for our beliefs and to critically examine opinions. Most importantly, ethics allows us to act in a manner that accords with a set of core values and principles. Ethical people have what philosopher Thomas Aquinas called a “well-​informed conscience”. They live what Socrates called “an examined life” –​a life particularly associated with being human. Ethical people try to answer the question of how to live by reflecting on difficult situations. They then act in a way that is true to who they are and what they believe …

 [14.20]  While the extract at [14.15] addresses ethics generally, Shapira in extract at [14.25]

addresses the meaning of ethics. For him, ethics can be understood as morality, discipline of morality or a particular morality. For purposes of a profession, ethics refers to a particular morality.

A Theory of Mediators’ Ethics [14.25]  O Shapira, A Theory of Mediators’ Ethics –​Foundations, Rationale, and Application (Cambridge University Press, 2016) p 3. Ethics is a concept with multiple meanings. Some scholars treat ethics as synonymous with morality. For them, ethics, like morality, means the moral rules that govern individual behavior and determine what is right and wrong and what the moral duties of individuals are. Others believe that morality and ethics differ from each other for various reasons. They understand ethics as the discipline or study of morality. Ethics according to this view is the philosophy of morality that deals with the big questions of human life: what is justice? What is fairness? What is right and wrong? What rights does a person have? A third approach sees ethics as a type of particular morality. Ethics as a particular morality refers to specific standards of behavior that apply to members of a particular group because of their belonging to the group.

 [14.30]  Whether one accepts the general definition of morality or the three approaches pre-

sented by Shapira at [14.25] it is clear that ethical decision-​making, that is, making a decision as to what one ought to do in particular situations is not always easy. The extract at [14.35] from the Ethics Centre provides a simple and clear way of making ethical decisions when an ethical dilemma arises. [14.30]  815

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Making Ethical Decisions [14.35] The Ethics Centre, “What is Ethics?”, http://​ www.ethics.org.au/​ about/​ what-​ is-​ ethics (accessed 04 September 2018). There is no ethical theory that can resolve every situation perfectly. Lots of things in our lives have moral value –​sometimes they come into conflict. Moral dilemmas are inevitable … Luckily most decisions aren’t moral dilemmas and we can work out what to do with the help of a few ethical tools. There are questions … worth asking before we make a decision. 1. Would I be happy for this decision to be headlining the news tomorrow? This question is what’s known as the Sunlight Test. Imagine how it might feel if your decision –​and the reasons you made it –​were public knowledge. What if the people you most admire knew what you’d done and why? Note –​it’s the “don’t be ashamed” test not the “don’t get caught” test. 2. Is there a universal rule that applies here? Is there a rule that any reasonable person should apply to this situation regardless of the consequences? Some rules are unbreakable, even when the stakes are high. For instance, we should never act in ways that undermine the equality and dignity of all people –​ourselves included. The rules are often associated with duties –​some of which we create ourselves, like when we make a promise. 3. Will the proposed course of action bring about a good result? We often think about ethics in terms of consequences. “The greatest good for the greatest number” is a maxim many people recognise and accept. Consequences are an important part of ethical decisions, but are they everything? We should be aware of what we’re sacrificing when trying to bring about good consequences. Are we violating an important principle? Are we compromising our own values? If so, have we considered these facts when balancing harms and benefits? 4. What would happen if everybody did this? Would you be happy if your reason for action was used by everyone in the same circumstance? If not, then what makes you so special? Most ethical frameworks suggest the right decision for one person should be right for everybody in the same position. This test helps guard against “special pleading” –​ when we make an exception for ourselves or different groups. 5. What will this proposed action do to my character or the character of my organisation? Many people believe that our decisions shape our character and vice versa. That is, we can’t lie and cheat without becoming a fraudulent liar. Subsequently, if we’re a liar we’ll tend to lie more often. Think about whether your action is establishing a habit either for you or your organisation. Is it a good habit (virtue) or a bad one (vice)? … 6. Is the proposed course of action consistent with my values and principles? Plenty of people and organisations are happy to tell you what they stand for –​but do they walk the talk? Are my actions reflecting my ethical beliefs? Most ethical systems have no time for hypocrisy. Answering these questions doesn’t guarantee everyone will accept our decision. Moral disagreement is extremely common … Ethics allows us to explore these questions in a way that is sincere, rational, competent and honest. In a nutshell ethics is about … • Relationships. • Struggling to develop a well-​informed conscience. • Being true to the idea of who we are and what we stand for. 816 [14.35]

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Making Ethical Decisions cont. • Having the courage to explore difficult questions. • Accepting the cost of doing what we think is right. • Asking one simple question –​“what ought I to do?”



ETHICS IN DISPUTE RESOLUTION [14.40]  In the extract at [14.45], Waldman explains that mediators are faced with ethical

dilemmas which are sometimes very difficult to address. When faced with ethical dilemmas, mediators may have to choose the best outcome possible in the circumstances and not necessarily the “right” outcome.

Mediation Ethics [14.45] E Waldman (ed), Mediation Ethics: Cases and Commentaries (Jossey-​Bass, A Wiley Imprint, 2011) pp 1-​2. Ethical decision making requires tough, sometimes tragic, choices. Difficult cases do not force us to choose between obviously right and obviously wrong paths. Rather, deciding which path to take is difficult precisely because there are compelling reasons to go in each direction. We want mediation to yield substantively good outcomes, and we want to honor disputants’ rights to choose the best outcomes for themselves. In hard cases, it may not be possible to do both. We often can’t pursue one value without forfeiting another. Mediating ethically usually entails some loss. The difficult choices that professional mediators routinely make are often similar to the wrenching choices that faced the Greek hero Ulysses on his odyssey from Troy back home to Ithaca. At one point in the long journey, Ulysses was forced to steer his ship through a narrow strait of sea bordered on each side by ferocious monsters. On one side lurked Charybdis, whose yawning jaws sucked in and spewed out water three times a day, creating a whirlpool that destroyed any ship unlucky enough to drift too near. On the other side hovered Scylla, a six-​headed beast with three rows of teeth in every mouth. No ship could pass Scylla’s reach without losing men to the monster’s predations. Ulysses’ men were loyal soldiers and sailors, and he wanted to save them all, but he knew his whole ship would go down if he veered too close to Charybdis. However, sailing within Scylla’s reach would mean the death of six oarsmen. With a heavy heart, Ulysses told his crew to row hard and give Charybdis’s currents a wide berth. He stayed silent about Scylla for she was “a threat for which there was no remedy”. Ulysses’ men were easy targets for Scylla, who snatched the strongest and bravest of them. Ulysses’ anguish is clear as he describes the sight: “When I turned to watch the swift ship and crew, already I could see their hands and feet, as Scylla carried them high overhead. They cried out and screamed, calling me by name one final time, their hearts in agony. … Of all things my eyes have witnessed in my journeying on pathways of the sea, the sight of them was the most piteous I’ve ever seen”. Fortunately for us, mediation rarely poses such difficult matters of life and death. Still the lesson from the Odyssey is clear: Ulysses could not save his ship without ethical compromise. Optimally the Captain of a ship is truthful with his crew and safeguards the safety of every sailor. Ulysses deceived his men about the true dangers they faced and sacrificed six of his crew. But doing the right thing almost never involves following one mandate unflinchingly. When we consider the dire choices Ulysses faced, can we say this captain acted unethically? He saved the vast majority of those on board-​all who could [14.45]  817

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Mediation Ethics cont. be saved. Where does truth rate when brute honesty threatens to fatally immobilize the entire ship? And how does one protect the sailors’ safety when the only choice is how many will die? On a less stark scale, mediation ethics poses similar questions and teaches similar lessons.

 [14.50] In the dispute resolution field, ethical issues and dilemmas arise for both conflict

resolution practitioners and the disputants themselves. While disputants have to make choices between different options with markedly different consequences, conflict resolution practitioners have to make choices about the types and extent of interventions to support parties in making their own choices, what constitutes fairness and what their duties are in relation to fairness? Should they allow a matter to settle on terms seemingly agreed to by parties or should they call out a proposed term of settlement as unfair. Ethical dilemmas faced by participants in a dispute process are further explored by Cohen at [14.55].

A Taxonomy of Dispute Resolution [14.55]  J Cohen, “A Taxonomy of Dispute Resolution Ethics” in M Moffitt and R Bordone (eds), The Handbook of Dispute Resolution (Jossey Bass, San Francisco, 2005) Ch 16, p 244. Participants in dispute resolution frequently find themselves confronted with ethical questions. Some questions apply to professionals. For example, if deception in negotiation can be strategically advantageous, might an attorney zealously advocating for her or his client at times be obliged to deceive? Suppose a mediator believes that the agreement being reached is substantively unfair. Should the mediator raise this issue with the disputants? Other questions arise for the disputants themselves. If a person injures another, is not the injurer ethically obliged to apologize and offer amends? Must the injured party then forgive the injurer? Questions also arise at the broad level of social policy. Suppose we cannot effectively sanction all but the most extreme ethical violations. Are discussions of dispute resolution ethics Pollyannaish? Dispute resolution participants also face questions on the personal and practical level. How should one proceed when one has ethical doubts? What should a professional do if, for example, the professional’s role clashes with the professional’s personal morals?

 [14.60]  In the following extract, Ramsbotham et al identify another area in which dispute

resolution practitioners may face ethical challenges –​in relation to whether to intervene or not. In other words, sometimes there is an ethical dilemma in whether or not we choose or agree to act as a dispute resolver in a particular case. Although the extract is written in the context of large scale conflicts, the issue of ethical intervention also arises in small scale, interpersonal conflicts. Mediators, for example, constantly grapple with whether they are the right mediators for a particular conflict.

Contemporary Conflict Resolution [14.65]  O Ramsbotham, T Woodhouse and H Miall, Contemporary Conflict Resolution (3rd ed, Polity Press, Cambridge, 2011) p 317. There has always been a sense of unease about third-​party intervention in the conflict resolution field. It is an unease shared by aid workers and others, as summed up in Mary Anderson’s famous plea for interveners to “do no harm”: 818 [14.50]

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Contemporary Conflict Resolution cont. Who do we think we are? Is it justified for outsiders to choose among people or institutions, to make judgments about who or what is “truly” a local capacity for peace? To what extent might our attempts to do so constitute dangerous and inappropriate social engineering? … The fact that aid inevitably does have an impact on warfare means aid workers cannot avoid the responsibility of trying to shape that impact. The fact that choices about how to shape that impact represent outsider interference means that aid workers can always be accused of inappropriate action. There is no way out of this dilemma. (Anderson 1999) Third parties have an effect on conflict dynamics, and their good intentions do not guarantee good outcomes … Even if they are invited in, there are legitimate questions to be asked about who invited them and why, what constituencies they represent, how well they understand their own motives and roles, and whether their actions are likely to have beneficial or deleterious consequences. These questions become more acute as the interventions become more coercive or even forcible.

 [14.70] Cohen sets out a useful taxonomy of dispute resolution ethics, aimed at providing an

overview of the field and a structure to assist practitioners to deal with ethical issues that they may confront in practice. Cohen’s four part-​classification scheme includes (1) professional ethics; (2) disputant ethics; (3) social policy; and (4) personal experience. Each of these is considered below. Professional ethics [14.75]  Professional ethics are identified by codes of conduct or standards of practice specific

to the particular profession in question. Most people working in dispute resolution come from professions with their own ethical standards (for example, lawyers and psychologists) but there are also particular standards for people practising as mediators that these professionals are required to comply with when acting in that role.

Professional Ethics: Roles and Rules [14.80]  J Cohen, “A Taxonomy of Dispute Resolution Ethics” in M Moffitt and R Bordone (eds), The Handbook of Dispute Resolution (Jossey Bass, San Francisco, 2005) Ch 16, pp 245-​246. Many participants in dispute resolution enter the conflict as professionals. They are not part of the underlying conflict themselves. Rather, they come to the conflict in distinct, socially defined roles. Such roles include lawyer, mediator, arbitrator, judge, ombuds, and diplomat. These roles typically have professional rules or codes of ethics that attach to them. For example, in the context of professional practice [in the United States], the attorney who negotiates may be bound by a variant of the ABA Model Rules of Professional Conduct; the family mediator operates pursuant to the Model Standards of Practice for Family and Divorce Mediation; the arbitrator follows the Revised Code of Ethics for Arbitrators in Commercial Disputes. Hence, when ethical questions arise, the professional who wants to behave appropriately should look toward the applicable ethical standards … That professionals must know the ethical standards of their field is only the beginning of the inquiry. On many ethical issues the codes are effectively silent, leaving room for professional discretion. Furthermore, not all professionals actually do adhere –​or perhaps even should always adhere –​to such adopted professional standards. Nevertheless, conscientious practitioners should be aware of the applicable ethical codes. There is a wisdom to this awareness beyond mere compliance. Individual attorneys, mediators or ombuds need not tackle difficult ethical questions on their own. They may gain guidance –​and perhaps save time too –​by learning what ethical position their professions have adopted and the reasons it was adopted. [14.80]  819

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Professional Ethics: Roles and Rules cont. When entering the world of professional ethics codes, it is helpful to keep two basic issues in mind. First, because different approaches to dispute resolution function differently, varied systems of professional ethics have been developed. One might call this functional variety. For example, while the process of mediation may have a general ethos of conciliation, the attorney representing a client within it may still be bound by the ethics of zealous advocacy. Different ethics attach, depending on one’s function within the process. Being clear about one’s professional role and the attendant ethics is therefore essential, though not always easy. [246] Second, practitioners must recognize the distinction between aspirational ideals and minimum standards in articulations of ethical norms. Ethics codes do not always clearly define whether they provide noble (but vague and questionably attainable) goals or whether they prescribe floors for sanctionable conduct. For example, ethical codes may call on professionals to be “honest” and pursue what is “just” or “fair”. However, only severe departures from these ideals, such as cases of fraud or legally unconscionable agreements, may actually violate the code. Many dishonest statements do not rise to the level of fraud, and many unfair and unjust outcomes are not legally unconscionable. In evaluating both their own behavior and that of their counterparts, it is essential that practitioners be clear about the nature of the applicable ethical standards. For example, even if the negotiating lawyer strives for high levels of candor and honesty, he or she should always be aware that the opposing lawyer is technically bound to very low standards. Perhaps our ethics codes will be revised someday to provide greater clarity. Until then, the burden of deciphering these codes rests on the practitioner.

 [14.85] The extract at [14.80] points to the complexity of ethical decision-​making when

acting as a conflict resolution practitioner. There may be conflicts between professional codes to which the practitioner subscribes and there may be conflicting principles within a professional code of conduct. More so, what would amount to a breach of an ethical code is sometimes unclear. In reporting research conducted with mediators in Victoria, Australia, Noone et al identify the difficulty mediators face in complying with sometimes conflicting/​competing standards and conflicts that may arise between ethical standards and personal values.

Ethics and Justice in Mediation [14.90]  M A Noone, L Akin Ojelabi and L Buchanan, Ethics and Justice in Mediation (Thomson Reuters, 2018) pp 1-​6, 8. [1.10] What constitutes ethical practice for mediators and justice in mediation is a complex and challenging question. In the past three decades, mediation in Australia has gone from a community-​ based activity to being an integral part of the civil justice system. It is used extensively to resolve civil disputes in courts and tribunals, in dispute resolution organisations and privately. The widespread use of mediation in a variety of settings and the increase in the number of mediation practitioners from various disciplines means there is a diversity of views on issues of justice and ethics in mediation. … In recent times, mediators have professionalised: professional associations have been formed, codes of conduct developed and accreditation processes adopted. The National Mediator Accreditation System (NMAS) is a voluntary opt-​in process, but most dispute resolution organisations require mediators to be accredited. The NMAS contains a set of Practice Standards; however, while professional codes and standards are designed to assist mediators in resolving ethical issues, dilemmas still arise. Codes cannot cover all situations that occur, and they sometimes contain competing or conflicting values. Despite the development of standards and accreditation processes for Australian mediators, there is little material available that provides practical guidance to mediators about how to address justice and ethical issues that arise in mediation. … 820 [14.85]

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Ethics and Justice in Mediation cont. … Given the variety of mediation contexts and professional backgrounds of mediators, we canvassed the views of experienced mediators on a range of ethical issues, using realistic scenarios that mediators might confront in practice. The scenarios relate to disputes in the areas of consumer, anti-​discrimination, planning, neighbourhood, and cultural differences. Drawing on the mediators’ discussion of the scenarios, this book explores how mediators might identify ethical issues, and details their responses, including suggested interventions, to those ethical challenges … Although there was considerable uniformity in the responses from the mediators, they also diverged significantly on a number of matters. The mediators’ responses indicate that, despite the agreed critical role of self-​determination in mediation, mediators also use their individual moral compasses to respond to ethical challenges. This leads mediators to a variety of responses, and to different views about what constitutes justice in mediation. In practice, there is disagreement about the extent to which mediators should intervene to ensure a fair settlement … Standards in mediation [1.30] With the growing popularity of mediation in Australia, it became clear there was a need for ethical rules to ensure quality and accountability in mediation practice. In 2008, after an eight-​year process of consultation, the National Mediator Accreditation System (NMAS) became operative. All nationally accredited mediators are expected to comply with the Practice Standards under the NMAS. These are minimum requirements; additional standards or requirements may operate in particular areas of practice or particular mediation models. Accredited mediators must also follow any Codes of Conduct set down by their member organisation, known as a Recognised Mediator Accreditation Body (RMAB). Mediators working for an organisation such as a court, tribunal or government agency must comply with that organisation’s policies. Other professional codes of conduct, for example, law or psychology, may prescribe standards as well. Although standards and codes of conduct are a useful starting point for mediators in relation to ethical dilemmas, they are broad guidelines with considerable scope for the mediator to exercise their discretion in individual cases. They are a useful guide to the underlying values of mediation, but how the standards apply in practice is open to interpretation. This is very evident from the experienced mediators’ varying responses to the case scenarios detailed in this book. Furthermore, there may be competing standards that could be applied in a given situation, so it can be unclear to the mediator what their ethical responsibility is. The NMAS Practice Standards, which relate primarily to facilitative mediation, provide that in the event of conflict with relevant legislation, the legislation prevails to the extent of any inconsistency. The Practice Standards were revised in 2012 and 2015, with the current Practice Standards effective from 1 July 2015. The Practice Standards applicable at the time the mediators provided comments on the scenarios in this book were the March 2012 Practice Standards. If the differences between the 2012 and 2015 version of standards are relevant to the mediators’ responses, we highlight this in the chapters. There are many similarities between the 2015 and the 2012 Practice Standards, but also some pertinent differences, mainly in relation to termination of mediation. In the 2012 Practice Standards there was an explicit provision that a mediator could withdraw when the parties were reaching an agreement that the mediator believed was “unconscionable” (clause 11.3). This provision was not reproduced in the 2015 Practice Standards. The current provision is a more general statement about terminating where the mediator forms the view that “mediation is no longer suitable or productive” or that a party is unable to participate or continue the mediation (clause 5.1). Based on the mediators’ responses, it is rare for a mediator to withdraw or terminate a mediation; however, this is an option that always remains open if the mediator has serious doubts about whether underlying principles of fairness and equity are being met. Under the 2015 Practice Standards mediators still have considerable discretion to terminate a mediation. Several mediators said they would consider terminating the mediation in the scenarios, although few mediators said they had actually terminated a mediation in practice. [14.90]  821

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Ethics and Justice in Mediation cont. The Practice Standards provide that the mediator must have relevant knowledge, skills and an understanding of ethical principles (clause 10.1). Ethical principles include self-​determination, informed consent, safety, procedural fairness and equity, impartiality and confidentiality. … Competing values [1.100] It is clear from the mediators’ responses that significant ethical dilemmas arise when there are competing values at play. This might relate to the core values of mediation and/​or a clash between the mediator’s personal values and the values of mediation. While the Practice Standards provide some guidance to mediators on the requirements of ethical practice, they do not supply answers when mediators face the ethical dilemmas arising from competing values. These dilemmas might call into competition self-​determination versus supporting procedural fairness and equity in mediation; impartiality versus supporting procedural fairness and equity in mediation; impartiality versus addressing power imbalances; impartiality versus ensuring informed decision-​making; self-​determination versus ensuring informed decision-​making and reality testing of options; and self-​determination versus the public interest. The Practice Standards cannot cater to all situations. When there are competing values a mediator may give precedence to one value over another, depending on the context, the relationship between the parties, and the nature of the dispute. This approach allows the mediator to consider the context before resolving any ethical dilemma he or she may encounter in a mediation process. Another source of ethical challenge occurs when there is a conflict between a mediator’s personal values and mediation values. These dilemmas arise because mediators constantly need to decide between different strategies and types of interventions when faced with competing mediation values. Mediators rely on their personal values, consciously or not, to make these decisions and interpret the Practice Standards. It could be argued that everything a mediator says or does has the potential to influence outcomes … [E]‌xperienced mediators often adopt a reflective practice approach to complement the Practice Standards. The thoughtful consideration by the mediators of the ethical issues posed in the scenarios, illustrate how mediators might approach the issue of competing mediation values and the limitation of mediation standards (codes) in addressing ethical dilemmas.

 Disputant ethics [14.95]  Apart from the conflict resolution practitioner who might be assisting people in conflict, disputants, that is, those involved in a conflict, also have their own ethical guidelines as to how they participate in the conflict and any conflict resolution processes. These guidelines are not written in a code of conduct or rules, but rather are very personal to the people in question.

Disputant Ethics: Underlying Moral Values [14.100]  J Cohen, “A Taxonomy of Dispute Resolution Ethics” in M Moffitt and R Bordone (eds), The Handbook of Dispute Resolution (Jossey Bass, San Francisco, 2005) Ch 16, pp 246-​247. Generally speaking, dispute resolution professionals are not the central players in the conflict, though it may be easy for them to lose sight of this fact. The central players are the parties. Accordingly, one should consider ethics questions not solely from the viewpoint of the professional but also from the viewpoint of the parties themselves. This underlying ethical category is “disputant ethics”. Perhaps the most basic question from this category is, “When people are in conflict, what should they do?” This is not a question of strategy, but one of normative ethics. Much can be learned from the nearly tautological recognition that parties wishing to behave ethically in a conflict should attempt to pursue ethical ends by ethical means. What then are such ends and means? 822 [14.95]

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Disputant Ethics: Underlying Moral Values cont. Perhaps the most salient ethical end for parties in conflict is that of reconciliation –​of making peace. All other things equal, most believe that peace is to be preferred to strife. Functionally, peacemaking usually benefits both parties by reducing tension, fostering future relations, permitting commerce, and avoiding violence. Peacemaking also benefits society generally through promoting social order, harmony and functionality. This is not to say that reconciliation is always an appropriate goal in a conflict. Some may see establishing justice as the central ethical goal, even if doing so entails greater conflict. Others may question whether reconciliation in the face of conflict is even a laudable goal. For example, legal anthropologist Laura Nader has argued against a negative view of conflict per se, rather seeing it as an important and irreducible aspect [247] of social existence and transformation, and, conversely, attempts to reconcile, if not suppress, conflict as an effort toward social control and subordination. Nevertheless, most see reconciliation in the face of conflict as not only a praise-​worthy human endeavour, but an essential one. Now let us turn to the issue of means. If making peace where there is strife is a central ethical end, what are appropriate means for achieving it? This can be broken into two inquiries: (1) Are certain means ethically inappropriate? The answer is undoubtedly yes. Even in war, all but the most extreme parties would maintain that certain ethical limits apply (for example, regarding the avoidable destruction of innocent life, the treatment of prisoners, and so on). More mundanely, little moral justification exists for lying in legal negotiations. (2) Are certain means ethically laudable? This second inquiry may have the most to teach us. Many approaches to dispute resolution can be seen not only as functional enterprises (that is, they fundamentally help resolve the dispute) but also as ethical ones. When a court renders a verdict, ideally it does so on a fair basis, namely, through the competent and impartial application of the law. Mediators usually try to foster a respectful dialogue in which disputants listen to one another. In propounding “principled negotiation,” Fisher, Ury and Patton suggest that negotiators invoke not just any criteria to reach resolution, but principled criteria. At a basic level, many dispute resolution processes can themselves be seen as ethical enterprises. Rather than parties resolving disputes based on power (for example, through vigilantism), these approaches help the parties to resolve disputes fairly. A second foundational issue in the domain of disputant ethics stems from apology and forgiveness. Conflict often arises on the heels of injury, whether intentional or accidental. While issues of fault are sometimes unclear (for example, one does not know exactly what caused the accident) and sometimes complex (for example, as when legal and moral fault differ), often they are not. Many injurers know that they are at fault, both legally and morally, for what they have done. How should an injurer respond? Though behavior in modern society does not necessarily reflect this conclusion, the moral response to injuring another is to take responsibility. The injurer should usually apologize and seek to make amends, for example, by offering fair compensation for the injury. By contrast, denying responsibility when one is at fault is a profound moral failure. Questions also arise for the injured. If the injurer apologizes and offers fair compensation, is the injured obliged to accept the offerings and forgive the injurer? What if an apology and compensation are not forthcoming? Should the injured “seek justice” by pursuing legal remedies, or should he or she “turn the other cheek”? Observe that questions such as these are at root ones for the disputants, not the professionals. Yet to serve the disputants effectively, professionals must be aware that the disputants may face such basic ethical questions.

 [14.105]  Disputants’ ethics is critical to the outcome of a dispute resolution process and in

mediation, the focus on party self-​determination makes it even more relevant. Disputants’ and practitioners’ ethics may also be shaped or conditioned by social policy. Conflicts occur in the social domain and therefore society as a whole has an interest in how conflicts are managed. Laws, policies and market forces may provide social guidelines for the boundaries of ethical behaviour for both disputants and practitioners in conflict situations. [14.105]  823

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Social Policy Questions [14.110]  J Cohen, “A Taxonomy of Dispute Resolution Ethics” in M Moffitt and R Bordone (eds), The Handbook of Dispute Resolution (Jossey Bass, San Francisco, 2005) Ch 16, pp 248-​249. So far, ethical issues have been examined principally from the viewpoint of an individual –​either the professional or the disputant. However, social policy plays an important role as well. Social policy questions are not about personal decisions concerning what is right or wrong. Rather, they ask how we should –​and perhaps more important, how we can –​effectively structure social policy to achieve ethical outcomes in dispute resolution. Following the framework described earlier, I shall first consider social policy questions affecting professional ethics, and then social policy questions affecting disputant ethics. Perhaps the most salient issue of professional ethics from the social policy perspective is enforcement. What can realistically be accomplished with social policy? Oliver Wendell Holmes once remarked that the law was what the bad man knew it to be. Though law is often described in lofty terms, the realist perspective reflected in Holmes’s comment suggests that the issue in practice is what, if any, punishment a lawbreaker will face. A similar realist orientation may be taken to questions of professional ethics. … Enforcement of any articulated ethical standard related to dispute resolution will be imperfect. How often are ethical violations detected? Suppose a party lies during a negotiation about having an alternative offer, or suppose a mediator or judge acts with partiality. How will others know a transgression has occurred? Even if the transgression is detected, will sanctions actually ensue? The difficulties of enforcement undoubtedly motivate some of the ethical minimalism found within professional codes. For example, legal ethics codes have long done little more than prohibit fraud –​indeed some codes even explicitly permit “puffing”. They do so because more stringent standards would be largely unenforceable though, by most accounts, lying in negotiation is morally wrong. Related to sanctioning are the issues of reputation and market structure. Though official sanctioning of all but the most egregious behavior is rare, reputational effects may deter much unethical conduct. Significant ethical issues also exist at the level of market structure. Different ethical frameworks may distinguish professional approaches to dispute resolution. Put another way, the selection of the dispute resolution mechanism implicitly involves a selection of [249] a set of dispute resolution ethics. If one wants to be adversarial, one may choose a hard-​nosed litigator. If one wants to be cooperative, one may seek out a mediator or perhaps a “collaborative lawyer” to help settle the case. The size, shape and functioning of the professional guilds we create, therefore, influence how ethics are practiced. Ethical questions of social policy also arise concerning the disputants. How do we teach children to behave when they have disputes? Is the culture we transmit one of closed-​minded, adversarial argumentation or one of open-​minded, respectful discourse? The structures we put in place to process disputes influence our cultural understanding of appropriate behavior. Observe, for example, that switching from a traditional adjudicative courthouse to a “multidoor” courthouse that includes mediation is both a functional change and also an ethical change, encouraging disputants to speak for themselves (rather than through their lawyers), to listen to one another, and to exercise self-​determination.

 Personal experience [14.115]  Ethics and ethical dilemmas are not just theoretical constructs. They have a pro-

found influence on our perceptions, emotions and behaviours, especially in conflict situations. Being caught in an ethical dilemma is a viscerally intense and highly personal experience. 824 [14.110]

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Personal Experience and Ethical Dilemmas [14.120]  J Cohen, “A Taxonomy of Dispute Resolution Ethics” in M Moffitt and R Bordone (eds), The Handbook of Dispute Resolution (Jossey Bass, San Francisco, 2005) Ch 16, pp 249-​250. Personal experience forms the final category of this four-​party taxonomy. This category consists of the embodied practice of ethics; that is, ethics on a lived, human level. There is much overlap here with the categories of professional ethics and disputant ethics. What is distinctive is the focus. Often we approach matters of professional and disputant ethics in an intellectual manner. For example, a professional may try to determine whether a particular course of action is permitted, required, or forbidden by professional ethics codes, or a disputant may try to reason about what is the right thing to do. By contrast, this category focuses on the experiential realm of ethical life. The subject here is less about thinking about ethical issues than about how ethical issues feel in practice. Consider a few examples. What should a professional who has ethical doubts do? What should a professional who has made an ethical mistake do? How can professionals avoid making ethical mistakes? For many professionals, the practice of ethics is influenced by their relationships with other professionals. When facing new situations, they seek guidance from mentors. When they have ethical doubts, they seek counsel and support from colleagues. Recall that many dispute resolution professionals function within organizations that affect the ethical choices of their members. Such organizational influences should not, of course, substitute for the exercise of the professional’s own conscience. Further, the professional is the one who must ultimately live with his or her own moral choices. The psychological price to a professional of betraying his or her own personal values can be tremendous. [250] An individual’s ethical decision making in a dispute can define what one is. Disputes can bring out either “the best” or “the worst” in people. Just as wars often serve as defining ethical moments in the history of nations, so too disputes can be defining in people’s lives. There are few more significant measures of a human being than how one treats others, and situations of conflict are critical times for taking that measurement. It is easy to be polite to someone one likes. The real test is interacting with those one dislikes. Disputes challenge us as moral agents. Sometimes that challenge is to forebear (for example, from rudeness and vindictiveness) and sometimes it is to persevere (for example find the courage to stand up for oneself). What will it feel like to try to forebear or persevere? Will one develop an ulcer or remain calm and serene? When one looks in the mirror, either today or years from now, how will one feel about what one has done?



PROFESSIONAL ETHICS FOR DISPUTE RESOLUTION PRACTITIONERS [14.125]  As the field of alternative dispute resolution (ADR) continued to develop in Australia

in the 1990s, there were growing calls for professional standards and ethical codes of conduct to regulate the increasing number of people providing ADR services. As Boulle noted in the extract in [4.15], this was part of the second phase of development of mediation in Australia, characterised by increasing concern about standards of practice. In 2000, National Alternative Dispute Resolution Advisory Council (NADRAC) released a discussion paper on the development of standards for ADR. The discussion paper set out the objectives of ADR and the various participants and interested parties, and proposed certain knowledge and skills required of conflict resolution practitioners. Given that professional ethics have only fully developed in relation to mediation, NADRAC’s discussion paper on the development of ADR standards is still relevant for other ADR processes. The next extract outlines the objectives of ADR from the viewpoint of users/​disputants, practitioners, governments and society. It also notes that some of these objectives may conflict. Objectives are also critical when evaluating dispute resolution processes. [14.125]  825

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The Development of Standards for ADR [14.130]  National Alternative Dispute Resolution Advisory Council, The Development of Standards for ADR, Discussion Paper (March 2000) Ch 3. Objectives of ADR ... There are widely varying objectives which at times can be inconsistent or in conflict with each other … 3.1 The Objectives of ADR Parties Users of ADR services usually want settlement of their dispute and durability in the sense that the settlement lasts over time. In addition, those involved in disputes invariably want a settlement that accommodates their particular interests to the fullest extent possible in the circumstances. To ensure a lasting agreement, the outcome may need to be within the parameters of what is generally acceptable in similar situations to minimise the possibility of pressure from outside parties to change it. As noted in Chapter Two, parties also have objectives in relation to the ADR process. They want it to be suitable for their dispute, affordable, conveniently located, available within a reasonable timeframe, understandable and intelligible. Consumers of any professional services expect to be treated fairly and respectfully in all their dealings with providers. They also need to be confident in the impartiality, neutrality, knowledge and skills of the provider. In ADR, parties expect to be shown empathy by the ADR provider and to be empowered to participate effectively in the process as required. They need adequate information about the issues before making decisions. They may also want the impact of the dispute and its outcome on relationships to be addressed. They will expect some form of accountability if services are not performed satisfactorily. 3.2 The Objectives of ADR Practitioners … ADR practitioners are likely to have some or all of the following objectives: • developing their skills, knowledge and expertise; • developing a commercially viable practice; • providing good services to their clients and having satisfied clients; • creating an increased demand for ADR services; • having societal and government recognition of the value and status of ADR; and • contributing towards some of the societal benefits which it is claimed ADR can provide. 3.3 The Objectives of Governments … Governments are likely to have some or all of the following objectives: • fulfilling the government’s responsibility for providing a system to resolve disputes in a constructive manner; • resolving conflicts which have arisen at the earliest appropriate time; • preventing conflicts from becoming socially disruptive; • achieving efficiencies in the provision of those dispute resolution services provided by the state; • reducing the demand for expensive dispute resolution services; and • ensuring parties make use of appropriate dispute resolution services. 3.4 Broad Societal Objectives Apart from the short term objectives of the above interest groups, ADR can serve broader societal needs and goals, mainly in the longer term. The vision for ADR is the achievement of a just and harmonious society. Within this vision, society is likely to have some or all of the following objectives: 826 [14.130]

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The Development of Standards for ADR cont. • providing a variety of mechanisms for the resolution of conflict which cannot be resolved by the parties themselves; • minimising the cost, time and personal disruption involved in the processes for resolving disputes as much as the nature of the dispute will allow; • minimising the level and amount of disruptive conflict; and • encouraging or teaching people to deal with their own conflict unassisted in the future. 3.5 Common, Conflicting and Core Objectives It is clear from the above overview that there are both common and competing objectives when the goals and needs of different interest groups in the ADR community are taken into account. The same would apply to other occupational and professional services. It is NADRAC’s view that the common or core objectives for ADR which will need to inform the development of standards are that ADR: • 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.

 [14.135]  Competence of the conflict resolution practitioner is key to ethical practice and the

quality of ADR. NADRAC went on to set out a comprehensive list of areas of knowledge that a conflict resolution professional should have in order to provide professional and ethical services.

The Development of Standards for ADR [14.140]  National Alternative Dispute Resolution Advisory Council, The Development of Standards for ADR, Discussion Paper (March 2000) paras 6.1-​6.9. 6.1 Knowledge about Conflict This refers to knowledge about the following aspects of conflict: • how conflict arises between individuals and groups, and within groups; • the different kinds of conflict that give rise to disputes; • potential sources of conflict around objectives, values, interests, relationships, information 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, including the interventions of ADR practitioners; • appropriate dispute resolution interventions for different kinds of conflict; and • the significance of timing in relation to the management and resolution of conflict. 6.2 Knowledge about Culture This refers to knowledge about the relevance of culture to varying aspects of conflict and dispute resolution, including: [14.140]  827

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The Development of Standards for ADR cont. • 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 in relation to written, spoken and non-​verbal communication; • 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. 6.3 Knowledge about 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; • the rituals, process and stages of different models and styles of 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; and • the information that parties need to make their own decisions, and how it can be collected and analysed. 6.4 Knowledge about 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, summarising, reframing, paraphrasing and non-​verbal communication; • 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; and • techniques of drafting, writing up decisions and other written communication skills. 6.5 Knowledge about 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;

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The Development of Standards for ADR cont. • relevant relationships, such as couple, family and group relationships; • availability of professional, academic, technical, community and educational resources for party use or referral; • 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; and • the structures, resources, processes and requirements of the service provider. 6.6 Knowledge about 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; • how to deal with non-​compliance with procedural requirements; • how to ensure procedural fairness; • criteria for exercising discretion on procedural matters, for example, adjournments, consultations with individual parties, and duration; and • how to identify who may be interested parties and how to ensure their appropriate participation. 6.7 Knowledge about 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; • the dynamics of the relationship between the practitioner and the parties; • the inter-​action 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; and • awareness of personal responses to conflict and high emotion. 6.8 Knowledge about 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 prior to 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; and • appropriate legal, industrial or social standards or norms.

[14.140]  829

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The Development of Standards for ADR cont. 6.9 Knowledge about Matching ADR to Disputes This refers to knowledge about screening and streaming appropriate cases for ADR processes: • 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 procedural fairness during the assessment or intake process; and • indications that a dispute would be inappropriate for an ADR process.

 [14.145] In addition to the knowledge areas, which are comprehensive and illustrate the

depth and breadth of the field of ADR, NADRAC also outlined required skills for conflict resolution practitioners. This list as shown in extract at [14.150] is also comprehensive.

The Development of Standards for ADR [14.150]  National Alternative Dispute Resolution Advisory Council, The Development of Standards for ADR, Discussion Paper (March 2000), Practice Skills 6.10-​6.19. 6.10 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: • accurately and concisely analysing the presenting issues to assess the most suitable process; • accurately and effectively referring parties to other services which may be more appropriate; • 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; and • providing accurate, timely and relevant information about the ADR processes available, and other resources. 6.11 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; • managing the way information is presented, tested and evaluated; • drawing inferences or deductions from information; and • applying relevant rules and principles of evidence. 830 [14.145]

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The Development of Standards for ADR cont. 6.12 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; and • ordering, differentiating and prioritising the issues. 6.13 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; • checking with parties that they are clear about what is going on, and responding to their queries; • showing understanding by use of listening and questioning skills; • summarising, paraphrasing and reframing; • appropriate use of language and terminology; • use of verbal and non-​verbal communication techniques; and • appropriate writing and recording. 6.14 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 developing the capacity and ability of all parties to participate in the process; • maintaining party commitment to the process; • maintaining procedural fairness for all parties involved in the process; • complying with statutory, contractual and procedural requirements; • adapting the process to suit the needs of the parties and the dispute; and • adapting the process to deal with the use of more than one ADR practitioner in the same dispute. 6.15 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; • separating the personal issues from the substantive issues; and • identifying and managing expectations. [14.150]  831

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The Development of Standards for ADR cont. 6.16 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; • 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; and • managing blockages, loss of face and final closures. 6.17 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; • 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; • 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; • acting without actual or perceived bias; • ensuring legislative and other constraints are identified and taken into account; and • displaying sincerity and integrity, and building and maintaining trust. 6.18 Making a Decision This refers to the key elements of good decision-​making, namely that it be legal, ethical, explicit, equitable, 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; and • in facilitative ADR processes, providing parties with the opportunity to reflect on the agreement or seek legal advice. 6.19 Concluding the ADR Process In facilitative and advisory ADR processes, this refers to the skills required to consolidate an agreement by the parties. These skills can be demonstrated by: • ensuring parties clearly understand the agreement, and their roles and responsibilities; • enabling parties to reach agreement across the final blockages and gaps; 832 [14.150]

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The Development of Standards for ADR cont. • 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; and • making appropriate referrals if necessary.

 [14.155]  In 2001, NADRAC released its report into the development of ethical standards of

practice for ADR practitioners. The extract at [14.160] provides an overview of eight areas of ADR practice with ethical implications.

A Framework for ADR Standards [14.160] National Alternative Dispute Resolution Advisory Committee, A Framework for ADR Standards, Report to the Attorney General (Commonwealth of Australia, Canberra, 2001) p 110-​114. 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 [14.160]  833

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A Framework for ADR Standards cont. • 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 • 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 with an open mind, free of preconceptions or predisposition towards either of the parties. The importance of exhibiting lack of bias is that the 834 [14.160]

Ethics, Standards and Dispute Resolution  Chapter  14

A Framework for ADR Standards cont. 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: • 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 [14.160]  835

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A Framework for ADR Standards cont. • 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.

 [14.165]  In response to this report, a number of developments occurred. Most importantly,

the report culminated in the development of Approval and Practice Standards for Australian mediators and the development of Guidelines for Lawyers in Mediations (2011) and lawyers acting as mediators (Ethical Guidelines for Mediators (2011)) by the Law Council of Australia. Family Dispute Resolution Practitioners (FDRPs) are also required to have particular training in relation to ethical issues in family mediation. There are currently two accreditation schemes for mediators in Australia:  the National Mediator Accreditation System (NMAS) and the FDRPs Accreditation Scheme. These two schemes have different requirements for accreditation and standards of practice. National Mediator Accreditation System [14.170]  The NMAS was introduced in Australia in 2008. There are two sets of Standards: Part

II –​the Approval Standards (setting out the requirements for accreditation as a mediator) and Part III –​the Practice Standards (which sets out minimum practice and competency requirements to which a NMAS accredited mediator agrees to comply). The two standards have been revised twice, in 2012 and 2015. Compliance with the Standards is voluntary, and it is possible to practice as a mediator in Australia without being accredited under the NMAS. The scope and application of the Practice Standards are set out in Clause 1: 1 Application



1.1 The Practice Standards apply to NMAS accredited mediators. 1.2 The Practice Standards: (a) specify the minimum practice and competency requirements of a NMAS accredited mediator; (b) 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. 1.3 Where a mediator practises under a legislative framework and there is a conflict between a provision of the Practice Standards and a provision of the that framework, the legislative framework will override the Practice Standards to the extent of any inconsistency.

[14.175]  It is important to note that the Standards provide for situations where a practitioner

may be subject to conflicting codes of conduct, particular where the other code is part of a legislative framework. Such a code or standards prescribed by the legislative framework will 836 [14.165]

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override the Practice Standards to the extent of any inconsistency. The Practice Standards also makes provisions in relation to required knowledge and skills and understanding of ethical principles that mediators accredited under the scheme should be competent in.

National Mediator Accreditation Practice Standards (2015), cl 10 [14.180]  National Mediator Accreditation Practice Standards (2015). 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.

(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.

(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.

(b) 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 [14.180]  837

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National Mediator Accreditation Practice Standards (2015), cl 10 cont. (vii)

confidentiality privacy and reporting obligations

(viii) honesty in the marketing and advertising of mediation and promotion of the mediator’s practice 10.2 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, statutory employment or their equivalent, and (iii) are covered by current professional indemnity insurance or have statutory immunity and (c) ensure that the advice is provided in a manner that maintains and respects the principle of self-​determination.

 [14.185]  It is also important to note that where a conflict resolution practitioner is using

a blended process, for example, a process which resembles conciliation and allows the conflict resolution practitioner to provide advice to parties with the parties’ consent, clause 10.2 (NMAS Practice Standards) sets out standards which the mediator must comply with. In such processes respect for self-​determination is still important. the extract at [14.190] sets out the core values of mediation as outlined in the NMAS Practice Standards, responses to them and how they may create tensions in practice.

