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When it comes to court connected mediation (CCM) it is useful to make a differentiate between the process which takes place in the room and the process which takes place outside of the mediation room. Many CCM programs will arguably use NMAS as the foundation of what happens in the mediation room. However, they will all have different out of the room process. These out of the room process add to the context and environment that the inside the room process takes place and has the potential to have an impact. It is within in this frame of reference that I would like to introduce and discuss a relatively new model of mediation known as Fast Track Mediation and Hearing (FTMH) and focus the discussion on the out of room process and environment FTMH takes place in and how they may impact the mediation, parties and mediator.
Background
The FTMH program was developed in response to a recommendation in the Access to Justice Review. [LINK] The FTMH is a partnership between the Victorian Civil and Administrative Tribunal (VCAT) and the Dispute Settlement Centre of Victoria. The program started in September 2017 with a staged roll out over four years. As of March 2020, will be offered in eight locations across Victoria with the VCAT on King St in the CBD the main location.
Jurisdiction
The program will meditate goods and services disputes that have a value of between $500 and $10,000.
Objective
To resolve and if not finalise disputes as quickly as possible.
Process
Appropriate disputes are identified and staff of the FTMH program will contact the parties. An intake will take place over the phone where the process will be discussed, and parties will be provided with information to allow them to be best prepared for the day where the matter will be resolved or finalised.
On the day, parties will arrive at VCAT and will go through a one-hour mediation. The in the room process is a NMAS based facilitative model. If the mediation results in an agreement, then terms of settlement are drafted and signed and the VCAT file is updated accordingly. If there is no agreement, then the parties are taken directly to the tribunal and their matter is heard by a VCAT Member who will make a determination. From the parties’ perspective they will leave VCAT with either an agreement reached in mediation or a determination from a VCAT member.
Unique Features and Impact
The FTMH program has a number of unique features which impact the mediation, parties and mediator including:
Front loading of time and costs: given that the parties will be going into a hearing and have the matter determined on the same day as the unsuccessful mediation, means that any costs will have already been spent prior to the mediation and there will be no further costs incurred to take the matter from mediation to a hearing. The same is the case for time. There will be no further time delay from mediation to a hearing.
Costs orders: VCAT is a generally a no costs jurisdiction. Which means that one of the key risks in matters of low value does not exist. Parties are not incentivised or at least they are less incentivised to settle as they do not risk having to pay the other parties legal costs if the hearing does not go their way.
Final agreement opportunity: The mediation in FTMH is the final opportunity for parties to resolve the dispute. They can not use the mediation as a fact-finding exercise or opportunity to test or hear the other parties offers. As there is no opportunity to continue negotiating if the mediation is not successful as the matter goes directly to a hearing and will be determined
Conclusion
This an exciting program that really addresses a need for disputing parties. It gives them the opportunity to try to resolve the dispute themselves but at the same time ensures that the dispute will be finalised on the one day allowing greater access to justice for disputing Victorians.
Much of the attractiveness of resolving disputes in CCM is the saving of time and money and mitigating costs orders. FTMH removes the delay and added costs generally associated with non-resolution of CCM. This has a potential impact on the incentives for parties to settle. It also limits the BATNA, WATNA and reality testing tools mediator would otherwise have in their tool kit. In time, I hope to do a research project to see what the actual impact the unique features have on the outcome and party satisfaction.
It is great to see continued innovation in the CCM space and it will interesting to see how this program develops.
This post is based on the article ‘Readiness for Family and Online Dispute Resolution’ by Nussen Ainsworth, Lisa Zeleznikow and John Zeleznikow. The article is published in the International Journal of Online Dispute Resolution 2019 (6) 2.
Readiness and Ripeness are important concepts in mediation. Much has been said about these concepts in the context of international conflict resolution.
