The following post is by a member of our Network – Lily O’Neill. Lily is a negotiation researcher looking primarily at native title negotiations.  She also teaches Dispute Resolution at Melbourne Law School, and presented her PhD research at the civil justice conference in Adelaide in February.

This blog post considers the importance of trust and relationship building in native title land access negotiations. It focuses on the negotiations that led to the Browse liquefied natural gas (LNG) agreements of 2011.[1] Like the literature on negotiation and mediation more broadly, building trust and good working relationships between governments, traditional owners and companies is often said to be a key potential benefit of these negotiations. Yet, as detailed here, there is a danger that negative impressions formed during negotiations can colour participants’ views of opposing parties’ motivations, even when they believe a reasonable deal has been struck.

The Browse LNG agreements, concluded by Goolarabooloo/Jabirr Jabirr traditional owners, Western Australia and Woodside Energy in mid 2011, were said to be worth $1.5 billion to traditional owners, and ‘much more positive’ than those typically achieved in negotiations between extractive industries and Aboriginal people.[2] These agreements were negotiated between 2007 and 2011.

Interviewees from all negotiation parties agreed that trust and relationship building should be important goals of native title negotiations, noting that they are particularly important attributes for implementing an agreement. Wayne Bergmann of the Kimberley Land Council, for example, said that where parties do not have a good relationship, agreements “don’t deliver half of what they should”.

However the parties viewed the negotiations in very different terms after the agreement was concluded. Negotiators from Western Australia and Woodside largely felt that while the negotiation had been “robust”, it had resulted in significant trust developing between all parties. One government negotiator described the feeling in the negotiation room as like:

“Stockholm syndrome – everyone became committed to each other in some sort of way or affected by the outcome and the desire to not see hurt, the desire to see everyone come out as a winner.”

Traditional owners and those working for them expressed a very different view. The negotiations were “long, protracted, quite bloody”, said one. Western Australia and Woodside had been “disingenuous” and had viewed traditional owners as “a thorn in their side … and they would do almost anything to get that thorn out”, said another. Of the company, a traditional owner said “you can’t take them at face value, they bullshit you.”

When interviewees were asked why parties had such different views of this aspect of the negotiations, two key reasons emerged.

The first was that traditional owners felt at a disadvantage in negotiations. A negotiator for traditional owners said:

“I think that we always had the David and Goliath, so we were very defensive.  Ready to take offense at anything, even sometimes when I don’t think they were actually intending to. If you think you are the underdog and you are fighting your way up, you have a certain attitude.”

The second was that both professional and non-professional negotiators conducted negotiations. Two senior government officials observed that traditional owners who had never experienced commercial negotiations were sometimes visibly upset by adversarial tactics because “they weren’t in on the gamesmanship of it all”. One reflected that Western Australia’s negotiation approach might have been different had they known from the outset that non-professional negotiators would be in the negotiation room.

These are lessons that are useful for all types of negotiations where trust and relationship building should be key negotiation outcomes.

[1] The information contained in this blog post is based on my PhD research: see Lily O’Neill, ‘A Tale of Two Agreements: Negotiating Aboriginal Land Access Agreements in Australia’s LNG Industry’ (PhD thesis, 2016). Available https://minerva-access.unimelb.edu.au/handle/11343/111978. This research used a comparative case study analysis to empirically examine the land access negotiations that led to agreements for Browse LNG in the Kimberley, Western Australia, and Curtis Island LNG in central Queensland. Among other data, it analysed 53 interviews conducted with negotiation participants from all negotiation parties.

[2] Ciaran O’Faircheallaigh, ‘Extractive Industries and Indigenous Peoples: A Changing Dynamic?’ (2013) 30 Journal of Rural Studies 20, 28. Note that in April 2013 Woodside announced that it was pulling out of the development option as detailed in the agreements, leaving large aspects of them likely unenforceable.

This second blog in the series for May on the values and goals of DR is also adapted from Chapter 4 of: Laurence Boulle and Rachael Field, Australian Dispute Resolution – Law and Practice (LexisNexis, 2017).