Core Values of Mediation [14.190] M A Noone, L Akin Ojelabi and L Buchanan, Ethics and Justice in Mediation (Thomson Reuters, 2018) pp 6-​9. [1.40] Traditionally, mediation ethics were conditioned by the core values of mediation: neutrality, self-​determination, voluntariness, and confidentiality. The Practice Standards codify aspects of these values. … Impartiality/​neutrality [1.50] Neutrality has been a traditional value of mediation, with the mediator sometimes referred to as a third-​party neutral. In the 2015 Practice Standards mediators are not referred to as neutral third parties, but the Practice Standards refer to mediators conducting the mediation in an impartial manner. Impartiality is described as being without “favouritism or bias” (clause 7.1). Most mediators still refer to themselves as neutrals and may sometimes use the words neutrality and impartiality interchangeably. Academics and practitioners have argued against the essence of neutrality in mediation on the basis of the aspirational nature of the concept. In practice, mediators do not ascribe to a single idea of neutrality. In Australia, many mediators and academics agree that, though relevant as a legitimising concept, neutrality is difficult to practise and, when practised, may perpetuate injustice … Increasingly there is recognition that strict adherence to the principles of neutrality or impartiality is impractical. Instead support is growing for a more nuanced and contextual approach to mediation practice that allows consideration of ethical issues in a contextual manner. This approach values 838 [14.185]

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Core Values of Mediation cont. relational party self-​determination and requires a shift away from mediator neutrality so that the mediator can address power imbalance. Self-​determination [1.60] Self-​determination is a core value of mediation. It distinguishes mediation from other forms of dispute resolution where a third party determines the outcome of the dispute and imposes the terms of settlement. In mediation, parties determine the outcome of the process. The Practice Standards emphasise the importance of party self-​determination, with the role of the mediator being to help the parties in their decision-​making process (clause 2). As with neutrality, self-​determination has been criticised, particularly in situations where a power imbalance exists between the parties. A party may be in a position of disadvantage for various reasons –​including health, finance, lack of or poor education, or language difficulties –​and the disadvantage may affect the party’s capacity to exercise self-​determination. In such circumstances, strict adherence to self-​determination may mean the outcome of the mediation process favours one party over the other. The Practice Standards, however, also emphasise the notion of informed consent, that is, the parties should be able to make decisions on the basis of being fully informed (clause 7.4). It is part of the mediator’s role to assist the parties in this. Informed consent and decision-​making could be viewed as a way of supporting justice outcomes in mediations. Parties conversant with relevant information will better exercise self-​determination (clauses 7.6, 7.7). The Practice Standards also make provision for addressing power imbalances in a mediation process. Clause 6.1 provides that the mediator “must be alert to changing balances of power in mediation and manage the mediation accordingly”. This clause empowers the mediator to use interventions that are consistent with the values of impartiality and self-​determination whilst addressing the unfairness created by control and intimidation by one party. Voluntariness [1.70] With the increasing number of court-​mandated mediations, the value of voluntariness as a basis for mediation ethics has somewhat diminished. There is a difference between the traditional requirement of voluntariness that mediation was voluntary for parties, and the requirement under the Practice Standards. The Practice Standards focus on voluntariness in agreement-​making and participation in the process (Clause 7.4). A mediator may suspend or terminate mediation if a party is unwilling to participate (clause 5.1(a)). In addition, any final agreement must be voluntarily made and devoid of undue influence (clause 7.4). A clear link exists between self-​determination and voluntariness. A party should not be compelled to participate in a mediation process, nor should terms of agreement be imposed, if mediation is to conform to the spirit of self-​determination. Confidentiality [1.80] The value of confidentiality in mediation can create ethical dilemmas for mediators. Usually the mediation process is said to be confidential (clause 9) but the definition of confidentiality is not settled and there are exceptions. Disclosure is permitted: if parties have consented to such disclosure, where the law requires such disclosure, where information sought to be disclosed is non-​identifying, and where there is an actual or potential threat to human life or safety (clause.9.1). These exceptions accommodate the legal and public duties of the mediator to disclose in certain circumstances. More problematic for mediators, however, is determining when a public duty arises. Is the existence of a duty to disclose a matter of scale and degree, or does it depend on the imminence of harm? The Standards do not address this issue. … Procedural and substantive justice in mediation [1.90] As discussed above, the relationship between mediation and justice is the subject of academic debate. The concern about mediation’s ability to provide justice stems from the effect of neutrality [14.190]  839

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Core Values of Mediation cont. and self-​determination on mediation outcomes. If the mediator remains impartial when a party is unable to participate in the process due to a particular disadvantage that results from a power imbalance, will the outcome be just? Mediators are obliged to conduct the mediation process in a procedurally fair manner (clause 7). Elements of procedural fairness include ensuring parties make free, voluntary decisions; guaranteeing informed consent and a lack of undue influence; providing the opportunity for parties to speak and be heard; and ensuring balanced negotiation between parties. In addition, since mediation is based on self-​determination, the mediator must refrain from pressuring the parties to reach an agreement or to agree to particular terms. To ensure parties are in a position to make informed decisions, the mediator should encourage the parties to obtain independent professional advice or information. Mediators generally focus on procedural fairness and not the substance of the outcome. Ensuring procedural fairness is seen as a guarantee for fairness of outcome, and fairness of outcomes is commonly based on the subjective view of parties. The test is whether the outcome is acceptable to the parties: is it an outcome they can live with? In practice, however, in fulfilling their duty to conduct a fair mediation, mediators do often consider whether a settlement outcome is grossly unfair or one-​sided. If so, the question for the mediator becomes what steps they should take if they do consider the outcome is unfair; this might include terminating or suspending the mediation. Unless the mediator ensures informed consent and decision-​ making and the parties are able to participate effectively, the mediation might be disadvantageous to a party with less power.

 Mediator Standards Board [14.195]  As noted previously, while NMAS accredited mediators are required to comply with

the Practice Standards, enforcement may be an issue particularly due to the confidential nature of mediation. The Mediator Standards Board (MSB) was established in 2010 to “support and promote high standards” and “enhance the quality of mediation services in Australia” (https://​ msb.org.au/​about-​msb). The MSB is also “responsible for the ongoing development and maintenance of the NMAS”. The objectives of the MSB set out on its website are as follows: a. develop, maintain and amend the NMAS, which includes the Approval Standards and the Practice Standards (the Standards). b. oversee the application of the Standards with a view to achieving consistency, quality and public protection regarding mediation services and mediation training. c. support, complement and encourage members in their quest to meet their objectives in relation to the Standards. d. ensure that training and accreditation of mediators continues to develop. e.

require records to be maintained of mediators who are accredited under the Standards and facilitate access to mediators who have national accreditation.

Membership of the MSB include organisations that accredit mediators. Accrediting organisations are referred to as Recognised Mediator Accrediting Bodies (RMABs) and they include organisations providing mediation training, education and services as well as government representatives and consumer organisations. RMABs must, among other things, be financial members of the MSB, possess the capacity to provide mediation training and education including continuing professional development, and must also have “a complaints system that meets the 840 [14.195]

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Benchmarks for Industry-​based Customer Dispute Resolution Scheme, or the ability to refer a complaint to a scheme that has been established by statute” (NMAS, Part IV, Clause 1.4). The complaints system allows users to report misconduct on the part of accredited mediators. Family Dispute Resolution Practitioner Accreditation Scheme [14.200]  In 2008 the Commonwealth Attorney-​General introduced a new scheme of accred-

itation for FDRPs. A FDRP is defined in s 10G(1) of the Family Law Act 1975 (Cth) as, inter alia, a person who is accredited as a FDRP under the Accreditation Rules. One of the compulsory units in the Vocational Graduate Diploma required for Family Dispute Resolution Practitioner Accreditation specifically addresses ethical standards for FDRPs.

Ethical Standards for FDRPs [14.205]  Community Services Training Package, CHCDISP803B –​Facilitate Dispute Resolution in an Impartial Manner and Adhere to Ethical Standards (Commonwealth of Australia 2011). Element

Performance Criteria

1. Disclose actual and potential grounds of bias and conflicts of interest

1.1 Inform participants they may retain the dispute resolution practitioner by informed, written waiver of the conflict of interest 1.2 Withdraw from the dispute resolution practitioner role when a bias or conflict of interest impedes impartiality regardless of participant’s express agreement

2. Inform and disclose potential grounds of bias or conflict of interest at any time in the process.

2.1 Take reasonable steps to minimise the risk of being in a position of potential bias or conflict of interest before the process commences 2.2 Ensure participants have time to select an alternative family dispute resolution practitioner

3. Avoid conflict of interest and/​or perceived conflicts of interest when recommending other services.

3.1 Provide a range of options when referring participants to services or individual professionals

4. Apply ethical standards to the dispute resolution process.

4.1 Remind participants of their right to terminate the dispute resolution process if they perceive the practitioner to be partial

3.2 Maintain respectful and legal practices when managing participant information

4.2 Maintain professional and personal boundaries as a dispute resolution practitioner 4.3 Adhere to own professional code of ethics when practicing as dispute resolution practitioner

 Ethical guidance for lawyer-​mediators [14.210]  Another useful Australian document dealing with ADR ethical standards is the Law

Council of Australia’s “Ethical Guidelines for Mediators”. The Law Council of Australia is, essentially, a peak representative body for Australian lawyers, hence its legal flavour. The document purports to set an ethical and practical framework for the practice of all types of mediation by lawyers. [14.210]  841

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Ethical Guidelines for Mediators [14.215]  Law Council of Australia, “Ethical Guidelines for Mediators” (2011). INTRODUCTORY NOTE The Law Council of Australia has developed these guidelines to serve as a general ethical and practical framework for the practice of mediation. The guidelines are intended to apply to all types of mediation. Particular professional and other bodies may have different requirements. It is expected that the guidelines will be reviewed from time to time. The guidelines of conduct for mediators are intended to perform three major functions: • to serve as a guide for the conduct of mediators; • to inform the mediating parties of what they should except; and • to promote public confidence in mediation as a process for resolving disputes. These ethical guidelines draw on existing codes of conduct for mediators and take into account issues and problems that have surfaced in mediation practice. They are offered in the hope that they will serve an educational function and provide assistance to individuals, organisations and institutions involved in mediation in all practice contexts.

 [14.220] The Law Council’s guidelines include the requirement for mediator impartiality,

disclosure of conflict of interests, the mediator’s competence, confidentiality, termination of process when it is the right course of action, encouraging parties to record agreements in writing and supporting the parties in ensuring that the agreement is enforceable. Practice standards and codes of conduct provide guidance to practitioners about ethical behaviour in their particular profession. The codes often embody the collective reflections of a profession and bring together best practice and wisdom learnt from experience. They also provide a basis for practitioners who ascribe to them to claim to be members of a recognised and principled profession. Regardless of the importance of codes, they also have limitations as noted at [14.90]. This theme is explored further in extract [14.230] and [14.240].

THE LIMITS OF ETHICAL AND PRACTICE STANDARDS [14.225]  It has been noted above that ethical codes and standards will never cover the range

of possible situations and dilemmas that will confront mediators and other ADR practitioners. That is why having clearly identified and articulated statements of values is so important. However, these statements of ethical and practice standards are merely a starting point, as the next extract illustrates.

Applying the Inclusive Model of Ethical Decision Making to Mediation [14.230] S Hardy and O Rundle, “Applying the Inclusive Model of Ethical Decision Making to Mediation” (2012) 19 James Cook University Law Review 70 at 72-​73. III Standards are insufficient to support ethical practice A considerable amount of effort, consultation, thought, discussion and inquiry has been invested in the development of standards for mediator practice in Australia. As well as the Australian National Mediator Accreditation Standards, there are a number of other codes of conduct and guidelines 842 [14.215]

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Applying the Inclusive Model of Ethical Decision Making to Mediation cont. produced by various organisations. These practice standards and codes of conduct are seen as important for three main reasons. Firstly, standards and codes are a form of policing. They provide a framework for practitioner accountability, a means to make sure that mediators do the right thing, and sanctions for unethical conduct. They also support public confidence in and the legitimacy of mediation, to protect the public interest and to establish mediation as a legitimate profession. Practice standards also make a positive contribution towards defining and supporting ethical practice by defining what is clearly unethical, reminding practitioners of aspirational values and building a foundation from which ethical dilemmas can be considered. However, while standards are a useful beginning point for developing a more detailed set of ethical considerations for mediators, they are not much more than that [73] and can be problematic for a number of reasons. Rachael Field argues that the main problems with current Australian standards are that they are stated in broad, generic terms; have no universal acceptance or application; and are not enforced. Guidance in the form of Codes of Conduct or Ethical Standards alone is insufficient to support mediators to make robust ethical decisions. Codes have an inherent limitation in that “ethical practice must respond to the unique situational constraints and possibilities of each mediation, whereas ethical standards are unable to do so”.

 [14.235]  Ellen Waldman, in the following extract, explains why ethical codes are not enough,

and emphasises the fact that ethical decision making always involves a trade off of values.

Why the Codes Are Not Enough [14.240]  E Waldman (ed), Mediation Ethics: Cases and Commentaries (Jossey-​Bass, A Wiley Imprint, 2011) p 14. Why the Codes Are Not Enough When we apply the language from the Model Standards –​either alone or in conjunction with other state or specialty subject matter codes –​we reach three definite conclusions: 1.

The codes don’t answer the question, “What is the ethical course of action in this case?” There are simply too many contradictions and tensions between different codes and within individual codes. Ethical codes of conduct in mediation should be looked at as a place to start the ethical inquiry. Alone, they will not resolve the issue in any particular case.

2.

Most ethical dilemmas are not resolved by finding the one right answer. Although certain discrete choices may fall beyond the ethical pale, usually there exists a range of ethically permissible responses and outcomes.

3.

It rarely makes sense to hold one value to be the one dominant principle that subordinates all others in every possible case. Rather, the primacy of various principles should vary according to the particular facts of the case. For example, self-​determination should figure more prominently in cases where the parties are evenly matched, fully competent, and informed and the outcomes contemplated don’t threaten to harm third-​party of societal interests. Similarly, quality of process and fairness concerns should garner more attention in cases where the ability of the parties to deliberate fully regarding their long-​term best interests is in question and where the decisions may affect the well-​being of those not at the bargaining table.

A Balancing Act: Rejecting rigidity in mediation Because the codes take us only so far, we must acknowledge the need to exercise discretion and balance competing ethical objectives. Adopting a practical approach to mediation ethics requires [14.240]  843

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Why the Codes Are Not Enough cont. recognizing that value compromises and trade-​offs are an integral part of doing ethics in this field. In the vast array of cases and contexts, it simply isn’t possible to give voice and expression to every important value in every case. Sometimes the goal of helping disputants meet their needs and interests must be tempered by other concerns, such as protecting vulnerable parties or advancing important societal interests. Taking actions that undercut or hinder disputant autonomy may sometimes be the most ethical choice. Value trade-​offs are an inevitable end product of our efforts to attain the ethical golden mean.



ALTERNATIVE ETHICAL GUIDANCE FOR DISPUTE RESOLUTION PRACTITIONERS [14.245]  Various authors have recently called for a more contextual approach to ethics in dis-

pute resolution, acknowledging the limitations of codes of conduct and standards of practice. Hardy and Rundle at [14.250] consider the types of support mediators need in practice in order to identify and respond appropriately to ethical dilemmas. They review some of the limitations of standards and suggested alternative approaches, and promote the inclusive model of ethical decision-making as a tool that responds to most of the identified needs.

Applying the Inclusive Model of Ethical Decision Making to Mediation [14.250] S Hardy and O Rundle, “Applying the Inclusive Model of Ethical Decision Making to Mediation” (2012) 19 James Cook University Law Review 70 at 73-​81. IV What support do mediators need in developing ethical practice? Mediators need some form of guidance to support them in engaging in and developing ethical practice, individually and as a collective “profession”. Any guidance should ideally provide recognition of the relevance of, and guidance for using, individual judgement/​discretion; allow for diversity in practice; focus on context; and provide accountability and a mechanism for the mediator and others to learn from decisions made. A Individual judgment and discretion While practice standards and codes of conduct can provide generalised information about ethics, they cannot provide the answer to any given ethical dilemma that arises in practice. Standards and codes generally fail to acknowledge the critical role of the individual mediator’s personal traits, values, judgement and discretion. However, the mediator’s personal orientation to practice, skills, values and personality are inescapable and integral to the way mediation is practised. … The mediator’s choice of action is always based on his or her individual judgment and discretion in the particular circumstances. This kind of decision-​[74] making is intuitive and often unconscious. Any guidance provided to mediators in relation to ethical decision making needs to … allow flexibility for the mediator to apply his or her own discretion. B Allowance for diversity in practice The diversity of mediation practice and the wide range of mediator beliefs and ethical positions are masked by standards that rely on “generic principles, fastening on relatively uncontentious virtues for the mediation process”. Example of such “uncontentious virtues” might include impartiality, 844 [14.245]

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Applying the Inclusive Model of Ethical Decision Making to Mediation cont. confidentiality, and ensuring self-​determination of parties. However, those virtues might be interpreted quite differently by mediators who practice with a facilitative model, compared with mediators who practice with a transformative model. For example, transformative mediators would likely interpret self-​determination to include the parties making their own choices about the process of the mediation, and would not take steps to “balance power” between the parties for this purpose; whereas a mediator using a facilitative/​problem-​solving model would see his or her role in controlling the process of the mediation and taking steps to balance power between the parties as an important part of ensuring parties’ self-​determination. The lack of universal acceptance and application of ethical codes stems from a number of characteristics of such codes. Codes of conduct are inherently value-​based, but most do not clearly articulate their underlying values, either because the values are assumed to be universal, or because the authors of the codes have failed to adequately consider them. Most ethical codes are not inclusive, and tend to be based on a particular ideology/​model. For example, the Commentary on the Australian Practice Standards acknowledges that there are a range of different mediation models in use across Australia and that the mediation process described in the Practice Standards is broad and flexible; however, the Standards refer specifically only to a facilitative or blended process. … Any guidance provided to mediators needs to be applicable to different models of mediation and different contexts in which mediators practice. … C Increased focus on context Current standards and ethical guidelines relating to mediation tend to be broad statements of what is and is not appropriate conduct without any reference to context. Field argues that the mediation profession needs “contextual ethics”, which require account of the context of the situations, particular circumstances of the case, its contextual and relational quality and the intuitive, responsive, reactive and integrated nature of its practice. Waldman also emphasises the need for a “a context-​driven balancing approach” in the mediation field in which existing ethical guidelines are not unified nor consistent. Macfarlane points out that it is not possible to describe and prescribe behaviour independent of context. However, most codes work on a top-​down basis, setting out abstract principles that then need to be applied to particular situations. For example, Baruch Bush has prepared a list of categories of the types of ethical dilemmas that practising mediators are confronted with, based [76] upon empirical data derived from his interviews of eighty mediators. His list includes the following dilemmas: • Keeping within the limits of competency (when skills or knowledge are lacking); • Preserving impartiality (when relationships exist or emerge with parties or the mediator reacts to a party); • Maintaining confidentiality (both to interested outsiders and between the parties –​where there is a reason to disclose); • Ensuring informed consent (where there is possible coercion, incapacity or ignorance); • Preserving self-​determination and maintaining non-​directiveness (when tempted to offer or oppose a solution); • Separating mediation from counselling or legal advice (when the parties need expert information, therapy or coaching); • Avoiding harm (when mediation may work against a party’s interests); • Preventing party abuse of the mediation process; and • Handling conflicts of interest. Most mediation standards and codes of conduct have provisions that relate to these typical ethical dilemmas. However, what standard and codes ignore is the fact that these abstract principles are sometimes contradictory, reflecting “tensions among mediation’s underlying values: disputant [14.250]  845

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Applying the Inclusive Model of Ethical Decision Making to Mediation cont. autonomy, substantive fairness, and procedural fairness” and there is generally no guide for how a mediator should prioritise between competing principles. … Waldman notes that “mediators have to decide for themselves how to prioritize and weigh these values when they push in competing dimensions”. Standards and ethical codes do not provide any practical guidance for mediators in making such decisions. Therefore, standards alone are insufficient to guide mediators to resolve the dilemmas that arise because of the competing aims and values of mediation. Standards and ethical codes also tend to emphasize process, and in particular tend to focus on the beginning and ending of process, set up and outcomes, not ethical dilemmas arising in the middle. Many also tend to be based on artificial distinction between content, process and individual circumstances. They ignore factors that occur before and after the mediator is active, such as systemic issues. Standards and codes tend to provide examples of standardised problems and ideal responses, such as the mediator choosing between terminating or continuing with the process. Macfarlane argues that codes “consistently underestimate and oversimplify the complexities of what it means to mediate ethically … in an uncertain, fluid and private process”. Codes do not provide particularised ethics for a diverse actual practice. In reality a mediator has many choices to make about how to continue, what interventions to make, which includes questions, comments, suggestions, calling an adjournment and who to talk to. These are much more subtle and sophisticated decisions than the extremes of change nothing and continue or to terminate the process forever. Another problem with ethical codes is that they tend to focus on the role, behaviour, and perspective of the mediator; ignoring the parties’ and others’ [78] perspectives. They also tend to ignore the cultural and situational factors that frequently have a significant impact on decision-​making at any particular time. … Any ethical guidance for mediators should support the “constant generation of internal norms appropriate for a specific mediation and set of parties”. D Accountability and a mechanism for learning … mediators [should] share and analyse their ethical decisions in order to be accountable, engage in discussion about ethical dilemmas, understand their own “theory-​in-​use” and build an ethical practice both individually and as a community. Supported critical reflection on practice also emphasises the need to explore the basis of ethical choices and impacts, rather than determining whether it was [79] the “right” choice. It provides a forum for mediators to share individual and experiential truths (identify and deconstruct). Macfarlane observes that “[p]‌utting the principles of reflective practice into practice requires the conscious nurturing of a collaborative professional environment in which personal experiences and choices are shared in a continuous, self-​critical, non-​defensive, and open dialogue”. Ethical guidance for mediators should include a process of critical self reflection and sharing of ethical decisions with other practitioners in a non-​judgmental atmosphere. Clearly guidance alone is insufficient for this purpose, as the development of a community of practice that could support this aspect of ethical decision making would also be necessary. V A proposal for future guidance Baruch Bush’s research presents “strong evidence that mediators are … concerned about good practice, sensitive to what the dilemmas are, and anxious to resolve them responsibly” but that they need and are asking for guidance to do so. He argues that mediators need coherent programmatic guidance in solving ethical dilemmas involving subtlety, complexity and seriousness. While the Australian National Mediator Accreditation Standards provide some generalised guidance on most of the typical ethical areas identified in Bush’s research, they do not provide any guidance for mediators on the process to be used in making decisions about nuanced ethical dilemmas that might arise in a particular mediation context. 846 [14.250]

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Applying the Inclusive Model of Ethical Decision Making to Mediation cont. The Inclusive Model of Ethical Decision Making provides a useful framework [80] that can provide guidance for mediators to engage in ethical practice. It is a model that addresses many of the concerns raised above about the deficiencies in ethical codes (but still recognises that they have an important place as part of the process of ethical practice). It includes specific consideration of contextual factors, and it emphasises reflective practice and a collaborative professional environment. A The Inclusive Model of Ethical Decision Making In 2008 McAuliffe and Chenoweth, academics in human services and social work, published their article on the Inclusive Model of Ethical Decision Making (the Inclusive Model). Their model developed in response to the tension between standardised processes (which promote consistency and accountability) and decision-​making models based on an element of intuition and critical reflection. Similar tensions exist in the mediation field, with some authors promoting a kind of checklist approach to managing ethical dilemmas and others favouring a less process-​drive approach. Although ethics and managing ethical dilemmas are a required part of mediation training, these tend to be taught in a kind of ad hoc, case study focused way, without providing a model or guidelines for actually managing real-​time dilemmas in practice. The Inclusive Model attempts to balance the need for consistency and accountability with the critical element of reflection on practice. It is based on four “essential dimensions” of decision-​making and good practice: accountability, critical reflection, cultural sensitivity and consultation. B What does the Inclusive Model provide? The Inclusive Model provides standardisation (consistency) of the decision-​making process and recognises and allows for practitioner intuition in regard [81] to the decision-​making outcome. The Inclusive Model is a structured process framework that can accommodate any kind of ethical dilemma. Mediators are given a concrete series of steps to engage in to make their decision. Practitioners are not directed as to what response, intervention or other step they ought to take. This enables the Inclusive Model to be applied to all mediation process styles, purposes and contexts. Accountability is “the ability of the worker to clearly articulate and justify decisions made, while taking into account the broader social context in which they operate … about being open, transparent and honest”. Accountability is achieved in the Inclusive Model by taking decision making out of the private thoughts of the mediator into the external sphere. The mediator therefore needs to be self-​aware, deliberate and transparent about her or his decisions. Decisions may be revealed to clients, the co-​ mediator, supervisor or community of practice. The Inclusive Model supports practitioners to engage in critical reflection about their ethical decisions by guiding them through a framework of considerations. Critical reflection is about the practitioner “open[ing] up their decision making to scrutiny by self and others in a way that will lead to better future practice”. It involves looking back and asking “what did I do well?”; “what could I have done differently?”; “what have I learnt?”; “what impact did my decision have on the process/​parties/​outcome?” An opportunity for critical reflection is given at each stage of the Inclusive Model (defining the ethical dilemma, mapping legitimacy, gathering information, identifying alternative approaches and action, and critical analysis and evaluation). Cultural sensitivity involves respect for the world views of others, and being mindful of appropriate cultural responses and norms. Therefore, the Inclusive Model is not prescriptive about the responses that a mediator ought to make. Consultation is “using the wisdom and counsel of others wisely and to engage in discussions with others who may assist the practitioner to uphold important values in the interests of integrity and prudence”. In sharing the dilemma with others, the practitioner can benefit from external perspectives and an improved understanding of the issues.

 [14.250]  847

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ETHICAL ISSUES IN PARTICULAR DR CONTEXTS [14.255] Do particular types of cases justify the adoption of higher ethical and practice

standards? In certain circumstances, for example, where the outcome of a dispute resolution process may have a significant impact on vulnerable third parties, there is a strong argument that higher ethical requirements should apply. One area in which this is particularly relevant is family dispute resolution between parents who are making decisions about their children. Family dispute resolution [14.260]  In family law mediation that deals with issues of children’s welfare, the argument

could be made that more rigorous duties apply, particularly when the child is not actually represented at the mediation. In the following extract, Menin considers some ethical challenges particular to family dispute resolution involving children.

The Ethical Challenges in Family-​Centered Divorce Mediation [14.265]  B Menin, “The Party of the Last Part: Ethical and Process Implications for Children in Divorce Mediation?” (2000) 17 Mediation Quarterly 281 at 282-​286. There are four main ethical challenges confronting the divorce mediation process whenever there are children affected: confidentiality, neutrality and impartiality, the impact on parties not at the table and mediator training and qualifications. Confidentiality. The idea of process confidentiality is universally reflected in virtually every set of ethical standards developed by mediators. … Such a standard regarding confidentiality serves several purposes. It reflects the genuine belief that “substance confidentiality” promotes for the parties, trusting negotiation and willingness to share information. Frankly, it also provides some degree of protection for the mediator (and the parties) from having to appear in litigation arising from the issues being mediated. One specific confidentiality-​related concern in divorce mediation is the discovery of information indicating that abuse or neglect involving the children has taken place, or is alleged. No standard yet resolves the possible conflict that a mediator may have as a mandated reporter under other professional ethical standards or state statute. But what of the mediator who is not a mandated reporter? Complicating this matter even further is the potential use, by either or both parties to the mediation, of allegations of neglect or abuse as a means of obtaining strategic advantage. In the struggle to redefine their relationship, separating and divorcing couples may use the children as bargaining chips, intentionally or unintentionally. Neutrality and impartiality. Mediator neutrality and impartiality is another hallmark of the mediation process, also reflected universally in the ethical standards promulgated to date. Divorce mediation confronts each mediator with a pattern of circumstances, allegations, facts, and deeply intimate revelations that may in many ways mirror the life experience of the mediator. Perhaps no other mediation forum is so pervasively personal. This presents a special challenge to the mediator as he or she struggles to maintain neutrality and impartiality. People treating each other badly, the profound sadness of dissolving a relationship, and the inevitable impact on the lives of the children all naturally affect the mediator. In responding to these circumstances as any human being would, the mediator must recognize the possibility of personal bias and seek to prevent any such feelings from manifesting themselves behaviourally. Assessing personal bias on the part of the mediator is not an entirely subjective process. The mediator may allow his or her own feelings to permeate the mediation dialogue subtly and not entirely consciously. Either party, acutely sensitized to its own divorce conflict and possibly making overly broad, gender-​based characterizations (“all men” or “all women”) may recognize, or impute, mediator bias 848 [14.255]

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The Ethical Challenges in Family-​Centered Divorce Mediation cont. where none exists. For that matter, the bias or imputed bias may not be solely gender-​based. It could reflect class, race, or even professional status (“all you lawyers”, or “all you touchy-​feely types”). The terrain of divorce mediation is fraught with potential to affect the reality, or the parties’ perception of mediator neutrality and impartiality. Parties not at the table. For a variety of developmentally appropriate reasons, it is a virtual certainty that the parties most affected by the divorce, the children, will not be at the table. Does the mediator then assume a special role with regard to the children? Precedent for the “mediator with clout” role exists, articulated by Susskind (1981). It remains a controversial subject nearly twenty years after his formulation. A mediator “acting in the public interest” on behalf of clients not at the table, in Susskind’s view, has a right and responsibility to bring to the table issues or perspectives that may not have been identified or addressed by either party but that affect an absent party. Although Susskind suggested that this approach was useful in the field of environmental dispute resolution, application to the process of family mediation is clear. There is growing willingness to consider the utility of this variation on the mediator role. There may be another way to approach the inherent structural problem of ensuring that the children affected by a divorce receive adequate representation without challenging the prevailing model of mediator role and raising neutrality issues. Such an approach changes the bilateral dynamic of the typical divorce mediation into a trilateral, multiparty process –​not unlike the sprawling environmental mediations discussed by Susskind (1981). This is accomplished by adding another party to the mediation process: a child advocate, whose role is simply to raise concerns about the impact of settlement elements on the lives of the children. Doing so encourages a focused, child-​and-​family-​sensitive mediation dynamic. The third party could participate as a sounding board and an advocate whose specific knowledge of the particular child(ren) involved is less important than possessing generic knowledge of child development and family dynamics. Such a participant would provide a child-​sensitive filter to inform and shape the settlement discussions, allowing the mediator to maintain a more traditionally neutral position relative to the parties … Mediator qualifications. Proposing and defining a role that allows (encourages, mandates) a mediator to act on behalf of children raises the issue of mediator qualifications. A divorce mediator needs a clear working understanding of applicable law as it affects property and people. Mediators certainly need to understand the mediation process, and possess some combination of training and experience. What other information is useful? In an expanded role, mediators would raise issues such as the impact of parental conflict on children, and promote creating child-​sensitive co-​parenting agreements. To do this responsibly, they need to possess a clear understanding of childhood development and the impact of divorce-​related issues such as financial and emotional instability and transition on children.

 [14.270]  Menin goes on to suggest that a family-​and child-​centred approach to children’s

mediation, which envisions an activist role for the mediation regarding children’s issues, challenges some of the basic values and assumptions in the field. Thus, for example, the mediator may be perceived to lose neutrality. Litaba considers different ways that FDRPs can develop ethical confidence and awareness at [14.275].

Developing Ethical Practice as a FDRP [14.275]  O Litaba, “Developing Ethical Practice as a Family Dispute Resolution Practitioner” (2013) 24 Australasian Dispute Resolution Journal 36 at 36-​39. [14.275]  849

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Developing Ethical Practice as a FDRP cont. Introduction The professional ethics of family dispute resolution practitioners (FDRPs) are important to the family law process and they are obliged to “uphold reasonable professional standards in the provision of family dispute resolution services”. There is, however, no “role specific” code of ethics, nor a set of conduct rules in place, and an individual FDRP might come from any of an assortment of professions or areas of study. The route to accreditation as an FDRP under the Family Law Act 1975 (Cth) (the Act) requires individuals to have tertiary qualifications in one of social work, psychology, law, conflict management, mediation or dispute resolution (or a relevant field or discipline). Statutory provisions govern some central issues but there is no single place for further, context specific, guidance or support. This article treats the lack of a common code as an opportunity to prompt or enhance interdisciplinary enquiry by canvassing a range of professional resources, and recommending that FDRPs seeking to strengthen their ability to act ethically draw on the strengths and richness of approach of a range of disciplines. [37] As noted above, an FDRP is obliged to “uphold reasonable professional standards in the provision of family dispute resolution services”. So long as the specific obligations set out in the Act and Regulations are met, there is freedom for the practitioner to interpret “reasonable professional standards” in a way that reflects their own background. This is reflected in the outcomes expected from the relevant core unit of study which relate to the ability to: 1.

disclose actual and potential grounds of bias or conflict of interest;

2.

identify and disclose potential grounds of bias or conflict of interest at any time in the process;

3.

avoid conflict of interest and/​or perceived conflicts of interest when recommending other services; and

4.

apply ethical standards to the dispute resolution process.

The performance criteria for the fourth element (the application of ethical standards) indicate that the student must demonstrate that they are able to: 4.1

remind participants of their right to terminate the dispute resolution process if the perceive the practitioner to be partial;

4.2

maintain professional and personal boundaries as a dispute resolution practitioner; and

4.3

adhere to own professional code of ethics when acting as a dispute practitioner.

The reference to the ability to “adhere to own professional code of ethics when practising as a dispute resolution practitioner” ensures that, subject to compliance with the legislative framework, the codes of the various professions are not displaced. It also means that no profession’s code is granted superior status. The phrase “professional code of ethics” as defined in the unit’s range statement “may include but is not limited to social workers, psychologists, lawyers, counsellors, community and welfare workers and dispute resolution practitioners”. … [38] DEVELOPING APPROACHES TO DECISION-​MAKING Rote knowledge of the contents of any code is, of itself, no guarantee of ethical action or decision-​ making. It will be helpful for the FDRP to adopt one or more decision-​making models to provide structure to ethical deliberations and to assist “the process of systematic critical reflection, evaluation and judgement”. An example is the process suggested by Evans and Parker in Inside Lawyers’ Ethics, which provides a structure prompting the practitioner to identify the persons and interests involved in the situation, before identifying, auditing, and examining their own values and the likely or possible consequences of the decision or contemplated action. This model includes a stage at which the practitioner consults the relevant law and codes when forming a view as to appropriate action, thus combining elements of role morality with a broader approach. 850 [14.275]

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Developing Ethical Practice as a FDRP cont. An alternative process is that described in The Ethical Decision-​making Manual for Helping Professionals, which is most useful if a situation can be identified as a potential problem while still in its “potential” phase. This approach includes the need for awareness of “hot zones” that might exist for practitioners as individuals and involves; identifying the ethical standard involved; determining the possible existence of an “ethical trap” (a situation where one poor ethical decision creates or risks the creation of a subsequent, more complex dilemma); considerations to be taken into account when framing a preliminary response; consideration of potential consequences (both short and long term); preparation of a detailed note of a resolution and obtaining feedback before taking action. [39] Familiarity with models such as these will place the … Code in a broad context promoting consideration of ethics as a means of offering the best of oneself to clients, as opposed to a way of avoiding “trouble” or censure. Studying codes that do not formally bind oneself may prompt consideration of how the attributes of a good lawyer, psychologist or social worker will overlap with or vary from those of a good FDRP. An inexperienced FDRP may be less concerned with “what” to do than “how” to go about it. Internal policies, processes and systems in well-​established organisations may minimise the occurrence of the most obvious problems. Supervision, co-​mediation, informal peer group discussion, case conferences, professional development sessions, and access to resources that prompt personal reflection are other ways that organisations can promote or encourage the development of ethical confidence and awareness. Supervision Access to an experienced and thoughtful mentor (or several) for supervision is envisaged as part of the training regime and may continue during practice. Post-​qualification supervision may be more familiar to FDRPs with a psychology or social work background than to those with a legal background. Legal practitioners will have encountered some supervision during training albeit, in most cases, in a less reflective form. The act of debriefing may also do much to enhance the well being of the practitioner. Supervision should not, however, be seen as a panacea for ethical education. Co-​mediation By engaging in co-​mediation, and sharing the role of FDRP between two or more individuals, individual FDRPs and the parties benefit from different professional backgrounds and experiences. Joint discussion of issues (whether with or without the parties present) forces the FDRP to articulate and make explicit the options or potential controversy in a way that might not otherwise be possible. Assistance from a professional body The FDRP working independently or in a small or medium organisation will have a greater need to look outside their organisation for guidance. Registration on the Attorney-​General’s list as an FDRP brings the individual within the Act but does not convey membership of any society or association. The FDRP may choose to join such a group, whether or not allied to a prior professional affiliation. Formal professional development activities Under reg 14(1), all FDRPs are required to undertake at least 24 hours of education, training or professional development in each 24-​month period starting on the day of the person’s accreditation. Informal peer group discussion Discussion of issues with colleagues, with appropriate acknowledgement of confidentiality, may be invaluable. Personal reflection The attempt to become a “reflective practitioner” is a noted route to personal development in a range of professional fields; a means of self-​improvement and gaining increased satisfaction from practice. [14.275]  851

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Developing Ethical Practice as a FDRP cont. Of particular value in prompting personal reflection in this context is Fisher and Brandon’s Mediating with Families, a text aimed specifically at this professional group. Such reflection may also lead to the use of mindfulness both to help in managing conflict and to enhance the FDRP’s ability to perform at their best. CODES OF ETHICS AND ASSOCIATED RESOURCES There are a variety of codes of “ethics” or “conduct” and related resources. Each discipline will have its dominant approaches and attitudes and comparisons show that aspects of the “rules” across disciplines reveal different assumptions and varied conceptions of what may seem to be similar roles. Consideration of the expectations of the “other” professions may prompt a deeper level of reflection than might arise through study of codes with which the FDRP is already familiar. It is not suggested that any attempt should be made to blend the codes into a standardised document. As indicated by Bond (in a different context), the aim is not to enable the FDRP to ask “is it allowed?”; rather, the more demanding question is “What ought I to do?” It may be easier to adopt this mindset when seeking support and assistance from sources which are not actually binding on the FDRP as a member of a particular profession. This article looks at four broad areas: social work, psychology, law, and dispute resolution.

 [14.280]  Ethical challenges involving vulnerable third parties are not, of course, confined to

the family law sphere. Similar considerations could arise in the context of environmental law, or other public policy issues. Evaluative and advisory processes [14.285]  A number of ethical issues also arise in the context of evaluative and advisory dis-

pute resolution processes such as evaluative mediation, conciliation or arbitration. One of the main ethical issues is the potential conflict between the dispute resolution practitioner as an impartial third party and the impact of giving advice or making a decision that is detrimental to one party over another. This is the position of evaluative mediation which is most often adopted by practitioners in court-​connected mediation schemes. The essential problem with evaluative mediation is that giving advice has both substantive and procedural implications. From the substantive perspective, the issue is: what gives the mediator the right or privilege to give advice or to evaluate the content of the parties’ dispute? In evaluative mediation more often than not the mediator is expressly chosen or appointed because of his or her substantive expertise. If the substantive expertise is in law or in some other professional or expert area, the mediator comes to the process with the skill and expertise of giving professional advice and is insured against liabilities arising out of the giving of that advice. Perhaps the more challenging perspective is, in fact, the procedural one. How does the giving of advice impact on what is still supposed to be a facilitative and consensual process? These are some of the issues discussed in the extract at [14.290].

The Ethics of Mediation Evaluation [14.290]  H Stark, “The Ethics of Mediation Evaluation: Some Troublesome Questions and Tentative Proposals from an Evaluative Lawyer Mediator” (1997) 38 South Texas Law Review 769 at 771-​799. 852 [14.280]

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The Ethics of Mediation Evaluation cont. I believe that the most difficult ethical issues posed by mediation evaluation are caused by the tendency of evaluative [772] mediators to give the parties “stunted” legal advice: advice about the weaknesses of their cases but (sometimes) not the strengths; advice about the “four corners” of the parties’ complaint and answer, but not about how each party could strengthen his or her legal position; advice designed to bring the parties closer together, not push them further apart. This sort of incomplete and potentially misleading advice-​giving is understandable given mediators’ desire to reduce tension and conflict, avoid the appearance of bias, and promote settlement. But it undermines what I take to be the principal purpose of evaluation in mediation: promoting the parties’ self-​determination through informed consent. If a mediator decides to evaluate, I argue that he or she ought to be required to provide the parties with information sufficient for them to make reasonably informed decisions about their rights and responsibilities. But even this modest proposal is problematic, as will be seen. Reasons Not to Evaluate (And the Counter-​Arguments) 1.

Argument: Mediation is an alternative to litigation and a regime of legal rules that as often as not are restricting, irrational and/​or unsuited to the needs of the parties. Mediation can, and should, exist without law.



Counter-​Argument: Most people with legal disputes want and expect that legal rules will be treated as relevant to, if not determinative of, their dispute. The alternative is a radical, lawless, and ultimately self-​destructive view of the mediation process.

2.

Argument: The highest goal of mediation is party autonomy and self-​determination. Evaluative interventions by the mediator diminish the decision-​making responsibility of the parties and thereby undermine self-​determination. [776]



Counter-​Argument: Legal evaluation affirmatively facilitates the goal of party self-​determination. Indeed, meaningful self-​determination is not possible without adequate legal information.

3.

Argument: Evaluation undermines the facilitative nature of mediation by overemphasizing law to the exclusion of the disputants’ own values, ownership of the process, creative problem-​ solving, etc. Evaluation encourages argumentation and confrontation, rather than collaboration and compromise.



Counter-​Argument: Evaluation can be used in support of facilitation by helping disputants assess their legal “bargaining chips” and enabling them to trade these off against other, nonlegal values. In addition, sharing knowledge of the law can often assist the parties in “expanding the pie,” improving the potential for integrative solutions.

4.

Argument: Evaluation undermines mediator neutrality, because it will appear to the parties that the evaluative mediator is committed to a particular substantive outcome, dictated by law.



Counter-​Argument: Providing information and advice is not the same thing as being committed to a particular outcome, and a competent evaluator can readily make this distinction clear. [777]

5.

Argument: Evaluation undermines the appearance of mediator impartiality, because each item of information the mediator provides, by definition, favors one disputant at the expense of another.



Counter-​Argument: In most legal disputes, there will be strengths and weaknesses to each party’s position. The evaluative mediator can enhance both parties’ knowledge of the strengths and weaknesses of their claims, without necessarily appearing to be a proponent for one side over the other.

6.

Argument: It is better that each party in a dispute obtain an evaluation of the legal merits of his or her claim by an independent legal representative, rather than relying on the legal advice of a mediator.



Counter-​Argument: For many poor and middle income persons with legal disputes in this country, the ideal of independent legal representation is a cruel illusion. Even where parties can [14.290]  853

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The Ethics of Mediation Evaluation cont. afford independent legal representation, rules that prohibit mediator evaluation and require consultation with separate counsel add unnecessary expense and delay to the dispute resolution process. 7.

Argument: Mediators cannot personally ensure that each party makes fully informed decisions.



Counter-​Argument: Decisions can never be “fully informed,” in the sense of being made on the basis of perfect or complete knowledge. The fact that the mediators may not have full knowledge of the case and may not be able to ensure complete parity of legal knowledge [778] as between the parties are hardly justifications for providing the parties no relevant information at all.

8.

Argument: Legal evaluation in mediation constitutes the practice of law, giving rise to special duties and obligations. Few ethical standards now exist for mediator evaluation, and therefore there are accountability problems when mediators provide incompetent advice.



Counter-​Argument: Legal evaluation in mediation may implicate the practice of law, but does not constitute it. In any event, standards for legal evaluation in mediation could be enacted and the accountability problem resolved.

9.

Argument: Most present-​day mediators are not lawyers. Recognition of a legal evaluation role for mediators will lead to domination by lawyer mediators, driving out of the market many qualified nonlawyer mediators.



Counter-​Argument: This is an argument about turf, not ethics. In point of fact, lawyer mediators often do have special knowledge and expertise that disputants wish to utilize. [779]

10.