Accordingly to Zartman, the key to successful conflict resolution lies in the timing of efforts for resolution. Parties resolve their conflict only when they are ready to do so when alternative, usually unilateral, means of achieving a satisfactory result are blocked and the parties find themselves in an uncomfortable and costly predicament. At that point, they grab on to proposals that usually have been in the air for a long time and that only now appear attractive. He argues that if the (two) parties to a conflict (i) perceive they are in a hurting stalemate and (ii) perceive the possibility of a negotiated solution, then the conflict is ripe for resolution.
Pruitt states that that readiness has two components, which combine multiplicatively:
Motivation (that is, a goal) to end the conflict, which is fed by a sense that the conflict is unwinnable or poses unacceptable costs or risks and/or pressure from powerful third parties such as allies.
Optimism about the outcome of conciliation and negotiation.
Wiget claims that various factors seem to be important for the prospects of success:
The parties’ willingness to settle the dispute (or at least to negotiate in good faith towards a settlement) is perhaps the most important factor of successful mediation.
The amount in dispute – An analysis of data from the Canton of Zurich indicates that the settlement rate falls dramatically with an increasing amount at stake.
The parties’ ability to value the case – when neutral evaluation can be offered.
In family mediation, there is no corresponding notion of readiness or ripeness. The reason for this is that parties have little choice regarding when to negotiate as one party will commence the family dispute resolution (FDR) process, generally without reference to the other party. If the other party refuses to participate in the process, court proceedings may commence. It might be a good idea to wait for anger to subside prior to commencing the FDR process. This allows parents to focus on the children’s best interests rather than haggling about relationship issues.
While there are well-developed theories as to when to try to mediate international conflicts, there is little similar research regarding family disputes. Further, the time dimension in family mediation can mean that mediators do not have the flexibility to wait for the appropriate moment for dispute resolution. Some suggestions include:
It might not be wise to conduct the FDR immediately after partners separate as it can be useful for the parties to receive some counselling.
It is useful to have the parties separate financial and children’s issues and to sort out their finances before FDR commences.
The FDR process tends to be more successful once the initial anger has dissipated.
Most importantly, mediations tend to be more successful once power imbalances have been addressed. This process may involve shuttle mediation and should occur only if no safety issues are present.
I.W. Zartman, ‘Ripeness: The Hurting Stalemate and Beyond’, in P. Stern and D. Druckman (Eds.), International Conflict Resolution After the Cold War, Washington, DC, National Academy Press, 2000.
D.G. Pruitt, ‘Readiness Theory and the Northern Ireland Conflict’, American Behavioral Scientist, Vol. 50, No. 11, 2007, pp. 1520-1541.
L. Wiget, ‘Compulsory Mediation as a Prerequisite before Commencement of Court Proceedings- Useful Requirement to Save Resources or Waste of Time and Money?’, UNSW Law Research Paper 47, 2012.
I am a Senior Lecturer in the Department of Business Law and Taxation at the Monash Business School, and completed my PhD at the Monash Law Faculty in 2015. I’ve previously worked at the Deakin Law School, and in private practice at Arnold Bloch Leibler Lawyers & Advisers.
Outside of university life, I live with my wife and daughter in Kensington: a warm and community-focused suburb apparently hiding fairly well within the otherwise-bustling inner city of Melbourne. When I’m in that grey zone in-between work and home, you’ll find me with headphones on listening to some great dispute resolution podcasts including The Arbitration Station and its spiritual predecessor, International Dispute Negotiation.
Ben’s Dispute Resolution Interests
My interest in dispute resolution was ignited by my participation, as an undergraduate law student, in the Willem C Vis International Commercial Arbitration Moot: a fantastic annual event held in Hong Kong and Vienna, where teams of law students from around the world argue an international sale of goods dispute within an international commercial arbitration setting. Having no prior exposure to arbitration, I was immediately fascinated by the fact that it is an alternative to State court litigation, yet is still anchored in the law: arbitrators aren’t judges and their decisions can’t be reviewed on the merits, but they still determine the facts and apply the law when resolving commercial disputes. After joining the Deakin Law School, I was fortunate enough to coach its Vis Moot teams for nine years, and really enjoyed the opportunity to introduce tomorrow’s lawyers to the world of arbitration as well.