Much of the DR literature about justice connects or conflates it with notions of fairness. NADRAC, for example, noted in its 1997 Discussion Paper on Issues of Fairness and Justice in Alternative Dispute Resolution, that the words justice and fairness ‘are essentially interchangeable’. [1] The word ‘fair’ is mentioned 179 times in volume 1 alone of the Productivity Commission’s 2014 Report on Access to Justice, often in conjunction with words such as ‘justice’, ’equity’, ‘transparency’ ‘openness’ ‘dignity’ and ‘reasonableness’. It has been said that ‘a just result must be a fair result’.[2]

Albin in her seminal article ‘The Role of Fairness in Negotiation’ identifies fairness as a ‘slippery concept’ but one which is an influential factor in DR across diverse cultures and disciplines.[3] Albin refers to justice as a macro concept which points to ‘what is right and wrong’.[4] Fairness on the other hand is seen as a concept in DR contexts that has a less definitive and a more practical, contextualised and individualised nature.[5]

It may not be possible to identify all the elements of fairness in DR with universal acceptance.[6] As Albin says: ‘fairness is an element of acceptability’,[7] and acceptability is something which is judged subjectively. In DR processes other than litigation this is often expressed as ‘what the parties can live with’.[8] The outcome may not be perfect but if the process is considered to be fair, it may thereby be seen as just and consequently acceptable to the parties. It is a challenging task, then, to develop a values framework of general application for DR that is relevant to processes across the matrix, especially if such a framework is to include a conception of justice as fairness which is responsive to the relevant individual and subjective perspectives of parties in dispute.

It would not be a satisfactory conception of fairness as a value for DR, however, if it were simply a postmodern blank canvass of individual perceptions. It is necessary to identify some core elements of fairness across DR systems.  Frey’s articulation of a ‘first class dispute resolution process, whether litigation or an alternative process’ refers to ‘impartiality, a just process and a just result’.[9]  These elements sit consistently with Albin’s identification of fairness as: structural fairness, process fairness, procedural fairness and outcome fairness.[10] They are also in accord with NADRAC’s focus on fairness and justice in procedure and outcome.[11]

What we know from brain research is that it is important for humans to perceive that they are being treated fairly. This is because being treated fairly is said to ignite the brain’s reward circuitry. UCLA scientists reported in 2008, for example, that ‘the human brain responds to being treated fairly the same way it responds to winning money and eating chocolate’.[12]

The significant body of scholarship and literature on the topic of fairness leads us then to suggest three process goals that contribute to the enactment of the macro value of justice in DR. These goals are: procedural justice (fair process), substantive justice (fair outcomes) and impartiality. The satisfaction of these goals is the safeguard that critics of processes other than litigation find lacking, and when these fairness-related goals are achieved, whatever the DR processes is, it can be regarded as true to the value of justice. In the blog posts that follow in the coming days of May I offer an analysis of the process goals of procedural and substantive justice and impartiality to further elucidate the nature of justice in DR systems.

Comments or responses to these thoughts are most welcome at any time!

[1] NADRAC, Discussion Paper on Issues of Fairness and Justice in Alternative Dispute Resolution (Commonwealth of Australia, 1997), 20. See also, Cecilia Albin, Justice and Fairness in International Negotiations (Cambridge University Press, 2001).

[2] Martin A Frey, ‘Does ADR Offer Second Class Justice?’ (2000) 36 Tulsa Law Journal 727, 727.

[3] Cecilia Albin, ‘The Role of Fairness in Negotiation’ (1993) 9(3) Negotiation Journal 223, 223.

[4] See Morton Deutsch, Distributive Justice: A Social Psychological Perspective (Yale University Press, 1985) and Michael L Moffitt and Robert C Bordone, The Handbook of Dispute Resolution (Jossey-Bass, 2005) 90.

[5] Albin, above n 3, 225.

[6] Ibid. Carrie Menkel-Meadow, ‘Whose Dispute Is It Anyway: A Philosophical and Democratic Defense of Settlement (In Some Cases) (1994) 83 Georgetown Law Journal 2663.

[7] Albin, above n 3, 225

[8] Menkel-Meadow, above n 6.

[9] Frey, above n 2, 727.

[10] Albin, above n 3, 225.

[11] NADRAC, above n 1, 20.

[12] Stuart Wolpert, ‘Brain Reacts to Fairness as it Does to Money and Chocolate, Study Shows’ UCLA Newsroom Science + Technology April 21, 2008, 6. See also, E Allan Lind, ‘Fairness Heuristic Theory: Justice Judgments as Pivotal Cognitions in Organizational Relations’ (2001) 56 Advances in Organizational Justice 88.

The values and goals of DR systems are an important dimension of the DR panorama and an understanding of these values and goals is critical to ethical, effective and efficient practice in DR contexts. My contribution to the Blog this month explores the values and goals of DR methods by adapting content from Chapter 4 of my new work with Laurence Boulle: Australian Dispute Resolution – Law and Practice (LexisNexis, 2017).