Argument: It is desirable clearly to distinguish mediation, which should be purely facilitative, from other forms of alternative dispute resolution (“ADR”), such as early neutral evaluation. Giving these processes separate labels will avoid confusion in the marketplace, enabling attorneys and disputants to know exactly what to expect from each process.



Counter-​Argument: A full array of ADR options is not available to litigants in every jurisdiction in every kind of case. Even if it were, permitting mediators the flexibility to use both facilitative and evaluative techniques as appropriate is more efficient and less costly for litigants.

Presenting the arguments in this kind of point-​counterpoint format underscores (perhaps overemphasizes) the polarized –​and, to my mind, somewhat unhelpful –​nature of the debate. More or less evaluation will be more or less productive and appropriate depending on a complex variety of disputant, dispute, forum, and mediator characteristics. Still, if I must choose one pole or the other, I choose evaluation, at least in contexts like the one I have described. I want to begin by examining two distinctions that are sometimes drawn –​the distinction between providing “information” and “advice,” and the distinction between “making statements” and “asking questions” –​that do not seem to me useful in understanding the ethics of mediation evaluation. In these sections I will focus on the conduct of the student mediators. A. The (Mostly) False Dichotomy between Information and Advice A number of commentators and codes of ethics have taken the position that it is appropriate for mediators to provide legal “information” but not to give legal “advice”. For lawyer mediators, of course, [785] this distinction serves little useful purpose; it is lawyers’ professional stock-​in-​trade to give legal advice. But even for nonlawyer mediators, wishing to avoid the specter of unauthorized practice of law, the distinction is not a helpful one. Some would say that it is the application of general legal principles to the facts of the particular case that distinguishes (permissible) information from (impermissible) advice. But this distinction quickly breaks down in the hurly-​burly of mediation. A similar point can be made about [proceeding] from a somewhat general advisory statement [“You have considerable risk here. The case is a swearing contest”.], to a description of a possible method by which the [party in the mediation] can determine the settlement value of her own case. When she 854 [14.290]

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The Ethics of Mediation Evaluation cont. seems unable or unwilling to evaluate her own case [“I’m really confused. What do you think?”], the [mediators] provide their own opinion and recommend for her consideration a possible settlement figure. Nevertheless, even their first statement has aspects of opinion and recommendation in it. The statement is intended to advise the [party] that her chances of winning the case are little better than her chances of losing, and that therefore it would be rational for her to settle at considerably less than the face value of her claim. The [mediators’] advice becomes more specific only because the [party] seems both to need and want more concrete, more explicit assistance. Some disputants will require more explicit information in order to understand their legal position; others will require less. But if mediator evaluation is proper at all, it is proper, at least in part, because we believe that it is important that disputants exercise informed consent in the resolution of their legal disputes. And if the principle of informed consent is important, the ethics of the mediator’s intervention cannot sensibly be made to turn on the relative explicitness or lack of explicitness of the mediator’s information and advice. So long as mediators are competent to do so, they must be given the flexibility to provide explicit information to disputants who need and want it. B. Questions vs Statements Commentators who espouse a theory of non-​evaluative mediation sometimes argue that it is inappropriate for mediators to make statements to the disputants about the strengths and weaknesses of their cases, but appropriate to ask them questions. This distinction appears to rest on the view that directive statements by the mediator about case value will weaken the facilitative process, undermining the parties’ self-​determination. As a description of different mediator styles and orientations, the distinction has value. As an ethical principle, it is problematic … [How] simple it is for mediators, if they wish, to provide information and evaluation by their indirect hints and questions. When disputants are armed with legal knowledge and are able dispassionately to evaluate the strengths and weaknesses of their [788] own claims, there is little need for the mediator to do anything except ask the parties questions and assist them in developing their own proposals. But such instances will be comparatively rare. Disputants frequently come to the mediation table unrepresented or underrepresented. Even when they are well represented, they will likely approach the mediation process with “optimistic overconfidence” about the righteousness of their positions and the strength of their claims. A skilled mediator can dampen that overconfidence by exposing the parties to the reactions of disinterested parties apprised of the essential facts of the case. Whether this is done primarily by asking questions or by making statements seems less a matter of ethics than style. In many mediation contexts, questioning is little more than evaluation by Socratic dialogue. C. Representational vs Mediation Advice The representative lawyer, particularly in litigation, provides legal information and advice designed to help her client, if she wishes it, to maximize her goals and objectives vis-​a-​vis her adversary. (How can I best vindicate my claims? How can I best defend myself against my opponent’s claims? What legal information will help me rebut my [789] opponent’s arguments and enhance my own?) To be sure, an effective representative lawyer also helps her client balance these legal rights against her other social, psychological, and economic interests. Sometimes, a representative lawyer will work with her client to integrate the client’s goals with the goals of adversaries and third parties. But the client’s decision to “sacrifice” legal rights should, ideally, always be informed by knowledge of the maximum achievable legal results –​knowledge provided by the representative lawyer. By contrast, the evaluative mediator is not an information maximizer. The mediator’s advice to disputants is hedged by two significant constraints. First, the mediator must be concerned about maintaining the appearance of impartiality as between the parties. As Marjorie Corman Aaron has noted, an honest evaluation on the merits that is “too good” for one side risks entrenchment or retrenchment, especially when the mediator’s evaluation contradicts a party’s own preexisting view of his or her case. The more one-​sided the information –​the more it enhances one party’s position at the expense of the other –​the more potentially explosive it becomes. At some point the mediator may be reluctant to provide it. [14.290]  855

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The Ethics of Mediation Evaluation cont. But there is another, even more powerful constraint that stunts the advice of evaluative mediators, and it is this: evaluative mediators provide disputants information and advice primarily in order to help them integrate and/​or compromise their competing claims. The overwhelming ethos of the mediation profession is to reduce tension, improve communication, bring parties closer together and, if possible, to resolve their disputes. Collaboration and compromise, not competition, are the watchwords of the mediation movement. As a consequence, [790] mediators are loathe to provide legal information that widens the gap between the parties or that raises tensions and stiffens resistance to settlement. Information that instructs by pointing out the risks and weaknesses in each party’s position (thereby bringing them closer together) is cheerfully provided by mediators. Information that instructs but exacerbates difference is quite likely to be withheld. This case poses especially difficult ethical problems for the evaluative mediator because in a situation of this kind, she appears to face a trilemma. First, she owes a duty of impartiality to each party, and her concern about the appearance of partisanship may constrain the type of advice she is likely to give. Second, she may feel a professional or programmatic obligation to bring the parties closer together, reduce tension, and, if possible, resolve their dispute –​imperatives that also substantially limit her advice-​giving. On the other hand, she [p 792] believes she owes a duty of fairness and good faith towards each of the parties in her evaluation; indeed, she evaluates in the first instance, in large part, because she believes in the importance of party empowerment and informed consent. Providing anything less than maximum information is therefore uncomfortable for her, and her ethical conundrum becomes especially acute when less than complete information has the capacity to mislead. As James Boskey has argued, “an agreement is not truly voluntary if it is based on a factual misunderstanding (including a misunderstanding about governing law) that the mediator had an opportunity to correct but did not”. Conclusion Where does this leave us? The problems I have tried to address are obviously very difficult. I am not certain that the proposals I suggest are workable. In truth, I am not even confident that I will always have the courage to follow my principles in my own mediations… But principle does lead me to these (uncomfortable) conclusions. In cases where the parties want to make reference to legal norms as a partial or exclusive basis for resolving their dispute, it seems appropriate that the mediator should have a duty to take steps to ensure that the parties’ decisions are reasonably well informed. If the parties wish the mediator to provide them legal information and advice, and if the mediator is competent to do so, I can conceive of no good reason to prohibit the mediator from engaging in evaluative activity. Nor, as I’ve tried to demonstrate, is there any good basis for distinguishing, in advance, different modes of evaluative conduct as “appropriate” or “inappropriate”; a wide variety of types of information and advice-​giving may be proper, depending on circumstances and party needs. If the mediator decides to evaluate, however, the mediator’s duty must be to try to ensure that the mediation participants make decisions [799] based on information sufficiently complete so that the parties are not materially misled about their rights and responsibilities. This information ought to be provided without regard for its effect on the prospects for settlement or the appearance of mediator partisanship. Before evaluating, the mediator ought to be required to explain in some detail the nature and limitations of mediation evaluation and its possible effects on the litigation process, so that the litigants can make an informed choice about whether they desire the mediator’s evaluation. Stated differently, any standard of conduct that recognizes a role for legal evaluation in mediation ought to make clear that evaluation is useful and proper chiefly because it fosters informed consent and party self-​determination, and that these values take precedence over other competing values. As the Joint Standards recognize, self-​determination is the most fundamental principle of mediation. Self-​determination without knowledge is not deserving of the name.

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[14.295]  Stark identifies (at [14.290]) some of the competing and conflicting values that arise

in evaluative mediation, for example, promoting conflict reduction and settlement, avoiding conduct that favours one side over the other, and fostering empowerment through informed consent. He also questions whether there are unstated goals which also influence the decisions that need to be made in these contexts, for instance the mediator’s desire to settle cases and to be effective. Stark asserts strongly that the desire to settle should never get in the way of an evaluative mediator providing legal information and advice reasonably necessary for the parties to understand their rights and responsibilities, even if such information decreases the chances of resolving the dispute. Likewise, the evaluative mediator must provide the parties with material legal information and advice even if doing so undermines the appearance of his or her impartiality. In the following extract, Della Noce considers some of the criticisms of evaluative mediation. She concedes, however, that it is commonly practised, and considers whether there should be competency standards for evaluative mediation, and what they might include.

Evaluative Mediation: In Search of Practice Competencies [14.300]  D Della Noce, “Evaluative Mediation: In Search of Practice Competencies” (2009) 27(2) Conflict Resolution Quarterly 193-​214 at 194-​196, 207-​208. The Seeds of Curiosity It has become common in the mediation field to categorize the diversity of approaches to practice using just the “big three”: facilitative, evaluative, and transformative mediation … Riskin defines evaluative mediation as a process in which the mediator assesses the strengths and weaknesses of a legal position, or predicts likely outcomes in court, and thereby “directs[s]‌some or all of the outcomes of the mediation” (1996, pp 23–​24; Riskin, 2003, p 12). Lowry describes it as a process in which the mediator “makes assessments about the conflict as well as its resolution and communicate[s] those assessments to the parties”, with a focus on analyzing the substantive content of the dispute and offering whatever judgments about the content that are seen as useful to achieving a settlement (2004). Riskin and Lowry share the view that evaluative mediators take an interest in both the content and the process of the dispute, and they use case assessment to exert a considerable degree of influence over both in pursuit of settlement. [195] … Like others in the field, I have long been skeptical of evaluative mediation, owing to the inherent threat it presents to party autonomy and self determination (see, eg, Aaron, 1996; Alfini, 2008; Kovach and Love, 1996, 1998; Levin, 2001; Love, 1997). But I have to admit this was more an intuitive reaction; I do not practice this approach and have not devoted much attention to actually studying it prior to this project. But several recent events have forced the subject into my thoughts, and me into the library. I share these events here to give context for my analysis. First, I recently completed a research study on the communicative value of mediator profiles posted on a public mediator roster in a large court system (Della Noce, 2008). … What I discovered in this study was that 62% of the mediators in the sample claimed to practice evaluative mediation, either alone or in combination with one or both of the other two approaches. I also observed that, when the approaches they claimed by checking the available boxes were compared to the results of coding the language in their narratives, mediators often poorly or even incorrectly described their preferred approach(es). That is, the narrative descriptions supplied by many mediators were inconsistent with, or blatantly contrary to, the approaches they claimed to use by checking the boxes of their choice. (Compare Charkoudian, De Ritis, Buck, and Wilson, 2009, for a similar finding of inconsistencies between how mediators claimed to practice and what they named those practices.) I also noted that the mediators’ narratives were more likely to foster confusion in the public about the nature of mediation than to reduce or eliminate confusion. [14.300]  857

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Evaluative Mediation: In Search of Practice Competencies cont. [196] For example, mediators obscured or minimized the differences between law practice and mediation, as well as the differences among approaches to mediation practice, and positioned themselves as easily moving in and out of the various approaches and able to pick and choose techniques from each at will. Ultimately, many of the mediators positioned themselves as the experts in both process and content who could (and would) select the right work style at the right moment in order to move the parties toward settlement. What the study did not, and could not, reveal was what these mediators actually did in the mediation room to promote movement toward settlement, or if they did it well. I was left questioning what exactly mediators in this program did for and to the parties in the name of mediation. … [207] … these are the competencies that should be expected of evaluative mediators: • Prior to mediation • Require the parties to submit briefs to the mediator prior to mediation. • Require the parties to disclose the current negotiating range in their briefs (the last best offer and demand). • Read the briefs of the parties prior to mediation. [208] • The initial joint session • Hold the initial session jointly. • Communicate with the lawyers rather than the parties. • Enforce a ground rule that parties speak without interruption from the opposing party during the initial joint session. • Ask questions during the initial joint session to gather information and clarify issues raised in the parties’ briefs. • Display neutrality towards both parties during the initial joint session. • Avoid giving any evaluation or assessment of either party’s case while in the joint session. • End the joint session and move to separate caucuses. • In caucus sessions • Remain in caucus, and keep the parties apart, until settlement is reached. • Prevent parties from talking directly to one another. • Communicate with the lawyers rather than the parties. • Insist on reasonable initial offers and demands. • Formulate an evaluation that falls within the parties’ negotiating range, between the last best offer and demand. • Use “legal language” to deliver the evaluation, enhance its credibility, and persuade parties to make concessions: the language of legal precedent, experience in the courtroom, jury verdict trends, and experience with local people, practice, and procedures. • Conduct positional or distributive bargaining. • Encourage concessions that move towards settlement. • Discourage or forbid backtracking from previous offers or demands. • Structure persuasive arguments to yield concessions. • Undermine each party’s confidence in the merits of his or her own case. • Offer only negative evaluations of the case of the party in the caucus room. • Act as devil’s advocate. • Offer only positive evaluations of the opposing party’s case. 858 [14.300]

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Evaluative Mediation: In Search of Practice Competencies cont. • Interpret precedent and local practice unfavorably for the case of the party in the room. • Interpret precedent and local practice favorably for the opposing party’s case. • Predict an adverse outcome of litigation for the party in the room. • Predict a favorable outcome of litigation for the opposing party. [p 209] • Impress parties with the costs and risks of litigation. • Extract a concession before leaving the caucus room for every new round of bargaining. • Control the flow of information between caucus rooms. • Share information between the parties selectively. • Final joint session • If a final joint session is held at all, use it only to finalize the settlement.

 [14.305]  As seen in the last two extracts, while ethical practice of evaluative mediation may

be challenged, the importance of ensuring parties have relevant information in a mediation cannot be overemphasised. In the next extract, Waldman and Akin Ojelabi discuss how various ethical codes address the tension between self-​determination and fairness of outcomes. They discuss an approach in which the mediator acts as a safety net for just outcomes.

Mediators and Substantive Justice [14.310]  E Waldman and L Akin Ojelabi, “Mediators and Substantive Justice: A View from Rawls’ Original Position” (2016) 30(3) Ohio State Journal on Dispute Resolution 391 at 411-​427. … It is obvious that the codes we have surveyed tend to follow a similar path. They place party autonomy at the center of the process. They state that mediation should aim toward agreements that reflect the parties’ voluntary and informed consent, but are vague as to how the parties are to obtain the information that would render their consent truly informed. They suggest that mediators should urge parties to get the information they need from outside parties. If the parties choose not to do so, the codes provide a pathway for those mediators inclined to provide information themselves. However, the codes offer several cautions and make clear that a mediator who provides information does so at his or her own peril. If the mediator veers toward the provision of information so specific it could be interpreted as advice, then that practitioner has stepped over the line. C. Procedural and Substantive Justice Virtually every mediation code in existence, including the ones surveyed here, pay obeisance to the requisites of procedural justice. Affording parties equal time to speak and to be heard and treating parties with respect are standard fixtures in most mediation codes and align with the common mediation view that, if sufficient attention is paid to process, the resulting agreement will be substantively fair. Some mediation codes, however, adopt a somewhat paradoxical stance. They emphasize procedural justice and caution against excessive mediator influence. Yet, almost as a backdoor gesture, these same codes ask the mediator to be the last backstop against errant substantive injustice. While issuing no definite injunction, they allow the mediator to terminate the process if one party acts unconscionably or if an unconscionable agreement appears likely. Thus, while code authors are concerned that mediators not dominate or usurp party discussions, they remain uncomfortable with the threat that power imbalances, or other antecedent inequities, will turn the mediation setting into one of exploitation and abuse. [417] … Codes that do address the fairness of the mediation outcome do so in the context of terminating the mediation agreement. Some codes require the mediator to terminate the process if the [14.310]  859

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Mediators and Substantive Justice cont. resulting agreement is illegal, unfair, or unconscionable. Others simply raise termination as an option that remains at the mediator’s discretion. These termination provisions suggest that the mediator can, and in some instances should, subject the proposed agreement to an assessment based on criteria that differ from the parties’ own preferences. [418] We applaud these provisions. We think that they represent a positive development in the evolution of mediation’s ethical canon. Nevertheless, the provisions also reveal a central tension within the codes. If a mediator’s only ethical responsibility is to respect party autonomy and remain impartial, then, arguably, the mediator should not be assessing the fairness, legality, or unconscionability of the parties’ proposed agreement. What these termination provisions acknowledge is that sometimes mediation negotiations can lead to harmful or exploitative outcomes and that the mediator should be on the lookout for these disturbing outcomes, work to modify them, or seek to disassociate from them. Not every code contains these termination agreements, but those that do suggest a more layered and complex set of responsibilities for the mediator than do codes that focus exclusively on procedural fairness to the exclusion of other concerns. Although self-​determination or party autonomy is a fundamental value of facilitative mediation, the codes, to cater for circumstances that may lead to unjust outcomes, are shifting from complete reification of self-​determination to an acknowledgement that the mediator may have a role to play in protecting against gross exploitation or unfairness. The critiques that have dogged mediation from its earliest days acknowledge the threat that power imbalances and systematic inequities pose to a quality process. That literature of critique confronts directly what some mediation ethics codes hint at covertly –​that the mediator has a role to play in ensuring that mediation agreements meet some sort of minimal threshold of justice –​both for each party and for affected parties outside the mediation room. In our view, existing codes should formally recognize that self-​determination and party autonomy are crucial, but not the single ethical basis for mediator’s conduct. … we argue that shifting from a purely Kantian to a Rawlsian view of justice helps clarify and support our argument that substantive justice can and should become part of the mediation ethics canon. [419] IV. A RAWLSIAN APPROACH TO MEDIATION ETHICS … Rawls’ theory is crucially concerned with the appropriate division of social advantages and is devised to answer the question: [H]‌ow do we arrive at a just allocation of social goods in the face of competing claims? Rawls suggests that the answer can be arrived at procedurally by devising a social contract that members enter into while situated in what Rawls terms “the original position” operating behind the “veil of ignorance”. The original position, it must be understood, is not an actual status or ranking in society. It is instead a “purely hypothetical situation characterized so as to lead to a certain conception of justice”. Operating behind a veil of ignorance, individuals in this position have no idea what status they occupy in society. They are ignorant of their social class, gender, and educational level. They do not know if they are born into affluence or poverty, if their dad is a janitor or hedge fund partner, if they are handsome or homely, able-​bodied or disabled. Indeed, in the original position, people are unaware of their strengths and weakness. They are unaware of “[their] conception of the good … the special features of [their] psychology such as … aversion to risk or liability to optimism or pessimism”. The parties, however, are aware of “the circumstances of justice and whatever this implies”. These circumstances are those in which a moderate scarcity of resources exists warranting redistribution to everyone’s advantage. [420] Rawls assumes that the individuals placed behind the veil of ignorance are rational, self-​ interested decision makers. That is, all things being equal, Rawls’ decision-​makers “would prefer more primary social goods rather than less. [They would] … seek to protect their liberties, widen their opportunities … and enlarge their means for promoting their aims, whatever they are”. However, standing in the original position with no knowledge of where they are situated in the social hierarchy, these individuals have every incentive to devise rules of engagement that are mutually beneficial to all 860 [14.310]

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Mediators and Substantive Justice cont. ages, genders, socioeconomic classes, cultures, and ethnicities since it is unclear to which community, class, or affiliation they will belong. Working with this construct, Rawls hypothesized that decision-​ makers would cooperatively embrace the “difference principle”, a distributive principle that “social and economic inequalities are to be arranged so that they are … to the greatest benefit of the least advantaged”. It is important to recognize that Rawls was bent on pursuing an object quite different from the construction of ethical standards in mediation. Rawls was interested in defending a theory of social governance and devising methods for the distribution of social advantages under conditions of moderate scarcity. He was concerned with societal institutions writ large, not with how individuals work out their disputes in private settings. Nonetheless, to the degree that Rawls sought to identify a method that would yield a just ordering of social institutions, his ideas can be usefully transposed to the project of identifying which set of ethical mandates will yield just outcomes in mediation. Let us place a mediation party in the original position for a moment and wrap her in the veil of ignorance. She does not know her status in society. She does not know the nature of her dispute. She does not know whether she has the money or practical understanding to hire a legal representative. She does not know whether she is articulate or nearly mute, assertive or shy, in perfect mental health or suffering from trauma. She does not know with whom she is disputing, whether it is another individual or a large corporation. She does not know the extent of the resources the other party brings to bear on the mediation and she does not know whether the other side [421] is telling the truth, operating in good faith, or using the mediation process for unscrupulous ends. While secluded from any information about her personal circumstances that might bias her answer, we then ask the following: What sort of ethical responsibility do you think your mediator should assume when considering questions of justice? You have choices. You could limit your mediator’s responsibilities to matters of procedure. That would mean that the mediator would have a responsibility for ensuring that you and your representatives have many opportunities to speak and be heard. Additionally, the mediator would have the responsibility to conduct the mediation with impartiality, favoring neither you nor your adversary and treating each of you with consideration and respect. If the mediator felt that you did not understand the goals and methods of the mediation process or the issues under discussion, she would be required to halt or terminate the discussion. In a purely procedural conception of justice, this would be the extent of the mediator’s responsibilities. Alternatively, you could impose upon the mediator an additional obligation. You could include within the mediator’s ethical code an obligation to attend to the substantive fairness of the resulting agreement. You could make this requirement as stringent or as elastic as you like. You could specify simply that the mediation agreement should avoid terms that could be characterized as unconscionable, exploitative, or abusive to one or more parties. Alternatively, you could prohibit the mediator from assessing the substantive fairness of the mediation agreement in any way and include this prohibition in ethical codes of conduct. Your choice. What choice would you make if you did not know what internal capabilities or external resources you could bring to the mediation process? What choice would you make if you thought it possible that you might be the weakest party in the room? Would you be confident that the procedural protections embedded in most mediation ethics codes would be sufficient to protect your interests or would you want the mediator to be sensitized to the possibilities of substantive justice and ethically authorized to raise substantive justice concerns if the circumstances warrant? One can be certain that parties in the original position would be influenced by their circumstances to choose principles that will lead to everyone’s advantage since each party would be ignorant about “his place in society, his class, position or social status … his fortune in the distribution of natural assets and abilities, his intelligence and strength”. The parties would choose principles that will benefit the vulnerable. The parties would [422] consider that if they happened to be affluent, powerful parties, they would be in a position to obtain the best outcome from the process and any alternative processes. If, on the other hand, they turned out to be the vulnerable, they would hope for some [14.310]  861

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Mediators and Substantive Justice cont. assistance from the mediator and would urge the adoption of ethical codes that allow mediators latitude to intervene to prevent unjust outcomes. Knowing that legal rights are safeguards for ensuring justice, parties in the original position would want to ensure those safeguards are promoted in mediation processes. This way, parties can be assured they would not be denied important legal rights in mediation. It is our view that the more disadvantaged party would likely prefer to participate in a process where the mediator is charged with ensuring not simply fair procedures, but some basic minimal standard of substantive fairness. We believe that this charge would provide assurance to parties who feel unconfident, either in their own negotiation capacities or in the competence of counsel, if they are fortunate enough to be able to access representation. In taking this position, we are well aware of the counterarguments likely to be advanced by “pure proceduralists”. We address these in turn. A. How can a mediator assess substantive justice when justice has no enduring content and represents mere subjective preferences? The first likely response, emanating from the postmodernist camp, would be that expecting a mediator to assess substantive justice is incoherent because no absolute, stable notion of justice exists. Concepts of justice simply reflect subjective preference, and there is no justification for imposing a mediator’s subjective preference on the parties. We have two responses to that objection. First, we acknowledge that concepts of what constitutes just treatment can vary with the individual. However, at more general levels, we believe that it is not difficult to gain consensus as to what constitutes an agreement so unbalanced that it should not be concluded under mediation’s auspices … [423] we are proposing that the mediator remain alert to those few situations where a power imbalance in the mediation has led to a truly shocking and insupportable result. Acknowledging that cultural, political, and ideological commitments complicate efforts to identify content-​full notions of justice to which we all subscribe, we are setting the bar for the mediator exceedingly low. We suggest the mediator disassociate herself from –​and seek to dissuade the parties from binding themselves to –​agreements that are unconscionable, that is, agreements that are so one-​sided and unfair that they shock the conscience. By doing so, we believe the postmodern critique of justice’s indeterminacy loses much of its power. B. How can a mediator assess substantive justice when they lack the necessary expertise to do so? This objection differs from the previous one. It assumes that there may be standards of justice to which we all might subscribe but posits that the mediator is ill-​situated to determine how that standard should be applied in the dispute at hand. The mediator, it is argued, is ill-​suited for two reasons. First, the mediator has no particular access to the standards as embodied in legal norms, governmental ruling, or the teachings of particular disciplines, such as engineering, psychology, or otherwise. The mediator is a process expert, not a subject matter expert. If the case involves intellectual property, child psychology, collective bargaining agreements, bridge engineering, or landlord-​tenant law, the mediator is likely a generalist and not equipped to determine which rule, law, principle, or contractual provision should govern. Second, the mediator has insufficient access to the facts of the dispute such that she could make a reliable determination as to how the relevant standards apply in the parties’ particular context. After all, many mediators receive no pre-​mediation submissions, so all they know about the dispute is what the parties or their representatives reveal during the initial opening statement. There is nothing to prevent parties from selectively omitting unhelpful facts, and there is ample anecdotal evidence that parties do precisely that. So what will be required of the mediator who is concerned about substantive justice? To answer this question, it is important to consider what this mediator is not being asked to do. The mediator is not being asked to wear a lawyer or a judge’s hat; she is not expected to be knowledgeable about every discipline, trade, or subject matter. She is not being asked to steer parties to a particular outcome. Our argument assumes the desirability of leaving to the parties the choice of the precise terms and conditions of settlement. What we are asking is that the mediator be prepared to serve as [424] the 862 [14.310]

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Mediators and Substantive Justice cont. last backstop against unfairness. What this means is that when the parties are moving toward a truly shocking outcome (which should be apparent to even the mediator who is neither an expert on the facts or law relating to the dispute), the mediator is prepared to raise with both the empowered and disempowered parties her concern with the possible negative effects that such an agreement might generate. In other words, where a conflict might resolve in one hundred possible ways, and ten of those possibilities would be unfair and exploitative for one of the parties, we would argue that the mediator should bring this to the attention of the parties. The mediator need not be an expert in either the law or the facts to identify the small percentage of options that fall beyond the pale. C. How can a mediator, bound by the profession’s codes and best practices to be impartial, have any obligations for outcome fairness? A mediator who withholds her imprimatur from unconscionable arrangements will either be pushing the parties to consider less unbalanced terms or withdrawing in the face of seriously inequitable agreements. Either way, the mediator will be benefitting the party who would otherwise be binding herself to an agreement seriously skewed against her and withdrawing a benefit from the party who would gain from the imbalance. Won’t this behaviour violate the mediator’s duty of impartiality? We think the only honest answer to this response is, “Yes”. Advocating against extremely one-​sided agreements or those that pose serious risks to absent third parties does require the mediator to stray from a stance of formal impartiality. If impartiality entails the absence of bias or partiality, not [425] only with regard to the parties but with regard to outcomes, then resisting unconscionable outcomes obviously compromises this stance. This is the cost of asking the mediator to guard against unjust outcomes. We think, though, that if the mediator approaches this task with humility, conscientiousness, and discretion, that the cost will be a small one. Those who object to tasking the mediator with responsibility for minimal levels of outcome fairness imagine a highly interventionist mediator aggressively inserting him or herself into the parties’ negotiations to shape an outcome that corresponds with his or her own unique vision of justice. But, mediators can work to avoid grossly unfair outcomes without unduly intruding on the parties’ own negotiations … the mediator will be sensitive to the possibility that the parties’ idiosyncratic needs and interests may be influencing the decision to deviate from an agreement that more closely tracks expected legal outcomes. After discussing the advantages and disadvantages of approaches that more traditionally incorporate social or legal norms with parties, the mediator will, in the great majority of circumstances, concur with the parties’ choices. It is only when the mediator suspects that one party has not adequately considered the long-​term effect of the agreement on his or her best interests, or the outcome poses serious risks to absent stakeholders, that our mediator will continue as a dissenting voice and consider withdrawing from the mediation. [426] D. If your Rawlsian mediator is not telling the parties what is fair and what to do, how does your mediator differ from standard conceptions of the mediator role that task the mediator with responsibility for process fairness alone? Perhaps the real difference between the functions of the Rawlsian mediator and standard conceptions is that the Rawlsian mediator functions more deliberately as a consciousness-​raiser and a safety net. The Rawlsian mediator would begin her entry into the process consciously raising the parties’ awareness about the importance of substantive justice in the mediation process. This discussion would begin in pre-​mediation sessions. The mediator would emphasize that ensuring procedural justice falls squarely within the mediator’s expertise and charge but that identifying what is substantively fair will require the parties to think deeply about their own values and that it is their responsibility to take steps to achieve fairness during negotiations. The Rawlsian mediator will reiterate the standard mediation script that the mediator is not responsible for determining who is right or wrong, who behaved well or badly, or how things should be made right. The mediator will point out, however, that the mediation process does strive toward just outcomes and that the parties will be called upon to formulate [14.310]  863

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Mediators and Substantive Justice cont. standards by which they, as individuals, would assess fairness. The standards may include legal, trade, professional, or individually devised criteria, whatever meets the parties’ understandings of what justice in their own situation requires. Where a party lacks the capacity or resources to formulate justice standards, the mediator will encourage them to seek legal advice or the support of a third party. And, if both parties seek to use the mediator as an informational resource and the mediator is qualified to serve in this role, then the mediator may be the source of information that helps the parties elaborate upon their own intuitions of what justice requires in their own situation. With the mediator’s help, the parties can generate fully fleshed out justice criteria that can then be applied to the options that each party has proposed for settlement. In sum, the mediator works to raise the parties’ consciousness about the goals of the process in terms of the outcomes reached and encourages the parties to think deeply about the justice criteria they choose to employ. The mediator’s role as a safety net occurs toward the end of the process as the parties are narrowing in on the particular terms of agreement. The Rawlsian mediator has the responsibility for assuring that a proposed outcome or option is not so one-​sided or disadvantageous to one party or absent third parties that it “shocks the conscience”. The assessment of what is conscience shocking will be based both on the criteria the parties have articulated as well as external societal standards that the mediator, if requested, will have shared with the parties.

 [14.315]  The relationship between ethical codes and the capacity of DR processes to deliver

just outcomes is raised and discussed in the extract at [14.310]. While codes exist in mediation, processes without codes are more difficult to manage. Negotiation [14.320]  There are no codes of conduct or ethical standards particularly relating to negotia-

tion. Parties can usually make their own choices about how they participate in the negotiation. In the following extract Gibson considers ethics and morality in negotiation, and how they might impact on the development of the field as a whole.

Ethics and Morality in Negotiation [14.325]  K Gibson, “Ethics and Morality in Negotiation” in A Kupfer Schneider and C Honeyman (eds), The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator (American Bar Association, Section of Dispute Resolution, Washington DC, 2006) Ch 20, pp 175-​177, 179-​180. Negotiation is a value-​based enterprise, and hence studying negotiation will also involve questions about the nature of our personal values. Negotiators necessarily make decisions about the process they will use and the posture they will adopt to satisfy their needs, and those decisions will reflect personal values involving moral issues such as fairness, rights and justice. Parties rarely have full information about each other, and so they may be in a position to take advantage of a perceived deficiency or present information that may not be true. They may also agree to a settlement that affects third parties –​for example, they could externalize costs by putting them on some entity not present at the negotiation. There may be obvious opportunities to exploit someone’s ignorance or lack of power. We have a background set of values that will mean that we choose to highlight some issues and ignore others, or forgo material gains for peace of mind. Even those who treat negotiation as an amoral game not subject to ordinary moral constraints have chosen to act that way, which is in itself an ethical choice. Ethical issues are not always clear and distinct at a conscious level in negotiation, either. Sometimes ethical issues arise quickly and we have to resolve them without being able to reflect quietly or at leisure. Thus, there are a number of reasons we should consider our moral stance 864 [14.315]

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Ethics and Morality in Negotiation cont. prior to sitting down at the negotiating table and look at ethics construed much more broadly that it traditionally has been. … The field has matured sufficiently that ethical discussions should encompass three major elements: first, the moral stance of the parties themselves; second, issues such as trust, disclosure or beneficence which arise from their perspective of negotiation as a competition or alternatively mutual problem-​solving. Finally, we should also recognize that private deal making is sanctioned against a societal backdrop that [176] currently gives a lot of latitude to agreements as long as they are not unconscionable. Hence, we ought to be aware of the way negotiation fits into the wider political context of justice, rights, equality or welfare. Initially we should consider the language involved. “Ethics” is typically used in two different senses, first as a set of rules in a limited domain and second as a frame for discussing value judgments of right and wrong, good and bad, as well as fairness, justice and rights. In the first sense, it would be appropriate to say there is an ethics of poker, where those playing the game acknowledge the specific rules and behavior involved. Thus lying may be routine and expected, and the aim is to win out over your opponents. At the same time, though, it is unacceptable to play with marked cards or a confederate. In this sense we can talk about “the ethics of the mob” where reporting illegal acts to the police may result in retribution from colleagues, although ordinarily we might consider such a report as the decent and legal thing to do. The view of ethics as providing rules has some important implications. It will appeal to those who have a strong sense of role morality, that is, those who believe that there are different sets of behavior that apply when we undertake distinct functions. Role morality may constrain a lawyer from disclosing information about the whereabouts of a murder victim’s body to grieving relatives because of the primacy of lawyer/​client confidentiality. In the case of negotiation, it will serve those who believe that negotiation is a competitive amoral game where success can be achieved by any legal means and it is measured by substantive gains alone. Some writers, such as James White, have advocated that the only constraint on behavior in negotiation should be its legality, since the duty of an attorney in negotiation is to maximize gains for his or her client by whatever legal means are available. He says: “The negotiator’s role is at least passively to mislead his opponent about his settling point while at the same time to engage in ethical behavior”. In essence, he takes the legal threshold as the benchmark of ethical behavior. There are a number of problems associated with this view: the law is largely a reactive instrument that responds to challenges, and this means it does not legislate everything –​new and different issues not covered by settled law have no moral anchor. Furthermore, we could imagine a world where this is the prevailing attitude. In it, all human interaction would be governed by reference to a legal code, and thus we would need armies of monitors, jurists and enforcers. A more practical approach is to reward trust and good reputation. In contrast to the poker model our everyday lives are, in fact, marked by a background condition of trust that makes sharp dealing conspicuous and jarring. The second sense of role morality suggests that human conduct cannot be compartmentalized into distinct spheres and that a similar notion of, say, justice will apply in all of our activities. Here ethics is used as talk about values, and prohibitions against immoral activities such as lying will be just as applicable to negotiation as they would be in any other interaction. Viewed in this way, the legal and ethical spheres may often overlap, but what is right is gauged by reference to personal morality rather than a legal code. Another way we can describe this central difference in approach is to use the terms “intrinsic” and “instrumental”. Some traditions believe that we should always do the right thing for the sake of goodness alone, without regard for any potential reward. Thus, promises should be kept and obligations met merely because they are duties, which should not be compromised because of inconvenience or greater benefits elsewhere. These are known generally as deontological views, and emphasize the importance of assessing motives, securing rights and respecting individuals as ends-​in-​themselves rather than as a means to some end. [14.325]  865

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Ethics and Morality in Negotiation cont. [177] Other approaches stress the consequences of an action, and seek to maximize the benefits from a particular decision. Some of this family are instrumental views that acknowledge that we are largely motivated by self-​interest and are likely to act accordingly. They might interpret apparent altruistic acts, say, donating blood, in terms of greater psychological welfare for the donors, or as strategic self interest, because they are contributing to an institution that they may ultimately benefit from. We can use the case of lying in negotiation as a simple example: some people will hold truth telling so inviolate that they would never give a false answer to a direct question; others might do so if the reward was sufficiently tempting, and others would have few qualms about making false statements. It is often difficult to assess motives, of course, and a sufficiently sophisticated instrumental negotiator may tell the truth as a strategy because he or she realizes that there are personal benefits in the long run by maintaining a reputation for honesty. Thus, individuals come to negotiation with significantly different views about the nature of ethics and how it applies to negotiation. Nevertheless, there are several key elements that may substantially enhance our understanding of the way that values play into our bargaining behavior. … Present Directions in Ethics [179] The emergence of ethics awareness and training might be considered an expanding circle, where originally it dealt mainly with compliance and avoiding sanctions, but now has moved to looking at issues in a far wider and more comprehensive context. One manifestation of the wider realm of moral concern is the more frequent use of stakeholder analysis. Stakeholders are people or institutions that will be helped or harmed in some way by change, and perhaps ought to be considered at the bargaining table even if they are not represented. Communitarian theorists also believe that we need to move from thinking of individuals in the world as disconnected atomic units toward instead seeing them as part of a connected web of interactions. This contrasts to the traditional enlightenment liberal notion where the individual is sovereign, and his or her duty is to maximize personal welfare. The expansion of ethical consideration has also been referred to as plus-​one staging. Lawrence Kohlberg developed a well-​known set of moral levels. They move from the pre-​conventional. Where moral reasoning revolves around the physical consequences of action in terms of punishment and reward, to the conventional level where conformity to social order takes priority and we want to fit with prevailing norms. He then describes the post-​conventional that focuses on reasoning where the subject is motivated by moral values and principles a concern for universality and consistency. Kohlberg’s research suggests most people are in the conventional level, and plus-​one staging challenges individuals to assess their own moral development and think at higher levels with perspective about what they should do. In negotiation theory we often begin by making sure that a participant’s actions will not lead to punishment by poor performance or breaching the law, and then move on to exploring how we think an ideal negotiator might behave. Using the Kohlberg model, some negotiation trainers encourage personal reflection and moral development. Kohlberg’s work has been supplemented by insights by Carol Gilligan. Gilligan noted that oftentimes when women were confronted with moral dilemmas, they thought about them differently from the men –​roughly, they were more concerned about relationships between individuals and about why the dilemma arose in the first place. It is not surprising, then, that women (in general) may deal with moral concerns, conflict, and negotiation in ways that have not traditionally been explored in the classroom. There is growing literature both in ethical theory and negotiation that challenges the established (male) template of correct action. [180] Another movement in ethics is to closely examine the language we use and its moral implications. Negotiators are aware of so-​called “framing effects”, a broad term that covers the ways that different articulations of the same facts may affect the way people will react. For example, if an issue is perceived as foregoing a gain, individuals will be less concerned than if they believe they are taking a loss –​even if the net result is the same. Post-​modernist writers view this kind of dynamic in a more 866 [14.325]

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Ethics and Morality in Negotiation cont. radical way with deeper moral implications. They have proposed that we need to look at the world as a set of perceived narratives, and, consequently, that we should see negotiation not so much as an exposition of positions and interests, but also as a question of which story comes to dominate the discourse. Research indicates when inexperienced or untrained individuals negotiate, settlements emerge out of the initial narrative almost eighty percent of the time, which means there is immense power to being the first to make a case. As Cobb and Rifkin note, justice issues will be more than substantive or procedural guidelines and spill over into “a question of access, of participation in the construction of dominant descriptions and stories”. The upshot is that ethics in negotiation involves not only the process of negotiation and the participant’s behavior, but might be expanded significantly to consider the whole context in which the negotiation is set and the way the parties’ interpretations are presented, contested, transformed and finally settled upon in terms of what would be most just, fair or appropriate. For example, two insurance adjusters may share the same worldview and agree on the terms of negotiation, whereas if we think of a struggling tenant and landlord, the difference is not just one of positions and interests, but the very way in which they see and make sense of the world. Conclusion Morality is a matter of our values. Some values are trivial, some can be traded, and some we use to identify who we are in the world –​and compromising those may be, in some cases, literally more than our life is worth. We can also see the power of a moral appeal in the early claims of children that something is “just not fair”. One of the elements that makes negotiation so complex and not just a mechanical procedure is that we are dealing with individuals who have psychological and emotional needs that are intimately linked with their value systems. Thus, asking someone to make a commitment to a settlement that is perceived as unfair or unjust is likely to tap into our core philosophical approach to who we are and how we relate to others. This means that while we may accept or reject the value systems that others have, any serious examination of negotiation cannot afford to ignore their effects. Ethical issues in negotiation may be approached in a narrow sense that looks at the minimally acceptable levels of bargaining behavior. However, we have seen that the current movement is to think seriously about the fundamental issues of justice and fairness in a much wider perspective. Essentially this will provide us with a much more comprehensive and useful way to analyze and make recommendations for the field of negotiation as a whole.

 [14.330] There has been considerable debate in the literature about whether or not there

should be a good faith requirement for parties in negotiation. Even if it is accepted that negotiators should participate in good faith, it is a very difficult concept to define, and an even more difficult to regulate and monitor. In the extract at [14.335], Spencer explores these issues.