International commercial arbitration also fascinates me because of its intersections with international sales law and private international law: much of my academic research has explored the overlap between these three areas of law.
Ben’s Research
My PhD is a good example of this: it addressed how arbitrators identify the law that they will apply, in an international commercial arbitration, where the parties have not included a choice of law clause in their contract. Undertaking my PhD research, and then its revision ahead of its publication as a book, was an interesting exercise in balancing some very different perspectives: on the one hand, that arbitrations are usually resolved on the facts, and on the other, that the applicable law can drastically affect the outcomes of cases. Since arbitrations are usually private/confidential, secondary sources made an important contribution to this work, though I also enjoyed the opportunity to delve into the world of published arbitral awards wherever I could, including extracts from International Chamber of Commerce cases.
In the dispute resolution space, I’ve published papers addressing Australia’s arbitration laws, as well as international commercial arbitration more generally. I’ve also got a keen interest in the United Nations Convention on Contracts for the International Sale of Goods, including its Australian implementation, and have several papers addressing these topics too. You’ll find many of my papers available on SSRN here, and I tweet about my research at @LawGuyPI here. I enjoyed the opportunity to present a work-in-progress paper at the ADRRN Roundtable held at La Trobe Law School in December 2019, and this project is still ongoing: I’m trying to reconceptualise the criteria we use to evaluate developments in Australia’s arbitration laws, with a view to informing future law reform initiatives. Thanks to all who attended my session for their very valuable feedback: I have lots of helpful suggestions to work on from here!
Engagement and Impact in Dispute Resolution Research
One of the things I find really great about arbitration law research is the opportunities I have to engage with private practice, and my work’s potential for professional impact. I’ve enjoyed several opportunities to contribute submissions to consultations on arbitration rules reforms, like this one here. I’m also aware that my publications have been used on several occasions to inform legal advice, and the conduct of cases. It’s a bit of a cliché to say that law journal articles are written just to be published, and not actually read: not true in the ADR field!
Next Steps
In addition to progressing the arbitration law project I presented at ADRRN 2019, I have a few other projects spanning arbitration law, sales law, and private international law in my research pipeline. I’m looking forward to staying connected with the ADRRN community and sharing the results of this work as it unfolds! If you have an interest in these areas yourself, you’re very welcome to get in touch: you can contact me at benjamin.hayward@monash.edu.
Australia’s catastrophic fires and weather events have dominated the news cycle for many months now. Fires, dust storms, hail storms and months of poor air quality have affected large tracts of land, including entire rural communities and major cities. Over 18million hectares of land has been burnt throughout the 2019/20 bushfire season already, and nearly 9,000 related insurance claims have been made.
The recovery period will involve many legal and financial claims involving insurers, charitable organisations, government and private citizens. Already many disputes have been reported in the news.
It is likely that many people whose property was lost or damaged were under-insured or not insured at all. Some of these people will find themselves in conflict with their insurers. Consumer group Choice’s advice on home insurance cover for bushfires illustrates many of the issues that may be misunderstood by people who have taken out home insurance and lead to disputes. Insurers have forecast a rise in premiums following the fires.
Donations to assist recovery from The Australian bushfires have been made by private citizens and companies both domestically and internationally. Donors expected that their donations would reach their intended recipients quickly and assist with recovery. However, some charities have been criticised for their slowness to distribute funds or aid, and also for the proportion of donations that they have retained for administration costs. Others have been restricted about what purposes they are able to use donations for, and have had to weigh competing priorities. Concerns have been raised about the difference between the intentions of donors and the purposes for which the recipient organisation is able to use the donated funds.
It is also predicted that many business affected by the bushfires will have disputes with their insurance companies over the coming months. Many business owners have “business disruption insurance” or “loss of attraction insurance” but lack clarity about what exactly is covered by these kinds of policy. Indirect consequences of natural disaster may not be sufficiently covered. Some policies cover lost profits and not turnover.