There are high expectations of DR processes in the Australian community and its civil justice system, and these expectations are difficult to meet. Despite efforts over recent decades to inculcate community dispute resolution, and to renew and refresh the way the civil justice system operates, the DR system at large, and the way it is managed by governments, and used by lawyers and citizens, remains imperfect and in need of improvement.

Concerns continue to exist, for example, about the costs of DR, both in relation to State resources invested in determinative processes and costs to individuals who seek assistance with managing or resolving disputes through processes across the DR matrix. The concerns also pertain to problems more broadly associated with accessing just and fair outcomes to legal and other disputes. Worryingly, there seems also to be a continuing resistance within the system to fully embracing DR processes other than litigation that remain for some (particularly perhaps legal professionals of long-standing) unfamiliar, and continue to be perceived as not adequately protecting parties’ legal rights.

The concepts of justice, party autonomy and community are core DR values that should be used to inform the achievement of appropriate DR goals.

Justice as a dispute resolution value

The particular focus of this blog is on justice as a dispute resolution value.[1] ‘Justice’ is an important philosophical and intellectual element of any framework of DR values, and arguably a foundational driver and motivator for all DR processes in the matrix. The notion of justice should inform day-to-day practice, both in legal contexts and outside them. Amongst the core substantive values of democratic systems of law and governance the conception of justice connects with perceptions of participation, accountability, transparency, rationality, equality and due process.^[2]

DR practitioners working with the value of justice at the centre of their professional identity can critically assess their practices and their impacts by asking reflective questions like: ‘Does my practice contribute to achieving justice for each of the parties?’ and ‘How can the DR processes I practice better provide the parties with just process and outcomes?’

To develop a framework of DR values with justice as a critical element a clear conception of justice itself, in the DR context, is necessary. Justice is, however, a complex notion and hard to conclusively define, not least in the context of law and dispute resolution.[3]  Welsh has stated concerns that justice in this context is ‘increasingly marginalized as a sweet, old-fashioned notion’,[4] perhaps because it is ‘so undefinable and unattainable that thinking about it generates more self-doubt than clarity’.[5] The Productivity Commission noted: ‘”Justice” is what people are seeking access to’ but it is a concept that ‘can be easier to recognise than to define’.[6] Stuart Hampshire, in his book Justice Is Conflict, concludes that there may never be agreement on a universal concept of justice.[7] Julie Macfarlane has reported that when a lawyer was asked in her research to differentiate between a ‘good’ outcome and a ‘just’ outcome, their response was: ‘There’s no justice; it’s just a game. What are you, new? That’s a really funny question’. Another lawyer responded: ‘Justice is way too deep for me.’[8]

Big theories of justice, such as Rawls’ theory of the fundamental principles necessary for a just and morally acceptable society, are too broad and abstract to assist in building a useful values framework for DR.[9] Rawls’ restatement of his theory in 2001 as justice as fairness[10] and Dworkin’s theory of ‘law as integrity’ are closer to the mark in terms of integrating understandings of fairness into explaining the concept of justice.[11] Dworkin’s theory is one of the most influential about the nature of law in contemporary times, but it was written for an adversarial justice system focussed on judicial interpretation of the law, and so is adaptable but not adoptable for our purposes.[12]

For a more concrete approach it is useful to consider how legal dictionaries define justice, namely as ‘rightfulness’, ‘fairness’, ‘that which is deserved’, ‘a moral value generally supposed to be the end to which laws are the means’.[13] With concepts such as rightfulness and fairness in mind, it is relatively uncontroversial to assert that drawn-out, expensive, difficult to access, alienating and hard to understand DR processes do not satisfy a general conception of justice. Litigation is sometimes said to be unjust in these ways and DR processes other than litigation are often presented as mechanisms for addressing ways in which litigation compromises justice for disputing parties. On the other hand, DR systems that are more efficient in terms of cost and time and that are easier to access than litigation but less certain to protect strict legal rights and entitlements of citizens, are often posited as providing potentially unjust procedures and outcomes, or of providing ‘second-class’ justice.[14]