The Meaning of Good Faith [14.335]  D Spencer, “Requiring Good Faith Negotiation” (1998) 1 ADR Bulletin 37 at 40-​42. Acting in good faith can be defined as meaning that persons should conduct themselves with “propriety and honesty”. The US, a jurisdiction seemingly comfortable with the notion, defines good faith in its Uniform Commercial Code (UCC) as meaning, “… honesty in fact in the conduct or transaction concerned”. One of the well-​known treatises on the subject of good faith is by Professor Robert S Summers, who defined good faith by exclusion. That is, he posed the question: “What, in the actual or hypothetical situation, does the judge intend to rule out by his [sic] use of this phrase?” He substantiates his theory by explaining the lack of meaning in the phrase itself: [14.335]  867

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The Meaning of Good Faith cont. If good faith had a general meaning or meanings of its own –​that is, if it were either univocal or ambiguous –​there would seldom be occasion to derive a meaning for it from an opposite; its specific uses would almost always be readily and immediately understood. But good faith is not that kind of doctrine. In contract law, taken as a whole, good faith is an excluder [sic]. Summers sets out a table of “excluders”, which lists examples of bad faith and the corresponding meaning of good faith. A seller deliberately concealing facts from a purchaser is an example of bad faith. Its corresponding meaning of good faith is the full disclosure of material facts. Another example of bad faith is a person openly abusing his or her bargaining power to coerce a purchaser into agreeing to an unreasonable price. The corresponding good faith meaning is to refrain from abusing bargaining power. While many agree with Summers’ “excluder theory”, and most concede that a positive definition of good faith is difficult to express, some criticise it as not accentuating the positive side of good faith. Professor Burton offers the following definition of both good and bad faith in the context of performing a contract: Bad faith performance occurs precisely when discretion is used to recapture opportunities forgone upon contracting when the discretion-​exercising party refuses to pay the expected cost of performance. Good faith performance, in turn, occurs when a party’s discretion is exercised for any purpose within the reasonable [41] contemplation of the parties at the time of formation –​to capture opportunities that were preserved upon entering the contract, interpreted objectively. Professor Charles Knapp provides another definition, which states that: … good faith, which, in the case of a merchant (that is, a businessman in the conduct of his business), [sic] means not only “honesty” but also “the observance of reasonable commercial standards of fair dealing in the trade”. Finally, Professor Waddams suggests that the definition of good faith depends upon the context in which it is used. In the context of pre-​contractual negotiation, where there may be a duty to bargain in good faith, Waddams admits that the definition is not clear, but gives an important exclusionary principle: It does not for example, exclude the frank and open pursuit of self-​interest, because it is clear that a prospective seller may usually break off negotiations on the ground that the price offered is inadequate. The importance of this exclusionary definition brings us back to the controversy set out above. Both the English case of Walford and the Australian case of Elizabeth Bay provide authority for the proposition that parties cannot agree to negotiate in good faith as it unduly restricts their self-​interest. Waddams puts the proposition that acting in good faith does not necessarily compromise a party’s self-​interest, a proposition overlooked by both English and Australian courts. This proposition is not a new one and is supported by academics in England, the USA and Australia. Professor Lucy Katz put forward a similar proposition in 1988, when she stated: As long as all parties and the court recognize that to require good faith negotiation is not to require settlement, the futility argument loses much of its force. The futility argument referred to by Katz, is that enforcing alternative dispute resolution (ADR) clauses in contracts is futile because the philosophical base of ADR is its voluntary nature. In other words, you should not force people into an ADR process by enforcing an ADR clause in a contract, because the philosophy of ADR is that the people to the dispute should attend voluntarily –​not be forced to participate. Waddams and Katz provide us with the central proposition of requiring good faith negotiation, that is, if one accepts the definition of good faith as the requirement to act honestly and with propriety, then one can accept that it does not require a forfeiture of one’s self interest in the negotiation, nor that one is required to settle. This proposition has been affirmed by Brownsword, when he stated: 868 [14.335]

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The Meaning of Good Faith cont. … the concept of good faith as the rule becomes the guiding ideal for co-​operative dealing. Again, to avoid any misunderstanding, this does not mean that individuals may not pursue their own projects and purposes, nor that each contractor must altruistically endeavour to prioritise the interests of the other side; what it means is that each party must respect the legitimate interests of the other contracting party. Finally, Australian academic, Dr Damien Cremean, draws the proposition together succinctly when he states: Tension usually will exist between the maintenance of good faith and a party negotiating from a position of self-​interest. But the two are not necessarily incompatible, maintenance of good faith may be in a party’s best self-​interest, and the law often has these conflicts in it. Maintenance of good faith in a negotiating process is not inconsistent with having regard to self-​interest. Good faith does not require a party to make concession upon concession. Good faith is not co-​extensive with selflessness. Nor does good faith, to take up a point raised by Lord Ackner in Walford v Miles, forbid withdrawal from negotiations if appropriate. Indeed, in some circumstances, good faith may actually dictate withdrawal if, for example, a fraud would be committed by negotiations continuing. The confusion in understanding the application of good faith to negotiations is purely definitional. Courts have not [42] understood that good faith, in its simplest terms, means acting honestly. This simple notion is not inconsistent with the ability to act with self-​interest. Parties to negotiations can pursue their own interests, yet still act with honesty, or in good faith, in their dealings with the other party.



GENUINE EFFORT IN DISPUTE RESOLUTION [14.340] The requirement that parties must, as far as possible take “genuine steps” to resolve

disputes is somewhat related to discussion on good faith at [14.335]. The Dispute Resolution Act 2011 (Cth) requires parties to “take genuine steps” to resolve disputes before initiating certain civil proceedings. The notion of “genuine steps” is a vague one. It is not clear whether the requirement to take genuine steps includes some concept of participating in dispute resolution processes in “good faith”. Section 4 of the Dispute Resolution Act 2011 refers to “attending the process” and “attempting to negotiate with the other person” without any specific guidance about what should happen during attendance or while negotiating. In the following article, Hobbs argues that the “genuine steps” requirement is a formalisation of the common law “good faith” principle.

The Genuine Steps Standard [14.345] H Hobbs, “The Dispute Resolution Act 2011 (Cth) and the Meaning of “Genuine Steps”: Formalising the Common Law Requirement of Good Faith” (2012) 23 Australasian Dispute Resolution Journal 249 at 250-​252. The Genuine Steps Standard The Dispute Resolution Act 2011 (Cth) requires parties to “take genuine steps to resolve disputes before certain civil proceedings are instituted”. This standard is best conceptualised as entailing both rigid procedural, and flexible substantive, requirements. Part 2 of the Act introduces a firm procedural requirement that formalises the approach taken to negotiation under the common law. Sections 6 and 7 mandate both parties to a claim to file a “genuine [14.345]  869

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The Genuine Steps Standard cont. steps statement”, specifying “the steps that have been taken to try to resolve the issues in dispute”, or, if no such steps were taken, the reasons why. Under s 12(1), if this procedural standard is not met the court may take the failure into account when awarding costs. The “genuine steps statement” encourages parties to “turn their minds” to resolving the dispute before initiating potentially costly litigation. It requires parties to engage genuinely in pre-​litigation action, or to demonstrate why they have not; potentially transforming ADR processes from a “pre-​trial procedural hoop in the litigation process” to a true alternative. However, exactly what genuinely requires is less clear. [251] … s 4(1A) … attempts to clarify meaning (emphasis in original): [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. This formulation owes much to the common law standard of good faith. It grants the court some discretion in determining the genuineness of any steps taken by focusing on the particular circumstances of the party and the dispute. In addition it talks of a “sincere and genuine” attempt to resolve the dispute, mirroring the “open mind” required under the common law. Section 4(1) provides a non-​exhaustive list of examples of steps “that could be taken by a person as part of taking genuine steps”. Importantly, this phrasal construction indicates that simply undertaking one of these steps is unlikely to meet the new standard. The steps listed under this provision centre on facilitating an early resolution of the dispute, or some of the issues in dispute, and include: notifying the other party and offering to discuss the issues together, responding to such notification, providing relevant information to the other party, considering ADR processes, and attempting to negotiate with the other party … Genuineness versus reasonableness and good faith The phrase “genuine steps” was first mooted by the National Alternative Dispute Resolution Advisory Council (NADRAC), who considered it preferable to “genuine effort” or the common law “good faith” requirement because these latter formulations may “pressure disputants to make concessions”, which may not be appropriate. As suggested above, requiring a genuine effort or good faith at the negotiating table may indeed force a party suffering from a significant power imbalance to drop some issues lest it risks a significant costs order. A genuine steps criterion, however, while requiring that some procedural standards be met, does not necessarily imply any substantive narrowing of the issues in dispute. … [252] ... The object and purpose of ADR, however, is not to preclude litigation entirely (indeed there are many disputes where litigation is the most effective and appropriate avenue), but to encourage parties to “turn their minds” to resolving the dispute before litigation is sought. Requiring genuine steps rather than reasonable ones will more readily achieve this goal. Genuineness connotes “real” and “authentic” action, whereas reasonableness implies an objective standard that must be met. Negotiation should require a sincere attempt to resolve the dispute; simply checking boxes to meet an objective standard does not achieve anything and transforms pre-​litigation action into a costly waste of time. … Conclusion Although offering a non-​exhaustive list of examples, the Dispute Resolution Act 2011 (Cth) does not clarify exactly what “genuine steps” means. In addition, jurisprudence is yet to declare when a particular pre-​action step, in the circumstances of the case, is genuine or not. It is likely, however, that any sincere step, reflecting the turning of one’s mind to the resolution of a dispute pre-​litigation, will meet the Commonwealth standard. This formalises the common law approach, which understands that “the success of an ADR procedure will always depend on the good faith efforts of the parties”.

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[14.350]  Issues relating to good faith and taking genuine steps in resolving disputes directly

relate to the conduct of lawyers acting for the clients. The conduct of lawyers representing clients creates an ethical dilemma for mediators as well as in a direct negotiation process. Are there ethical guidelines for lawyers acting for their clients?

ETHICS FOR LAWYERS REPRESENTING CLIENTS IN DISPUTE RESOLUTION PROCESSES [14.355]  Lawyers are increasingly representing their clients in a range of dispute resolution

processes other than litigation. Associated with these changes are new dilemmas in relation to standards of professional conduct and ethics. Julie MacFarlane says: We are only just at the beginning of discovering what new ethical challenges will emerge when lawyers work with their clients in a wider range of conflict resolution processes and at an even earlier stage of clarifying what behaviors are and are not acceptable. (Julie MacFarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (UBC Press, 2008) p 192.)

Where lawyers are representing their clients in a dispute resolution process, they will be subject to various ethical obligations imposed on them pursuant to their legal professional conduct rules. However, lawyers’ professional conduct rules are generally premised on adversarial advocacy, and these rules have tended to be applied without modification to ADR processes. For example, both the uniform Australian Solicitors’ and Barristers’ Rules package mediation together with adjudicative processes, such as court and tribunals, applying identical standards of behaviour to these very different processes (see further below). There is considerable debate about whether or not lawyers should have different and/​or higher ethical standards in dispute resolution processes other than litigation, particularly in relation to private and confidential processes in which there is no third party neutral to monitor/​judge the fairness of either process or outcomes. Even if higher standards are accepted, it may be that they have little practical impact in that it is difficult to monitor and enforce behaviour in a private process. As Gino Dal Pont explains, these processes are not subject to the scrutiny of court procedures and safeguards, so that a lawyer who engages in [unethical behaviours] can be reasonably secure that they are unlikely to be discovered … Even if discovered, there are few, if any, truly effective sanctions. (G E Dal Pont, Lawyers’ Professional Responsibility (4th ed, Lawbook Co, 2010) p 698.)

Some of the potential ethical challenges for lawyers in dispute resolution processes are described by Menkel-​Meadow in the following article, including whether or not there should be different standards for lawyers in private dispute resolution processes, how conflict of interest rules should apply in relation to non-​court-​based processes, and whether lawyers should be required to be non-​adversarial in these kinds of processes.

Ethics in ADR Representation [14.360]  C Menkel-​Meadow, “Ethics in ADR Representation: A Road Map of Critical Issues” (1997) 4(3) Dispute Resolution Magazine (American Bar Association) at 3-​6. Can/​should lawyers be mandated by ethical standards or rules (or other legal measures, such as liability rules) to “behave” differently in ADR than in “ordinary” representation? … [14.360]  871

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Ethics in ADR Representation cont. Accountability in ADR Is there an argument that there should be greater candor (both with respect to law and fact) in mediation sessions where there will be no court scrutiny of the settlement (like the argument for greater candor in negotiation above), but will be “presided” over by a third party neutral who may care about or feel some responsibility for the agreement that is reached. Or, is mediation just like a negotiation in which the parties must accept whatever advocacy resources they have, knowing these may affect the outcome? Does it make a difference whether the ADR takes place privately or in a court-​sanctioned setting? Or if one of the parties is not represented? …. With the expanding nature of roles to be played by counsel in resolving disputes there is also greater complexity with respect to the ethics and rules of conflicts of interest. Can a lawyer who represents one party against another in a mediation that settles then represent another party against the former opponent when the lawyer has learned confidential information about the opponent in mediation? Can a lawyer who serves as a mediator between two parties subsequently represent one of those parties in a later matter, whether related or unrelated? Can a lawyer who represents a client ever mediate a matter involving that client and another? Similarly, are these conflicts issues different when a single counsel “switches” roles from representative to arbitrator or vice versa? If a single lawyer cannot switch roles without a conflict of interest, when must the whole firm be disqualified or will a conflicts “screen” sufficiently shield the involved lawyer to allow continued representation by other firm members? Even without role switching there may be complex conflicts of interest rules inherent in the use of ADR. What if, during a mediation, counsel agrees to a confidentiality provision (which might even include a protective order) and learns a critical fact from the defendant. If the mediation fails, is counsel able to effectively represent her client without using this fact, as promised? A Problem of Zeal Most of the ethical dilemmas that remain to be revealed, if not resolved, in the use of ADR within a framework of adversarial advocacy might be “reduced” to the question of when can/​should a lawyer-​ representative turn off the “zeal” to be an effective problem-​solver? … Can/​should a mediator require lawyers to engage in only “integrative” bargaining, rather than “distributive bargaining” in his venue? Can/​should a mediator or evaluator require counsel to be absolutely candid with him? With other parties? As long as traditional trial or adversarial practices remain the “default” position for our system and the cultural image from which our ethics rules are derived, our behaviors will likely turn on our own individual ethics and commitments to different forms of dispute resolution.

 [14.365]  In Australia, the main sources of ethical guidance for lawyers representing parties in

dispute resolution processes come from the Australian Solicitors and Barristers Conduct Rules and the Law Council of Australia’s Guidelines for Lawyers in Mediation. Professional conduct rules [14.370]  Current lawyer professional conduct rules have incorporated reference to dispute

resolution processes, such as mediation, in a fairly superficial, and arguably ineffective, manner. The Rules have simply extended the definition of the term “court” to include other dispute resolution processes such as mediation or arbitration. See, for example, the Glossary of Terms to the Australian Solicitors Conduct Rules 2015.

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“court” means:

(a)

any body described as such;



(b)

any tribunal exercising judicial, or quasi-​judicial, functions;



(c)

a professional disciplinary tribunal;



(d)

an industrial tribunal;



(e)

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.

Accordingly, the lawyer has the same duty to the “court” as is expected now to dispute resolution processes. Other lawyer’s duties, such as the duty of frankness, applies equally to these dispute resolution processes. For an example, see rr  3 and 19 of the Australian Solicitors’ Conduct Rules respectively cited below.

3. Paramount duty to the court and the administration of justice 3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty. …



19. Frankness in court 19.1 A solicitor must not deceive or knowingly or recklessly mislead the court.

It is not immediately obvious how these duties translate into other dispute resolution contexts. For example, if you simply replace the word “court” with the word “mediation”, what does it mean to say that a solicitor has a “duty to the mediation”? Similarly, what would it mean to say that a solicitor must not deceive the mediation? Is this a reference to the mediator, or to the other side in the process? How these rules actually apply in the dispute resolution context is discussed further below. Guidelines for Lawyers in Mediation [14.375] The Law Council of Australia’s Guidelines for Lawyers in Mediation purport to

provide more specific ethical guidance for mediation advocates. The Guidelines set out the lawyer’s role in mediation, and refer to two ethical issues:  confidentiality and good faith. However, these guidelines are not legally binding and there are no particular consequences if a lawyer does not comply with them.

The lawyer’s role in mediation [14.380]  The Guidelines describe the lawyer’s role in mediation as generally to assist clients,

and they note that the role will vary greatly depending on the circumstances. The Guidelines impliedly suggest that lawyers should not approach mediation in an adversarial manner, but should treat it as a problem-​solving exercise. Clauses 1 and 6 state: 1. Role A lawyer’s role in mediation is to assist clients, provide practical and legal advice on the process and on issues raised and offers made, and to assist in drafting terms and conditions of settlement as agreed. A lawyer’s role will vary greatly depending on the nature of the dispute and the mediation process. It may range from merely advising the client before the mediation, to

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representing the client during the mediation and undertaking all communications on behalf of the client. … 6. At the Mediation Mediation is not an adversarial process to determine who is right and who is wrong. Mediation should be approached as a problem-​solving exercise. A lawyer’s role is to help clients to best present their case and assist clients and the mediator by giving practical and legal advice and support.

Ethical issues for lawyers in mediation [14.385]  The Guidelines refer to two particular ethical issues: confidentiality and good faith.

The confidentiality provision is relatively uncontroversial, however the requirement that the lawyer should act at all times in good faith is more difficult to interpret. Some of the difficulties with defining good faith have been explored above in relation to negotiation and the “genuine effort” requirements. The Law Council Guidelines do not provide any further clarity on the issue.

Guidelines for Lawyers in Mediation, Ethical Issues [14.390]  Law Council of Australia, Guidelines for Lawyers in Mediation (2007). 2. ETHICAL ISSUES 2.1 Confidentiality As with all dealings with clients, anything that is said or done in a mediation is strictly confidential. In addition, subject to the requirements of the law and any relevant Rules of Court, a lawyer must maintain the confidentiality required by the parties and by any mediation agreement. Comment (a) A lawyer must not disclose any information disclosed during the mediation unless all parties to the mediation agree, or if required to by law. (b) Without prior permission of the mediator and the other parties a lawyer must not reveal any information disclosed by the mediator during private sessions to the other parties or their legal representatives. (c) All information and documents disclosed during the mediation, including any settlement or draft offers/​counteroffers, are confidential and privileged between parties to the mediation and their legal representatives. (d) A lawyer should consider rules about confidentiality (which may vary from jurisdiction to jurisdiction) before attending a pre-​mediation conference so that they may be established by the parties and the mediator at the premediation conference. 2.2 Good faith Lawyers and clients should act, at all times, in good faith to attempt to achieve settlement of the dispute. Comment (a) A lawyer should advise clients about what it means to act in good faith. A lawyer should not continue to represent clients who act in bad faith or give instructions which are inconsistent with good faith. (b) Likewise, if a lawyer suspects the other parties to the mediation are acting in bad faith this should be raised privately at first with the mediator.

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Is adversarialism unethical in mediation? [14.395]  The Law Council Guidelines specifically state that mediation is not an adversarial

process, thereby impliedly suggesting that lawyers should not behave in an adversarial manner in mediation. In the following article, Wolski presents arguments for and against advocacy in mediation.

Mediation and Advocacy [14.400]  B Wolski, “On Mediation, Legal Representatives and Advocates” (2015) 38(1) University of New South Wales Law Journal 5 at 31-​40. A The Case against (Zealous Adversarial) Advocacy in Mediation A number of scholars are critical of the legal profession’s general rules of conduct. They maintain that these rules were fashioned with an adversary system of justice in mind, a system in which a lawyer is assigned the role of a “zealous adversarial advocate” whose mandate is to “win” for his or her client at all costs. These authors argue that the zealous adversarial advocate will elevate loyalty to a client above all else and follow the client’s every instruction providing the ends sought and the means used are “arguably lawful”. This lawyer thinks nothing of exploiting a loophole in the law for the benefit of a client even though it may produce an “unfair” outcome for other parties. According to these critics, this approach to lawyering reduces lawyers to amoral gladiators, amoral technicians, and hired guns. [32] The adversarial advocacy approach to legal practice is considered by some authors to be particularly inappropriate in mediation where the emphasis should be on reaching a mutually satisfactory outcome rather than on winning for one’s client at the expense of the “opponent”. Influential commentator Carrie Menkel-​Meadow argues that the “zeal” associated with adversarial advocacy is incompatible with mediation. Menkel-​Meadow uses the term “zeal” in such a way as to “high-​light the ‘zealotry’ implicated in zeal”. She argues that in mediation, the zealous adversarial advocacy approach requires “zealous conduct where it may be dysfunctional”. She argues further that the values of zeal, client loyalty and partisanship run counter to, and may stifle, the values of trust, creativity, openness and joint problem-​solving which ideally underpin mediation. The most extreme view on mediation and advocacy is expressed by Rutherford who argues that a legal representative should play a neutral non-​partisan role in mediation, providing advice to his or her client to help ensure that the mediated agreement is fair rather than attempting to help the client to obtain an advantage over the opposing party. Rutherford opines that “[f]‌or mediation to succeed as a profession and to reach its highest objectives, advocacy has no place in any part of the process. For outside counsel to advocate a client’s interests contradicts the very essence of mediation and can produce inequitable results”. This view is considered to be an extreme one because it suggests that lawyers should abandon what is arguably the second most important mandate that they have within our legal system, that is, to act in the best interests of their client. The Law Council of Australia and the Law Society of New South Wales have both struggled to come to terms with, and settle on, the form of advocacy –​if any [33] –​which might be appropriate in mediation. Until recently, it appeared that the Law Society of New South Wales had abandoned entirely the concept of advocacy in mediation, with the NSW Standards providing that legal representatives were “not present at mediation as advocates” and that they were “a direct impediment” to the mediation process if they did not understand and observe this direction. In 2012, the Standards were amended, and the word “trial” was added as an adjective to the term “advocate”. The Standards now provide: Essentially the role of the legal representative [in mediation] is ... [t]‌o participate in a non-​ adversarial manner. Legal representatives 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 representative who does not understand and observe this is a direct impediment to the mediation process. … [14.400]  875

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Mediation and Advocacy cont. While the LCA Guidelines provide a wide description of the role of lawyers in mediation, they give a very narrow account of the skills that a lawyer might use. The LCA Guidelines state that: The skills required for a successful mediation are different to those desirable in advocacy. It is not the other lawyer or mediator that needs to be convinced; it is the client on the other side of the table. A lawyer who adopts a persuasive rather than adversarial or aggressive approach, and acknowledges the concerns of the other side, is more likely to contribute to a better result. For these authors and professional bodies, advocacy is inextricably linked to adversarial behaviour and they argue that it too has no place in mediation. This view has its supporters. For instance, Bowie argues that mediation, by its nature, requires non-​adversarial behaviour; Caputo opines that “for mediation to reach its potential, adversarialism should not be invited into the process”; and Parker and Evans draw on the NSW Standards as a basis for concluding that it is the duty of the lawyer “[t]‌o participate in a non-​adversarial manner”. These views are challenged in the next section of the article. It is suggested that they rest on misconceptions about the concepts of “zeal” and of “advocacy”, [34] and on fragile (possibly illusory) dichotomies between adversarial and non-​adversarial conduct. B The Case in Favour of (Zealous Adversarial) Advocacy in Mediation In response to the general criticism of the professional conduct rules, it is argued that the extreme approach said to be embodied in the concept of “zealous adversarial advocacy” has never, and does not now, represent the ethics of the legal profession. Lawyers are required to behave “with all due fidelity to the court as well as the client”. This approach to legal ethics recognises that lawyers “behave as officers of the court as well as client advocates”. In the discussion which follows, it is suggested that there is room in mediation for advocates, even for “zealous adversarial advocates”. 1 On Zeal The professional conduct rules in Australia have never embraced the concept of zeal. Even if it were otherwise, we need not avoid the concept in order to accommodate mediation practice. While Menkel-​Meadow chose to use “zeal” in such a way as to highlight “zealotry”, other commentators reject this meaning. Bernstein argues that it is an error to equate zeal with zealotry. She suggests that “zeal” has two elements, a “partisan commitment” to one side and passion. Partisanship requires a lawyer to look out for the wellbeing of his or her client. It requires a lawyer to be on the client’s side and no one else’s. Depending on the context, it may be necessary for a lawyer to view the other party as an adversary or, at least, to practise with an adversary in mind. But “[t]‌he lawyer who envisions adversaries need not harm them. Self-​conscious partisan commitment might lead a lawyer to recommend eschewing a fight and to favour compromise, mediation, or other responses that validate where the adversary is coming from”. Bernstein argues that the second element of zeal, that is, passion, requires effectiveness, creativity, attention to detail, “enthusiasm, [35] energy, and benevolent effort”. If Bernstein’s views on “zeal” are accepted, zeal is to be welcomed in mediation. 2 On Advocates and Advocacy As noted at the outset, an “advocate” may be defined as “a person who pleads a case on someone else’s behalf” and more generally, as a “supporter”. In scholarly literature, advocacy is often referred to as “the art of persuasion” but even this definition may be too narrow. Pinos asserts that advocacy refers to “the range of interpersonal, persuasive and preparatory skills which a lawyer brings to bear upon the promotion of his client’s interests in a dispute in or out of court”. Advocacy is not limited to the courtroom and it should not be equated with oral presentations. Advocates undertake a range of roles on behalf of their clients and in many different contexts in order to achieve a predetermined objective. 876 [14.400]

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Mediation and Advocacy cont. The advocate’s objective in a trial is to persuade “the decision-​maker (judge, magistrate, tribunal member, juror) to accept the propositions advanced by the advocate leading to the success of the advocate’s cause” or more accurately, the client’s cause. In mediation, the advocate’s objective is to persuade the other party and his or her lawyer that the advocate’s proposals for settlement best meet the interests of the parties. This presupposes that the advocate and the client have identified the interests of the other party and arrived at a proposal that meets those interests tolerably well. Advocates can be creative, and they can engage in joint problem-​solving. In a statement which connects zeal and advocacy, Bordone asserts that in unassisted negotiation and in mediation, “zealous [36] advocacy entails identifying the underlying interests of the client and then employing one’s skills of listening, creativity, and joint problem-​solving to best meet those interests and attain a satisfying and efficient outcome”. There are some obvious differences in the roles that advocates undertake in mediation as compared to those that they carry out if a matter proceeds to a trial. When preparing for a trial, a lawyer typically prepares a theory of the case, that is, the most plausible explanation for what occurred, whereas they may not do so in mediation. Trial lawyers formally examine and cross-​examine witnesses, a task that they might never do in mediation. In mediation, lawyers may place a high priority on identification of the non-​legal interests of their own client and of those of the other party, whereas they may not do so in a trial. Nonetheless, an advocate in mediation performs many of the same roles, and uses many of the same skills, as an advocate in litigation. For instance, an advocate will act as an adviser to his or her client whether they are engaged in mediation or in litigation. The advocate is likely to give the client an opinion as to the likely outcome of litigation whether they are preparing for mediation or litigation. In performing these roles, the advocate will use the skills of: research and analysis; fact-​finding, selection and use; identification and analysis of relevant legal issues; and effective communication. As Hyman observes, there are “some precepts that apply with equal force to the accomplishment of good trial advocacy and to the creation of wise agreements”. He explains that “[t]‌hese include the need to pay very close attention to the facts, the ability to listen carefully and well, and a skill in building persuasive conceptual frameworks that characterize the dispute and point to a mutually satisfactory resolution”. The LCA Guidelines contain two provisions which seem to envisage advocacy as conceptualised in this article, namely section 1 (which provides that “[a]‌lawyer’s role in mediation is to assist clients, provide practical and legal advice on the process and on issues raised and offers made, and to assist in drafting terms and conditions of settlement as agreed”) and section 6 (which mentions the need “to help clients to best present their case”). However, section 6.1 raises some matters which, it is suggested, need to be reconsidered. The following points need to be taken into account: [37] • while mediation is a process, advocacy is not; • as mentioned above, the skills required in mediation have much in common with those used in litigation. It is suggested that the distinction between a trial advocate and other kinds of advocates is fragile (a matter which should also be considered by the drafters of the NSW Guidelines); • a lawyer needs to persuade the other party and his or her lawyer (and possibly the mediator); • advocacy is not necessarily adversarial in nature (it should never be aggressive) although advocates sometimes use adversarial techniques; and • as argued below, the use of adversarial techniques does not necessarily change the nature of mediation. Some authors have scoped out a place for advocacy in mediation through the formulation of new phrases such as “settlement advocacy” and “client resolution advocacy”. The essence of the advocate’s role has not changed, despite the change in terminology. Macfarlane observes: There is no lessening of the lawyer’s responsibility to achieve the best possible outcome for his client in client resolution advocacy. In fact, advocacy as conflict resolution places the constructive and creative promotion of partisan outcomes at the center of the advocate’s role [14.400]  877

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Mediation and Advocacy cont. and sees this goal as entirely compatible with working with the other side. In fact, this goal can only be achieved by working with the other side. The new lawyer remains just as dedicated to achieving her client’s goals as the warrior or adversarial advocate. What changes is that her primary skill becomes her effectiveness and ability to achieve the best possible negotiated settlement, while she remains prepared to litigate if necessary. While the approach of an advocate is not necessarily adversarial in nature, an advocate must of necessity be partisan in his or her approach. A lawyer cannot put aside his or her client’s interests and approach mediation as a “non-​partisan” participant. He or she must work towards an outcome which advances the client’s interests. But this lawyer recognises that often the client’s interests are best served by settlement on terms which are mutually agreed by the parties. 3 On Adversarial and Non-​Adversarial Conduct According to the NSW Standards, the role of a legal representative in mediation is “[t]‌o participate in a non-​adversarial manner”. As noted above, the LCA Guidelines suggest that lawyers should not use an adversarial approach. [38] There are at least two problems with these statements. First, the terms “adversarial” and “non-​adversarial” lack clarity and precision of meaning. The terms assume a clear dichotomy between adversarial and non-​adversarial behaviour where none exists. Second, in many mediations, some adversarial behaviour (assuming that it can be differentiated from non-​adversarial behaviour) is both necessary and desirable. These problems are discussed in turn below. (a) Lack of Clarity of Terms and Fragile Distinctions The terms “adversarial” and “non-​adversarial” are not defined in the NSW Standards or in the LCA Guidelines and no examples of prototypical behaviour are given. These terms are difficult to define with any precision. Some indications of what these terms might signify can be found in the commentary of persons who criticise lawyers’ behaviour in mediation. Lawyers have been criticised for arguing about the law, arguing over positions (that is, specific solutions adopted by a party), making high demands, withholding information, and exaggerating and misleading on settlement points and alternatives to settlement. Presumably behaviour such as this is what the critics mean by “adversarial” behaviour. It has been argued that in mediation, lawyers should focus on interests rather than rights, take a “non-​aggressive” stance, make moderate demands and reciprocal concessions, and share information. Presumably, this is what the critics have in mind by “non-​adversarial” behaviour. However, the behaviour to which these commentators refer points, not so much to a distinction between adversarial and non-​adversarial conduct, as to a distinction between the competitive tactics thought to be associated with positional negotiation on the one hand, and on the other, the cooperative tactics thought to be associated with interest-​based negotiation. It is no surprise then that these same commentators argue that lawyers should use interest-​based negotiation in mediation, rather than positional negotiation. It is well recognised in the literature that most negotiations are neither purely positional nor interest-​ based. They involve combinations and sequences of tactical moves, some of which tend towards the adversarial end of the spectrum [39] of possible behaviours, and some of which tend towards the non-​ adversarial end. There are hundreds of tactical moves which “exist” in-​between the two extremes. In these “in-​between” positions, the distinction between adversarial and non-​adversarial conduct is at best fragile. (b) The Inevitability of Adversarial Behaviour in Mediation Adversarial behaviour (assuming it can be defined) cannot be isolated from non-​adversarial behaviour and it cannot be eliminated. … A number of well known negotiation theorists argue that adversarial conduct is both inevitable and indispensable in negotiation. They argue that competitiveness on substantive issues is necessary “to protect and advance the parties’ interests, including their interests in ethical treatment”. Particularly in disputes involving legal rights and obligations, it might be necessary for a party’s representative 878 [14.400]

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Mediation and Advocacy cont. to: make strong demands; support positions with well-​developed legal arguments; refuse to change views without good reasons; and reveal information slowly and sometimes not at all. The goal of this “substantive competitiveness” is “to have one’s views about applicable law or practical concerns adopted by the parties as the basis for settlement, and thus, to produce the best outcome consistent with the strength of one’s substantive claims”. According to Riskin, “[a]‌prediction of the likely results of adversary processing is necessary for an informed, fully voluntary decision about a mediated solution”. But an argument in favour of an adversarial posture is not an argument for lying and unfairness –​they are “not a necessary function of the adversarial posture”. The posture “requires partisanship, not its excesses”. It is not clear what behaviour constitutes “excessive” adversarial behaviour. Commentators have singled out: table-​pounding; “boisterous behaviour”; and [40] “out-​and-​out dishonesty”. But as with much of the terminology used to describe negotiation behaviour, a term such as “boisterous” is vague and difficult to define. In an apparent bid to avoid use of the term “adversarial”, Cooper recently distinguished between “aggressive adversarial advocates”, a role that she considers inappropriate for legal representatives in mediation, and “assertive dispute resolution advocates”, a role which she considers fitting for mediation practice. However, it is unlikely that use of the word “assertive” would make it any easier for lawyers to sort ethical behaviour from unethical behaviour in mediation. Cooper’s concern was to fit “dispute resolution advocacy” under the umbrella of non-​adversarial practice. However, in a testament to the fragility of the distinction between adversarial and non-​adversarial conduct, the authors of a popular text on non-​adversarial justice opine: Adversarialism and non-​adversarialism are not mutually exclusive. Key non-​adversarial developments sit alongside more traditional aspects of the adversarial system. Rather than being mutually exclusive opposites, we prefer to conceive of adversarialism and non-​adversarialism as a continuum, a sliding scale upon which various legal processes sit, with most processes combining aspects of adversarial and non-​adversarial practice to varying degrees. If this observation is accepted, it is not necessary to secure a fixed point on the continuum for mediation. Each mediation will most likely occupy a different point on the continuum as a result of a host of variables such as the philosophy of the organization sponsoring the mediation and the mediator’s perception of its objectives and values. Either way, it is clear that the nature of mediation is not destroyed by adversarial behaviour, such as maintenance of strong positions, presentation of legal arguments and a cautious approach to revealing information. Mediation need not be “non-​adversarial” to retain its character as mediation.

 [14.405] After addressing the distinction between adversarial and non-​adversarial legal rep-

resentation in mediation, Wolski went on to conceptualise a lawyer’s role in mediation. The next extract focuses on the role of the lawyer as an officer of court and as an advocate for their client.

On Mediation, Legal Representatives and Advocates: Lawyer’s Roles and Ethical Orientation in Mediation [14.410]  B Wolski, “On Mediation, Legal Representatives and Advocates” (2015) 38(1) University of New South Wales Law Journal 5 at 40-​44. VI THE LAWYER’S ROLES AND ETHICAL ORIENTATION IN MEDIATION A Lawyering Roles in Mediation Legal representatives for the parties to disputes have two primary roles to play in mediation –​that of officer of the court and that of client advocate. The way in which these roles are executed or carried [14.410]  879

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On Mediation, Legal Representatives and Advocates: Lawyer’s Roles and Ethical Orientation in Mediation cont. out is shaped by the features, objectives and values of mediation and in particular, by the need to ensure that clients reach decisions on a voluntary, fully-​informed basis. These roles also [41] depend on a range of contextual variables such as the sophistication of the parties and whether, for example, they are repeat players or first-​timers to mediation. In mediation, the lawyer’s role as advocate may require him or her to act as: adviser and counsellor; spokesperson; negotiator; strategic intervener; evaluator and/​or risk assessor and agent of reality; and document drafter. These roles are examined below. 1 Adviser and Counsellor Clients must be able to make informed decisions about process and outcome. Lawyers should advise them of the nature and purpose of mediation and of its potential benefits and possible disadvantages. Clients must be appraised of their legal rights and obligations, of the legal and non-​legal consequences of not reaching an agreement, and of the range of outcomes that are likely if the matter proceeds to trial. All alternatives to settlement should be explored. Lawyers are best placed to give this advice when they see things from the perspective of a partisan advocate. Stark concludes that while the “adversarial/​materialistic perspective” of advocates has been criticised, “it is precisely the stance of partisanship that causes representative lawyers –​advocates –​to provide the fullest possible information to their clients”. Clients also need to be prepared for what is expected of them in mediation. Lawyers might discuss with clients the importance of approaching and participating in mediation with an appropriate attitude –​one oriented towards cooperative problem-​solving. They should discuss and agree upon the roles that each is to undertake in the mediation. 2 Spokesperson One of the potential benefits of mediation is that it allows the parties direct involvement and participation in the decision-​making process. In mediation, legal representatives are expected to relinquish their central speaking role to the client, and to play more of a support role. Lawyers can support clients in a number of ways. They might, for example, help clients to write out their opening statements and practise it with them. However, some clients may be reluctant to speak especially in the early stages of the mediation. While lawyers should encourage clients to speak on their own behalf, they should not force them to take on a role with which they are uncomfortable. As Rundle says in relation to client participation, “[i]‌f they want to participate, that preference should be [42] supported. On the other hand, disputants who prefer that another person speaks on their behalf should be granted that opportunity”. 3 Negotiator Lawyers should be prepared for positional and interest-​based negotiation and they should be able to move between these two approaches “depending on the type and stage of negotiation”. They will normally formulate position statements; identify the client’s interests; assist in identifying the interests of the other side; formulate issues (or problem statements); help set an agenda; help clients to formulate offers and counteroffers; and generate and evaluate options for settlement. They should prepare clients to respond to the inevitable bumps and road blocks that occur in mediation. Lawyers must be well versed in a range of techniques to move the negotiation past impasse towards settlement. 4 Strategic Intervener Legal representatives must anticipate and be prepared to respond to a range of interventions which might be made by the other party and their lawyer. They should protect their clients as far as possible from any unfair bargaining advantage the other side may have. Most standards of conduct for mediators assume that mediators will make appropriate interventions to address a power imbalance between the parties but legal representatives are better placed to do so than mediators (for a mediator must try to preserve at least the appearance of impartiality). 880 [14.410]

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On Mediation, Legal Representatives and Advocates: Lawyer’s Roles and Ethical Orientation in Mediation cont. Lawyers might also have to protect clients from mediators. Mediators bring their own values and interests to mediation. They use strategies which influence the content and outcome of the mediation (for example, they may use hypothetical questions and reframing techniques to steer the discussion in a particular direction), and they may use a range of techniques to pressure the parties to settle (for example, they may show signs of impatience and hold long [43] sessions to wear the parties down). Lawyers can manage the ebb and flow of communications and insist on rest breaks and adjournments. 5 Evaluator, Risk Assessor and Agent of Reality During mediation, legal representatives should advise clients of the consequences (both legal and non-​legal) of proposals for settlement and of the pros and cons of settling now and of the risks of not settling. From time to time, they may have to remind clients of the likelihood of success on the merits if the matter proceeds to trial. They might also remind a client that “merit” is only one matter that the client can consider and encourage the client to look at broader interests and at their relationship with other involved parties. Lawyers should assist clients to identify and evaluate their best and worst alternatives to a negotiated agreement. They must ensure, to the extent possible, that their clients make consensual decisions, with full knowledge of their legal rights and obligations and of the significance and consequences of any agreement reached. 6 Document Drafter If an agreement is reached, legal representatives must ensure that all contingencies have been considered and provided for. They should assess the agreement for its fairness and enforceability without taking responsibility for the content of the agreement. They may have to draft and finalise terms of settlement, ensuring that the agreement reached by the parties is accurately recorded. B On the Lawyer’s Ethical Orientation and “Standard Philosophical Map” Some commentators argue that lawyers need to modify their standard “philosophical map” in order to be effective in interest-​based mediation. The concept of the lawyer’s “standard philosophical map” is attributable to Riskin who suggested that lawyers are predisposed to believe that disputants are adversaries and that disputes can be resolved through the application of legal rules. It has been argued that lawyers need to learn to live with feelings and ambiguity rather than with rules of law and the certainty provided through legal methods and solutions. The more moderate view, one which recognises the value of the lawyer’s “standard philosophical map” (if indeed there is one), is that lawyers may retain their standard orientation but enrich it by acquiring new knowledge and understanding (for example, of the different approaches to negotiation) and by further developing skills such as those associated with active listening, empathising and creative problem-​solving. But while lawyers may need to acquire new knowledge and develop new skills to be effective in mediation, their primary roles remain the same. Neither roles (as officer of the court and as advocate for one’s client) nor duties (for example, the duties owed to the court and the duties owed to a client) have changed with the advent of mediation. At no time does the lawyer’s ethical orientation change. Regardless of whether a lawyer is representing a client in mediation or in litigation, he or she must act in the client’s best interests, all the while paying due regard to the duties owed to the court and the administration of justice. Sometimes the client’s best interests will be served by reaching an agreement in mediation; on other occasions, the client’s best interests might be served by progressing in litigation to a trial.

 [14.415]  There is some case law about lawyers’ ethical/​professional responsibilities in dispute

resolution such as negotiation and mediation. An overview of some topical cases in this area [14.415]  881

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is provided in the following paper presented by Campbell Bridge Senior Counsel at the New South Wales Bar.