“Profit is very different from turnover,” Keane told The Sydney Morning Herald. “You may get people coming in expecting half a million [in cover] across 12 months and getting much less. The person is quite often incredibly traumatised if claims have gone off track at that point and they feel like it’s them against this massive company.”
Several dispute resolution processes are available to assist people to manage post-disaster conflict. Processes applying to insurance and tenancy disputes are explained below.
Disputes between Insurer and Insured
The Australian Financial Complaints Authority (AFCA) assists claimants who have a dispute with their insurance company. AFCA has activated a dedicated hotline 1 800 337 4443 to ensure priority service for people affected by the bushfire crisis.They also have a dedicated online information hub and representatives physically in affected areas. AFCA is frequently asked to mediate financial disputes arising from natural disasters, and can assist in relation to business as well as home losses.
“AFCA is an ombudsman service that provides free, fair, and independent help with financial disputes,” said Justin Untersteiner, AFCA chief operating officer. “If you’re affected by the bushfires, and you find yourself in a dispute with your insurer or financial provider about a claim or request for assistance, AFCA can help resolve it. We have special processes that identify and fast-track complaints from people, primary producers and small businesses in impacted communities, so we can assist you to resolve complaints as quickly as possible.”
AFCA has also triggered its significant events response plan in anticipation of damages of around $320 million following the catastrophic hailstorms that affected Melbourne, The Australian Capital Territory and parts of New South Wales on Monday 20th January 2020. The significant events response plan involves early communication with interested parties, and a more streamlined and expedited dispute resolution process.
Legal Aid Tasmania has published information for tenants affected by a natural disaster. Unresolved disputes need to be referred to the Magistrates Court of Tasmania, where conciliation processes are used prior to hearing.
Legal Aid Western Australia has also produced a fact sheet for residential and commercial tenants whose properties have been affected by natural disasters. Residential Lease disputes that the parties are unable to resolve between themselves can be referred to Tenancy WA (advice for residential renters) or the WA Department of Commerce – Consumer Protection for advice, with unresolved disputes going to the Magistrates Court of WA (mediation or determination). Commercial lease disputes can be referred to the Small Business Development Corporation (case management and mediation) or the State Administrative Tribunal (conciliation or determination).
Mediation, incorporating restorative justice principles, is increasingly being used in countries such as the United States of America to resolve civilian complaints against police. In most jurisdictions when civilians have grievances against police officers, they lodge complaints with the relevant police department which internally manages the complaint. Serious allegations are formally investigated while minor complaints are often conciliated, but complainants are often left feeling dissatisfied with the process that affords them no participation. However, the mediation and restorative justice movements have finally infiltrated the bastion of law enforcement. Police departments and oversight agencies are responding to the scientific evidence in the literature that says bringing complainants and police officers face-to-face in a safe and independently mediated forum to openly discuss their perspectives of an incident, is an effective way of resolving conflict. Unresolved conflict between civilians and the police has the potential to generate mistrust of police, which could result in more serious problems such as reluctance to obey the law.
An examination of two of the largest police departments in the United States – the Los Angeles and New York Police Departments, has revealed they are amongst the most high-profile, controversial and scandal-plagued police departments in the world. Since the start of 20th century, these police departments have been at the centre of police corruption inquiries related to prostitution, gambling, bribery, extortion and organised crime. Various public inquiries have resulted in the overhaul of complaints systems and the establishment of mediation programs to provide a fairer resolution process for the public. The police departments are aware of the damage to public confidence caused by police misconduct, and increasingly, racially-biased policing and discourtesy complaints, and have made rebuilding civilian-police relations a priority.
Yet, two problems exist. The first is the low number of complaints (10% of all complaints lodged) that are referred to mediation; and the second is getting complainants to participate in mediation once contacted. Many complainants are unaware of the mediation option and/or view it with mistrust. They see it as another process organised by agencies closely connected to the police. Yet, for those who do participate, mediation surveys (completed at the end of all sessions) reveal consistently high satisfaction rates with the process, including trust of the mediator and having the opportunity to be heard. More research into why complainants do not take up the option and how mediation may be better promoted would likely benefit all stakeholders and build trust.