The identification of ‘classes’ of justice and the juxtaposition of first- and second-class justice has been a part of the DR literature since at least the 1980s.[15] The argument that DR processes other than litigation can offer only ‘second-class justice’ posits that it is those who cannot afford to go to court who are forced to use ‘ADR’ processes and are required as a result to compromise and collaborate, rather than harnessing the authority of the law and the system that formally administers it, ultimately being denied the opportunity to ‘win’ their case.[16] In the 1980s Abel led the argument that underprivileged parties are more likely than pecunious parties to be referred to ADR schemes, and that such schemes offered the rhetoric of party empowerment and autonomy but did not always deliver this in reality.[17] It has also been claimed that the term ‘justice’ has no relevance to DR processes other than litigation and should be used only in relation to the procedures and outcomes of  formal justice systems.[18]

A system or process that is ‘second-class’ is one that is ‘a cut below the best’, ‘second rate, inferior or mediocre’.[19] A conviction that DR processes other than litigation offer second-class justice centres on the view that litigation provides the model of first-class justice. This assumes, by definition, that litigation is a cut above the rest, first rate, superior, exceptional and excellent. Other formal law-informed determinative processes, such as arbitration and adjudication, have also had a long and strong correlation with first class conceptions of justice. As statues of justice as a blindfolded goddess imply, litigation offers a process in which the judge impartially judges ‘the case rather than the parties’.[20] Amongst other things this means that justice through litigation is transparent and accountable, that it provides a level of consistent if not always strictly equal treatment of parties and their matters, and that its justice credentials warrant the imposition of enforceable state-sanctioned outcomes.

The capacity of DR processes to deliver justice is often measured by way of comparison with the justice principles of the law and its implementation through litigation. NADRAC summarises the safeguards of fairness and justice in litigated processes as follows:

Power imbalances between the participants can be ameliorated by legal representation. Procedural and evidentiary rules ensure that each person has a chance to present their case and to challenge the arguments and evidence of the other person. There are enforceable procedures which ensure that each person has access to relevant evidence so that the dispute is decided on the basis of appropriate disclosure of information. There is a well-qualified and respected third party decision maker who evaluates the evidence and arguments of the parties and who makes a decision according to established principles. The process of litigation is open and observable and decisions are subject to appeal.[21]

Resnik has listed 12 qualities of due process found in determinative processes such as litigation that are considered to be ‘valued features’:^[22]

• Rules of procedure bestow individual autonomy and opportunities for the litigants to persuade the decision-maker of the rightness of their case.
• For decision-makers, procedure provides a concentration of power in judicial decision-making; a diffusion and reallocation of power through the use of juries, appellate courts and hearings de novo; impartiality and visibility; rationality and norm enforcement; ritual and formality.
• Adjudicative decision-making has the valued features of finality and revisionism, economy (in the sense of low direct costs) and consistency yet differentiation.

Resnik does not claim this list to be comprehensive, nor that the features should always be accorded equal weight. She accepts that there are tensions among them, with different priorities accorded at different times, and acknowledges that a number of these features are disputed or can be found in processes other than litigation.

Since his appointment in 2006, Chief Justice Wayne Martin of the Supreme Court of Western Australia has been fond of analogising the court system, albeit through a critical lens, with a Rolls Royce, a first-class vehicle. He has said, for example, that the system is: ‘A Rolls Royce of justice systems in the sense that it is the best that money, a lot of money, can buy. But there isn’t much point in owning a Rolls Royce if you can’t afford the fuel to drive it where you want to go. You can polish it, admire it and take pride of ownership from it but it doesn’t perform its basic function sitting in the garage…. It might be time to consider trading our Rolls Royce for a lighter, more contemporary and more fuel-efficient vehicle which will get us where we need to go just as effectively and perhaps more quickly’.[23]

The value characteristics of litigation, referred to above, are seen as providing justice through an impartial process based on principles of procedural fairness. It is because processes other than litigation may not as comprehensively satisfy these elements that they are judged as lacking the capacity to provide ‘first-class justice’, and are questioned in relation to their ‘internal procedures, their impact on individuals and their broader societal consequences’ (including their emphasis on compromise and settlement).^[24] This perception is widely held because the ‘umpire’ model that litigation represents has deep roots in Western conceptions of justice.^[25]

However, the actual use of litigation does not accurately correlate with its high regard as a DR system. Most citizens do not commonly have recourse to the courts, or to the law or lawyers, even where a dispute raises legal issues and claims.^[26] It seems then that public perceptions of justice, and particularly of the nature of first-class justice offered by the courts, are typically not shaped by personal or real experience. Further, the last 30 years of advocacy for community DR and for reforms to civil justice systems evidence wide-spread recognition that litigation, while undoubtedly an important aspect of the DR matrix, has often failed to provide any sort of justice for the general citizenry, let alone first-class justice. While litigation represents notions of objectivity, rationality, consistency and formal equality before the law, inaccessible justice is justice denied. Justice through the courts is perhaps more an ideological ‘vibe’, as one of Australia’s most famous lawyers might say.[27]