Effective and Ethical Negotiations: Some Topical Cases [14.420]  C Bridge SC, Effective and Ethical Negotiations, Paper for the New South Wales Bar Association (12 February 2011) pp 2, 4-​7, 12-​14. 3. In dealing with the complexities and apparent conflicts which arise from the lawyer-​client relationship, it is essential that lawyers and clients alike never lose sight of a number of propositions which are set out and explained in some detail in Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352: • Lawyers are under a stringent legal and professional obligation to the Court, their clients, the community and the administration of justice. • If a client wants a lawyer to act contrary to professional obligations, the lawyer should, as he or she is entitled to do, decline to act further. Where the client’s instructions may run counter to normal ethical principles and a practitioner’s own personal standards, he or she should decline to act in accordance with those instructions. • As the rules and the cases make clear, a practitioner is not a mere agent and mouthpiece for his client, but a professional exercising independent judgment and providing independent advice. • A practitioner’s duties to his client and his duties to the Court, do not exhaust his professional responsibilities. • The duty to the Court may be seen as a duty to the community in the proper administration of justice. As an officer of the Court concerned in the administration of justice, a practitioner owes duties also to the standards of his profession, to the public and to his fellow practitioners. • Honesty, fairness and integrity are also of importance in negotiations because they are conducted outside the Court and are beyond the control which a judge hearing the matter might otherwise exercise over the practitioners involved. • It is no answer to the complaint of unprofessional conduct by misleading the Court in that the practitioner acted on the expectation that the true position would be revealed in the course of the case. (Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352, Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56). • The courts recognise that there is significant public interest in practitioners acting professionally both in the conduct of litigation and in matters ancillary to it. • The rules regulating professional conduct do not provide a code. They are simply a guide to appropriate professional behaviour. [4]‌Ethics of Negotiations 9. The topic the subject of this paper involves two distinct words –​“effective” and “ethical”. The proper conduct of one’s profession as a lawyer requires the philosophies underlying these two words to be conducted in an inter-​related fashion. The proper conduct of negotiations utilising the above philosophies will have, at the very least, advantageous effects when it comes to effecting settlements. 10. It cannot be over-​emphasised that in any of your dealings with fellow professionals, your integrity and trustworthiness is paramount. It is very much easier to negotiate and work towards a satisfactory resolution of the case if both parties believe what they are told. This does not involve laying one’s cards on the table during the course of negotiations. 11. The duty to negotiate ethically does involve the concept of not actively misleading the other side. It is critical for many reasons, not the least of them ethical, that a party engaging in negotiations does not actively mislead the other side or, by acquiescence, cause the other side to be misled. [5]‌12. The issue of ethical behaviour in the context of negotiations involves at its heart the fundamental proposition that a lawyer must never make a representation to an opponent which he or she 882 [14.420]

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Effective and Ethical Negotiations: Some Topical Cases cont. knows to be untrue. A lawyer must not permit an opponent to act upon the representation which the lawyer knows to be untrue. The Law Society Rules provide as follows: 51. A practitioner must not knowingly make a false statement to the opponent in relation to the case (including its compromise). 52. A practitioner must take all necessary steps to correct any false statement unknowingly made by the practitioner to the opponent as soon as possible after the practitioner becomes aware that the statement was false. 53. A practitioner does not make a false statement to the opponent simply by failing to correct an error on any matter stated to the practitioner by the opponent. 13. These rules are to be looked at in conjunction with Rules 21–​23 (which relate to one’s obligation to the Court). Rules 51–​53 deal with obligations to opponents. 14. The Fair Trading Act provides as follows: 42(1) A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. (2) Nothing in this Part shall be taken as limiting by implication the generality of subsection (1). 43(1) A supplier shall not, in trade or commerce, in connection with the supply or possible supply of goods or services to a consumer, engage in conduct that is, in all the circumstances, unconscionable. 15. There is no reason why a lawyer engaging in misleading and deceptive conduct on behalf of his or her client may not, along with the client be liable for a breach of the Fair Trading Act, or, in an appropriate case attracting its operation, the consumer protection provisions of the Trade Practices Act 1974. [6]‌16. There is obvious tension between obligations of frankness and disclosure and the necessity of secrecy in relation to some aspects of negotiation. The Courts have considered from time to time the concept of misleading and deceptive conduct in this context. As a general proposition, although lawyers may be liable for actual misrepresentation, they will generally not owe any common law duty of care to opposing parties involved in litigation (Orchard v South Eastern Electricity Board [1987] 1 QB 565). 17. In Lam v Austintel Investments Australia Pty Ltd (1989) 97 FLR 458, Gleeson CJ at 475: Where parties are dealing at arms’ length in a commercial situation in which they have conflicting interests it will often be the case that one party will be aware of information which, if known to the other, would or might cause that other party to take a different negotiating stance. This does not in itself impose any obligation on the first party to bring the information to the attention of the other party, and failure to do so would not, without more, ordinarily be regarded as dishonesty or even sharp practice. 18. In Legal Services Commissioner v Mullins [2006] LPT 012, Mr. Mullins, a junior barrister in Queensland acting for a plaintiff in a personal injury case, was found guilty of professional misconduct and fined. In that case an expert report of Evidex had been served. The Evidex report included a comprehensive assessment for an occupational therapist of the then 48 year old plaintiff’s future care needs and an accountant’s valuation of the costs of that care. The report contained specific representations as to the plaintiff’s life expectancy. The report set out a series of actuarial calculations based upon particular life expectancy. Negotiations proceeded upon the basis that Mr White (the Plaintiff in the principal proceedings) had a normal life expectancy for man of his age less 20% to reflect the injuries and disabilities consequent upon the subject accident. 19. A mediation of the personal injury case was set for 19 September 2003. On 16 September, Mr Mullins conferred with the Plaintiff and his solicitor, a Mr Garrett. During the course of a discussion [14.420]  883

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Effective and Ethical Negotiations: Some Topical Cases cont. at the conference about a draft schedule of damages to be given to the Defendant and used at the mediation, the Plaintiff said that he was to [7]‌receive chemotherapy treatment for secondary cancer which had been detected on his lungs and in other places throughout his body and that these matters had been discovered, at the earliest, on or about 1 September 2003. The significance of these matters, in terms of the Plaintiff’s life expectancy, is obvious. Mr Mullins sought instructions from the Plaintiff to disclose these matters to the Defendant. He was instructed not to do so. Mr Mullins also consulted Senior Counsel about his predicament. In the absence of specific advice that he must disclose the cancer diagnosis, Mr Mullins did not disclose this fact to the defendant insurer or its lawyers prior to the mediation and consequent settlement of the case. 20. Mr Mullins conducted some preliminary discussions with his opponent, Mr Kent, about the Plaintiff’s case. He attended the mediation and there provided Mr Kent with a schedule of damages with calculations patently based upon a normal life expectancy less 20%. 21. Quite obviously, the poor prognosis in relation to the cancer diagnosis had the effect of dramatically reducing those calculations based upon a necessity to revise the life expectancy figure. The offer of the insurer (Suncorp Metway) included allowances for care, future economic loss and general damages upon the basis of the Plaintiff’s life expectancy as per the Evidex report. The insurer was unaware of the cancer diagnosis at the time the case settled. When the cancer diagnosis came to the notice of insurer and the insurer ascertained the fact that the Plaintiff’s counsel was aware of the cancer diagnosis without disclosing that fact, a complaint was made resulting in the disciplinary proceedings against Mr Mullins. 22. In dealing with the complaint, the Legal Practice Tribunal said as follows:-​ [30] By continuing to call the Evidex reports in aid as information supporting Mr White’s claim after learning the cancer facts and recognizing their significance for the validity of the life-​expectancy assumption, the respondent intentionally deceived Mr Kent and Suncorp representatives about the accuracy of the assumption. He did so intending that Mr Kent and Suncorp would be influenced by the discredited assumption to compromise the claim: which happened. [31] The fraudulent deception the respondent practised on Mr Kent and Suncorp involved such a substantial departure from the standard of conduct to be expected of legal practitioners of good repute and competency as to constitute professional misconduct. 23. In Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352, Mr Fleming, a legal practitioner who carried on practice as a solicitor in Western Australia, acted for a client in relation to a resolution of a dispute about a will. The dispute concerned claims by some siblings of the deceased as to the validity of their late mother’s will and the distribution of the estate. In that case, Mr. Fleming, on his client’s instructions, in the course of negotiations with the client’s siblings, did not disclose the informality of the will in the course of obtaining a covenant from the siblings not to challenge the will. Mr Fleming fully expected the sibling’s solicitor to request a full copy of the will. This omission on the part of his opponent did not in any way ameliorate what was found to be unethical behaviour on the part of Mr Fleming, especially as he was found to be “the moving force…in the other side’s misconception”. He was found to be guilty of unprofessional conduct and was fined $7,500 and ordered to pay costs. 24. Commencing at paragraph 65 in Fleming, there is an instructive passage headed “The professional duties of practitioners in settlement negotiations”. It should be borne in mind that in Fleming’s case, the practitioner engaged in a course of conduct over some months which was intended to mislead the opposing party and which in fact did so, albeit, it was done on Mr Fleming’s client’s express instructions. The administrative tribunal dealt with a number of the issues which arise from such a situation in the following terms: [68] The practitioner’s obligations upon receipt of his client’s instructions to keep secret the informal nature of her deceased husband’s will and to proceed to obtain probate without the 884 [14.420]

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Effective and Ethical Negotiations: Some Topical Cases cont. consent of the other party, were clear. He ought to have advised his client that the proposed course of conduct was likely to reflect poorly on the client’s credit and honour (the Rules r 12.1)……………an ex parte application was proposed to be made to the Court for probate of the will. In respect of that application he was under a stringent legal and professional obligation to disclose to the Court all relevant circumstances, including the other party’s interest in and rights to challenge the grant of probate (and probably also the fact that the parties were in dispute). If, notwithstanding that advice, she insisted he proceed and he was prepared personally to do so, he ought to have advised her that………..he could not conduct [9]‌the negotiations in such a way as to suggest that a formal will existed or procure the other sides’ consent to probate upon a false basis. Further, in relation to the application to the Court, to the extent that it could properly proceed at all, he would be obliged to advise the Court that, by reason of his client’s instructions, he could not assure it that all relevant matters which ought to have been revealed had been disclosed. If she insisted nevertheless that he proceed with such negotiations and application contrary to that advice, he should, as he was entitled to (r 12.3), have declined to act further. 25. The following observations of the Tribunal about obligations to the administration of justice and opponent (and not just one’s client) are significant: [71] The lesson from a case such as this, is that where the client’s instructions may run counter to normal ethical principles and a practitioner’s own personal standards, he or she should think seriously before proceeding in accordance with those instructions. Practitioners who engage in misleading conduct or sharp practice can hardly expect to receive the trust and respect of their colleagues (much less of the Court). Yet such trust and respect is a fundamental requirement of a practitioner’s practice if he or she is properly to play his or her part in the administration of justice and adequately to serve the interests of his or her client. Where in this type of situation the practitioner seeks guidance from the Rules, he or she ought to bear in mind that it is both the letter and the spirit of such rules which govern their conduct. 26. The suggestion from Mr Fleming that he expected the true situation to be apparent to his opponent did not assist him. In dealing with this issue, the Tribunal said as follows: [77] The fact that, in the normal course, a practitioner’s improper conduct might be exposed, and the harm avoided by a “due diligence” undertaken by his opponent, does not alter the impropriety in any respect. In the same way that practitioners owe duties to the Court, such as drawing unfavourable authorities to the attention of the judge, irrespective of the work (or neglect) of their opponents, so in settlement negotiations or other dealings with their opponent, or indeed (and particularly) with a litigant in person, a practitioner must be perfectly candid. … [12] 35. Specific issues arise in the context of mediations which are now so common as to be almost a norm in litigation. Mediations create their own difficulties because they are conducted with a greater emphasis on frankness and candour, particularly in relation to the dialogue which occurs between lawyers for one side or the other and the mediator. Quite obviously, in such circumstances the mediator should not be told anything which is false although issues may arise about the extent to which the mediator is provided with information. Leaving aside the added complexity of confidentiality agreements and undertakings as to confidentiality, one would expect that the same sanctions as befell Mullins would apply if there was a failure to correct a misrepresentation as to fact. An endorsement of the misunderstanding by silence could give rise to the same problem. [13] 36. Mediations also raise the further requirement of the necessity of good faith … The actual elements of good faith can be extremely difficult to precisely identify. As in many ethical situations, it can be difficult to positively identify the features but easy to have a strong sense of grievance when one [14.420]  885

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Effective and Ethical Negotiations: Some Topical Cases cont. or another required element is missing. At the very least, the concept of good faith has a requirement that a party act with subjective honesty of intention and sincerity. An objective standard also applies. A parties’ negotiating conduct may be so unreasonable that they could not be said to be sincere or genuine in their desire to reach agreement. One indicia of good faith is whether the negotiating party has done what a reasonable person would do in the circumstances. 37. As stated by Allsop P held in United Group Rail Services Limited v Rail Corporation New South Wales [2009] NSWCA 177: What the phrase “good faith” signifies in any particular context and contract will depend on that context and that contract. A number of things, however, can be said as to the place of good faith in the operation of the common law in Australia. The phrase does not, by its terms, necessarily import, or presumptively introduce, notions of fiduciary obligation familiar in equity or the law of trusts. Nor does it necessarily import any notion or requirement to act in the interests of the other party to the contract. 38. In mediations, it is sometimes said that a party making an extremely low or high offer is not conducting itself in good faith. This is not necessarily so. There is no reason why a party cannot negotiate in good faith although making an extremely low offer provided that proper consideration is given to the issues. A detailed analysis of the issue of good faith goes far beyond the scope of this paper but it is sufficient to say that if negotiations are not conducted in good faith, it is difficult to image circumstances in which they could be effective and there may well be circumstances in which the manner of conduct of negotiations could be classed as unethical. 39. Thus the obligations of a party to negotiate or mediate in good faith do not oblige nor require the party to act for or on behalf of, or in the interests of the other party, or to act otherwise than by having regard to self-​interest (Aiton v Transfield [1999] NSWSC 996 [14] cited with approval in Azmin Feroz Daya v CNA Reinsurance Co Ltd & Ors [2004] NSWSC 795).

 [14.425]  The next extract is Carrie Menkel-​Meadow’s aspirational code of conduct for law-

yers in dispute resolution. Although to some, it may appear overly optimistic, unrealistic or even completely misguided, it is a prompt for further critical discussion about the lawyer’s role in dispute resolution.

Ethics and Professionalism in Non-​Adversarial Lawyering [14.430]  C Menkel-​Meadow, “Ethics and Professionalism in Non-​Adversarial Lawyering” (1999) 27 Fla St U L Rev 153 at 165-​166. II. The Ten Commandments of Appropriate Dispute Resolution: An Aspirational Code 1.

Lawyers should have an obligation to consider and inform the client about the possible methods of resolving a dispute, planning a transaction, or participating in legislative, administrative or other processes that might best address the client’s needs. Lawyers should educate themselves and their clients about all available options for handling the client’s matter.

2.

Lawyers should promptly communicate all proposals to resolve disputes by any process suggested by other parties, clients or decision-​makers.

3.

Lawyers should consider and promptly communicate all substantive proposals for dispute resolution or transactional agreements to their clients, including both legally based remedies and resolutions and those that address other needs or interests. Lawyers should assist clients to consider non-​legal concerns including social, ethical, economic, psychological and moral implications of any possible solutions or proposals.

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Ethics and Professionalism in Non-​Adversarial Lawyering cont. 4.

Lawyers should not misrepresent to or conceal from another person, a relevant fact or legal principle (including opposing counsel, parties, judicial officers, third party neutrals or other individuals who might rely on such statements).

5.

Lawyers should not intentionally or recklessly deceive another or refuse to answer material and relevant questions in representing clients.

6.

Lawyers as representatives should not agree to a resolution of a problem or participation in a transaction that they have reason to know will cause substantial injustice to the other party. In essence, a lawyer should do no harm.

7.

A lawyer serving as a third party neutral should decline to approve or otherwise sanction an agreement achieved by parties which the third party neutral has reason to know would effect an injustice on a party (or third party).

8.

Lawyers serving as third party neutrals, such as arbitrators and mediators, should disclose all reasons the parties might consider relevant in determining if the neutrals have any bias, prejudice or basis for not acting fairly and without improper interest in a matter.

9.

Lawyers serving as client representatives or as third party neutrals should fully explain to their clients and parties any and all processes and procedures that will be used to facilitate solutions, make claims, or plan transactions so parties can understand and participate in the decision about what procedures to use.

10.

Lawyers should treat all parties to a legal matter as they would wish to be treated themselves and should consider the effects of what they accomplish for their clients. In essence, lawyers should respect a lawyers’ golden rule.

 [14.435]  So far the focus has been on face to face DR processes but increasingly, innovations

in the field of DR are centred on the use of technology. Technology assisted DR processes are on the increase including online dispute resolution (ODR) (Chapter  10). While the use of ODR is expanding, standards are yet to be settled. The extracts at [14.440] and [14.445] canvass principles regarding ethical practice of ODR.

Ethical Principles for Online Dispute Resolution [14.440] L Wing, “Ethical Principles for Online Dispute Resolution -​A GPS Device for the Field” (2016) 3(1) International Journal on Online Dispute Resolution 12. [13] … Not surprisingly, as online dispute resolution begins its third decade, there have been increasing calls for attention to the ethical and regulatory dimensions of ODR. When reflecting on the impact of the infusion of technology into the way that disputing is managed, the field is uncovering a plethora of questions and challenges that directly relate to ethics: some of them newer and some versions of old ones we in the broad alternative dispute resolution (ADR) field have yet to address successfully –​ones that technology also has the capability to assist with. In this way, by exploring ethical issues regarding technology and dispute resolution, we are also uncovering opportunities to better serve stakeholders and enhance trust in the quality of what the field can deliver. If we hope to have as ethical a set of tools and processes as we can, it is incumbent upon us to explore the ethics of technology-​assisted management of data and communication as part of dispute handling processes. And it would behoove us to consider them across a range of professions and sectors of society, not only in the arena of traditional ADR fora, given that ODR is being harnessed in a wider variety of settings than ever before. For example, ethical concerns arise with managing complaints over reputational reviews for e-​commerce and concerns regarding electronic health records, in designing dispute management systems for businesses and government agencies, as well as when [14.440]  887

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Ethical Principles for Online Dispute Resolution cont. employing email, electronic calendars, brainstorming software and video conferencing for arbitration and mediation. … [16] 2 Motivation and Inspiration for ODR Ethical Principles … As others have also argued, there are a number of reasons why timing is right for further addressing the call, and they include key arguments that (1) public articulation of principles and standards can contribute to increasing trust for the use of ODR; (2) if the ODR field does not effectively accomplish this, then others external to it will do so, or, even worse, they will construct regulations for ODR that do not reflect the shared values of our field; (3) those constructing and using ODR platforms and processes are already routinely facing ethical dilemmas in which those with less access and power are particularly vulnerable; and (4) there is already a wealth of expertise among ODR intervenors, scholars and those running organizations and agencies that offer ODR services, which includes a fairly consistently articulated set of shared values that provide a strong foundation from which to work. Therefore, with a growing refrain within the field of ODR, the need to provide ethical, high-​quality ODR services, and, importantly, with others external to our field already creating legislation and administrative regulations for ODR, we would do well to amplify our attention to ethics and ODR, and consider ways of broadcasting how we are integrating them within our own practices as well as within the other systems into which ODR is becoming imbedded. Towards that end, a set of ethical principles is presented here as part of the effort to contribute to outlining and supporting effective ethical practices of the field. Whereas a more robust and broad-​ranging discussion about standards could also be welcome at this time, the ethical principles presented here are not offered as standards or codes of conduct but rather as an articulation of shared values. [24] Ethical Principles for Online Dispute Resolution 5.1 Preamble The Ethical Principles for Online Dispute Resolution (ODR) are designed to enhance the quality, effectiveness and scope of dispute resolution processes with technological components. Taken together, they can provide a touchstone for best practices, standards, rules, qualifications and certification efforts in dispute resolution and related fields that address dispute resolution processes and practices. This document builds on previous work by the National Center for Technology and Dispute Resolution on principles and standards of practice, as well as the growing body of literature and the standards of numerous professional, governmental and commercial bodies concerning ODR and dispute resolution more generally. There is no priority to be implied by the sequence of the principles that are list alphabetically. They are meant to be taken as a framework that is interlocking and interdependent. With the rapidly growing adoption of ODR in a number of sectors, it is timely to produce a living document of ethical principles integral to the design, structure, practices and implementation of online dispute resolution systems. Therefore, while debate will likely continue over time about the definition and scope of ODR and what practices and standards should be formalized, if any, it is hoped that the creation of these Ethical Principles for Online Dispute Resolution can [25] provide a benchmark for these discussions and for systems development, usage and the integration of ODR into existing institutions. With the knowledge that there is a diversity of perspectives and practices, and that there will be a constant innovation of new technologies impacting the ways we use, foster and transform conflict, it is worthwhile to formulate and continue to revisit ethical principles to inform, guide and inspire best practices. Articulating a set of principles shared across jurisdictions simultaneously requires a recognition that their manifestation will also be necessarily grounded in legal jurisdictional requirements and in sectorally and culturally specific ways. It is intended that the Ethical Principles for Online Dispute Resolution will find a wide audience, instilling further confidence in the integration of ODR into systems and institutions as the stakeholders in systems of ODR become more expansive and inclusive. 888 [14.440]

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Ethical Principles for Online Dispute Resolution cont. They are designed to guide and foster ethical ODR systems and practice in both the public and private spheres. It is likely that more specific or additional principles may be articulated in the future from within particular sectors and jurisdictions. These, instead, are offered as core, shared values and as a living document that can respond to new conditions, technologies, stakeholders and knowledge –​to prove sustainable to those relying on it. 5.2 Accessibility The design and implementation of efficient and effective processes provide for their usage, not only to the broadest range and number of people, but also by accounting for the reality of cultural differences within and between jurisdictions, as well as differential access to resources and experiences of marginalization that can hinder access to dispute resolution and justice processes, whether formal or informal. ODR systems and processes effectively facilitate and do not limit the right to representation for parties in processes of dispute resolution. 5.3 Accountability The development and implementation of ODR systems, processes and practices are accountable to the institutions, legal frameworks and communities that they serve. 5.4 Competence ODR systems, processes and practitioners will be competent in or provide access to relevant technological or human competency required for the effective implementation of the dispute resolution process that they undertake to assist with. This includes but is not limited to relevant dispute resolution, legal, and technical knowledge; languages; and culture. 5.5 Confidentiality The development and implementation of ODR systems, processes and practitioners maintain confidentiality in accordance with all legal obligations and in a manner that is consistent, in particular, with the principles of Legal Obligation, Informed Participation, Security and Transparency. [26] 5.6 Empowerment ODR systems and processes are designed and implemented in ways that seek to enable growth and positive change for individuals, relationships, systems and society, thereby increasing access to justice and enhancement of choices and effective decision making opportunities. 5.7 Equality ODR processes are designed and implemented in ways that treat all participants with respect and human dignity; that system design and processes enable silenced or marginalized voices to be heard and actively seek to ensure that privileges and disadvantages are not replicated in the experience of participation; that no participant is placed at a higher risk than others; and, therefore, that ODR processes are designed to respond effectively to the reality that some contexts may put some at more risk than others. 5.8 Fairness ODR processes are designed and implemented to facilitate and uphold due process, without bias or benefits for or against individuals or groups, including those based on algorithms. They are responsive to and reflective of the communities and stakeholders they serve. 5.9 Honesty ODR processes are designed and implemented with the intention that data is gathered, managed and presented in ways to ensure it is not misrepresented or presented out of context.

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Ethical Principles for Online Dispute Resolution cont. 5.10 Impartiality ODR processes are designed and implemented, and practitioners function with commitment to reducing bias in the delivery of the process. This includes accounting for technological and other conditions that could structure patterns of privilege in process and outcome for repeat players with particular attention to the principles of Accessibility, Fairness and Transparency. 5.11 Informed Participation In the development and implementation of ODR systems and processes active effort is made to ensure (1) explicit disclosure to participants of all information about risks and benefits of the process, (2) the competency of participants to evaluate the information about participation in the process, (3) understanding by participants of the information, (4) whenever possible, the voluntary acceptance by the participants of the risks of participating; and whenever voluntary consent is not possible due to the mandatory nature of participation than that is made transparent. [27] 5.12 Innovation Online dispute resolution continues to innovate to improve the delivery of dispute resolution services and benefits more fairly, effectively and efficiently in ways that increase peace, trust and access to justice. 5.13 Integration ODR processes are effectively integrated both internally within a system and externally with other systems, networks and entities. Technology serves the dispute resolution process as seamlessly as possible. The application of technology and of dispute resolution is designed and implemented in the context of their linkages with other existing systems and networks and of knowledge that new ones will emerge. This is implemented with special attention to the integration with public entities to enhance inclusiveness and access to justice. 5.14 Legal Obligation The design and implementation of ODR systems and processes uphold the laws of relevant jurisdictions and ensure that relevant laws are known and followed in the context of the principles of Accessibility, Informed Participation and Transparency. 5.15 Neutrality ODR systems and practitioners function with independence from the disputing parties, and any conflicts of interest are made transparent. 5.16 Protection from Harm ODR design and implementation seek to prevent and minimize harm and risk for those involved in dispute resolution processes, with particular attention to those most marginalized and with least access to justice. 5.17 Security All reasonable efforts are made to ensure that the data and communication between the parties and other entities linked to ODR processes are secure to the fullest extent of the law, making transparent any known limitations. 5.18 Transparency All reasonable efforts are taken to make transparent the true purposes, risks and legal obligations inclusive of but not limited to: the form and legal jurisdiction of dispute resolution processes; the identities, affiliations, obligations and conflicts of interest of the parties, entities and systems; and the data security, confidentiality and privacy policies and systems involved.

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[14.445] The extract at [14.450] is a table developed by Syme which shows how existing

ADR ethical principles may be adapted in ODR.

Keeping Pace: On-​line Technology and ADR Services [14.450] D Syme, “Keeping Pace: On-​line Technology and ADR Services” (2006) 23(3) Conflict Resolution Quarterly 343 at 354. Table 2 Practitioner knowledge, skills, and ethics Existing Standard Ethics

Contextualized to Information Technology Promoting services accurately

…

Ensuring effective participation by parties

Using strategies to ensure fairness and accessibility in on-​ line environment and in tele-​and videoconferencing

Eliciting information

Verifying and authenticating information provided on-​line or through other telecommunications media

Managing, continuing and terminating the process

Managing parties “hanging up”; managing technical failure; ensuring that automated processes do not prematurely end or indefinitely continue negotiations

Maintaining impartiality

Maximizing transparency in on-​line and audiovisual communication, for example, explaining physical settings; taking account of technical disadvantage but avoiding overcompensating

Maintaining confidentiality

Ensuring that automated processed are secure; employing risk management strategies to secure information

Ensuring appropriate outcomes

International legal contest (such as enforcement) and notions of fairness may be relevant

 [14.455]  Ethical issues will continue to arise as the DR field continues to expand and the

field, including practitioners, policy makers and researchers need to arise to the challenge of maintaining good quality ADR in order to “do no harm” and to increase public confidence in DR processes. [14.460] Questions

1.

What is the relationship between values and ethics?

2.

What is an ethical dilemma?

3.

Who has ethical obligations in a dispute resolution process?

4.

Where can a dispute resolution practitioner find guidance about how to deal with an ethical issue in his or her practice?

5.

What are the limitations of ethical and practice standards?

6.

What sorts of ethical issues can arise when the outcomes of a dispute resolution process potentially affect vulnerable third parties who do not participate in the process? Give some examples of situations in which this might occur.

7.

What are particular ethical issues that might arise in family dispute resolution? [14.460]  891

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8.

What are particular ethical issues that might arise in evaluative/​advisory dispute resolution processes?

9.

What is the relationship between ethical issues and just outcomes in mediation?

10. What are your views on the Rawlsian approach to mediation ethics? 11. Should there be a good faith requirement in negotiation? Why?/​Why not? 12. What roles can lawyers representing clients play in mediation? 13. Should lawyers have different ethical standards of practice in dispute resolution processes other than litigation? Why?/​Why not? 14. In your view, what ethical issues are raised in relation to ODR and what standards should govern the process?   

892 [14.460]

CHAPTER 15

The Future of Dispute Resolution [15.05] INTRODUCTION......................................................................................................... 893 [15.07] Can ADR be used more extensively?............................................................ 893 [15.10] Access to Justice Arrangements............................................................ 894 [15.20] Online Dispute Resolution and the Future of Alternative Dispute Resolution.... 899 [15.30] Reshaping Boundaries........................................................................ 900 [15.40] ADR Processes: Connections Between Purpose, Values, Ethics and Justice....... 906 [15.50] Global Pound Conference Series: Global Trends and Regional Differences...... 910 [15.60] The New Lawyer............................................................................... 913 [15.65] EDUCATING THE NEXT GENERATION OF DR PRACTITIONERS.................................... 914 [15.70]

Pursuit of Happiness and Resolution of Conflict: An Agenda for the Future of ADR.................................................................................. 914

[15.75]

DEVELOPMENTS IN RESTORATIVE PRACTICE............................................................... 920 [15.80] A Restorative City for New South Wales –​Could Newcastle Be a Model?........ 920 [15.85] BEYOND DR................................................................................................................ 924 [15.90] Beyond Neutrality............................................................................. 925 [15.100] Questions.................................................................................................................... 927

INTRODUCTION [15.05]  Dispute resolution (DR) is a constantly developing field, and as more research

is conducted into the effectiveness of various processes and approaches, it will become a more defined discipline. Accreditation for mediators and family DR practitioners highlights the emergence of a professional body of dispute resolvers that includes a broad range of people with qualifications and experience in areas other than law. The profession is being defined by its own training, standards and ethics. Further, as DR processes are adopted by industry and government to increase access to justice for ordinary citizens, the procedure and values of DR will continue to adapt and evolve to meet various access to justice needs. Changes in the DR landscape come from legislating DR, civil justice case management, industry adoption of DR processes for resolving complaints, professionalization of the field and the demands of ordinary citizens. This chapter considers some of the recent developments in DR in Australia. The next section is an extract from the Productivity Commission’s report on Access to Justice Arrangements. The report identifies areas in which the use of alternative dispute resolution (ADR) processes for resolution of civil disputes may be further expanded. Can ADR be used more extensively? [15.07]  The Australian Productivity Commission’s inquiry into the system of civil DR con-

sidered the role of ADR and provided relevant information on areas in which the use of ADR may be expanded and how this may be facilitated.

[15.07]  893

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Access to Justice Arrangements [15.10] Productivity Commission, Access to Justice Arrangements, Productivity Commission Inquiry Report 2014 Volume 1 pp 290, 302-​310. 8.3 Can ADR be used more extensively? While there are some circumstances in which the nature of the legal dispute and the individual circumstances of the parties involved mean that ADR is not an appropriate resolution mechanism, the available evidence suggests that, outside these circumstances, the use of ADR can be beneficial. And there are some areas –​such as court and tribunal processes, government disputes and private disputes –​where there is potential to better target and encourage greater use of ADR. • For court and tribunal processes, broadly based ADR requirements –​prior to approaching the courts, or prior to any hearing if parties have approached a court –​may be appropriate so long as there are safeguards and exemptions that do not constrain access to justice. Alternatively, requirements to undertake ADR in the first instance may be justified where there is an evidence base to suggest good outcomes or where there have been good outcomes in a related field. • For disputes with government, processes used by some government agencies seem to be working well and could be expanded and adopted by other agencies. Beyond encouraging government agencies to consider ADR, the diverse nature of government disputes means that individual agencies are best placed to know when and where to use ADR to best effect. • For private disputes, there could be a role for assisting small businesses resolve their disputes efficiently and effectively through ADR, where possible. [302] 8.4 Facilitating greater ADR The capacity of ADR to resolve more disputes relies on improving general knowledge about ADR, providing triage and advice services, ensuring legal professionals consider and suggest ADR as an option to clients, and supporting the delivery of culturally appropriate and accessible ADR. Improving education and information Improving general awareness and education about different avenues to resolve disputes is an essential prerequisite for getting parties to think about how ADR might be usefully applied to their dispute. Based on their experience operating the Magistrates Court Legal Advice Service (MCLAS) in South Australia, Caruso, Castles and Hewitt note that: … information regarding ADR is not currently conveyed in an effective manner. Statements about the value of ADR do not address the mind-​set of parties. Parties invariably need to be introduced to the ideas of compromise, reminded that there are two sides to every story, that the court will be required to see both sides and so too should they. (sub. 16, p. 8) [303] Basic legal information –​whether provided by legal assistance providers, online resources or within courts and tribunals –​needs to include elements of ADR to ensure that disputants know that there are alternatives to litigation and that, in some circumstances, interests-​based ADR can result in better outcomes for all stakeholders (and the wider community). As Cannon observed: Education of potential court users and lawyers as to alternatives to court proceedings is central to improving the whole system. (2009, p. 8) There are a number of potential benefits that could arise from increasing the awareness of ADR services, as highlighted by Field: First, users who suffer detriment are more likely to know that there are services that can be utilised to resolve their dispute, thus preventing the undesirable escalation of disputes. Second, awareness of dispute resolution services will make it more likely that users efficiently choose the most appropriate ADR provider. … 894 [15.10]

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Access to Justice Arrangements cont. Knowledge of ADR services can also have a positive effect on the market for civil justice –​ the better informed disputants are about the suitability of ADR, the more likely that they will express preferences that align with their actual needs for ADR, thus leading to efficiency improvements in the market for civil justice. (2007, p. 81) NADRAC proposed a number of strategies that could be employed to increase public awareness about alternative avenues to accessing justice, including: • identifying specific groups who are prone to disputes and providing targeted ADR information • equipping legal professionals with ADR knowledge to assist them to inform clients • identifying organisations within the community that provide support for parties in dispute and providing them with information so they can give comprehensive advice on ADR options • increasing education about ADR within primary and tertiary curricula (sub. 109). Stakeholders have also noted the potential for online resources to provide information and be a forum for disputes to be resolved. Online resources allow individuals to learn at their own pace and provide access to information at any time. They can also provide checklists and step-​by-​step guides to ensure that parties in dispute use a staged approach to escalation and reasonably exhaust all relevant options before progressing to the next level. Such resources can be targeted at various groups that may derive the greatest benefit –​for example, small businesses should be able to access such assistance through small business commissioners or chambers of commerce. … In order to fully capture the benefits of greater education and information, ADR educators and practitioners need to employ a standardised terminology. Work on the definition of ADR was an ongoing research task undertaken by NADRAC throughout its existence. This [304] work should be revisited and form the basis of an agreed terminology. Without this, current inconsistencies in the use of ADR terminology will continue and are likely to generate confusion. … Triage and advice to guide disputes to the most appropriate forum Providing information and education about ADR in the context of resolving disputes may open up a range of options. However, some stakeholders indicated that information by itself may not be enough to persuade parties to opt for ADR. Rather, efficient triage processes are required to filter and direct disputes to the most appropriate forum. … The provision of advice and triage services requires knowledgeable and experienced practitioners who understand the needs of clients, can quickly evaluate the dispute, and recommend an appropriate course of action. The development of well-​recognised entry points, which deliver legal information and advice for consumers as proposed in recommendation 5.2 should seek to ensure relevant material on resolving disputes informally through ADR is provided … “Triage should always include an assessment of whether ADR is appropriate” … In addition to triage services for individuals to help them understand the nature of their legal problem and what is the most appropriate forum for resolution, there is also a role for developing and implementing processes to guide administrators and decision makers in organisations that use ADR as part of a wider range of resolution processes –​including courts, tribunals, ombudsmen and government agencies… [305] The AAT has developed process models for each form of ADR that is used. Each process model sets out a definition of the process and then provides a range of information relating to the conduct of the process including: • the stage of the proceeding at which the process is likely to be undertaken; • a description of the way in which the process will proceed; • the role of the person conducting the process as well as the role of the parties and their representatives; and • what is likely to occur at the conclusion of the process. [15.10]  895

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Access to Justice Arrangements cont. The AAT has also developed a set of guidelines designed to assist Conference Registrars and Tribunal members to determine when it may be appropriate to refer an application to a particular type of ADR process. The guidelines set out a range of considerations to be taken into account, including such things as: • the capacity of the parties to participate and their attitudes; • the nature of the issues in dispute; • the likelihood of reaching agreement or reducing the issues in dispute; and • the cost to the parties. (sub. 65, pp. 7–​8) These materials assist to reduce the subjectivity of referral decisions and provide clarity for participants, particularly when they are unfamiliar with the process. Such process models should not fix the range of circumstances in which ADR is considered suitable. Changes in the way in which ADR is delivered can expand the range of situations in which it is appropriate. For example, the use of “shuttle mediation”, where parties negotiate from different rooms, or video conferencing may provide a more “user friendly” process where parties affected by power imbalance can safely and comfortably participate in ADR. … Ensuring practitioners are competent and experienced It is not enough for consumers to be informed about and/​or directed to ADR. Greater use of ADR also needs to be supported by quality practitioners. [306] ADR services are provided by a range of professionals and organisations, depending on the context. For example, court-​mandated ADR is generally facilitated by qualified court registrars, while commercial arbitration may be undertaken by experienced judges or former judges. ADR services in family matters can be provided by family relationship centres, legal assistance services, or private service providers (including lawyers) (­chapter 24). A research report on ADR by the National Pro Bono Resource Centre highlighted that the independence, professionalism and skill of the ADR practitioner may be the most important factor in ensuring a fair and effective process and that these traits should be developed though appropriate training and experience (sub. 73). While it appears that legal assistance service providers are well versed in ADR and use it effectively, stakeholders indicated that many qualified legal professionals have no or limited experience in the application of ADR. The potential for ADR to improve access to justice could also be strengthened through promoting awareness amongst legal practitioners of available ADR services and an understanding of the different ADR processes, which would improve their confidence in both participating in, and assisting parties to participate in, ADR processes. (QPILCH, sub. 58, p. 36) This may be related to the training of legal professionals. While law graduates are meant to be familiar with a range of ADR processes, a 2011-​12 survey of law schools by NADRAC found that that a number of Australian law degrees do not contain any ADR-​related subjects and provide only limited exposure to informal means to resolving disputes (ALTC 2010; NADRAC 2012b). This appears to be a significant barrier to the wider use of ADR. Indeed, the importance of ADR training for legal professionals was echoed by the Public Interest Advocacy Centre, which contended that: … if lawyers are to be involved in ADR processes, they must be adequately trained for the task. The principles of dispute resolution and the skills required to act for a party in ADR are different to those needed in typical court proceedings. ADR training should be included as a compulsory component of law degrees and of mandatory continuing legal education. (sub. 45, p. 23) 896 [15.10]

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Access to Justice Arrangements cont. The need to ensure that legal qualifications encompass the full range of dispute resolution options, including non-​adversarial options, is discussed in c­ hapter 7. … [307] Stakeholders also commented that the quality of ADR practitioners and services is variable and this can have a considerable impact on whether a dispute settles. The industry-​led accreditation scheme for mediators –​the National Mediator Accreditation Scheme –​provides assurance to clients that practitioners are trained, assessed and qualified, and acts to improve the quality of services. However, this only applies to practitioners who voluntarily seek accreditation and clients who seek to use an accredited practitioner. Voluntary accreditation standards have not been developed for other types of ADR practitioners, such as conciliators or arbitrators. Such schemes could ameliorate the need for regulations on the conduct of ADR professionals more broadly and work is currently progressing on a voluntary standard for conciliation. … A number of stakeholders suggested that the government could be influential in encouraging the development and implementation of accreditation standards for all types of ADR practitioners. … The Commission considers that, at this stage, peak bodies covering ADR professions should continue to develop, implement and maintain standards that enable professionals to be independently accredited. Responsive ADR to cater for diverse needs Specialised services may be required to ensure that all client groups can fully make use of ADR as a mechanism to resolve their disputes. The Commission received a number of submissions that highlighted the diverse needs of particular client groups, including people with a disability, cultural sensitivities, non-​ English speaking backgrounds and those who experience socioeconomic disadvantage. [308] Culturally sensitive services are particularly important for Aboriginal and Torres Strait Islander Australians who are often reluctant to engage in ADR unless cultural protocols are observed. It is often necessary for ADR processes to be adapted to ensure participation and adherence with agreed outcomes. … Recommendation 22.2 proposes a way forward for developing more culturally tailored ADR services for Aboriginal and Torres Strait Islander Australians. The Australian Federation of Disability Organisations (sub. 24) is concerned about accessibility of ADR services for people with a disability. They suggest that staff involved in ADR services need to be familiar with access and communication needs, as well as ensuring that physical infrastructure is appropriate. Submissions also raised the need for interpreter services to be available to allow participants from non-​English speaking backgrounds to fully engage with the ADR process, understand the offers and implications of proposed settlements, and make informed decisions to resolve their disputes in these forums. … Building the evidence base As noted above, there is a lack of data and information on the use of ADR to resolve civil disputes. The data are often reported in an ad hoc way and cannot be collated or usefully compared. There appears to be an opportunity to develop a consistent framework to collect and disseminate data on ADR activities; appreciating that these activities themselves are disparate and occur across very different forums. In some areas, current data reporting requirements could be better targeted to give a clearer picture of ADR activities. For example, legal assistance service providers should be required to provide publicly-​available information on the provision of ADR services as part of their reporting requirements for public funding. ADR should form part of the measurement benchmarks proposed in recommendation 21.8. [15.10]  897

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Access to Justice Arrangements cont. Further, courts and tribunals should be required to report on how disputes have been settled and the role of ADR, if any, towards reaching a resolution. This view was supported by Negocio Resolutions: An important data set is missing in most courts and tribunals. While courts record “disposal rates” of cases they usually keep no record that allows us to find out how many or what [309] the Court of Tribunals. (sub. 52, p. 5) In relation to data collection, the Victorian Parliament Law Reform Committee recommended in 2009 that: At a minimum, the Committee believes that there is a need for consistent data collection across ADR service providers about: •  settlement rates •  factors that may influence settlement rates, such as referral stage •  what happens when disputes are not settled at ADR • participant satisfaction with ADR and perceptions of fairness the time and costs expended by participants and service providers. (2009, pp. 58–​59) While the Commission appreciates that relevant and reasonable data relating to all cases may not be able to be collected, concerted efforts should be made to collect and report at least basic data on how settlement outcomes were achieved. ADR data collection is but one part of a much broader data collection proposal which is discussed in more detail in c­ hapter 25. As in other areas of civil law, there are problems with inconsistent approaches to recording and reporting ADR activities. This is not helped by inconsistency in the use of ADR terminology. Hence, moves towards improving ADR data collection must include agreed ADR terminology. In addition, more concerted efforts are needed to understand the impact of mandated ADR in improving access to justice, including for disadvantaged and vulnerable Australians. As the Access to Justice Committee, Australian Law Reform Commission and the former National Alternative Dispute Resolution Advisory Council have stated, there is a critical need for ongoing empirical and in-​depth research that not only provides data, but also looks at the quality of ADR processes and access to justice barriers. Evaluations of new developments must be regularly conducted and the processes reviewed. Most importantly, in recognition of the complex and paradoxical nature of access to justice developments, these evaluations must be rigorous and contextualised. (Noone, sub. 186, p. 3)

 [15.15]  The above extract gives an indication as to issues that must be addressed to promote

quality ADR into the future. These include ADR education, standardising ADR terminologies, improvement on ADR advice and referral, competency of ADR practitioners including the training of legal professionals, development of codes of conduct for ADR processes including new processes, specialisation in ADR practice including culturally sensitive ADR practice, support for people with disabilities in ADR processes and engaging in research to evaluate the quality of ADR practice. Further inquiry into ADR in relation to improving access to justice was conducted by the Victorian State Government with similar findings (see Victorian State Government, Access to Justice Review: Vol 1 Report and Recommendations (2016)). More importantly the Victorian Access to Justice Review report recommended the use of online DR processes for small claims in the Victorian Civil and Administrative Tribunal (VCAT) 898 [15.15]

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(Victorian State Government, Access to Justice Review: Vol 1 Report and Recommendations (2016) pp  276-​280). A  Pilot has commenced in September 2018 (https://​www.vcat.vic.gov. au/​news/​online-​dispute-​resolution-​pilot). With increase in the use of technology in different fields, it is likely that the use of technology in DR will increase into the future. Below extract looks at the future of ADR in the context of ODR.

Online Dispute Resolution and the Future of Alternative Dispute Resolution [15.20]  D Yeoh, “Is Online Dispute Resolution the Future of Alternative Dispute Resolution?” March 2018, Kluwer Arbitration Blog, http://​arbitrationblog.kluwerarbitration.com/​2018/​03/​29/​online-​ dispute-​resolution-​future-​alternative-​dispute-​resolution/​ (accessed 21 September  2018) The tech revolution has been underway for some time now but has only recently come to the forefront of the general public’s consciousness from the explosion in attention to bitcoin. The progress of technology has allowed it to creep into the domain of alternative dispute resolution. There is now online mediation, online arbitration, and even arbitration utilising the same blockchain technology as cryptocurrencies: blockchain arbitration. These forms of alternative dispute resolution, known as “online dispute resolution”, are increasingly making their presence felt. Online mediation An online mediation is usually commenced when an email is sent to the parties informing them of the basic information of the online mediation. Meetings are then conducted virtually in “chat rooms” where the mediator can communicate separately with each party or simultaneously with both parties. There is usually one chat room for joint sessions, one for caucuses or “breakout rooms”, and another for filing and storing documents. This can also be conducted through emails. Asynchronous online mediation has been shown to be the most popular form of online mediation as it allows parties flexibility and faster resolution of the matter compared to offline mediation, which may see a mediation be put off to a distant date because of the parties’ conflicting schedules. It would also allow parties time to fashion their response, as one’s immediate response at a mediation is not always one’s best response. Other benefits include savings in cost, time and convenience. … Online arbitration Online arbitration can be defined as an arbitration in which all aspects of the proceedings are conducted online. Online arbitrations can have hearings through the use of video conferencing, but most online arbitrations simply require parties to upload their evidential documents, respond to questions from the arbitrator and they will receive a decision from the arbitrator. Online arbitration shares many similar advantages as online mediation, such as lower costs and greater flexibility due to their asynchronous nature. … Smart contracts and blockchain arbitration All of the aforementioned forms of online dispute resolution have been around for some time, but there is a new form of online dispute resolution which is currently being developed: blockchain arbitration. Blockchain arbitration has been developed as the dispute resolution mechanism of choice for disputes arising from smart contracts. Some knowledge of blockchain technology and smart contracts is required to understand blockchain arbitration. The blockchain is essentially an incorruptible digital ledger of transactions that can be programmed to record not only financial transactions, but almost anything that is of value for record. While originally devised for cryptocurrencies, there are many potential uses for the technology. The blockchain database is not stored in any single location but is instead spread across many times over a network of millions of computers simultaneously. The blockchain ledger containing the information has been touted to be incorruptible, because to alter any information on it would require the hacker to have the processing capability to overpower the entire network of millions of computers. [15.20]  899

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Online Dispute Resolution and the Future of Alternative Dispute Resolution cont. What has arisen from blockchain technology are smart contracts. Unlike regular contracts, smart contracts are not written in natural languages such as English or French, but entirely in code. Another point of difference is that, like a program, smart contracts automatically execute or enforce obligations. For example, in a simple contract to sell an item, the smart contract could be coded in such a way that once payment is received, it would automatically transfer the ownership of the item to the buyer. Blockchain arbitration has in turn been developed in order to service the dispute resolution needs that may ensue from smart contracts. It is unlikely in the previous scenario of a simple buy and sell smart contract that any disputes would occur. However, disputes can come about from more complex contracts which may involve some element of misunderstanding in the transaction. This is where blockchain arbitration comes in. There are currently several models of blockchain arbitration being developed such as CodeLegit and Kleros. … All of these are fascinating developments in the virtual world, but what does this mean for arbitration practitioners? Despite several tech enthusiasts’ claim that blockchain arbitration is the future of dispute resolution, there are still several fundamental issues preventing blockchain arbitration from replacing traditional arbitration. First, as a smart contract is entirely in code, some national legislations may not recognise it as a valid contract because it does not fulfil formality requirements. There may also be discrepancies when translating complex contracts into smart contract codes. Secondly, while smart contract disputes will benefit from arbitration because of its flexibility and its relative ease in cross-​border enforcement of awards, there are some difficulties with the arbitral clause in smart contracts. ... Technology for Lawyers: Beware The Ides of March? Complex and high value disputes will remain the province of traditional alternative dispute resolution. However, with traditional arbitration increasingly incorporating modern technology into its proceedings, the distinction between online arbitration and traditional arbitration is becoming less clear. What cannot be denied is that with improved technology and automation, less complex disputes work will be claimed by online dispute resolution services. It is therefore imperative that lawyers continue to improve themselves and keep abreast of the latest legal and technological developments to avoid falling by the way side in the wake of technology’s relentless march.