This post is written by Mark Dickinson, PhD candidate at the University of Tasmania, and is based upon the paper that he presented at the ADRRN Roundtable in December 2019.
Introduction
This research project explores the assessment of suitability for Family Dispute Resolution (FDR) – a decision making process which is a primary responsibility of a Family Dispute Resolution Practitioner (FDRP) (See generally Family Law Act 1975 (Cth) and Family Law (Family Dispute Resolution Practitioners) Regulations2008 (Cth)). Before a joint FDR (mediation) session can be offered an assessment as to its suitability for the parties must first be conducted (Reg 25(1)). This discretionary assessment of suitability for FDR relies on the professional judgment of the individual FDRP. Using a mixed methods approach this research examines this assessment of suitability as undertaken by FDRPs working in a community-based, not for profit organisation in Tasmania.
From July 2007 the Family Law Act1975 (Cth) has required separated parents and others to make a genuine effort to resolve their parenting dispute at FDR prior to filing in the family courts (s60I – note exceptions apply). FDR is a non-adversarial, alternative dispute resolution process akin to facilitative mediation. Coinciding with this mandating of FDR, 65 community-based, government funded, Family Relationship Centres (FRCs) were established around the country to provide free or nominal cost FDR services. The majority of FDR takes place in FRCs (see Moloney et al, p238).
It has been observed that clients engaging at FRCs are increasingly presenting with complex needs (see also Smyth et al, 10-11). The mandating of FDR and the establishment of FRCs has led FDRPs to be considered “gatekeepers” to the family court system. As a result, the nature and complexity of cases dealt with in an FRC can vary considerably.
The test to be applied in assessing suitability for FDR involves a consideration of the “capacity of each party to negotiation freely” having regard to a range of factors including: any history of family violence; the safety of the parties; equality of bargaining power; risk of child abuse; and the emotional, psychological and physical health of the parties (reg 25(2)). Communications made to an FDRP during FDR are generally confidential (s 10H); and subject to a specific court order, practitioners are not required to provide reasons for the determination of suitability for FDR. This research aims to shed light on this important decision of the FDRP.
Rationale
One aspect of an FDRP’s competence in practice is the ability to effectively mediate a range of parenting disputes with varying complexity. It is argued that the greater the FDRP’s ability to effectively mediate complex (as well as less complex) matters, the higher will be the percentage of their caseload that they will assess as suitable for FDR and will proceed to a joint mediation session. FRC clients that are assessed as unsuitable for FDR are provided with a “section 60I certificate” to that effect and need to consider other options to resolve their dispute. Receipt of a s 60I certificate enables a party to file a parenting application in the family courts, though the cost of engaging a private legal practitioner in such proceedings is not a viable option for many. Research commissioned by Interrelate found that 41% of its surveyed FRC clients who received a not suitable certificate would have preferred to continue with FDR to resolve their dispute.
From a governmental perspective FDR is a cost-effective method of resolving family law disputes. An analysis by the Australian Government found that FDR conducted through FRCs and Legal Aid Commissions had a net cost per service of less than one fifth of the cost of matters finalised in the Family Court of Australia. Recent budgetary cuts to Legal Aid Commissions and Community Legal Centres are likely to reduce the number of clients having access to free or subsidised family law legal services. The recently published Australian Law Reform Commission Inquiry into the Family Law System supports the continued use of FDR. Within this context the Australian Government has shown an ongoing interest in exploring alternative outcome measures and funding models for FRCs.
A deeper understanding of the assessment of suitability for FDR using both quantitative and qualitative methods may support the adoption of the frequency of assessments of suitability for FDR as a further metric for measuring FDRP effectiveness in practice. Further research (beyond the scope of this project) may use the findings of this research to develop models for practice aimed at increasing the frequency FDR is assessed as suitable, and therefore of clients being offered a joint FDR (mediation) service.