As Rhode has commented, critics of the justice offered by DR systems other than litigation need to consider how often and on what terms ‘first-class’ justice is available.[28]  Menkel-Meadow reminds us that, ‘legal justice is not always actual justice’.[29] For Frey, first class justice is not limited to litigation, rather a ‘first class dispute resolution process, whether litigation or an alternative process, must offer the disputants impartiality, a just process and a just result’.[30]

It is apparent then that in order to construct a robust values framework for the DR processes represented in the matrix, a meaning of justice is required which is relevant across DR contexts and deals with the challenges of a perceived hierarchy in different classes of justice provided by various processes.[31]  Such a framework needs to deal realistically with issues of access to justice. It must balance the importance of maintaining a legal doctrine of precedent as part of justice under the rule of law,^[32] with the need for less public and formal forms of dispute resolution which are more humane and provide individually tailored outcomes.^[33] The framework also needs to address concerns about the relationship between private settlement and the public enforcement of rights.^[34]

Constructing such a framework is far from a simple task.  As the former Chief Justice of the Federal Court of Australia, Michael Black, has said: ‘We should maintain the search for that elusive point of equilibrium at which the competing pulls of cost, speed, perfection and fairness are balanced in a way that produces substantial and accessible justice — not perfection, but nevertheless processes and outcomes readily recognisable as substantial justice according to law’.[35]

In the blogs that follow this month I continue to develop these ideas. So stay tuned!

[1] Some of the influential early works on this topic in the DR field include: Richard Abel (ed), The Politics of Informal Justice, Volume 1 (Academic Press, 1982), Jerold Auerbach, Justice Without Law (Oxford University Press, 1983); Roger Matthews (ed), Informal Justice? (Sage, 1988); Susan Silbey and Austin Sarat, ‘Dispute Processing in Law and Legal Scholarship: From Institutional Critique to the Reconstruction of the Juridical Subject’ (1989) 66 Denver University Law Review 437; Sally Engle Merry and Neal Milner (eds), The Possibility of Popular Justice: A Case Study of Community Mediation in the United States (University of Michigan Press, 1993);

[2] Richard C Reuben, ‘Democracy and Dispute Resolution: The Problem of Arbitration’ (2004) 67 Law and Contemporary Problems 279, 282. See also, Richard C Reuben, ‘Democracy and Dispute Resolution: Systems Design and the New Workplace’ (2005) 10 Harvard Negotiation Law Review 11.

[3] There is a vast literature on the concept of justice spanning from Plato’s Republic (trans Robin Waterfield) (Oxford University Press, 1984) through to one of Dworkin’s last and most expansive works – Ronald Dworkin, Justice for Hedgehogs (Harvard University Press, 2011) and Eric Heinze, The Concept of Injustice (Routledge, 2013).

[4] Nancy A Welsh, ‘Remembering the Role of Justice in Resolution: Insights from Procedural and Social Justice Theories’ (2004) 54 Journal of Legal Education 49, 49.

[5] Ibid 50.

[6] Productivity Commission, Access to Justice Arrangements: Report Volume 1 (Commonwealth of Australia, 2014), 75.

[7] Stuart Hampshire, Justice Is Conflict (Princeton, 2000) 4.

[8] Julie Macfarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (UBC Press, 2008).

[9] Namely, enjoyment of the most extensive basic liberty possible (without compromising the liberty of others), and social and economic positions to everyone’s advantage and open to all. See for example: John Rawls, A Theory of Justice (Harvard University Press, rev ed, 1999) (first published in 1971); Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (Oxford University Press, 3 ed, 2012).

[10] See John Rawls, Justice as Fairness: A Restatement (Belknap Press, 2001).

[11] See Ronald Dworkin, A Matter of Principle (Harvard University Press, 1985) and Ronald Dworkin, Justice in Robes (Harvard University Press, 2006).

[12] Ibid.

[13] For example, see the CCH Concise Dictionary of Modern Law.

[14] Martin A Frey, ‘Does ADR Offer Second Class Justice?’ (2000) 36 Tulsa Law Journal 727.

[15] Abel, above n 1; Auerbach, above n 1.