 [15.25]  As seen above, the ADR field continues to expand beyond its traditional boundaries.

As such constant adaptation and remodifying of principles and values is occurring to accommodate new processes and new fields. The extract below, though on online DR, clearly indicates that future developments will continue to challenge traditional boundaries which may no longer be relevant in the future of ADR.

Reshaping Boundaries [15.30]  O Rabinovich-​Einy and E Katsh, “Digital Justice: Reshaping Boundaries in an Online Dispute Resolution Environment” (2014) 5 International Journal of Online Dispute Resolution  7-​19. 2. Dispute Resolution Theory, Practice and Policy as We Know It: A Field Defined by Its Boundaries Contemporary dispute resolution theory developed in the second half of the twentieth century alongside the enthusiastic adoption of ADR processes. In the [8]‌1960s and 1970s, dissatisfaction with the court system grew as caseloads increased substantially and budgets dwindled. Indeed, discontent with the formal avenue led to the convening of the well-​known “Pound Conference” in 1976, 900 [15.25]

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Reshaping Boundaries cont. where leading practitioners, academics and judges discussed the ills of the legal system and potential solutions to the problems. The principal problems raised were the high costs associated with a slow, complex and overburdened system. Discontent with the court system, however, extended beyond narrow efficiency-​based considerations related to the costs and time for litigating a case. Critiques of courts were aimed at the quality of the outcome reached, parties’ satisfaction with the procedure employed and the impact of the resolution on the disputing parties’ relationship and future cooperation, as well as considerations relating to the broader community. In terms of quality of outcome, courts were criticized for their “limited remedial imaginations”, with most cases resulting in some form of monetary compensation, typically somewhere between the positions of the disputing parties. Courts were reluctant, and often incapable of, providing more creative solutions, which would actually address what the parties needed, as opposed to what they demanded. Critique of court remedies was, in fact, part of a much broader criticism of a process that was adversarial and position-​based, instead of addressing parties’ needs and interests. In this respect, interest-​based negotiation and mediation were expected to provide a real alternative, shifting parties’ focus from rights and positions to their underlying needs, allowing parties to brainstorm and devise “win-​win” solutions constrained only by the parties’ creativity and imagination. As of the 1970s, mediation and, to a lesser extent, arbitration were introduced into community and court settings as an avenue for addressing conflict in [9]‌lieu of, or alongside, the court system. Despite critiques over “privatization of justice” and the “vanishing trial” phenomena, adoption of ADR schemes in the 21st century continued and expanded. In many respects, the debate on privatization, the role of courts and the need for ADR became obsolete. Institutionalization spread beyond courts and agencies, extending to private entities, giving rise to the phenomenon of “internal dispute resolution”. Organizations began adopting “conflict management systems” for addressing disputes involving employees and customers. While the seeds for such developments were planted in 1989 with the publication of Ury, Brett and Goldberg’s “Getting Disputes Resolved”, the design and adoption of such systems evolved into a field of its own, “dispute systems design (DSD)”, only a decade or so later. Interestingly, the rise of DSD was taking place at approximately the same time that Internet communication was growing but, as we shall see, the ADR field has allowed limited penetration of new technologies. While the ADR movement was united by its call for embracing alternatives to court, it was in fact grounded in diverging rationales and worldviews, ranging from efficiency to party satisfaction and community empowerment. This state of affairs has generated a broad range of practices, but has also meant that the field has become an umbrella term for various theoretical approaches, each grounded in different disciplines and methodologies. The theory of ADR has drawn on multiple disciplines, including law, economics, psychology, sociology, anthropology and organizational behaviour. Despite its diverse roots, however, the writing in the field in the last few decades has followed a similar logic of boundary-​setting in both practice and in theory. These boundaries are sometimes referred to as “barriers”, and at other times as “stages”, “categories” or “dichotomies [10]”, but in all instances create structures that organize the field –​its limits, functions, concepts, values and goals. One way to map the various boundaries that have organized the field is by distinguishing among these physical, conceptual, psychological and professional boundaries. 2.1 Physical Boundaries Physical boundaries are integral to the ADR literature. They relate most obviously to contemporary dispute resolution theory’s understanding of dispute resolution as occurring in a physical place and being performed in a face-​to-​face setting, within a particular jurisdiction, subject to a particular body of law, with the force of the state supporting such services and ensuring the enforcement of any decision or resolution reached. Physical meetings have innate and inevitable limitations. For the provider, operating a physical place comes at a cost, often a high cost, which can effectively screen many disputes from being voiced or addressed. Courts are a particularly costly dispute resolution avenue and one where the physical [15.30]  901

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Reshaping Boundaries cont. characteristics of the space are important in that they shape both the symbols and the processes that are present in the space. The expensive and overburdened court system has raised concerns regarding the ability of disadvantaged disputants to bring their disputes before the courts. While all disputants are subject to this state of affairs, disputants of low socio-​economic backgrounds are obviously impacted more significantly. When people with disabilities bring their case to court or to an alternative forum, physical access may be denied de facto or be extremely difficult to attain. Even where these disputants are able to enter the courthouse, procedural arrangements and practices may unevenly impact them, making it more difficult for such parties to participate and have a voice in the process. Other problems have to do with the geographic spread of legal services and access to such services by disadvantaged disputants. The desire to reduce costs has been a major concern for the ADR movement grounded both in the court systems’ own desire to enhance its efficiency and productivity and in external calls for improved “access to justice”. The degree to which ADR processes have succeeded in reducing access barriers remains debatable [11], and is the subject of contradictory empirical data. But even at reduced costs, ADR has remained an activity that comes at a price and that itself presents physical barriers –​having to “show up” and participate, and to devote time, resources and energy to the process, all this is still needed even if no litigation process is conducted. The physical attributes of dispute resolution processes can vary dramatically according to the type of process conducted. Litigation takes place in a highly visible and recognizable courthouse, which commonly has distinctive physical characteristics, such as the symbol of the state, typical architectural and internal design relating to such matters as the placement of the judge, parties and lawyers in the courtroom. Alternative processes, on the other hand, may take place in a courtroom, but also may not. There is a conscious attempt to create a physical setting in ADR processes that is very uncourt-​like (even where these processes are conducted in the courthouse) through such measures as informal seating arrangements, and allowing food and beverages. The setting, however, still has the constraints of being a physical place. The architecture and physical characteristics of a dispute resolution process impact the degree of privacy one can expect. To the extent that the place one enters to resolve his/​her problem is a “courthouse”, then merely by entering the building he/​she is in some sense exposed as being involved with an ongoing case. On the other hand, conducting a private dispute resolution process in an intimate face-​to-​face setting, encircled by physical boundaries, can create a secure closed setting in which parties feel safe to disclose confidential information. Nevertheless, the impact of these features is not one-​directional, and the intimate setting of ADR processes, while designed as a barrier-​reducing strategy, has been found hazardous for disempowered parties who under the veil of private proceedings have ignorantly agreed to an unfavourable compromise. While public proceedings can be described as being “open” and “accessible”, they may also serve as a barrier for certain types of parties who would be deterred from bringing their case for fear of public exposure. In those cases, the private nature of ADR processes may be more appealing, serving to reduce access barriers for those disputants while closing off the process to the outside world. At the same time, there are parties who are “against settlement” precisely because they [12] would like to make their problem and resolution known to a broader circle of interested or potentially interested parties. ADR can be differentiated from courts on the basis of the nature of the physical space in which the proceeding is held, but it is important to be aware that they are both dependent on physical spaces. The differing qualities of the particular physical space used, along with the manner in which information is communicated and processed, shape and reinforce different values, but the fact that both require a physical setting leads them to share some common elements as well, elements that we shall describe below. While some processes may involve higher access barriers than others, all dispute resolution avenues, whether they take place in a courtroom or an office space, carry some costs and screen out certain cases or potential disputes. Furthermore, with the broad institutionalization of ADR in courts, the physical boundaries for each of these categories have become more similar, rendering difference a matter of degree rather than kind. 902 [15.30]

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Reshaping Boundaries cont. 2.2 Conceptual Boundaries Conceptual boundaries are present in every field and discipline. In ADR, they allow us to distinguish between formal and informal avenues of dispute resolution, between resolution and prevention, and among the different processes within the ADR field. The delineation of conceptual boundaries has served as a backbone for the eager adoption of ADR mechanisms in the twentieth century, as demonstrated in Professor Sander’s vision of a “multi-​door courthouse” –​a court that would offer a multitude of processes for addressing different types of conflicts involving parties with varying characteristics, and in Lon Fuller’s earlier work, which exemplifies an essentialist view of the various dispute resolution processes. Sander’s approach became a leading paradigm for the institutionalization of dispute resolution programmes. The reality of alternatives intertwined with the formal court process generated a wide array of writing on such matters as the unique characteristics of each dispute resolution avenue; the relationship between formal and informal dispute resolution; policy considerations relating to the adoption of ADR mechanisms and the form of institutionalization chosen; criteria for forum selection across dispute types and disputant characteristics [13]; certification, training and education of third-​ party neutrals and ethical dilemmas and codes for ADR practitioners. Sander’s basic insight regarding the need to tailor dispute resolution processes to the characteristics of the dispute and the parties also represented an important step in the development of ADR theory in the following decades in the area of DSD. As we shall discuss later, all the categories of dispute resolution processes and, indeed, the differentiation of dispute resolution from dispute prevention are based on differences in how information is used. Implementing a new technology may bring efficiencies but, over time, can prove disruptive in that boundaries that are foundational begin to erode. Conceptual boundaries in dispute resolution are premised, first and foremost, on a dichotomous opposition between “courts” and “ADR”. One is formal, while the other is informal. One operates on a systemic level and can establish standards and precedents, while the other is more focused on individual disputants. One is based on predetermined and fixed procedures and remedies, while the other is flexible and tailored. One is open and public, while the other is confidential and private. One highlights logic and reason, while the other leaves room for discussion of needs and emotions. These distinct characteristics have served to promote different goals. While most dispute resolution processes would describe “dispute resolution” as a clear goal, courts –​being a system –​would also commit to the goals of development of law, precedent-​setting, dispute prevention and social change, as important, perhaps primary, goals. Within the ADR field, conceptual boundaries have served to further distinguish between interest and rights-​based processes, creating categories and subcategories of process types. Within each category, processes such as mediation have tended to have set, predetermined characteristics, such as confidentiality, flexibility and a skeletal framework for conducting the process, making them distinguishable from other types of processes and creating room for different schools and styles to develop within each process type. Dispute resolution literature has tended to view the freedom and flexibility to select one’s own dispute resolution process as a principal advantage of ADR, and by establishing clear conceptual boundaries between courts and ADR on the one hand, and within the ADR field on the other hand, informed choice became feasible [14]. As the subfield of DSD developed and gained acceptance, these conceptual boundaries were further developed, elaborated and celebrated, highlighting the value of deliberate design. Diversity and creativity were hailed, but were often at odds with a reality in which few process types were actually employed and those processes that were used typically had fixed, predetermined attributes. As DSD evolved and institutionalized ADR in courts and elsewhere spread, the goals of ADR processes also evolved and extended beyond the resolution of individual disputes to include norm elaboration, dispute prevention and even social change, further eroding some of the stark differences between these processes and the court system and providing counterarguments to critics of ADR. [15.30]  903

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Reshaping Boundaries cont. Furthermore, a close examination of the range of processes that fall within the umbrella term of ADR undermines the dichotomous separation between ADR and courts, revealing a spectrum of processes that have varying levels of privacy and flexibility, with some processes being quite similar to litigation, while others being more distinct from the formal venue. Indeed, some of the literature has undermined the perception of courts as a formal, strict and public arena demonstrating how “uncourt-​like” courts often are. It seems that these conceptual boundaries have been questioned practically from the moment they were established. With the literature describing the “co-​optation” of ADR by courts, bargaining taking place “in the shadow of the law”, and courts advancing settlement through flexible and undocumented “managerial” approaches, similarities were highlighted (although some basic distinctions remained). These subcurrents were buoyed by the broad institutionalization of ADR and the commingling of ADR with courts, which contributed to the erosion of conceptual boundaries between formal and informal dispute resolution processes and of the unique characteristics of each process. As we discuss below, new technologies are playing a significant role in further eroding seemingly firm conceptual boundaries. Nevertheless, [15] the clear distinction between courts and ADR has persisted in the literature and in policies on the ground. 2.3 Psychological Boundaries Another type of boundary in the dispute resolution arena is that of psychological boundaries. The process of dispute evolution and transformation has been presented in the literature as a three-​stage process, “naming, blaming and claiming”, much of which takes place within the aggrieved person’s mind. The first stage, “naming”, has to do with the ability to recognize that an injury has occurred, and the following stage –​“blaming” –​involves the ability to connect such injury to a particular source that is at fault. These two phases require knowledge of facts and familiarity with norms. But even the third stage, that of “claiming”, which has to do with the voicing of a grievance before the party at fault, requires psychological resilience on top of financial resources and the backing of a support group. Psychological barriers can, and often do, stand in the way of the evolution of disputes, in some instances because an individual is unaware of the existence of a dispute, while in other cases they prefer to “lump it”. Psychology acts as a boundary in this context both in the sense that it separates dispute transformation stages from one another, as well as a barrier that may prevent potential disputes from surfacing. A significant strand of the ADR literature has focused on barriers to dispute resolution that involve cognitive biases in resolution efforts. Cognitive biases, or heuristics, are another form of psychological boundary, shaping our understanding of disputes and dispute resolution efforts. The manner in which information is framed and presented impacts the way we feel about it and react to it (the “framing effect”). We may find an offer to be favourable or unfavourable depending on the identity of the person making the offer (“reactive devaluation”), we view an offer as generous or insufficient depending on whether it belongs to us or not (the “endowment effect”) and may address an easily attained favourable offer with suspicion (the “winner’s curse”). [16] The above are a few of many examples of the ways in which cognitive biases can give rise to misunderstandings or unrealistic expectations, which in turn generate conflict or escalate existing conflicts after they have erupted. Cognitive biases also colour our reactions and actions during dispute resolution efforts, making resolution more difficult, in particular absent the involvement of a third party. But the third-​party neutral is also not immune to the impact of cognitive biases, which may shape his/​her understanding of the dispute, as well as his/​her interactions with the parties during the resolution efforts and the course of action chosen by him/​her in addressing the dispute. This is also true where dispute system designers make design choices, where such choices may be guided by heuristics. Cognitive biases have therefore simultaneously fuelled disputes and dispute resolution efforts and have served as barriers that the field constantly strives to overcome by elaborating dispute resolution process options and design as well as third-​party intervention techniques. Research on procedural justice presented another important layer of psychological boundaries separating legitimate dispute resolution processes from those that are perceived by disputants as being 904 [15.30]

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Reshaping Boundaries cont. unfair. This research has uncovered the significant, even principal, role procedural elements play in the perceived fairness of the process used to arrive at an outcome, colouring the legitimacy of the outcome and institution. Both qualitative and quantitative research confirmed that in determining the fairness of dispute resolution processes, litigants attach a great deal of significance to the following factors: (1) whether they were given an opportunity to “tell their story” (“opportunity for voice”), (2) whether the third party considered their views, (3) whether the third party “treated them in an even-​handed and dignified manner” and (4) the “impartiality of the third party”. Perhaps counterintuitively, research on procedural justice demonstrated that the procedural elements described above colour disputants’ impressions of the fairness of the substantive outcome, meaning that a disputant who “won” his/​her case but viewed the procedure as unfair would be unhappy, while a party who “lost” their case but underwent a process that met the characteristics associated [17] with procedural fairness would be content. This line of research has provided an important prism through which both court proceedings and ADR processes could be evaluated and critiqued, as well as a significant component in the evolution of DSD theory and practice, 79 with procedural justice serving as a “fairness heuristic”. Social science has provided several explanations for the significance of procedural justice, ranging from instrumental reasons (“social exchange theory”) to symbolic ones under which the elements of procedural justice reflect the disputant’s social status (“group value theory”). While these theories would seem to apply most strongly to decision-​based processes such as litigation and arbitration, they have been applied to the mediation process as well, given the role played by the mediator who is often seen as a representative of the court system. Procedural justice, therefore, has served as a boundary in that it provided a filter through which conceptual boundaries could be strengthened and justified, both on a design level (justifying a certain mix of procedural traits) and on an individual level (justifying choice of one process over another). On a deeper level, this whole line of research served to underscore another important boundary that has defined the dispute resolution field, the division between procedure and substance. 2.4 Professional Boundaries Dispute resolution has become a professional activity, and the boundary-​setting activity has shifted from the professional/​layperson realm to the question of what constitutes professional expertise and capabilities for various processes (e.g., mediation or arbitration) and across settings (e.g., courts vs. organizations). One of the principal debates centred on the question of the need for a legal background for ADR practitioners, which was often echoed in the procedural versus substantive expertise debate, but in many respects was really about the legal profession’s battle over its territory and place. In other words, demand for “expertise” served the legal profession’s attempts to create a clear boundary between what was covered under its sole mandate and what was not and to include ADR within such turf. Many resisted the legal occupation of the ADR field and argued for the need for diverse input in order to maintain the different goals and characteristics of [18] ADR processes. The majority of ADR processes, however, were conducted in the courthouse or referred from the courts to ADR centres and practitioners, with lawyers present and with the majority of third-​party neutrals being active or former legal practitioners. This reality generated, as described above, harsh criticism within the ADR community over certain practices that were deemed by some illegitimate while others saw them as an inherent part of the ADR spectrum and a justification for lawyers’ dominant role in these processes. ADR expertise was further compartmentalized with lawyers showcasing ADR departments and boasting ADR advocacy skills, 8 and some ADR practitioners developing into such areas of expertise as DSD and ombudsmen, delivering such services to and within organizational and court settings. Designers were often trained in ADR or/​and organizational development and possessed expertise in conducting the organizational dispute analysis that would underlie the DSD and evaluation. While the literature emphasized the need to consult those affected by the process being designed, the use of an expert designer was generally also seen as necessary. In this environment, internal dispute handlers, such as ombudsmen, became more widely used to oversee these newly established systems. At the same [15.30]  905

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Reshaping Boundaries cont. time, the frequency with which ADR services were performed on a voluntary basis in community and court settings undermined somewhat the efforts to portray ADR practice as a field in its own right that involves the delivery of professional services. Nevertheless, ADR trainings became widespread, with many ADR centres and individuals offering these trainings, also as a way to supplement their income. Over time, ADR also became an area of academic studies, with some courses offered within law schools, while in other cases they have been offered as part of an interdisciplinary programme, often culminating in professional certificates as well as an academic degree. Despite these developments, the argument on the nature of ADR expertise and the requirements for delivering such services was never quite resolved. In practice, in order to receive case referrals and enjoy confidentiality, ADR practitioners had to meet regulatory requirements, and in [19] certain cases have specific disciplinary training, with a large portion of ADR practitioners having legal backgrounds. The various boundaries –​physical, conceptual, psychological and professional –​are not independent of each other. For example, the question of privacy in dispute resolution involves conceptual boundaries as a trait separating formal from informal processes, but also implicates physical boundaries, as explained above. Similarly, issues relating to professional boundaries, such as substantive expertise of third parties, also operate on a conceptual level. Nevertheless, these boundaries are significant and serve important ends, enhancing dispute resolution mechanisms’ legitimacy, appeal and effectiveness, as explained below. In the following section, we explore further the need for boundaries and why boundary-​setting can be seen as providing the infrastructure of a field.

 [15.35]  Challenges to traditional boundaries not only affect online DR but raise an impor-

tant question about quality assurance in the DR field. As DR processes continue to emerge and adapt to societal changes, ensuring quality may also become more challenged unless regulatory systems or schemes are developed. New processes and designs hardly fit into traditional paradigms and practitioners are compelled to creatively adapt traditional principles and values to new processes while focusing on doing no harm to parties. Below extract, based on empirical research, discusses how the purpose of, and values underlying legislative DR processes shapes process design and practitioner intervention. As government embraces ADR into the future, this trend may continue.

ADR Processes: Connections Between Purpose, Values, Ethics and Justice [15.40]  L Akin Ojelabi and MA Noone, “ADR Processes: Connections Between Purpose, Values, Ethics and Justice” (2017) 35 (1) Law in Context 5-​23 at 9-​10, 11-​14, 23. The objectives of an ADR process are critical to assessments of ethical and justice quality. Often these objectives and underlying values are derived from relevant legislation and charters. Common objectives identified for ADR processes are to resolve disputes using a fair process which achieves acceptable and lasting outcomes while also using resources efficiently. A widely accepted objective, as noted by NADRAC, is to “resolve or limit disputes in an effective and efficient way” using a fair procedure and achieving “outcomes that are broadly consistent with public and party (including third party) interests”. NADRAC also noted that these objectives may vary depending on the process and the nature of the dispute and concluded that “when considering quality and performance there is a need to differentiate processes and to compare like with like”. In addition to the need to compare like with like, there is also the overarching issue of the broad objectives of the institution within which the ADR process exists. As Tyler notes: 906 [15.35]

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ADR Processes: Connections Between Purpose, Values, Ethics and Justice cont. Rather than using traditional or idealized trial-​based systems of dispute resolution as criteria against which to evaluate alternative dispute resolution programs, it may be more reasonable to define a set of desired attributes for a dispute resolution program and to compare any program to those abstract standards. Rather than beginning with existing procedures, such an effort would ask what goals the justice system is seeking to achieve and then examine the ability of different procedures to achieve those goals. Tyler addresses evaluation at a macro-​level, based on the objectives of the justice system in which those processes operate, but at a micro-​level, there [10] are specific process objectives which also determine the ethical responsibilities of practitioners. Questions about justice may be answered through a consideration of process objectives at both the macro and micro-​levels. Two different ADR processes in the justice system would be expected to meet the macro policy objectives of that system, but each process would also have its own standards and expectations. For example, the level of neutrality expected of the third-​party practitioner, which would also go to determine their ethical responsibilities, may differ. Although purpose and values may give rise to different ethical responsibilities for different ADR practitioners, some ethical responsibilities may be common to all: for example, the responsibility to do no harm in any ADR process. Baruch Bush’s exposition on ADR addresses variations that may lead to complexity in defining ADR quality. He advocates for a “goal furtherance” approach to measuring quality rather than a process approach because the goal-​furtherance approach measures quality based on whether it meets the desired end thus avoiding variations in definitions of quality. Although ADR processes have the common goal of dispute intervention, the manner of intervention and the desired outcome of interventions differ. While some processes are directed solely at reaching a settlement, others are focused on assisting parties to clarify the issues in conflict and possibly reach a resolution at the end of the process. Also, some processes are aimed at achieving larger public interest goals (often articulated in governing legislation), while some are limited to the specific dispute between parties. An evaluation of ethical and justice attributes of processes requires a consideration of all the objectives of processes and the systems and institutions in which they are located and utilised. It is a complex task. … [11] A Process Types ADR processes used by participant organisations include mediation, conciliation, investigation and conciliation, investigation and some with broad terms such as “dispute resolution”. The nine participating organisations described seven ADR processes used in dispute intervention. … These are mediation, shuttle telephone negotiation, informal DR, informal telephone DR, investigation, conciliation and arbitration. Of the nine participants, seven were legislation-​based providers, one was a government ADR service-​provider and one was an industry scheme. Conciliation was the most used ADR process followed by informal ADR. As defined by participants, informal ADR is the process by which practitioners take various steps to assist parties to have a better understanding of the dispute without entering the dispute into a formal DR process. It may include gathering and exchanging information and investigation. In some cases the processes differed in nomenclature rather than substance. B Legislation and Process Purpose Seven of the nine participant organisations were governed by legislation (14 relevant Acts). These legislative-​based ADR schemes included the Small Business Commissioner (SBC) (5), Mental Health Complaints Commissioner (MHCC) (1), Health Services Commissioner (HSC) [12] (2), Victorian Equal Opportunity and Human Rights Commission (VEOHRC) (2), Victorian Ombudsman (VO) (1), the Disability Services Commissioner (DSC) (1) and the Accident Compensation and Conciliation Service (ACCS) (2). Generally legislation provides for the establishment of the office of the Commissioner and makes provision for dispute resolution services to be provided with statutory responsibilities imposed on the [15.40]  907

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ADR Processes: Connections Between Purpose, Values, Ethics and Justice cont. ADR practitioner. For some, the overarching purpose is to ensure the legislative objectives are promoted or given effect in any dispute resolution process. Consequently, although the organisation’s ADR process may have underlying values of fairness and impartiality as between the parties, the ADR practitioner cannot be entirely neutral because they have overriding responsibilities pursuant to relevant legislation. For example, under the Mental Health Act 2014 (Vic) a DR Officer must promote the well-​being of consumers of mental health services and identify potential service improvement in the ADR process. The MHCC also has the power to conduct a formal investigation into serious complaints where there may have been a breach of the Act. A similar responsibility is set out under the Health Services (Conciliation and Review) Act 1987 (Vic) for ADR practitioners in the office of the HSC with a requirement to promote the overall quality of health services in Victoria. The DSC also investigates and conciliates complaints under legislation with the purpose of reaffirming and strengthening the rights and responsibilities of persons with disability. Dispute resolution by the VEOHRC must be consistent with the objectives of the Equal Opportunity Act 2010 (Vic). These include elimination of discrimination, sexual harassment and victimisation, promotion of the right to equality, achievement of substantive equality and resolving related disputes in a timely and effective manner. Under the Small Business Commissioner Act 2003 (Vic), the SBC must encourage fair treatment of small businesses in business to business transactions and mediation of disputes involving small businesses extend to providing preliminary assistance, including giving advice so that parties are fully aware of their rights and obligations under the law. In [13] addition, the Retail Leases Act 2003 (Vic) provides that the scheme is to enhance fairness and certainty of retail leasing agreements between landlords and tenants. In contrast, however, under the Farm Debt Mediation Act 2011 (Vic), which is also administered by the SBC, a mediator is not permitted to provide advice in relation to the law or encourage a party to reserve or establish legal rights. The Office of the Victorian Ombudsman (OVC) is not primarily a dispute resolution body under the enabling legislation as their goal is to protect the public interest by investigating the actions of government agencies. However, their practice is to use an informal dispute resolution process to resolve less serious matters. The EWO operates as a gas, water and electricity industry scheme. It is the EWO’s responsibility to “receive, to investigate and to facilitate the resolution” of relevant complaints and disputes. Under the scheme the EWO can assess what is fair and reasonable and make recommendations, they are also required to be independent from participating organisations. The ACCS is an independent service that provides DR services for resolution of workers’ compensation disputes. ACCS Conciliation Officers must have “regard to the need to be fair, economical, informal and quick” and in line with the objectives of the Act, “make all reasonable efforts to conciliate in connection with a dispute and to bring the parties to agreement”. The objectives of the Act include reducing the incidence of accidents and diseases in the workplace, providing for the effective occupational rehabilitation of injured workers and their early return to work, ensuring appropriate compensation is paid, establishing incentives that are conducive to efficiency and discouraging abuse. The overall goal is “to improve the health and safety of persons at work and reduce the social and economic costs to the Victorian community of accident compensation”. The ACCS Conciliation Officer may make recommendations for resolution as considered appropriate. The DSCV is a government agency that provides mediation services across a range of disputes including community/​neighbourhood disputes, [14] for claims under $40,000 and personal safety intervention order disputes at the Magistrates’ Court of Victoria. DSCV uses a facilitative mediation process under the National Mediator Accreditation Scheme (NMAS) Practice Standards. Mediators are prohibited from evaluating or advising on merits or determining outcomes. As illustrated, the various purposes and objectives of relevant legislation determine, to a large extent, the type of DR practices adopted by each organisation, and the roles and responsibilities imposed on 908 [15.40]

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ADR Processes: Connections Between Purpose, Values, Ethics and Justice cont. ADR practitioners. Representatives of five out of the seven organisations with legislation-​based ADR processes were clear about their roles as furthering the objectives of applicable legislation in carrying out their dispute resolution functions. The only participating industry scheme, the EWOV, also had clear objectives under its Charter including determining disputes on the basis of what is fair and reasonable in accordance with the law and industry practices. … The ADR processes used by these organisations are often so flexible as to not fit into common definitions of ADR. The role of third parties may vary from traditional descriptions of practitioner responsibilities. At the MHCC, the practitioners can go beyond the individual dispute to address systemic issues. In contrast to what is generally expected in facilitative mediation MHCC practitioners cannot be neutral in relation to content. There are also variations within processes. For example, mediators with the SBC are expected to be proactive in helping generate options and find solutions, based on their expertise in the subject matter area. … [23] From data collected from interviews, it becomes clear that there is often an inherent tension between the obligations arising from the legislative objectives and the common understanding of ADR values. When ADR practitioners have specific responsibilities under legislation to ensure substantive justice like fair treatment, reasonable and fair outcomes, address systemic issues (such as discrimination or vilification) their obligations conflict with the concept of the ADR practitioner as a neutral third party who is concerned about procedural justice but not substantive justice. This clash of responsibilities can create dilemmas for ADR practitioners. Outstanding issues for future exploration are: What framework should be used to resolve the ethical dilemmas of ADR practitioners? Can there be a code of conduct that is applicable to the range of ADR processes? And to what extent does the manner in which ethical dilemmas are resolved affect the quality of justice of each process?

 [15.45] As indicated in the above extract, the challenge raised for future developments in ADR is the field’s ability to develop standards that promote quality ADR and public confidence in DR processes. It is easier, where legislation is involved, to evaluate quality based on legislative purposes, but where processes develop based on practitioner creativity and market demands, regulation may be more difficult. The commercial DR landscape has been reenergised based on the recently concluded Global Pound Conference Series with the theme “Shaping the Future of Dispute Resolution & Improving Access to Justice”. The Conference asked about 4,000 stakeholders (ie, parties (end-​users and in-​house counsels), advisors (private practice lawyers and external advisors), adjudicative providers (judges and arbitrators), non-​adjudicative providers (mediators, conciliators and related institutions), influencers (academics, government officers and policy makers)) the following four questions:

1.

What do parties want, need and expect?

2.

How is the market currently addressing parties’ wants, needs and expectations?

3.

How can DR be improved? (Overcoming obstacles and challenges)

4.

What action items should be considered and by whom?

An interim report on Global Trends and Regional Differences identified four common themes across the globe. These themes are likely to shape, to an extent, the future of commercial DR. The report is extracted below. [15.45]  909

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Global Pound Conference Series: Global Trends and Regional Differences [15.50]  Global Pound Conference Series: Global Trends and Regional Differences, https://​www. globalpound.org/​(accessed 21 September 2018). 1.

Efficiency is the key priority of Parties in choice of dispute resolution processes:

• This represents a challenge to traditional adversarial dispute resolution models, whether public (domestic courts) or private (institutional and ad hoc arbitration). Parties are looking not just for justice and resolution of their disputes, but an efficient journey to resolution. • Efficiency in the resolution of commercial disputes will not always be as simple as the quickest and cheapest route to resolution (although cost and speed will always be important). Inherent to efficiency is the avoidance of waste, be that time, money, effort or other factors –​and avoiding waste requires thought and flexibility among the dispute resolution stakeholders. • Understanding what efficiency really means in terms of changing the behaviour of stakeholders requires further discussion: –​ Parties may need to communicate their priorities, expectations and underlying interests to Advisors and other stakeholders more clearly. –​ Advisors can challenge themselves to focus relentlessly on their clients’ interests, being prepared to initiate or facilitate non-​traditional dispute resolution with combinations of adjudicative and non-​adjudicative processes. –​ Providers (neutrals) may reflect that arbitration rules and mediation procedures are not ends in themselves but exist among a range of tools to assist parties in resolving disputes. Flexibility, pragmatism and listening to Parties will likely translate to sustainable success. Providers can take more of a role in helping Parties and Advisors to consider routes allowing greater efficiencies. –​ Influencers can acknowledge that the resolution of commercial disputes is a commercial endeavour in which each stakeholder seeks to prosper and exercise (where possible) choice about forum and process to further the ends of Parties. A greater range of issues can also be considered in each case, beyond the merits of the case, the time to outcome or the costs of the process. • Technology can drive efficiency. This is not limited to electronic discovery and electronic filing in litigation. Dispute management tools and online dispute resolution (ODR) have the capacity to change fundamentally the way disputes are resolved over the next decade. We are already seeing how artificial intelligence (AI) can automate the work of lawyers and adjudicators, paving the way for decision-​making robots. 2.

Parties expect greater collaboration from Advisors in dispute resolution

What role do parties involved in commercial disputes typically want lawyers (ie in-​house or external lawyers) to take in the dispute resolution process? • One of the key discrepancies to emerge in the voting data was between how Parties said they wanted their lawyers to behave in dispute resolution processes and how those lawyers, the Advisors, saw their own role. • The key difference in the voting was that Parties indicated that they wanted to see greater collaboration from their Advisors in dispute resolution processes, whereas Advisors consistently reported that they saw their role as advocates for their clients. • Are these positions inconsistent? Are lawyers out of step with their clients’ needs? These are complex issues but some initial perspectives on these data are: The GPC Parties were a sophisticated group of delegates. GPC Parties are more likely than the average disputant to know what they want, and be more familiar with and skilled in the use of ADR processes –​all of which informs the expectations and approach of their legal advisors. 910 [15.50]

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Global Pound Conference Series: Global Trends and Regional Differences cont. –​ The Advisors who attended GPC events are, similarly, likely to be a more sophisticated group in terms of ADR knowledge and usage than their peers. But even taking this into account, why were the GPC Advisors’ votes so clearly out of step with the GPC Parties’ votes? The answer may lie in the fact that most Advisors will have clients reflecting a spectrum of experience, from the most sophisticated to relatively unsophisticated clients who are only rarely involved in disputes and therefore rely heavily on advice from their lawyers as to process choice, behaviour towards counterparties and strategy. –​  Whether or not these differences reflect different experiences between Parties and Advisors, there is a clear challenge to the legal community to listen to clients and discuss whether collaboration is wanted and what that really means in a given situation (particularly when disputes are acrimonious or thought to be unmeritorious). This may be a genuine challenge to the traditional notion of zealous advocacy where every point and position is argued on behalf of the client. –​ Parties will need to speak up and reassure lawyers that they wish them to try a different approach. A rigorous attention to the law, of course, but also an approach to dispute resolution that is flexible and open to using different processes. One that acknowledges risks where they exist and is focused on efficient outcomes, not unnecessarily expensive or drawn out journeys to resolution. If Parties wish to promote efficiency in dispute resolution they may need to encourage their lawyers to focus on the core issues and discourage fighting points for their own sake. 3.

Global interest in the use of pre-​dispute protocols and mixed-​mode dispute resolution (combining adjudicative and non-​adjudicative processes)

To improve the future of commercial dispute resolution, which of the following processes and tools should be prioritised? • One of the striking areas of congruence across the GPC events and all stakeholder groups was the interest in two closely linked phenomena. First, the use of protocols to encourage the use of non-​adjudicative dispute resolution processes like mediation or conciliation before adjudicative processes such as litigation or arbitration. Second, the use of non-​ adjudicative processes in combination with adjudicative processes, whether this is at the encouragement of a court or arbitration body/​tribunal or by agreement of the parties. Such “mixed-​modes” of dispute resolution can be done sequentially, in parallel, or integrated with one another. … Which of the following areas would most improve commercial dispute resolution? • There seems to be near universal recognition that before parties embark on adjudicative processes –​which are typically expensive undertakings of significant duration –​they should be at least encouraged (and potentially compelled) to explore less costly non-​adjudicative options. This could be achieved through the development of pre-​action protocols to be followed before court proceedings can be commenced (save where limitation or tolling periods are required or a particular remedy like an injunction is needed), or through arbitration clauses and rules encouraging parties to consider alternatives before a tribunal is constituted. • Adjudicative processes also need to provide occasions and opportunities for the disputing parties to step away from the heat of the battle and engage with each other in a different manner (through mediation or another non-​adjudicative process). This can be achieved through judicial case management or through changes to domestic rules of civil procedure or to arbitration rules where referrals to non-​adjudicative processes exist on an opt-​out  basis. • There seems to be a clear consensus that combining processes, or mixed-​mode dispute resolution, is the way forward. The challenge is to find ways to achieve this efficiently and quickly, recognising that there will inevitably be resistance to change in many quarters. It is critical in this development that Parties are vocal in their demands and that Advisors, Providers of all [15.50]  911

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Global Pound Conference Series: Global Trends and Regional Differences cont. types and Influencers are open-​minded. Self-​interest, familiarity and the comfort zone need to give way to a relentless focus on efficiency, supported by collaboration. 4.

In-​house counsel are the agents to facilitate organisational change. External lawyers are the primary obstacles to change

Which stakeholders are likely to be the most resistant to change in commercial dispute resolution practice? • Recognising that the GPC data and experience throws down a challenge to all stakeholder groups to listen and respond, the voting data reveals some stark messages about the obstacles to and agents of change. • All stakeholder groups identify Advisors (predominately private practice lawyers) as the primary obstacle to change in commercial dispute resolution practice. The lawyers showed the self-​ awareness to also identify themselves as the group most resistant to change. … When lawyers (whether in-​house or external) make recommendations to parties about procedural options for resolving commercial disputes, which of the following has the most influence? • Rather than rehearsing tired arguments about lawyers not promoting ADR for fear of its impact on their revenues, the data suggests that the underlying issue is more closely linked to something beyond training and education –​familiarity. Have law schools and professional training regimes prepared today’s dispute resolution lawyers adequately for the role that Parties wish them to perform? Are Providers and Influencers creating sufficient incentives for lawyers to gain real mediation or conciliation experience post qualifying? More fundamentally, what are the cultural expectations around what it is to be a lawyer, advocating for a client? • This circles back to the discussion about the challenge to traditional notions of the zealous advocate, fighting her client’s corner tenaciously. The 21st Century dispute resolution lawyer needs to deliver (or to work with others to deliver) what Parties want: dispute resolution process design, collaboration to pursue efficient outcomes, as well as traditional tough representation when called for …. Which stakeholders have the potential to be most influential in bringing about change in commercial dispute resolution practice? • Who can facilitate and drive change? Parties are clear that they have a key role to play, identifying in-​house lawyers as the group with the potential to be most influential in bringing about change in commercial dispute resolution practice. The stakeholder groups overall are less clear in identifying this opportunity, yet when asked what innovations and trends are going to have the most significant influence on the future of commercial dispute resolution, they are quick to recognise changes in corporate attitudes to conflict prevention. • How might such changes be effected? An emphasis on the critical role of in-​house counsel seems like a sound place to start and research from long before the GPC provides insights into how organisations can change, and the critical role in-​house counsel have in driving that change. • Of course many parties to commercial disputes will not have the benefit of in-​house legal resources, so they will need to rely on a new generation of lawyers to assist them, trained in the right skills as law school syllabuses evolve. With the lawyers of generation Y, millennials and generation Z growing into positions of influence within corporates and throughout the dispute resolution community, the concept of collaboration in a way that would have been unthinkable to litigators of a generation ago may already be an accessible reality to a community grown up on crowd-​funded solutions and sharing through social media. • For example, traditional notions of confidentiality that underpinned arbitration and ADR processes may have far less significance for generations that have grown up professionally and personally with a technology-​driven information-​sharing culture. The willingness to engage in formal dispute resolution processes over periods of years (particularly in jurisdictions based on extensive

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Global Pound Conference Series: Global Trends and Regional Differences cont. discovery/​disclosure) may be challenged by decision-​makers who are used to proceeding with business and life at an ever faster pace.

 [15.55]  As seen in various extracts above, the role of lawyers is critical in the future of ADR.

As such, change in legal professional culture is necessitated by developments in ADR. The next extract is about the “New Lawyer” in the ADR landscape.

The New Lawyer [15.60]  J Macfarlane, The New Lawyer (UBC Press, Vancouver, 2008) p 1. Chapter 1: Changes in the Legal Profession and the Emergence of the New Lawyer You’re going to give a speech about lawyers and conflict resolution? Huh? I don’t usually connect lawyers with conflict resolution. –​Waiter in Vancouver hotel The disassociation between lawyers and conflict resolution expressed in this statement reflects the divide between the public image of what lawyers do and their perceived relevance to the practical solving of problems. This public image associates lawyers with conflict, not conflict resolution –​ whether as one’s own advocate or as the agent of an adversary. This statement may also reflect the growing distance between private citizens and the delivery of legal services. Over the past thirty years, legal services have increasingly focused on corporate and institutional clients, diminishing their relevance for ordinary people with domestic disputes (and without the resources to pay for expert aggression or defence). The disassociation between lawyers and conflict resolution also does not work for commercial clients, who need to solve their business conflicts without unnecessary expense, delays, obfuscation, and posturing. The huge costs of protracted litigation and the delays in accessing judicial hearings increase a sense of profound disconnect between lawyers and attainable, expeditious conflict resolution. If lawyers do not represent conflict resolution in our public culture, then what is their function? There is an urgent need for lawyers to modify and evolve their professional role consistent with changes in their professional environment. The most important of these changes are widespread public dissatisfaction with the delays and costs associated with traditional legal processes, and the disappearance of full trials in all but a fraction of cases –​the so-​called “vanishing trial”. Articulating a widespread experience, one Ontario lawyer points out, “It’s considered exceptional now if we actually litigate something to a trial”. Despite the centrality of trial advocacy in the popular image of lawyering, it is now not uncommon for a partner in a law firm to have had little trial experience, and occasionally none. While lawyers often assert that the declining trial rate demonstrates their ability to ultimately settle almost all their cases before trial, even beginning [p 2] litigation may be an unattractive and unrealistic option for a client who wants an expeditious and practical solution at a reasonable cost. To be effective and successful in practice, the lawyers of the twenty-​first century must find other ways to meet their clients’ best aspirations –​the achievement of effective, appropriate, and sustainable outcomes within a reasonable time frame rather than years tied up in legal procedures, draining their resources, and chasing an apparition of vindication and victory. There is a growing realization among lawyers and their professional organizations that they are in danger of rendering themselves irrelevant to many ordinary people. At the same time, they are concerned that the types of conflict resolution service that they have traditionally provided for commercial and institutional clients –​specialized legal advice and file management through the shoals of litigation –​ often looks inappropriate and even irrelevant in the face of business realities. Spending vast sums of

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The New Lawyer cont. money and swatches of time on “fighting” is no longer acceptable to major corporations and institutions and may never have been compatible with business culture. The demand for value for money is coming through loud and clear from all client groups, probably accelerated by the phenomenal explosion of access to legal information facilitated by the World Wide Web. Governments and policy makers have already begun to act. Placing a high priority on cost-​savings and efficiency, jurisdictions across North America have introduced earlier, informal, and simpler processes into civil and criminal justice systems, many focused on reaching an agreed bargain or resolution. Some of these new approaches have been forced on lawyers by policy makers who recognize the inefficiency of a conflict resolution model in which almost everything resolves before trial, but only after years of expending vast amounts of money on lawyers’ fees and accumulating enormous amounts of paperwork, much of which is never used in the construction of a settlement. The signs are clear and incontrovertible. Change is needed. And change is coming.



EDUCATING THE NEXT GENERATION OF DR PRACTITIONERS [15.65] To address the issue of competency and required training for lawyers in Australia,

civil DR is now one of the prescribed areas of knowledge for admission into legal practice. Although arguably not sufficient, persons aspiring to be admitted into the legal profession are required to have some knowledge of ADR. In future, lawyers will be more familiar with ADR processes and values than has previously been the case. Furthermore, legal education that accommodates training in dispute prevention, management and resolution has a positive public health upside. In the extract below Pearlstein links zero-​sum negotiations with poor rates of happiness, particularly among lawyers.

Pursuit of Happiness and Resolution of Conflict: An Agenda for the Future of ADR [15.70] Pearlstein A, “Pursuit of Happiness and Resolution of Conflict: An Agenda for the Future of ADR” (2012) (12) (2) Pepperdine Dispute Resolution Law Journal 215 at 229-​231, 232-​236 and 260-​266. III. Evidence for an Inverse Link between Happiness and Conflict A. Relational Situations As mentioned in the Introduction, higher levels of reported happiness are associated with reduced likelihood of involvement in disputes at work [230] and of marriage ending in divorce. It is suggested that happy people may simply be better at resolving conflict. A study of CEOs and managers at over sixty American companies found that work groups made up of people exhibiting the kinds of positive affect associated with happiness were more likely to cooperate and less likely to get involved in conflict, while another workplace study found a strong relationship between certain positive emotions and reduced conflict among coworkers. With respect to marital conflict, there is substantial evidence that those who report a higher level of happiness are more likely to be satisfied with their marriage. One’s chances of getting married in the first place, and of staying married, are both increased as happiness rises. “Indeed, several writers have suggested that satisfaction with marriage and family life is the strongest correlate of happiness. … Individual happiness is even associated with high marital satisfaction in one’s spouse”. The causation arrow, of course, may not point in the expected direction. To a certain extent, as Haidt writes, 914 [15.65]

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Pursuit of Happiness and Resolution of Conflict: An Agenda for the Future of ADR cont. “Happiness causes marriage. Happy people marry sooner and stay married longer … both because they are more appealing as dating partners and because they are easier to live with as spouses”. The correlations between happiness in the workplace and happiness in marital situations should not be surprising, especially given the quantity of research evidence and scholarship linking quality of interpersonal relationships with levels of happiness. As summarized by University of Oxford psychology professor Michael Argyle, “social relationships have a powerful effect on happiness and other aspects of well-​being, and are perhaps its greatest single cause”. Again, causation can flow both ways. “Good relationships make people happy, and happy people enjoy more and better relationships than unhappy people. … [C]‌onflicts in relationships … is one of the surest ways to reduce your happiness. You never adapt to interpersonal conflict”. This is perhaps best interpreted as meaning that we do not adapt to destructive-​or even nonproductive-​interpersonal conflict cycles. Arguably, being able to have productive conflict (without escalating, or devaluing the other, or letting it infect all aspects of a [231] relationship) is part of building successful relationships and presumably part of achieving greater happiness …. [232] C Happiness and Negotiation Behavior Though not widely reported in conflict resolution specialty literature, there has been more than a modest amount of research into the relationship between aspects of happiness and strategies and styles of negotiation, and it tends to support the connections between happiness and conflict resolution posited in this article. In 1986, an influential study (building on earlier work) concluded that positive affect had a tendency to “reduce the use of contentious tactics” in negotiation, increase integrative capability, and “lead bargainers to discover integrative solutions …”. Other negotiation behaviors tied to positive affect over the years include making greater concessions, engaging in creative problem solving, and increasing use of cooperative strategies. Happy negotiators have also been shown to be more confident and have higher expectations for success while remaining more cooperative and oriented toward integrative strategies. The mechanism of this effect has been explained by one scholar as part of the processing that occurs with positive mood and emotion. In dealing with an apparently zero-​sum situation: [W]‌here one person’s win is another’s loss, their thoughts and plans will have to be based on open, constructive, and inferential thinking. Positive mood should then selectively prime more positive thoughts and associations, and these ideas should ultimately lead to [233] the formulation of more optimistic expectations and the adoption of more cooperative and integrative bargaining strategies. It must be acknowledged, of course, that being in a good mood may cause a person to be more ambitious and more intent on avoiding disappointment. It is also possible that positive moods allow people to face distributive realities without personalizing the problem or engaging in reactions or tactics that endanger relationships. D. Happiness and the Adversarial Mindset ADR luminary Len Riskin was by no means the first, nor will he be the last, legal scholar to note that both “[1]‌aw students and lawyers tend to be unhappy in their work”. Indeed, depression, suicide, anxiety, divorce, and alcoholism are far more widespread among attorneys than among the general population. The unhappiness of lawyers, while widely noted, is not very well understood. However, one aspect of the legal profession has been frequently tied to unhappiness and distress among practitioners: the adversarial nature of the work. “The combination of the increasing bottom-​line focus of the profession and a high rate of involvement in win-​lose situations (also called zero-​sum situations or zero-​sum games) is often cited as the most deeply rooted cause of lawyer unhappiness”. One study showed a strong link between anger and high levels of reported lawyer distress. Appropriately directed anger is probably instrumental in a law career. ... Unfortunately, the ability to leave this anger at the office is difficult for some lawyers, who may therefore, bring these emotions home. Some evidence that this destructive pattern may be occurring for [15.70]  915

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Pursuit of Happiness and Resolution of Conflict: An Agenda for the Future of ADR cont. these lawyers is that the pattern of predictors which is most [234] representative of several different categories of psychological distress are high levels of anger, unsatisfactory primary relationships and low levels of social support. While many of us might disagree that anger is “instrumental” in a law career, there is little doubt that this is a widely held presumption. The aforementioned founder of positive psychology, Martin Seligman, writing with a colleague from psychology and another from law, points out that zero-​sum situations are tied to demoralization yet “lie at the heart of our adversarial system of justice”. Training lawyers to be aggressive and competitive, they assert, can be a source of unhappiness. “When the practice of law is tied up with a large number of zero-​sum games, it will produce predictable emotional consequences for the practitioner, who will be anxious, angry and sad much of his professional life”. Understanding that most situations are not strictly zero-​sum and that even in such cases the ability to more productively and gracefully handle distributive elements while searching for integrative potential may be one of the ways in which the field of conflict resolution can contribute to happiness research. E. Happiness, Cooperation, and a Feedback Loop If these assumptions are correct (and the evidence set forth above suggests they are, though more research is surely warranted), and if greater happiness leads to more cooperation and enhanced cooperation brings greater happiness, then positing a corollary seems justifiable: happiness and cooperation can synergize in a feedback loop. Furthermore, arguably, unhappiness and conflict can also be both a consequence and a cause in a dynamic loop. There is some evidence that positive emotions associated with happiness generally trigger positive feedback loops. Positive emotions are linked to broadened attention and cognition, more flexible and creative thinking, and thus improved coping with adversity and stress. This can become the basis of an upward spiral-​the improved coping triggered by the positive emotions lead to future positive emotions, which lead to improved coping. “As this cycle continues, people build their psychological resilience …” [235] Part of the mechanism of this spiral is that people can find positive meaning in the face of adversity, which provide strength and generates positive emotions, which in turn increase the likelihood of finding positive meaning. A potential happiness-​cooperation feedback loop might look something like this:

Happiness

Enhanced cooperation

Positive emotions Happiness and cooperation: a feedback loop

Better dealing with adversity

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Pursuit of Happiness and Resolution of Conflict: An Agenda for the Future of ADR cont. An interesting conceptual paper in organizational behavior argues that a similar feedback loop-​termed a “positive group affect spiral”-​may be present among working groups displaying positive affect. The authors of the article argue that working groups involving members with positive affect tend to develop similarities in their levels of such affect, that this characteristic improves the relationship within the group, and that these [236] elements-​positive affect and quality relationship-​continuously strengthen each other. The idea of positive feedback loops in organizational behaviour has been expressed on a number of occasions. The authors point to several scholarly works suggesting similar self-​reinforcing upward spirals to occur frequently in organizations and work groups …. [260] B. Implications for Organizational Conflict People spend a growing amount of time and energy in the workplace or related organizational setting, and it is the locus or source of an incalculably high proportion of our interpersonal relationships. It would appear self-​evident that organizations whose members or employees enjoy a higher degree of SWB [subjective well-​being] are likely to experience greater levels of cooperation and fewer instances of destructive conflict. There is certainly support for this in the literature. At the group level, positive affect has been shown to lower “intragroup conflict, while improving cooperation, task performance, and individual well-​being”. This impact is strengthened when there is similarity in positive affect among members of the group, and naturally moods and emotions may tend to converge to a degree among people who work together. The mechanisms for development of positive group affective similarity include “emotional contagion” (unconscious responses to expressions, emotions, body language, etc.); “emotional comparison” (consciously comparing feelings and checking for social cues); and “empathy” (vicariously experiencing the moods and emotions of others). The flip [261] side is also true: negative group affect can develop in parallel ways. So much so, in fact, that one specialist has advocated for the explicit enforcement of the “no asshole rule”, a concept and turn of phrase that seems to have taken off. Basically, the idea is that organizations should not tolerate those who demean, disparage, or humiliate others-​even high-​performing stars within an organization should be forced to reform or lose their jobs. In the absence of such rules, demoralization and negative affect can quickly ensue, leading to lower cooperation, increased conflict, and reduced productivity. There are at least two strong implications for organizational conflict resolution and dispute systems design. First, it is important for members of an organization to participate in key features of its design. Whether in a community or a workplace, “individuals can learn how to devise well-​tailored rules and norms of cooperation when they participate in the design of the institutions affecting them”. Part of what is needed to bring about this participation may be promoting perceptions by members or employees of an organization’s virtue-​awareness of virtuous organizational behaviour encourages active participation in the “construction of healthy and virtuous organizations”. Of course, this leads to the kinds of positive feedback looping discussed earlier: “[W]‌hen organizational members flourish, organizations also flourish, and spirals of mutual reinforcement between such entities may emerge”. A second, and not unrelated, implication is the importance of an organization demonstrating that it pays attention to its members or employees-​that they matter. The degree to which an organization is perceived as valuing its members’ contributions and caring about their wellbeing “has been shown to enhance employees’ job satisfaction and positive job-​related feelings”. At the same time, an organization can seek to [262] strengthen network ties among its members. We have already examined the significance of social network ties generally in fostering happiness and effective conflict resolution. It is therefore not surprising that strong and expansive network ties are linked to enhanced affective similarities and improved feelings among those who make up the organization. On the other hand, traditional “scientific” management approaches (e.g., involving standardization, measurement, monitoring, and control) “serve to isolate the individual from others in the workplace and often to minimize his or her unique contribution to the job”. Using positive psychology to create more robust network ties offers a more productive path. At the level of the organization or group, positive psychology “is about the civic virtues and the institutions that move individuals toward better citizenship: responsibility, nurturance, altruism, civility, moderation, tolerance, and work ethic”. [15.70]  917

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Pursuit of Happiness and Resolution of Conflict: An Agenda for the Future of ADR cont. C. Is Unhappiness, Like Conflict, Not Always a Bad Thing? In the field of conflict resolution, we are often reminded that conflict is not always, per se, a negative. As early as the 1920s, Mary Parker Follett pointed out that conflict is here to stay: [A]‌s we cannot avoid it, we should … use it. Instead of condemning it, we should set it to work for us. Why not? … We talk of the friction of mind on mind as a good thing. So in business, too, we have to know when to try to eliminate friction and when to try to capitalize it, when to see what work we can make it do. More recently, Bernie Mayer has reminded us that “people in conflict are not always ready to cooperate nor should they be. Just as cooperation is productive under the right circumstances, so is competition”. Have we become too focused on happiness so as to overlook opportunities to capitalize on unhappiness, and to miss circumstances under which an absence of pleasure can be more productive or even more just? Recently there has emerged what Newsweek refers to as a “backlash against [263] the happiness rat race”. In the article, the author reminds us that “negative emotions evolved for a reason. Fear tips us off to the presence of danger, for instance. Sadness, too, seems to be part of our biological inheritance: apes, dogs and elephants all display something that looks like sadness, perhaps because it signals to others a need for help”. Daniel Gilbert famously put it in a pithier way: “You may think that it would be good to feel happy at all times, but we have a word for animals that never feel distress, anxiety, fear, and pain: That word is dinner”. Surely if everyone was happy all the time, the pursuit of happiness would not be the significant, civilization affirming motivator it has become. Eric Wilson, an English professor at Wake Forest University, after experimenting with various happiness techniques, rebelled and went so far as to write a widely popular book entitled Against Happiness. In it, Wilson asks: What are we to make of this American obsession with happiness, an obsession that could well lead to a sudden extinction of the creative impulse …? Wilson suggests that this overemphasis can lead to bland existence and “mechanistic behavior[s]‌”. He argues that it might even be dangerous “to desire only happiness in a world undoubtedly tragic is to become inauthentic, to settle for unrealistic abstractions that ignore concrete situations”. It is valid to question whether happiness is always a good thing, just as we question whether conflict is always bad. Certainly it is worth pausing to reframe what has happened along with our increasing focus on happiness, as suggested by Peter Whybrow, professor of psychiatry and bio-​ behavioral science at UCLA: “Self-​fulfillment, self-​gain, self-​expression, self-​realization, and even self-​help became the order of the day, with the goal of achieving a self that was satisfied for its own sake”. It is fair, and even important, to remind ourselves of the limitations of the “happiness perception”, to guard against happiness as a selfish directive, [264] and to avoid becoming complacent in the face of injustice. We cannot allow the pursuit of happiness to be a code expression for greed, or for domination by the elite, or even for conformity. Some of the critique of the happiness literature, however, is one-​sided and fails to keep perspective on the concepts in play. While the definitions vary, as discussed earlier, few serious scholars are suggesting a search for pure, selfish pleasure or an obsessive mania. Instead, most in the field of positive psychology and its progeny appear to take stock of the importance of balance and meaning in our lives and in the definitions of happiness. With a questioning approach, and both transparency and lucidity in our application of terminology, helping others seek happiness need not be more of a hazard than helping them more productively engage in, and when possible, resolve conflict. VI. Conclusion There is a strong argument to be made that the essence of conflict is in parties seeking to win back the pursuit of happiness they perceive as having been interrupted by the actions of others. Indeed, it is worth asking whether we ever value a particular preference in working toward resolution of a conflict 918 [15.70]

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Pursuit of Happiness and Resolution of Conflict: An Agenda for the Future of ADR cont. other than for its ultimate potential to enhance our happiness, or at least to remove hurdles from our pursuit of happiness. The notion of happiness as the “ultimate currency” has potentially enormous implications for the training, techniques, and processes of conflict resolution professionals as they plumb for underlying interests in any conflict. Among the limitations of this article is its very focus on the “positive” in the growing discipline of positive psychology-​there is an underlying assumption in our field of conflict resolution that most disputants are, more or less, mentally healthy; that being the case, resolution may be promoted by fostering the pursuit of happiness, a natural desire for all healthy people. Yet it is possible, and indeed likely, that a disproportionate number of those involved in more unproductive conflicts are subject to one or more relatively intractable mental health problems. Those with extremely conflict-​prone orientations, such as in sociopathic, borderline, and narcissistic personality disorders, are especially likely to end up in unproductive conflict situations; happiness per se, as examined herein, does not tend to be a priority for such people. They fail to see their problems as coming from within, even in part, because they attribute their problems entirely to external sources. [T]‌he difficulties of those with personality disorders continue and often become quite distressing. So they look for something or someone else to blame. If they can get that [265] system or person to change … they believe that they will feel better. But this doesn’t work either, leaving them feeling even more distressed and helpless. There are other mental health problems that often exacerbate conflict, such as addictions, bi-​polar syndromes, psychosis, and related issues. Attempting interventions aimed at increasing happiness, or focusing on happiness as an underlying interest, may be ineffective or even counterproductive when dealing with personality disorders and similar mental health conditions. Often these people are aiming toward keeping a conflict going-​the conflict itself is a distorted kind of happiness and may keep them at the center of attention, exactly where they want to be. While this article advocates an agenda of increased exploration of the lessons from happiness research in conflict resolution, an increased focus on the importance of personality disorders in conflict should also be a priority. Hopefully, this article has demonstrated that it is critical in conflict resolution studies and practice to utilize the vast amounts of data and research that have been gathered in the study of happiness. Approaches in positive psychology, with the heavy use of scientific method and expensive equipment, have been enabled, in large part, by vast resources that have been brought to bear. The field of conflict resolution suffers from a lack of resources at this level, but surely we can leverage the research on happiness given the enormous similarities and overlap in agenda. One of our priorities in the field of conflict resolution should be applying successful happiness interventions in improving existing conflict interventions and in developing new ones. Some interventions already overlap as we have seen, such as in the case of appreciative inquiry. A number of happiness interventions and principles should be more systematically tested in conflict settings. The concept of “attention mattering”, for example, seems to have great potential for use in conflict resolution, certainly out of all proportion to the scarce amount of research and scholarly literature thus far devoted to the idea. If there is a simple and easily agreed-​upon agenda for applying lessons of happiness to conflict resolution, it is in the area of education. There is a strong human tendency to “default to zero-​sum thinking”, and we may even be “wired” to be envious of others. Happiness studies can help justify [266] great new efforts in education at all levels to demonstrate the importance and efficacy of non-​ zero-​sum thinking-​it is crucial to “open our eyes to the fact that other individuals’ successes do in fact improve our own lives”. In critical respects, this resonates with the virtuous pursuit of happiness that was so much a founding principle of America. The burgeoning science of happiness has taken society and many academic disciplines by storm in recent years. At a minimum an appreciation, and more importantly a careful examination, of the [15.70]  919

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Pursuit of Happiness and Resolution of Conflict: An Agenda for the Future of ADR cont. implications of the science of happiness for the field of conflict resolution is long overdue. There is strong reason to believe that individual and organizational accumulation of “happiness capital” can have a major, positive impact on the more effective engagement and resolution of conflict. Although much research remains to be done, the robust link between our pursuit of happiness and our resolution of conflict can scarcely be denied.



DEVELOPMENTS IN RESTORATIVE PRACTICE [15.75]  It is important to note that advances in the field of conflict resolution more broadly

is not only occurring in relation to civil disputes. There are advances in relation to restorative justice as an approach to dealing with the aftermath of an offence but also developing and establishing practices and processes that make entire cities more sustainable. Conflict resolution is a public good which promotes the wellbeing of not only its practitioners but society as whole. A discussion of the future of ADR should not exclude progress in restorative justice approaches in Australia. The next extract focuses on developing the city of Newcastle in New South Wales as a restorative city.

A Restorative City for New South Wales –​Could Newcastle Be a Model? [15.80]  J Anderson and N Ross, “A Restorative City for New South Wales –​Could Newcastle Be a Model?” (2018) 27 Journal of Judicial Administration 74 at 74-​75, 77-​78, 84, 89-​91. … Restorative cities implement interdisciplinary restorative practices and restorative justice measures across a range of systems including education, justice, welfare, child protection and health to achieve positive results for residents, particularly the most vulnerable members of the community, such as children and youth. Ultimately, these cities are working towards, and achieving, a transformational change in culture and the social fabric of their cities by using mediations, conferences and relationship-​building exercises to encourage the resolution of disputes and disagreements through productive communication, to address inappropriate and harmful behaviours and to promote community wellbeing in a caring and inclusive culture. … [75] RESTORATIVE CITY A restorative city is one in which restorative justice and other restorative practices are widely implemented throughout the life of a city. Restorative cities introduce restorative justice and restorative practices into one or more key social systems, including the criminal justice systems, child welfare systems, education systems and the workplaces of people who live in the cities. Across the various restorative city projects in the world there are many models and approaches, and each model aims to result in positive experiences for each citizen who encounters restorative practices in the assorted community settings. Most restorative city projects focus on children and young people; restorative practices are used predominately by organisations that work with children, including schools. The goal is to ensure that, by the time these young people grow up and move into leadership positions within the cities, restorative practices have become second nature. Restorative cities go further than just the introduction of restorative justice and restorative practices; they involve a transformation of or a cultural change in the social fabric of the city. The concepts of restorative justice and restorative practice are integral to the development of restorative cities, as examined below. 920 [15.75]

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A Restorative City for New South Wales – Could Newcastle Be a Model? cont. Restorative Justice Restorative justice is “a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future”. The key themes of restorative justice include “healing … moral learning, community participation and community caring, respectful dialogue, forgiveness, responsibility, apology, and making amends”. Restorative justice can be captured under the umbrella of non-​adversarial justice, which involves a movement away from the traditional adversarial methods of the law towards more therapeutic, collaborative and rehabilitative practices. … [77] Restorative Practices Restorative justice is predominately used in the criminal justice system, but practices that employ the principles of restorative justice have also been adopted elsewhere in the legal system and in the community. These new approaches adopt the term “restorative practices” rather than “restorative justice”, which connotes a criminal justice perspective. Restorative practices aim to strengthen relationships, increase effective communication skills, and repair harm and inappropriate behaviour in settings including education, workplaces, the local community and the sporting field. [78] Restorative conferencing is a common restorative practice that is used as a disciplinary tool to bring together those harmed and those involved in the harmful action –​and people significant in their lives –​to take responsibility, understand the harm caused, and work on solutions to repair the harm and promote broader healing in the community. A less formal disciplinary practice is known as corridor questioning. This utilises the same principles and methods as conferencing but can be used in more informal settings to efficiently manage less serious conflict. Circle time is also a prominent restorative practice, which involves students, co-​workers or other groups of people coming together into a circle to talk to each other and develop relationships. This practice allows for the development of social and emotional skills within the group, as well as helping to foster a sense of cohesiveness and community spirit. While restorative justice has developed as a reactive process, restorative practices are employed in a proactive manner. Such practices not only restore the harm caused by actions, but also seek to develop relationships and culture, and encourage open and productive communication to avoid problems before they occur. Restorative practices have also been successfully implemented in child welfare and family support settings. In child protection contexts, family group conferences bring family members together to talk about problems and issues faced by the family and work out plans and solutions to move forward. All members of the family, including parents, children and extended family members, may participate and can express their views and feelings. Child welfare organisations and other social services are also represented in these conferences, allowing information to be shared, concerns to be raised and plans to resolve issues affecting the family to be formulated. Family members involved in these conferences frequently report feeling empowered, included and satisfied with their experiences. In New South Wales, mediations and family group conferences are used in child protection matters. Evaluations of these conferences revealed that parents felt included, supported and satisfied during the process, and understood what was occurring. The conferences frequently resulted in the formulation of a parenting plan, or at least the narrowing of issues in dispute. … [84] Canberra Canberra is the capital city of Australia, located inland on the eastern side of the continent, between Sydney and Melbourne. The ACT Treasury estimated the 2016 population of the ACT, which is heavily concentrated in Canberra, to be 406,403 persons. Australia has been recognised as a world leader in restorative justice, especially with the introduction of conferencing models. Canberra’s Re-​Integrative Shaming Experiments (RISE) are key to this recognition, together with current legislative and governmental approaches to restorative justice. The [15.80]  921

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A Restorative City for New South Wales – Could Newcastle Be a Model? cont. RISE experiments were based on the police models of conferencing developed in the nearby country town of Wagga Wagga. They delivered positive results in terms of victim and offender satisfaction, and reduced recidivism. The ACT Government supports restorative justice, and has established a Restorative Justice Unit. It operates under the Crimes (Restorative Justice) Act 2004 (ACT) and provides young offenders with the opportunity to engage in restorative justice conferences. A 2016 legislative amendment expanded the program to allow adult offenders to participate in restorative justice conferences. From 2005 to 2014, the scheme convened over 1,000 conferences, and resulted in total reparation of $143,000 paid by offenders to victims, and over 7,000 hours of work by young offenders benefiting their victims and the broader community. The Restorative Justice Unit has also introduced an Indigenous guidance partner, [85] who assists Indigenous people to engage in restorative justice conferences by giving support and advice and participating in the conferences. The position was created to address the low rate of engagement in restorative justice among Indigenous youth compared to non-​Indigenous  youth. Restorative initiatives have not been confined to the criminal justice system in Canberra. The education system has also introduced restorative practices. One of the first schools to experiment with restorative practices was Charnwood Primary School. The introduction of restorative practices into the school community resulted in a noticeable increase in academic performance, less classroom conflict and an improvement in the relationships between students and teachers. The successes of these pockets of restorative practices led to Canberra comparatively recently consolidating its approach under the banner of a restorative city. The Canberra Restorative Community was established to oversee the project, and features prominent members from education, law enforcement, the academy, government and community services. NEWCASTLE AS A RESTORATIVE CITY … [89] The demographics, crime data and restorative-​type programs already operating in Newcastle make it a strong candidate for transformation into a restorative city. Newcastle has pockets of disadvantage in relation to unemployment, income, education, housing, child welfare and criminal justice. It has recently faced challenges due to the erosion of traditional industry and employment opportunities in a similar way to other cities that have been transformed through restorative practices. While plans are underway for urban renewal in the city’s CBD, Newcastle is also in need of social, cultural and economic renewal. A significant contribution to this broad renewal could be made through Newcastle becoming a restorative city as demonstrated in comparable cities, particularly Hull. Newcastle is of a similar size and population to other restorative cities around the world with proximity to a larger city and a range of available services. The smaller population and concentrated geographical area makes Newcastle ideal to implement pilot programs and investigate outcomes. In the long-​term, the transformation could be extended to the neighbouring Lake Macquarie area, as well as throughout the Hunter Valley, transforming the area into a restorative region. BLUEPRINT FOR THE FUTURE The transformation of Newcastle into a restorative city is an ambitious project that will require significant commitments of time and effort to garner the community support needed for this social and cultural transformation. The initial step in the transformation of the city will be to identify key stakeholders who will be able to assist with this process. From those stakeholders, a smaller Task Force will be established to drive the project and maintain a forward-​moving momentum. The transformation will only be realised through the gradual introduction of restorative justice and practice initiatives into the community, coupled with related efforts to change the culture of Newcastle into a restorative culture.

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A Restorative City for New South Wales – Could Newcastle Be a Model? cont. Key stakeholders will be identified and engaged to form part of the committees tasked with developing restorative policies, and will also work from within the community to transform their policies and practices. Inspiration can be sourced from other restorative city projects to help identify and select appropriate stakeholders to include in the Newcastle project. The Canberra project utilises a restorative justice network comprised of practitioners and other key stakeholders. Stakeholders are engaged from community services such as schools, health, corrections, juvenile justice, police, human resource management and Aboriginal services. Key actors within the ACT Government also comprise a key part of the network. The presentation held by the ACT Legislative Assembly entitled Towards a Restorative Community included several key stakeholders who contributed a speech. These included leading academics in the restorative justice field, the Attorney-​General of the ACT, the ACT Chief Police Officer and a Canberra school principal. The audience included stakeholders such as the Chief Magistrate of the ACT Magistrates Court, the Human Rights Commissioner, the Chief Executive of Relationships Australia and the Victims of Crime Commissioner. … [90] The key stakeholders identified for the Newcastle project include key academics from the University of Newcastle, visiting academics from other universities, and representatives from the criminal justice system and the education system within the community. Representatives from community organisations that work in child welfare and victims’ rights will also be included, along with a representative of the local Indigenous community. It is important to gain insights into how this project could assist Aboriginal and Torres Strait Islander people living within the city and how to address their specific needs through restorative practices. Further, the Newcastle City Council will be approached for support and assistance, which will provide the opportunity for the Lord Mayor or a member of the council responsible for youth matters to join a restorative city Task Force. Further, both the State and federal governments will be approached for support, which may result in the inclusion of local members of Parliament in the Task Force. An important component of restorative city projects is that they invest in, and focus on, the children and young people that live in their cities. Newcastle will follow the example set by these restorative cities by developing a strategy that initially considers the implementation of, or enhancement of existing, restorative justice and restorative practices in the juvenile justice system, education system and community welfare settings. The introduction of restorative justice into the juvenile justice system in Newcastle will likely utilise the already existing youth justice conferencing model under the Young Offenders Act. The project will investigate the potential to expand the use of conferences and introduce restorative practices more generally into the city’s juvenile justice system. To introduce restorative practices into schools in the Newcastle community, the Task Force will work with key members of the education system in Newcastle. This will include representatives from the public education system, the Catholic education system and other independent educational institutions. The Task Force will work with these representatives to train educators in restorative practices, and further initiatives for the introduction and use of restorative practices in schools, such as circles and conferences. Morrison, Blood and Thorsborne have developed an implementation model for bringing restorative practices into schools. This model requires: first, the identification of a need for restorative practices; then the development of a shared vision; followed by training, support and resources for the school; a management plan for the transition into restorative practices; and, finally, the use of restorative practices within the school environment. Other restorative practices may build upon initiatives in the [91] community welfare and child protection systems that have a focus on the wellbeing and growth of children and young people.

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BEYOND DR [15.85]  As seen in the last extract, the field of conflict resolution is not limited to the resolu-

tion of disputes. In 2004 well-​known American mediator, facilitator, trainer, researcher, program administrator and dispute system designer, Dr Bernard Mayer, published a text entitled, Beyond Neutrality in which he, among other things, criticised DR practitioners for having an insular view of the DR world. His view is that DR practitioners have failed to engage the community in the services that potentially could be provided. He asked that DR practitioners look beyond the traditional role of a third party neutral and, skills and experience permitting, to engage with clients at all levels of conflict as, for example, an advocate and conflict specialist rather than just a third party neutral. According to Mayer, because of the rather blinkered view of DR practitioners the value of DR in business and the wider community is becoming problematic. He refers to this as a crisis in the provision and sustainability of DR services. He supports this proposition by identifying the symptoms of the crisis as being the fact that: 1.

Conflict resolution professionals have not been involved at the centre of major conflicts of our time or decision-​making processes affecting major conflicts. Mayer asks where are the conflict resolvers in the Middle East, the sub-​Continent and North Korea;

2.

People do not naturally turn to conflict resolvers at times of conflict –​evidence of which is the fact that there are more mediators than mediations (and, certainly in Australia, the rise of the court-​connected DR programs at the expense of private DR);

3.

Some government agencies and private industry in the United States are withdrawing resources from consensus-​building processes;

4.

Conflict resolution has ignored diversity –​evidence of which is the fact that most conflict resolution organisations are “primarily middle class in orientation and overwhelmingly white”;

5.

The current people practising conflict resolution are not satisfying the needs of the users of the services. Mayer states that people often want advice, recommendations and evaluations of their chances in court or assistance in persuading the other side or simply advocating their case and some vindication of their actions and attitudes to the conflict. In this respect the needs of the users are very different from the DR practitioner who has a blinkered view on his or her role;

6.

The number of people making a living from conflict resolution is, to use Mayer’s words, “abysmally low”;

7.

The field’s identity and independence is under attack from other existing professional disciplines, particularly the legal profession; and

8.

Evaluations of conflict resolution programs are mixed and the promises of savings in time and costs are unable to be conclusively proven. Further, research into consumer attitudes fail to show overwhelming support for such programs and even where there are high levels of satisfaction, there is little evidence of a change in the culture of decision making and conflict resolution itself.

In the following extract, Mayer sets out what he believes is a wider role for DR in the final chapter of his book entitled, Redefining Conflict Resolution. He sees this widening of the 924 [15.85]

The Future of Dispute Resolution  Chapter  15

services able to be offered to clients in dispute as being a way to ensure DR has a sustainable and positive future.

Beyond Neutrality [15.90]  BS Mayer, Beyond Neutrality (Jossey-​Bass, San Francisco, 2004) pp 282-​285 and 289-​291. The Business of Being a Conflict Specialist … The first step is to change our consciousness about what we do –​about how we can help people in conflict and about what our fundamental role ought to be. The next step is to push the limits on the set of roles we are now playing and see where this takes us and what kind of responses we get. As we become better able to help disputants be effective throughout the life cycle of a conflict process, the more we will grow into this new concept and these new role definitions. In the early days of the mediation movement, when it was not so clear how this field would evolve, if it would be accepted, and what kind of market there would be, a number of efforts were made to force the development of the field into certain set patterns. These were attempts to make the nascent field predictable, acceptable, and marketable. By and large, they were failures. … … let’s consider some specific issues concerning whether we can make this a business. In particular, how shall we describe [283] our practice, how can we market this new service, and to what standards will we hold ourselves accountable? … Describing Our Practice Let me suggest an imaginary organization called MAD (“Making a Difference in a Mad World”). MAD subscribes to the conflict engagement approach and is structured as a partnership of a variety of conflict specialists: some focus on mediation and facilitation, some on coaching, some work as advisers and advocates to groups in conflict, some as systems designers, and almost everyone takes on a variety of these functions. MAD’s mission statement might read something like this: MAD is committed to helping individuals, groups, and organizations to accept conflict as a normal and potentially healthy part of our lives and to deal with conflict in an effective, courageous, [284] and productive manner. MAD provides services that assist others in engaging in conflict with a full understanding of its challenges, its dangers, and its creative potential. In a brochure, MAD might describe what it does and who it is as follows: MAD is a group of conflict specialists with experience in conflict resolution, mediation, negotiation, coaching, facilitation, advocacy, and dispute systems design. All of us have worked to help individuals and organizations deal with the conflicts that they encounter in their work, their community, and their organizations, so that they can face, discuss, and handle these disputes in a way that accomplishes their goals and is in keeping with their values. We work with people on understanding the nature of their conflict, raising the conflict to the level required to ensure that it is dealt with effectively, engaging with those with whom they are in conflict, and, when appropriate, finding a constructive path towards resolving the conflict. Specific services we offer include: • Assessment: Working with disputants to evaluate the nature of a conflict or conflict procedure and to consider the alternatives they have in dealing with the conflict. • Coaching and Consultation: Providing advice, strategic consultation, and personal coaching to individuals or groups engaged in a conflict process. • Advocacy: Working with disputants as advocates in conflict processes. We do not offer legal representation or advice, but we will work as negotiators or representatives to help advocate for disputants in a constructive and powerful way.

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Beyond Neutrality cont. • Mediation and Facilitation: Acting as third parties to bring people together to discuss the issues that are of concern to [285] them and, where appropriate, to consider means of resolving these issues. • System Design: Helping groups and organizations to design conflict systems that allow people to raise the issues they have clearly, safely, and effectively and that provide constructive mechanisms for dealing with these issues. • Evaluation: Providing systematic research and evaluation about the effectiveness of conflict systems and programs in dealing with disputes …. Our Purpose and Values [289] At the heart of what I am suggesting about redefining our field is actually a continuity of purpose and values –​but a broadening conception of how we think about implementing these. We have always been about helping people, groups, and organizations handle conflict in a productive, constructive way. We have always expressed the belief that the issue was not whether we were in conflict but how we conducted ourselves as disputants. We have always advocated a belief that avoiding conflict could be as big a problem as escalating it. Nothing I am suggesting changes that. Our values about conflict, although articulated in many different ways, have generally included certain common principles: • Being hard on the problem, easy on the people. We may articulate this as “separate the people from the problem”, “respect our adversaries”, or “love the sinner, hate the sin”, and for many of us, this [290] has translated into a commitment to nonviolence. The underlying goal is to ensure that conflict is carried out in a way that does minimal damage to the basic well-​being of any of the participants. • Empowering disputants. Underneath many of our activities and approaches is the belief that if disputants can be empowered to engage in conflict, they will do so productively. Rather than take over decision making for people in conflict, we try to find ways of enabling disputants to handle their own conflict. When they can’t, we work to minimize the degree to which they must cede power to others to deal with their issues. Implied here is the belief that people know what is best for them, and in the end they have the right to make what we might consider to be bad decisions. • Respecting diversity. We may not always actualize this the way we would like, but as a field, we have made a commitment to ensuring that our services are accessible to people from a diversity of backgrounds. This has meant working to increase the diversity of our field and being sensitive to the diversity of approaches people take to conflict based on their cultural experience and background. • Believing in communication. Much of what we do in almost every approach we take is to try to establish and nurture effective communication. Communication itself cannot solve all problems, but it is a sine qua non for people who want to handle conflicts effectively. • Promoting social justice. Conflict is a necessary part of social change, and if we are committed to a more just world –​more peaceful, democratic, and egalitarian –​then we must not suppress conflict. Part of a commitment to social justice (and to empowerment) is a belief that those who are vulnerable to exploitation and oppression need special forms of protection when they are in conflict, but they do not need to be shielded from conflict itself. • Valuing creativity. Much of our approach to conflict is about how to help people discover ways through what appears to be an intractable problem, and this means helping people be creative. When we talk about exploring interests, reframing problems, and paying attention to the integrative potential, we are mostly talking [291] about ways in which we can help people stay creative in the face of conflict, fear, anger, and stress. • Maintaining optimism. We might not state this as a value, but it is embedded in much of what [we] do. Conflict professionals often work in dismal situations, but we do so in the belief that good can come out of bad circumstances, that people can grow, organizations can learn, bitter hatred and 926 [15.90]

The Future of Dispute Resolution  Chapter  15

Beyond Neutrality cont. animosities can change. It is this optimism that fuels this book. There is a crisis. We can face it, and in the end we will be stronger because we have. Nothing that I am suggesting implies abandoning or even changing any of these values in a significant way. If anything, I am simply suggesting that we face the implications of our values and recommit to them. If we are going to empower people, give meaning to our social justice concern, honor diversity, value the creative potential of conflict, and promote authentic communication, we have to do more than focus on resolution. We have to be more than third party neutrals. I am suggesting that there is a continuity of purpose and beliefs inherent in what we have to do to confront the current challenges to our field. The deeper we commit ourselves to our purpose and values, the more flexible we will be about how to implement them.

 [15.95]  The key point to take away from Mayer’s learned text is that the future of DR may

very well involve more of a focus on the client’s needs. Do clients need engagement? Do they need conflict strategies? Do they need resolution? Mayer’s point is, find out what the client needs and broaden the available services to be able to accommodate those needs. [15.100] Questions

1.

What are the newer trends in the DR landscape?

2.

What are the gaps in existing principles and standards of DR?

3.

What changes are required to ensure DR quality into the future?

4.

Is technology the main driving force in the development of DR processes?

5.

How is the role of lawyers changing in response to new attitudes to conflict resolution?

6.

Should legal education change its focus in light of the rise of DR?

7.

What are your views on the expansion of restorative justice principles beyond the criminal justice system?

8.

Do you believe that people in general are becoming more aware of conflict and the different ways to approach and resolve conflict?

9.

Can Mayer’s hypothesis really work in our adversarial market place?

10. Is the future of DR realistically dependent on the expansion of the services provided by DR practitioners? Can it survive without such expansion?   