[16] See for example, Stephen B Goldberg, Frank EA Sander, Nancy H Rogers and Sarah Rudolph Cole, Dispute Resolution: Negotiation Mediation & Other Processes (Wolters Kluwer, 6^th ed, 2012). See also Lola and Mauro Cappelletti, ‘Alternative Dispute Resolution Processes within the Framework of the World-Wide Access-to-Justice Movement’ (1993) 56 The Modern Law Review 282.

[17] Ibid.

[18] NADRAC itself noted this assertion – see NADRAC, Issues of Fairness and Justice in Alternative Dispute Resolution (Commonwealth Government, 1997) 20.

[19] Frey, above n 14, 728.

[20] Richard A Posner, ‘The Role of the Judge in the Twenty-First Century’ (2006) 86 Boston University Law Review 1049, 1057 referring to Richard A Posner, Law, Pragmatism, and Democracy (Harvard University Press, 2003) 284-86.

[21] NADRAC, Issues of Fairness and Justice in Alternative Dispute Resolution: Discussion Paper (Commonwealth of Australia, 1997), 16.

^[22]Judith Resnik, ‘Tiers’ (1983-4) 57 Southern California Law Review 837, 844-59.

[23] Wayne Martin, ‘Bridging the Gap’, Address to the National Access to Justice and Pro Bono Conference (12 August 2006); Wayne Martin, ‘Improving Access to Justice through the Procedures, Structures and Administration of the Courts’, Address to the Australian Lawyers Alliance Western Australian State Conference, 21 August 2009 Novotel Langley Hotel Perth, WA; and Wayne Martin, ‘Access to Justice’, Notre Dame University Eminent Speakers’ Series Inaugural Lecture, Fremantle Campus Wednesday, 26 February 2014. See also, The New Lawyer, ‘Justice an Easily Admired, Yet Inaccessible Rolls Royce: Chief Justice’, The Lawyers’ Weekly, 27 August 2009, http://www.lawyersweekly.com.au/the-new-lawyer/bar-bench/11887-justice-an-easily-admired-yet-inaccessible-rolls-r. This analogy has been used by others also, for example, Donna Cooper, ‘When Rolls Royce and Holden Justice Collide: An Analysis of the Operations of the Federal Magistrates Service in Queensland in the Family Law Arena’ (2003) 3(2) QUT Law and Justice Journal 1.

[24] Laurence Boulle, Mediation Principles Process Practice (Lexis Nexis, 1996). See also Stephen B Goldberg, Frank EA Sander, Nancy H Rogers, Sarah Rudoph Cole (eds), Dispute Resolution (Wolters Kluwer, 6^th ed, 2012); Francis Regan, ‘Dilemmas of Dispute Resolution Policy’ (1997) 8 Australian Dispute Resolution Journal 5, 14–15.

[25] Posner makes consistent reference to the judge as ‘umpire’:   Richard A Posner, ‘The Role of the Judge in the Twenty-First Century’ (2006) 86 Boston University Law Review 1049, 1057 referring to Richard A Posner, Law, Pragmatism, and Democracy (Harvard University Press, 2003).

^[26] This research has been around for a long time – see for example Russell Smith and Sally Lloyd-Bostock, Why People Go To Law: An Annotated Bibliography of Social Science Research (Centre for Socio-Legal Studies, Oxford, 1990); and Hazel Genn, Paths to Justice: What People Do and Think About Going to Law (Oxford University Press, 1999), 246, 247-8.

[27] Dennis Denuto: ‘In summing up, it’s the Constitution, it’s Mabo, it’s justice, it’s law, it’s the vibe, and … no that’s it … it’s the vibe. I rest my case’. The Castle (1997) directed by Rob Sitch.

[28] Deborah L Rhode, Access to Justice (Oxford University Press, 2004) 42.

[29] Carrie Menkel-Meadow, ‘From Legal Disputes to Conflict Resolution and Human Problem Solving: Legal Dispute Resolution in a Multidisciplinary Context’ (2004) 54(1) Journal of Legal Education 7, 8.

[30] Frey, above n 14, 727.

[31] Edgar Allan Lind and Tom R Tyler, The Social Psychology of Procedural Justice (Plenum Press, 1988).

^[32] David Luban, ‘Settlements and the Erosion of the Public Realm’ (1995) 83 Georgetown Law Journal 2619.

^[33] See discussion in Boulle, above n 24, regarding ‘mediation’s alternative justice model’, 210-212.

^[34] Silbey and Sarat, above n 1.

[35] Michael Black in the Productivity Commission Report, above n 6, 92.