[15.100]  927

INDEX A Aboriginal dispute resolution, [1.15], [12.270] —​ see also Indigenous disputes Access to Justice Arrangements, [15.10] Administrative Appeals Neutral Evaluation Process Model, [5.200] Adversarialism, [14.395] —​ see also Non-​adversarial justice; Non-​adversarial lawyering effective and ethical negotiations, [14.420] mediation and advocacy, [14.400] lawyer’s roles and ethical orientation in, [14.410] negotiation, [3.20] online dispute resolution, ethical principles for, [14.440] online technology and ADR services, [14.450] Alliances partnering and, [5.55] conceptual model of, [5.60] Alternative Dispute Resolution (ADR), [1.45], [1.100], [9.150] development of standards for, [14.130], [14.140], [14.150] ethics in ADR representation, [14.360] exploding the empowerment myth of, [11.30], [11.40] extensive use of, [15.07] Access to Justice Arrangements, [15.10] ADR future, [15.20] processes, [15.40] Global Pound Conference Series, [15.50] New Lawyer, [15.60] online dispute resolution, [15.20] reshaping boundaries, [15.30] future, [15.20] and industrial tribunals, [9.255] language of, [1.65] large case litigation, settling, [1.50] liability of lawyers and, [1.150] online dispute resolution, [15.20] online technology and, [14.450] processes, [15.40] role of Bar in, [1.195] standards, framework for, [14.160] and technology, [10.20] online technology, [14.450]

in work and employment disputes, [9.65] and workplace bullying, [9.210] Alternative ethical guidance for dispute resolution practitioners, [14.245] inclusive model of ethical decision making to mediation, [14.250] Anti-​bullying jurisdiction, [9.370], [9.380] Anti-​discrimination conciliation systemic outcomes facilitation, [5.135] Arbitration, [8.435], [9.165] Australian domestic arbitration, [6.95] arbitration agreement, [6.110] arbitrator appointment, [6.120] award, [6.245] recourse against, [6.270] conduct of arbitral proceedings, [6.165] fast tracking arbitration, [6.300] flexible process, [6.290] general provisions, [6.105] interim measures, [6.155] jurisdiction of arbitral tribunal, [6.145] preliminary, [6.100] termination of proceedings, [6.245] Australian International Arbitration, [6.90] Commercial Arbitration Acts, [6.10], [6.30] Commonwealth of Australia Constitution Act 1900 (Cth) s 51, [6.17] historical perspective, [6.15] Commercial Arbitration in Australia, [6.45] and dispute resolution, [6.50] International Commercial Arbitration and ADR, [6.55] under Fair Work Act 2009 (Cth), [9.330] Family Law Act 1975 (Cth), s 10L, [8.440] family law dispute resolution spectrum, [8.450] international commercial arbitration and ADR, [6.55] in Australia, [6.80] mandatory or voluntary referral and provisions, [6.35] ARIA framework, [12.175] Australian criminal justice system restorative justice in, [7.51], [7.165], [7.190] Australian domestic arbitration —​ see Domestic arbitration Australian Human Rights Commission, [9.400], [9.410] Australian Human Rights Commission Act 1986 (Cth), ss 11, 31, 46PF, [9.415]

 

929

Dispute Resolution in Australia: Cases, Commentary and Materials

Australian Human Rights Commission — cont Complaints Information, [9.405] International Measures of Effective Conflict Resolution Systems, [9.420] Australian International Arbitration, [6.90]

B Bar, [1.190] in mediation and ADR, [1.195] Bargaining distributive bargaining strategies, [3.70] divorce bargaining, [8.280] family dispute resolution counsellor’s role, [8.270] divorce bargaining, [8.280] plea bargains in criminal law, [7.385], [7.390], [7.400], [7.410] Best alternative to a negotiated agreements (BATNAs), [3.95] Binding expert appraisal, [5.215]

C Charter partnering, [5.70] Child Responsive Program, [8.550], [8.555] CINERGY model, [5.335] Collaborative law, [8.485], [8.540] Australian Collaborative Practice Guidelines, [8.500] evaluation in Australian context, [8.490] Commercial Arbitration Acts, [6.10], [6.30] Commercial Arbitration in Australia, [6.45] Commitment, [3.115] lessons for negotiators, [3.130] Roger Fisher’s approach to influence, [3.125] Communication principled negotiation, [3.105] Comprehensive Conflict Coaching (CCC) model, [5.345] Conciliation, [5.95], [9.165] anti-​discrimination conciliation, [5.135] counsellor’s role, [8.290] definition of, [5.95] under Fair Work Act 2009 (Cth), [9.330] 930 

Fair Work Commission pre-​eminence of conciliation, [9.275] telephone conciliations, [9.290] unfair dismissal applications, conciliation model for, [9.300] in family dispute resolution, [5.145] family dispute resolution (FDR), [5.145] history of, [5.105] arbitration power, [5.110] conciliation, [5.120] fairness, [5.120] illumination, [5.120] lawyer’s role, [8.230] models of, [5.130] anti-​discrimination conciliation, and systemic outcomes facilitation, [5.135] family dispute resolution in Australia, [5.145] pathways to learning, [5.185] private conciliation in family law, [5.155] workplace disputes, [5.165], [5.175] private conciliation in family law, [5.155] telephone conciliations, [9.290] workplace dispute resolution, [5.165], [5.175], [9.165]–​[9.170] workplace disputes, [5.165], [5.175] Conciliation Conference, [8.455] conciliation process, [8.460] Conferencing, [7.170] around Australia, [7.185] restorative justice in Australian Criminal Justice System, [7.190] circle sentencing, [7.195] restorative justice in criminal process in Queensland and Western Australia, [7.205] in non-​adversarial justice, [7.200] NZ family conference model, [7.175] restorative justice in non-​adversarial justice, [7.180] Wagga Wagga model, [7.175] restorative justice in non-​adversarial justice, [7.180] Confidentiality, [13.10] contractual confidentiality, [13.95] Cannon v Griffiths (No 2), [13.105] legal professional privilege, [13.50] Australian Crime Commission v Stewart, [13.55] public policy rationale, [13.15] statutory privilege, [13.60] Rajski v Tectran Corporation Pty Ltd, [13.65] Wentworth v Rogers, [13.75] statutory privilege, exceptions to, [13.80] The Silver Fox Co Pty Ltd (as Trustee ...) v Lenard’s Pty Ltd, [13.85] without prejudice privilege, [13.20] 789TEN v Westpac, [13.35] Field v Commissioner for Railways (NSW), [13.45] Lukies v Ripley (No 2), [13.25] Conflict —​ see also specific conflicts and resolutions across cultures, [12.35] assessment of, [2.35]

Index

Conflict — cont avoidance, [2.145], [2.165] causes of, [2.65] broader view, [2.90] hypothesis building and testing, [2.80] Moore’s Pizza, [2.70] conflict analysis models, [2.45] definition of, [2.10] dictionary of conflict resolution, [2.15] disputes and conflicts, [2.25] dual concern model, [2.155] engaging in, [2.145], [2.175] experiencing, [2.55] intensity and escalation, [2.100] conflict competent leader, [2.105] conflict escalation and de-​escalation models, [2.125] enemy images and, [2.115] social conflicts, [2.135] management, [1.40] for managers, [9.45], [9.180] mediation, using values-​based approach in, [2.185] news about, [2.195] Conflict coaches competencies for, [5.370] ICF core competencies, [5.375] indigenous Australian settings, [5.395] state of knowledge, [5.385] Conflict coaching, [5.280], [9.125], [9.130] development of, [5.290], [5.295] different approaches to, [5.300] CINERGY model, [5.335] Comprehensive Conflict Coaching (CCC) model, [5.345] conflict coaching, [5.305] conflict education resource team (CERT), [5.325] problem solving for one (PS1), [5.315] REAL Conflict Coaching™ System, [5.355] principles, [5.360], [5.365] uses for, [5.285] Conflict education resource team (CERT), [5.325] Conflict resilient workplaces, development of, [9.55], [9.190] Conflict resolution, dynamics of, [12.95] Contemporary conflict resolution, [14.65] Contractual confidentiality, [13.95] Cannon v Griffiths (No 2), [13.105] Cooperative and productive workplace relations, [9.340], [9.350], [9.360] Court-​connected mediation, [4.330], [11.75] challenges, [4.370], [4.375] history, [4.335] justice arrangements, access to, [4.350]

mediation in courts, [4.340] tribunals, [4.340] hybrid mediation processes, [4.380] QCAT’s hybrid hearing, [4.385], [4.395] judges as mediators, [4.405], [4.415], [4.430] judicial conduct, [4.430] judicial mediation, [4.400], [4.425] objectives, [4.355] legitimacy, [4.365] procedural justice, [4.365] quality, [4.360] Criminal justice system restorative justice in, [7.51], [7.165], [7.190] Criminal law, dispute resolution in applications of dispute resolution, [7.415] international conflict resolution, [7.420] conferencing, [7.170] circle sentencing, [7.195] non-​adversarial justice, restorative justice in, [7.200] Queensland, restoring justice in criminal process in, [7.205] Western Australia, restoring justice in criminal process in, [7.205] conferencing around Australia, [7.185] Australian criminal justice system, restorative justice in, [7.190] NZ family conference model, [7.175] non-​adversarial justice, restorative justice in, [7.180] Wagga Wagga model, [7.175] non-​adversarial justice, restorative justice in, [7.180] dispute resolution in criminal context, reason for, [7.20] alternative dispute resolution, and crime prevention, [7.25] inquiry into alternative dispute resolution and restorative justice, [7.15], [7.225] plea bargains in criminal law, [7.385], [7.390], [7.400], [7.410] processes, [7.10] restorative justice, [7.30] alternative conflict resolution and, [7.45] in Australian criminal justice system, [7.51], [7.85], [7.85]–​[7.145], [7.90], [7.100] criminal matters, [7.110] guidelines, [7.130] national guidelines and principles, [7.120] processes, [7.145] victim-​offender mediation, [7.165] definitions, [7.30] real story, [7.35] restorative justice in Australia criminal matters, [7.215] criminal process in Queensland, [7.235] in Western Australia, [7.235] criticism, [7.305] history of, [7.210] inquiry into alternative dispute resolution and restorative justice, [7.225] national and international guidelines, [7.365]  

931

Dispute Resolution in Australia: Cases, Commentary and Materials

Criminal law, dispute resolution in — cont potential outcomes of, [7.240] for serious crimes, [7.245], [7.250] world-​wide, [7.255] timing, [7.10] traditional justice, [7.55] inquiry into alternative dispute resolution and restorative justice, [7.60] and restorative justice, [7.70] debates, [7.80] victim-​offender mediation in Australia, [7.160] Australian criminal justice system, restorative justice in, [7.165] Culture and dispute resolution, [12.05] aboriginal communities, [12.270] Asian perspective, [12.370] incompatible cultural characteristics, [12.395] interests-​based model, [12.385] quest for, [12.375] conflict across cultures, [12.35] cross-​cultural fluency, [12.195] alternative scenarios, [12.225] development of, [12.200] intercultural conflict resolution overview of capacities and skills for, [12.205] negotiating parties acquiring, [12.215] cross-​cultural perspectives, [12.130] ARIA framework, [12.175] cultural constructions of conflict and peace non-​Western perspectives, [12.155] Western perspectives, [12.155] cultural grid, [12.185] culture-​centred approach to conflict resolution, [12.165] of mediation, [12.135], [12.145] culture, definition of, [12.10] culture and conflict, [12.50] analysis, [12.55] dynamics of conflict resolution, [12.95] intertwined inextricably, [12.75] mapping, [12.65] Wheel of Culture map, [12.85] culture and conflict resolution, [12.100], [12.125] connection between, [12.115]–​[12.120] cultural variation in conflict resolution, [12.105]–​[12.110] indigenous dispute management, [12.275], [12.290] effective dispute management practitioner, [12.325] management through place and relatedness, [12.280] process design, [12.335] research issues, [12.315] resolving indigenous disputes, [12.305] native title mediation, [12.340] Native Title Act 1993 (Cth), s 108, [12.345] resolving indigenous disputes, [12.360] reflective practice, [12.230] dispute resolution and cultural demonisation, [12.255], [12.265] preliminary notes for practitioners, [12.235] responding to culture in mediation, [12.245] 932 

D Disputant ethics, [14.95] moral values, [14.100] social policy, [14.110] Dispute avoidance processes, [5.10] commonly adopted means in construction industry, [5.20] dispute board, [5.10] dispute review boards, [5.30] in Australia, [5.40] settlement mediation, [5.30] Dispute resolution, [14.05] —​ see also Alternative dispute resolution; specific disputes and resolutions and aboriginal communities, [12.270] advisers, [5.85] Asian perspective on, [12.370] incompatible cultural characteristics, [12.395] interests-​based model, [12.385] quest for, [12.375] choices, [8.470] clauses, enforceability of, [13.180] drafted to avoid uncertainty, [13.195] Aiton Australia Pty Ltd v Transfield Pty Ltd, [13.210] degree of certainty and drafting dispute resolution clause, [13.215] Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd, [13.200] Scott v Avery, [13.190] and cultural demonisation, [12.255], [12.265]  —​ see also Culture and dispute resolution future of, [15.05] alternative dispute resolution (ADR), extensive use of, [15.07] access to justice arrangements, [15.10] connections between purpose, values, ethics and justice, [15.40] Global Pound Conference Series, [15.50] the New Lawyer, [15.60] online dispute resolution and the future of alternative dispute resolution, [15.20] reshaping boundaries, [15.30] beyond DR, [15.85]–​[15.90] developments in restorative practice, [15.75] restorative city for New South Wales, [15.80] educating next generation of DR practitioners, [15.65] pursuit of happiness and resolution of conflict, [15.70] genuine effort in, [14.340] origins of, [1.10] aboriginal dispute resolution, [1.15] constitutional change, [1.30] indigenous disputes, resolving, [1.20] public and private sector growth, [1.35] conflict management, [1.40] process selection of, [1.95] alternative dispute resolution, [1.100] and state

Index

Dispute resolution — cont appropriation of dispute resolution, [11.35] decline of trial in Australia, [11.50] empowerment myth of ADR, [11.40] extent of statutory schemes in Australia, [11.10] mediation and regulation, [11.20] judges as mediators, [11.110], [11.115] role of the courts in dispute resolution, [11.60] constitutional function of the judiciary, [11.85] court, and mediation, [11.75] hands-​on judges, [11.95] judges increasing mediation settlement rates, [11.105] judicial institution, and mediation, [11.65] settlement in court-​connected ADR, [11.85] value of disputes, [11.25] exploding the empowerment myth of ADR, [11.30] taxonomy of, [14.55] Dispute resolution, in family law, [8.05] best interests of child paramount in parenting orders, [8.150] Family Law Act 1975 (Cth), s 60CC, [8.155] family dispute resolution (FDR), [8.45], [8.430] arbitration, [8.435] Family Law Act 1975 (Cth), s 10L, [8.440] family law dispute resolution spectrum, [8.450] Australian family law social issues in development of, [8.50] Child Responsive Program, [8.550] child’s voice in, [8.55] collaborative law, [8.485], [8.540] Australian Collaborative Practice Guidelines, [8.500] evaluation in Australian context, [8.490] collaborative practice coercive control-​type family violence, [8.505], [8.510], [8.530] victims of family violence, [8.520] Conciliation Conference, [8.455] conciliation process, [8.460] family law/​legal aid conferences, [8.465] dispute resolution choices, [8.470] legal effect of agreements reached during, [8.145] Magellan program, [8.475] family law dispute resolution spectrum, [8.480] family dispute resolution (FDR), obligations of professionals working in, [8.165] best interests of child, duty to provide information about, [8.190] Family Law Act 1975 (Cth), s 60D, [8.195] coordinated family dispute resolution, [8.420] family violence cases, [8.425] counsellor’s role, [8.245], [8.260] bargaining, [8.270] divorce bargaining, [8.280] Family Law Act 1975 (Cth), s 10B, [8.250] family mediation and legal process, [8.300] mediation and conciliation processes, [8.290] dispute resolution services range, duty to inform, [8.165] Family Law Act 1975 (Cth), s 62B, [8.180] Family Law Act 1975 (Cth), ss 12A, 12B, [8.170] family violence, [8.350]

changes to Family Law, [8.385] Family Law Act 1975 (Cth), s 4AB, [8.355] FDR and family violence, [8.395] FDR and family violence victims, [8.365] national legal response, [8.375] “inappropriate for FDR” certificates, [8.400] lawyer’s role in FDR, [8.220], [8.240] representing clients in mediation and conciliation processes, [8.230] “no longer appropriate for FDR” certificates, [8.400] mediation, certification of, [8.405], [8.415] power, [8.310] divorce and interpersonal mediation, power imbalance in, [8.325] family mediation, [8.335], [8.345] The Handbook of Family Dispute Resolution: Mediation Theory and Practice, [8.315] practitioners, [8.200] Family Law Act 1975 (Cth), s 10G, [8.205] Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth), reg 25, [8.215] family matters, [8.20] Family Law Act 1975 (Cth), s 13C, [8.25] legislative framework in family law system, [8.35] Family Law Act 1975 (Cth), s 13A, [8.40] requirement to make genuine effort, [8.65] Family Law Act 1975 (Cth) s 60I(1)–​(3), (7), [8.80] s 60I(8), [8.110] s 60I(9), [8.90] s 60I(10), [8.100] Family Law Rules 2004 (Cth), Sch 1, r 1, [8.70] Family Law Rules 2004 (Cth), Sch 1, r 6, [8.185] making a genuine effort, [8.120], [8.130] mediation, certification of, [8.140] Dispute resolution, in workplace, [9.05] Australian Human Rights Commission, [9.400], [9.410] Australian Human Rights Commission Act 1986 (Cth), ss 11, 31, 46PF, [9.415] Complaints Information, [9.405] international measures, [9.420] conflict management for managers, [9.15], [9.180] cost of workplace conflict, [9.10] external workplace dispute resolution processes, [9.225] awards and enterprise agreements anti-​bullying jurisdiction, [9.370], [9.380] cooperative and productive workplace relations, promotion of, [9.340], [9.350], [9.360] developments in conciliation and arbitration under Fair Work Act 2009 (Cth), [9.330] dispute resolution clauses required in, [9.305] Dispute Resolution Under Pt 6-​2 of the Fair Work Act, [9.320] effective dispute resolution guide, [9.310] Fair Work Commission, [9.230] ADR, [9.255] assisting in dispute resolution, [9.235] Fair Work Act 2009 (Cth), role in resolving unfair dismissal claims, [9.265]  

933

Dispute Resolution in Australia: Cases, Commentary and Materials

Dispute resolution, in workplace — cont Fair Work Act 2009 (Cth), ss 576, 595, [9.245] industrial tribunals, [9.255] pre-​eminence of conciliation, [9.275] role of arbitration before, [9.170] telephone conciliations, [9.290] unfair dismissal applications, conciliation model for, [9.300] workplace conflict resolution in Australia, [9.285] Fair Work Ombudsman, [9.385] Fair Work Act 2009 (Cth), s 682, [9.390] internal conflict management/​resolution processes, [9.70] conciliation/​arbitration, [9.165] role of arbitration before Fair Work Commission, [9.170] conflict coaching, [9.125], [9.130] dispute systems design/​integrated conflict management systems, [9.175] conflict management for managers, [9.180] conflict resilient workplaces, development of, [9.190] formal complaint/​grievance, [9.110] workplace behaviour management, [9.115] good dispute resolution process, features of, [9.75] investigation/​fact-​finding, [9.155] internal/​external investigation, [9.160] mediation, [9.135] role of, [9.140] workplace conflict management, [9.150] negotiation, [9.85] open-​door policy, [9.90] workplace conflict management, [9.95] performance management, [9.100] workplace behaviour management, [9.105] potential problems with internal conflict resolution, [9.195] neutrality and impartiality, [9.220] rhetoric and reality of workplace ADR, [9.215] structural causes of workplace conflict, [9.200] workplace bullying, [9.210] mediation, role of, [9.20] relationship conflict in workplace, [9.25] and mediation, [9.30] responses to workplace conflict, [9.40] power, rights and interests, [9.40] ADR in work and employment disputes, [9.65] conflict management for managers, [9.45] conflict resilient workplaces, development of, [9.55] Dispute review boards in Australia, [5.40] and partnering, distinction between, [5.80] Dispute systems design/​integrated conflict management systems, [9.175] conflict management for managers, [9.180] conflict resilient workplaces, development of, [9.190] Distributive negotiation, [3.50] distributive bargaining strategies, [3.70] negotiating conflict, [3.60] 934 

Divorce bargaining, [8.280] Domestic arbitration, [6.95] arbitration agreement, [6.110] Commercial Arbitration Act 2010 (NSW) s 7, [6.112] Arbitrator appointment, [6.120] Commercial Arbitration Act 2010 (NSW) s 11, [6.123] s 12, [6.133] Pan Atlantic Group Inc v Hassneh Insurance Co of Israel Ltd, [6.140] conduct of arbitral proceedings, [6.165] Chilton v Saga Holidays plc, [6.220] Commercial Arbitration Act 2010 (NSW) s 19, [6.167] s 27D, [6.233] commercial arbitration in Australia, [6.240] Hopcraft v Hickman, [6.200] Neale v Richardson, [6.190] Phoenix v Pope, [6.180] WFA v Hobart City Council, [6.210] fast tracking arbitration, [6.300] IAMA’s Fast Track Arbitration Rules, [6.305] flexible process, [6.290] copyright disputes, [6.295] general provisions, [6.105] Commercial Arbitration Act 2010 (NSW) s 1, [6.107] interim measures, [6.155] Beecham Group Ltd v Bristol Laboratories Pty Ltd, [6.160] Commercial Arbitration Act 2010 (NSW) s 17, [6.156] s 17A, [6.158] jurisdiction of arbitral tribunal, [6.145] Commercial Arbitration Act 2010 (NSW) s 16, [6.147] QH Tours Ltd v Ship Design & Management (Aust) Pty Ltd, [6.150] making of award and termination of proceedings, [6.245] Commercial Arbitration Act 2010 (NSW) s 28, [6.247] s 31, [6.263] s 32, [6.267] Yesodei Hatorah College Inc v The Trustees of the Elwood Talmud Torah Congregation, [6.255] preliminary, [6.100] Commercial Arbitration Act 2010 (NSW) s 1C, [6.102] recourse against an award, [6.270] Commercial Arbitration Act 2010 (NSW) s 34, [6.272] s 34A, [6.283] Norwest Holst Construction Ltd v Co-​operative Wholesale Society Ltd, [6.285] Tiki International Ltd, Re, [6.275]

E Ethical Guidelines for Mediators, [14.215] Ethics, [14.05] alternative ethical guidance

Index

Ethics — cont for dispute resolution practitioners, [14.245] inclusive model of ethical decision making to mediation, [14.250] definition, [14.15] dilemmas, [14.10] in dispute resolution, [14.40] contemporary conflict resolution, [14.65] disputant ethics, [14.95] moral values, [14.100] social policy, [14.110] mediation ethics, [14.45] personal experience, [14.115] and ethical dilemmas, [14.120] professional ethics, [14.75] ethics and justice in mediation, [14.90] roles and rules, [14.80] taxonomy of dispute resolution, [14.55] issues in particular DR contexts, [14.255] evaluative and advisory processes, [14.285] ethics of mediation evaluation, [14.290] evaluative mediation, [14.300] mediators and substantive justice, [14.310] family dispute resolution, [14.260] ethical practice as FDRP, [14.275] family-​centered divorce mediation, [14.265] negotiation, [14.320] ethics and morality in, [14.325] meaning of good faith, [14.335] for lawyers representing clients, [14.355] ADR representation, [14.360] adversarialism, [14.395] effective and ethical negotiations, [14.420] ethical principles for online dispute resolution, [14.440] ethics and professionalism in non-​adversarial lawyering, [14.430] lawyer’s roles and ethical orientation in mediation, [14.410] mediation and advocacy, [14.400] online technology and ADR services, [14.450] guidelines for mediation, [14.375] ethical issues, [14.390] professional conduct rules, [14.370] limitations, [14.225] inclusive model of ethical decision making to mediation, [14.230] specialty subject matter codes, [14.240] making ethical decisions, [14.35] of mediation evaluation, [14.290] professional ethics for dispute resolution practitioners, [14.125] ethical guidance for lawyer-​mediators, [14.210] Ethical Guidelines for Mediators, [14.215] Family Dispute Resolution Practitioner (FDRP) accreditation scheme, [14.200] ethical standards for, [14.205] framework for ADR standards, [14.160] Mediator Standards Board (MSB), [14.195] core values of mediation, [14.190] National Mediator Accreditation Practice Standards (2015), cl 10, [14.180] National Mediator Accreditation System (NMAS), [14.170] standards for ADR, development of, [14.130], [14.140], [14.150] theory of mediators’ ethics, [14.25]

Evaluative and advisory processes, [14.285] ethics of mediation evaluation, [14.290] evaluative mediation, [14.300] mediators and substantive justice, [14.310] Expert determination, [5.210] advantages and disadvantages associated with, [5.225] impugning, [5.235] unbridled expert determinations, [5.240] External workplace dispute resolution processes, [9.225] —​ see also Dispute resolution, in workplace clauses required in awards and enterprise agreements, [9.305] anti-​bullying jurisdiction, [9.370], [9.380] case management model, [9.370], [9.380] conciliation and arbitration under Fair Work Act 2009 (Cth), developments in, [9.330] cooperative and productive workplace relations, [9.340], [9.350], [9.360] dispute resolution under Pt 6-​2 of the Fair Work Act, [9.320] effective dispute resolution guide, [9.310] Fair Work Commission, [9.230] ADR, [9.255] assisting in dispute resolution, [9.235] Fair Work Act 2009 (Cth) role in resolving unfair dismissal claims, [9.265] ss 576, 595, [9.245] industrial tribunals, [9.255] pre-​eminence of conciliation, [9.275] telephone conciliations, [9.290] unfair dismissal applications, conciliation model for, [9.300] workplace conflict resolution in Australia, [9.285] Fair Work Ombudsman, [9.385] Fair Work Act 2009 (Cth), s 682, [9.390]

F

Fair Work Ombudsman, [9.385] Fair Work Act 2009 (Cth), s 682, [9.390] Family conflict, narrative mediation of, [4.310] Family dispute resolution (FDR), [8.45], [14.260] —​ see also Dispute resolution, in family law in Australia conciliation in, [5.145] Australian family law, developmental issues, [8.50] child’s voice in, [8.55] counsellor’s role in, [8.245], [8.260] bargaining in the shadow of the law, [8.270] divorce bargaining, [8.280] Family Law Act 1975 (Cth), s 10B, [8.250] family lawyers representing clients in mediation and conciliation, [8.230], [8.290] family mediation and legal process, [8.300] ethical challenges in family-​centered divorce mediation, [14.265] ethical practice as FDRP, [14.275]  

935

Dispute Resolution in Australia: Cases, Commentary and Materials

Family dispute resolution (FDR) — cont family violence cases, [8.425] genuine effort, [8.120], [8.130] lawyer’s role in, [8.220], [8.240] family lawyers representing clients in mediation and conciliation, [8.230], [8.290] legal effect of agreements reached during, [8.145] obligations of professionals working in, [8.165] duty to inform about range of dispute resolution services, [8.165] Family Law Act 1975 (Cth), s 62B, [8.180] Family Law Act 1975 (Cth), ss 12A, 12B, [8.170] Family Law Rules 2004 (Cth), Sch 1, r 6, [8.185] practice of mediation and conciliation in, [5.145] Family dispute resolution practitioners (FDRP), [8.200] accreditation scheme, [14.200] ethical practice as, [14.275] ethical standards for, [14.205] Family Law Act 1975 (Cth), s 10G, [8.205] Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth), reg 25, [8.215] Family law conferences, [8.465] dispute resolution —​see Dispute resolution, in family law private conciliation in, [5.155] Family mediation, [8.335], [8.345] and the legal process, [8.300] Family violence, [8.350] changes to family law, [8.385] family dispute resolution (FDR) in, [8.425] and victims, [8.365] Family Law Act 1975 (Cth), s 4AB, [8.355] national legal response, [8.375] in new family law system, [8.395] online mediation and, [10.130] victims of, collaborative practice for, [8.520] Federal, state and territory neutral evaluation and case appraisal schemes, [5.230] Fisher, Roger, [3.130] approach to influence, [3.125] Formal complaint/​grievance, [9.110] workplace behaviour management, [9.115]

G

Genuine effort, in dispute resolution, [14.340] Global online dispute resolution system, [10.30] Global Pound Conference Series, [15.50] Green model, [10.140] 936 

I Immunity, [13.110] statutory immunity, [13.145] Von Schultz v Attorney-​General of Queensland, [13.150] “Inappropriate for FDR” certificates, [8.400] Indigenous disputes management role of culture in, [12.275], [12.290] effective dispute management practitioner, [12.325] management through place and relatedness, [12.280] process design, [12.335] research issues, [12.315] resolving indigenous disputes, [12.305] native title mediation, [12.360] resolving, [1.20] youth, in Western Australia restorative justice in, [7.350] Integrative negotiation, [3.30] art and science of negotiation, [3.35] consensual approaches to resolving public disputes, [3.45] Internal conflict management/​resolution processes, [9.70] conciliation/​arbitration, [9.165] role of arbitration in disputes before the Fair Work Commission, [9.170] conflict coaching, [9.125], [9.130] dispute systems design/​integrated conflict management systems, [9.175] conflict management for managers, [9.180] conflict resilient workplaces, development of, [9.190] formal complaint/​grievance, [9.110] workplace behaviour management, [9.115] good dispute resolution process, features of, [9.75] investigation/​fact-​finding, [9.155] internal/​external investigation, [9.160] mediation, [9.135] role of, [9.140] workplace conflict management, [9.150] negotiation, [9.85] open-​door policy, [9.90] workplace conflict management, [9.95] performance management, [9.100] workplace behaviour management, [9.105] potential problems with internal conflict resolution, [9.195] neutrality and impartiality in workplace conflict resolution, management of, [9.220] rhetoric and reality of workplace ADR, [9.215] structural causes of workplace conflict, [9.200] workplace bullying, [9.210] International commercial arbitration in Australia, [6.80]

Index

International measures of effective conflict resolution systems, [9.420] International online dispute resolution, [10.45]

J Judges future role of referencing out, [5.275] and mediation settlement rates, [11.105] as mediators, [4.405], [4.415], [4.430], [11.95], [11.110], [11.115]

L Large case litigation, settling, [1.50] Lawyers bad behaviour in mediations, [1.180] conciliation, role in, [8.230] family dispute resolution, role in, [8.220], [8.240] liability, and ADR, [1.150] and mediation, [1.135], [14.410] bad behaviours, [1.180] guidelines, [4.705], [14.375] ethical issues, [14.390] roles, [4.700], [4.715], [14.410] mediation for, [4.715] as mediators, [1.160], [4.700] bad behaviours, [1.180] ethical guidance for, [14.210] non-​adversarial lawyering, ethics and professionalism in, [14.430] representatives emergence of, [1.170] new advocacy, [1.170] representing clients, ethics for, [14.355] —​ see also Professional ethics ADR representation, [14.360] adversarialism, [14.395] effective and ethical negotiations, [14.420] ethical principles for online dispute resolution, [14.440] ethics and professionalism in non-​adversarial lawyering, [14.430] lawyer’s roles and ethical orientation in mediation, [14.410] mediation and advocacy, [14.400] online technology and ADR services, [14.450] guidelines for mediation, [14.375] ethical issues, [14.390] professional conduct rules, [14.370] roles and ethical orientation in mediation, [14.410] Legal aid conferences, [8.465] Legal issues, [13.05] confidentiality and privilege, [13.10] contractual confidentiality, [13.95] Cannon v Griffiths (No 2), [13.105] exceptions to statutory privilege, [13.80]

The Silver Fox Co Pty Ltd (as Trustee ...) v Lenard’s Pty Ltd, [13.85] legal professional privilege, [13.50] Australian Crime Commission v Stewart, [13.55] public policy rationale, [13.15] statutory privilege, [13.60] Rajski v Tectran Corporation Pty Ltd, [13.65] Wentworth v Rogers, [13.75] without prejudice privilege, [13.20] 789TEN v Westpac, [13.35] Field v Commissioner for Railways, [13.45] Lukies v Ripley (No 2), [13.25] drafted to avoid reference to “good faith negotiation”, [13.220] alternative dispute resolution, good faith element in, [13.225] drafted with provision for a remedy, [13.235] bar to enforceability of dispute resolution clauses, [13.240] enforceability of dispute resolution clauses, [13.180] bar to, [13.240] drafted to avoid uncertainty, [13.195] Aiton Australia Pty Ltd v Transfield Pty Ltd, [13.210] degree of certainty and drafting dispute resolution clause, [13.215] Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd, [13.200] Scott v Avery, [13.190] enforceability of settlement contracts, [13.155] Pittorino v Meynert, [13.160] reporting to court and court orders, [13.170] Hart v Kuna, [13.175] requirement of writing, [13.165] liability and immunity, [13.110] common law liability, [13.110] exploring mediator liability in negligence, [13.140] McCosh v Williams, [13.120] Tapoohi v Lewenberg (No 2), [13.130] statutory immunity, [13.145] Von Schultz v Attorney-​General of Queensland, [13.150] Legal profession —​ see also Judges; Lawyers and dispute resolution, [1.115] Alternative Dispute Resolution options, liability of lawyers to advise on, [1.150] emergence of lawyer representatives, [1.170] lawyers bad behaviour in mediations, [1.180] and mediation, [1.135] as mediators, [1.160] mediation, [1.120] new advocacy, [1.170] ethics  —​ see Ethics; Professional conduct rules; Professional ethics privilege, [13.50] Australian Crime Commission v Stewart, [13.55]  

937

Dispute Resolution in Australia: Cases, Commentary and Materials

Liability, [13.110] common law liability, [13.110] exploring mediator liability in negligence, [13.140] McCosh v Williams, [13.120] Tapoohi v Lewenberg (No 2), [13.130] of lawyers, [1.150] M Magellan program, [8.475] Mandatory mediation, [4.435], [4.545] in Australia’s civil justice system, [4.505], [4.515], [4.525], [4.535] court directed compulsory mediation, [4.485] diagnostic factors in mandatory ADR referrals, [4.555] effectiveness of forcing parties to mediate, [4.470] good faith requirement in, [4.565] duty to participate in good faith, [4.580] obligation to mediate in good faith, [4.570] and neutral evaluation, [4.495] perspectives on, [4.445], [4.455], [4.475] Australian perspective, [4.465] Mediation, [1.90], [1.120], [4.40], [9.135], [9.140] adversarialism and advocacy, [14.400] lawyer’s roles and ethical orientation in, [14.410] and advocacy, [14.400] appropriateness of, [4.590], [4.605] NADRAC Annual Report 2000/​1, [4.595] power in mediation, [4.610], [4.615], [4.625] power of mediator, [4.630], [4.635] Bar’s role in, [1.195] certification, [8.140], [8.405], [8.415] certification of, [8.140], [11.405], [11.415] and child-​informed practice, [8.55] core values, [14.190] court-​connected mediation, [4.330], [11.75]  —​ see Court-​connected mediation challenges of, [4.370] history of, [4.335] hybrid mediation processes, [4.380] judges as mediators, [4.430] judicial conduct, [4.430] judicial mediation, [4.400] objectives of, [4.355] and courts, [11.75] judges increasing mediation settlement rates, [11.105] cross-​cultural perspectives, [12.135], [12.145] definitions of, [4.35] ethics, [14.45] —​see Ethics of mediation evaluation, [14.290] evaluative mediation, [14.300] evaluative mediation/​blended models, [4.185] approval standards, commentary on, [4.215] blended mediation, [4.225] definitions and strategies, [4.235] evaluative mediation, [4.265] evaluative threat to mediation practice, [4.255] expert advisory mediation, [4.190] 938 

criticism of, [4.245] NADRAC definition, [4.200] practice standards definition, [4.205] extent of statutory schemes in Australia, [11.20] facilitative model of, [4.175] facilitative mediation, [4.180] family dispute resolution in Australia, [5.145] family mediation, [4.310], [5.145], [8.230], [8.290], [8.335], [8.345] counsellor’s role, [8.290], [8.300] family-​centered divorce mediation, [14.265] lawyer’s role, [8.230] and legal process, [8.300] online mediation, [10.130] future of, [4.720], [4.725] in the US, [4.735] guidelines for lawyers in, [14.375] ethical issues, [14.390] history of mediation in Australia, [4.10] mediation past and present, [4.25] National Mediator Accreditation System and the Mediator Standards Board, [4.30] stages of Australian mediation, [4.15] inclusive model of ethical decision making to, [14.250] internal conflict management/​resolution processes, [9.135], [9.140], [9.150] and judicial institution, [11.65] and lawyers, [1.135] —​see Lawyers bad behaviours, [1.180] guidelines, [4.705] roles, [4.700], [4.715] and ethical orientation in, [14.410] mandatory mediation, [4.435] in Australia’s civil justice system, [4.505], [4.515], [4.525], [4.535] court directed compulsory mediation, [4.485] diagnostic factors in mandatory ADR referrals, [4.555] effectiveness of forcing parties to mediate, [4.470] good faith requirement in, [4.565] duty to participate in good faith, [4.580] obligation to mediate in good faith, [4.570] and neutral evaluation, [4.495] perspectives on, [4.445], [4.455], [4.475] Australian perspective, [4.465] mediation evaluation, ethics of, [14.290] mediator’s role, [4.80], [4.95], [4.105] context and pretext in conflict resolution, [4.85] models, [4.115] in practice, [4.325] used in Australia, [4.125] component pieces of mediation, [4.150] problem-​solving process, hallmarks of, [4.160] procedural models, [4.170] stage theory models, [4.130], [4.140] narrative mediation, [4.305] of family conflict, [4.310] narrative mediation of family conflict, [4.310] practice of, [4.315] practicing narrative mediation, [4.315] native title mediation, [12.340]–​[12.360] neutrality and impartiality in, [4.640] abandoning neutrality, [4.690] ethical guidelines for mediators, [4.655], [4.660]

Index

Mediation — cont implicit bias, [4.645] and independence, [4.670] neutrality in courts and mediation, [4.680] online mediation, [10.60], [10.75] divorce cases involving violence, [10.135] family violence, [10.130] online dispute resolution, [10.65] process, description of, [4.55] promise of, [4.65] and regulation, [11.20] research, [4.75] responding to culture in, [12.245] settlement mediation, [5.30] transformative mediation, [4.270] conflict intervention, [4.282] implications for practitioners, [4.300] mediation metamodel, [4.290] promise of mediation, [4.275] using values-​based approach, [2.185] victim-​offender mediation, [7.160]–​[7.165] in workplace, [9.20], [9.30], [9.135], [9.140], [9.150] workplace conflict management, [9.150]

defining, [3.05] distributive negotiation, [3.50] distributive bargaining strategies, [3.70] negotiating conflict, [3.60] ethics and morality in, [14.325] integrative, [3.30] legal, [3.25] legal negotiation, [3.25] meaning of good faith, [14.335] models of, [3.10] principled negotiation, [3.75] alternatives, [3.90] Best alternative to a negotiated agreements (BATNAs), [3.95] commitment, [3.115] communication, [3.105] comparing models of negotiation, [3.155] interests, [3.80] legitimacy, [3.100] options, [3.85] principled negotiation model, limitations of, [3.135] relationship, [3.110] theory and techniques, [3.160]

Mediator Standards Board (MSB), [4.30], [14.195] Mediators lawyers as —​see Lawyers liability, [13.140] and substantive justice, [14.310] Moore’s Pizza, [2.70]

N Narrative mediation, [4.305] of family conflict, [4.310] practice of, [4.315] National Mediator Accreditation Practice Standards (2015), cl 10, [14.180] National Mediator Accreditation System (NMAS), [4.30], [14.170] core values of mediation, [14.190] National Mediator Accreditation Practice Standards (2015), cl 10, [14.180] Native title mediation, [12.340] Native Title Act 1993 (Cth), s 108, [12.345] resolving indigenous disputes, [12.360] Negotiation, [14.320] advantages, [3.15] adversarial, [3.20] art and science of, [3.35] Best alternative to a negotiated agreements (BATNAs) in, [3.95] breaking the impasse, [3.45] comparing models of, [3.155]

Negotiators lessons for, [3.130] Neutral evaluation, [5.195] Administrative Appeals Neutral Evaluation Process model, [5.200] expert appraisal, [5.210] binding and non-​binding, [5.215] expert determination, [5.210] “No longer appropriate for FDR” certificates, [8.400] Non-​adversarial justice —​ see also Adversarialism restorative justice in in circle sentencing, [7.200] NZ family conference model, [7.180] Wagga Wagga model, [7.180] Non-​adversarial lawyering ethics and professionalism in, [14.430] Non-​binding expert appraisal, [5.215]

O Online alternative dispute resolution, [10.110], [14.450] —​ see also Online dispute resolution (ODR) Online arbitration, [10.85] —​ see also Arbitration of cross-​border consumer transactions in Australia, [10.90], [10.100] future of dispute resolution, [10.110]  

939

Dispute Resolution in Australia: Cases, Commentary and Materials

Online dispute resolution (ODR), [10.65] advantages, [10.115] alternative dispute resolution (ADR) and technology, [10.20] artificial intelligence perspective, [10.155] disadvantages, [10.115] ethical principles for, [14.440] in family law, [10.120] methods for incorporating fairness into family ODR, [10.125] future of, [10.150] and future of ADR, [15.20] global online dispute resolution system, designing, [10.30] eBay, [10.40] Green model, [10.140] international ODR, [10.45] UNCITRAL, [10.50] next green giant, [10.145] online arbitration, [10.85] of cross-​border consumer transactions in Australia, [10.90], [10.100] future of dispute resolution, [10.110] online mediation, [10.60], [10.75] divorce cases involving violence, [10.135] family violence, [10.130] online dispute resolution, [10.65] UNCITRAL technical notes on, [10.50] Online mediation —​ see Online dispute resolution (ODR) P Parenting orders, best interests of the child paramount in, [8.150] Family Law Act 1975 (Cth), s 60CC, [8.155] Partnering, [5.50] and alliances, [5.55] conceptual model of, [5.60] charter, [5.70] dispute resolution advisers, [5.85] and dispute review boards, distinction between, [5.80] Persuasion, [3.125] Practice standards limitations, [14.225] Principled negotiation, [3.75] alternatives, [3.90] Best alternative to a negotiated agreements (BATNAs) in negotiation, [3.95] commitment, [3.115] the five Ps of persuasion, [3.125] lessons for negotiators, [3.130] Roger Fisher’s approach to influence, [3.125] communication, [3.105] comparing models of negotiation, [3.155] theory and techniques, [3.160] interests, [3.80] legitimacy, [3.100] 940 

limitations, [3.135] comment, [3.150] pros and cons of “getting to yes”, [3.140] options, [3.85] relationship, [3.110] Private sector growth, [1.35] conflict management, [1.40] Privilege confidentiality, legal professional privilege, [13.50] statutory privilege, [13.60]–​[13.75] exceptions to, [13.80], [13.85] without prejudice privilege, [13.20]–​[13.45] Problem solving for one (PS1), [5.315] Professional conduct rules, [14.370] Professional ethics, [14.75] —​ see also Ethics for dispute resolution practitioners, [14.125] ADR standards development of, [14.130], [14.140], [14.150] framework for, [14.160] ethical guidance for lawyer-​mediators, [14.210] Ethical Guidelines for Mediators, [14.215] Family Dispute Resolution Practitioner (FDRP) accreditation scheme, [14.200] ethical standards for, [14.205] Mediator Standards Board (MSB), [14.195] National Mediator Accreditation System (NMAS), [14.170] core values of mediation, [14.190] National Mediator Accreditation Practice Standards (2015), cl 10, [14.180] and justice in mediation, [14.90] roles, [14.80] rules, [14.80] Public sector growth, [1.35] conflict management, [1.40]

R REAL Conflict Coaching™ System, [5.355] Referencing out, [5.250] judge, future role of, [5.275] Supreme Court reference out system, [5.260] Relationship, principled negotiation, [3.110] Relationship conflict in the workplace, [9.25] role of mediation in resolving, [9.30] Restorative justice, [7.70] alternative conflict resolution, [7.45], [7.320], [7.330] in Australia, [7.51], [7.85], [7.90], [7.100], [7.210] for criminal matters, [7.215]

Index

Restorative justice — cont use of restorative justice programmes in, [7.110] critiques of restorative justice, [7.305] alternative conflict resolution and restorative justice, [7.320], [7.330] critical perspectives on restorative justice, [7.310] indigenous youth and restorative justice in Western Australia, [7.350] real story, [7.360] unfinished business, [7.340] guidelines, [7.130] national guidelines, [7.140] principles of restorative justice, [7.135] inquiry into alternative dispute resolution and restorative justice, [7.225] national and international guidelines, [7.365] Handbook on Restorative Justice Programmes, [7.375] national guidelines, [7.370] principles of best practice, [7.120], [7.380] in non-​adversarial justice, [7.200] potential outcomes of, [7.240] Queensland, [7.205], [7.235] restorative approaches to serious crime world-​ wide, [7.255] best practice in restorative justice (case study), [7.290] following child sexual abuse or comparable harms, [7.250], [7.260], [7.270], [7.280] Queensland, [7.300] Western Australia, [7.300] restorative justice processes, [7.145] victim offender mediation, [7.150] for serious crimes, [7.245] following child sexual abuse or comparable harms, [7.250] Western Australia, [7.205], [7.235] indigenous youth and restorative justice in, [7.350] debates, [7.80] definitions, [7.30] in non-​adversarial justice in circle sentencing, [7.200] NZ family conference model, [7.180] Wagga Wagga model, [7.180] real story, [7.35] restorative justice, [7.45], [7.320], [7.330]

S

Specialty subject matter codes, [14.240] State and dispute resolution appropriation of dispute resolution, [11.35] decline of trial in Australia, [11.50] empowerment myth of ADR, [11.40] extent of statutory schemes in Australia, [11.10] mediation and regulation, [11.20] judges as mediators, [11.110], [11.115] role of the courts in dispute resolution, [11.60] constitutional function of the judiciary, [11.85] court, and mediation, [11.75] hands-​on judges, [11.95] judges increasing mediation settlement rates, [11.105] judicial institution, and mediation, [11.65] settlement in court-​connected ADR, [11.85] value of disputes, [11.25] exploding the empowerment myth of ADR, [11.30] Statutory immunity, [13.145] Statutory privilege, [13.60] exceptions to, [13.80] The Silver Fox Co Pty Ltd (as Trustee ...) v Lenard’s Pty Ltd, [13.85] Rajski v Tectran Corporation Pty Ltd, [13.65] Wentworth v Rogers, [13.75] Substantive justice, mediators and, [14.310]

T Taxonomy of dispute resolution, [14.55] Telephone conciliations, [9.290] Traditional justice, [7.55] restorative justice, [7.70] debating, [7.80] inquiry into alternative dispute resolution and, [7.60] Transformative mediation, [4.270] conflict intervention, [4.282] implications for practitioners, [4.300] mediation metamodel, [4.290] promise of mediation, [4.275]

U Settlement contracts, enforceability of, [13.155] Pittorino v Meynert, [13.160] reporting to court and court orders, [13.170] Hart v Kuna, [13.175] requirement of writing, [13.165] in court-​connected ADR and constitutional function of judiciary, [11.85] Social issues, Australian Family Law development, [8.50]

United Nations Commission on International Trade Law (UNCITRAL) technical notes on online dispute resolution, [10.50]

V Victim-​offender mediation in Australia, [7.160] restorative justice, [7.165]  

941

Dispute Resolution in Australia: Cases, Commentary and Materials

W Wagga Wagga model, [7.175] restorative justice in non-​adversarial justice, [7.180] Wheel of Culture map, [12.85] Without prejudice privilege, [13.20] 789TEN v Westpac, [13.35] Field v Commissioner for Railways (NSW), [13.45] Lukies v Ripley (No 2), [13.25] Workplace conflict/​disputes ADR, rhetoric and reality of, [9.215] behaviour management, [9.105], [9.115]

942 

conciliation model for, [5.165], [5.175] conflict management for managers, [9.15] cost of, [9.10] management, [9.95], [9.150] resolution, [9.285] neutrality and impartiality in, [9.220] responses to, [9.40] power, rights and interests, [9.40] ADR in work and employment disputes, [9.65] conflict management for managers, [9.45] conflict resilient workplaces, development of, [9.55] role of mediation in resolving, [9.20] structural causes of, [9.200] understanding the implications for the mediation of, [9.200]