Relationships Australia Tasmania
Relationships Australia Tasmania (RA Tas) operates all FRCs established in Tasmania, with centres in Hobart, Launceston and Devonport. RA Tas has provided in principle agreement to provide data for this research project. I was formerly employed by Relationships Australia Tasmania (“RA Tas”) as an FDRP and senior practitioner in FDR. In 2014 I conducted a pilot study at the Launceston FRC quantifying the number of section 60I certificates issued by its FDRPs. The pilot study suggested a significant variation between FDRPs of the frequency in which they assessed cases as unsuitable.
Research Questions
Having regard to the scope of the data sought, this research aims to answer the following research questions:
Is there a significant variation between FDRPs of the frequency in which cases are assessed as unsuitable?
What do FDRPs report they consider when assessing suitability for FDR?
Assuming a significant variation is found to the first question, what factors reported by FDRPs appear most relevant in explaining that variation?
Methodology Summary
The proposed research involves at least two phases. The first phase of this research will cover a five year period and quantify: all certificate types issued by RA Tas FDRPs; the number of cases allocated to each FDRP; and the number of cases that proceeded to a joint FDR session. This data should show what variation exists between FDRPs of the frequency in which they assess cases as unsuitable (and suitable) – expressed as a percentage of total cases.
The second phase of the research will involve in depth interviews with RA Tas FDRPs, supervisors and managers to explore the decision making process of assessing suitability for FDR and endeavour to explain the anticipated variation in the frequency of cases assessed as unsuitable by those FDRPs.
It is hypothesized that the assessment of suitability may be as much an assessment for the FDRP as it is of the clients. This assumes an FDRP conducts the assessment and that FDRP will conduct the FDR session if the case is assessed as suitable for FDR.
This post is by Nussen Ainsworth and Svetlana German and was workshopped at the ADRRN Roundtable at Latrobe University on 9-10 December 2019
Nussen Ainsworth and Svetlana German presenting at the ADRRN Roundtable in December 2019.
Achieving a fair agreement has been recognised as a central goal of mediation. However, there is no consensus amongst mediation scholars as to the meaning of a fair mediated agreement and how to best achieve it. Conceptually two broad categories of fairness in mediation can be proposed; procedural fairness relating to the process of mediation and substantive fairness relating to the outcome of the mediation. The National Mediator System in Australia expressly addresses fairness in Section 7 in “Procedural fairness and impartiality” stating:
7.1 A mediator must conduct the mediation in a fair, equitable and impartial way, without favouritism or bias in act or omission.
7.2 A mediator must identify and disclose any potential grounds of bias or conflict of interest before the mediation, or that emerge at any time during the process.
7.3 A mediator must not mediate in cases involving a conflict of interest without the informed consent of the participants, and then only if, in the mediator’s view, the conflict would not impair his or her impartial conduct of the process.
7.4 A mediator must support participants to reach agreements freely, voluntarily, without undue influence and on the basis of informed consent.
7.5 A mediator must provide participants appropriate opportunities to speak to and be heard by one another in the mediation, and to articulate their respective interests, issues and underlying needs.
7.6 A mediator must ensure, so far as practicable, that participants have had sufficient time and opportunity to access sources of advice or information necessary for their decision-making.
7.7 A mediator must encourage and support negotiations that focus on the participants’ respective interests, issues and underlying needs and must encourage participants to assess any proposed agreements accordingly and with reference to their long-term viability.
Whist the apparent focus is on procedural fairness, the NMAS directs mediators to encourage an assessment of the proposed agreements with reference to long-term viability. One reading of this may imply that substantive unfairness can undermine the viability of the agreement. In support of this interpretation, in NMAS 6.2 the mediator “must be alert to changing balances of power in mediation and manage the mediation accordingly”. Internationally, some mediator standards direct that a mediator may indicate non-concurrence with a decision they find inherently unfair or may refuse to draft an agreement which “seems fundamentally unfair to one party”. Where a mediator promotes settlement without regard to the legal rights of the parties the outcome of the mediation may be unjust. In court connected mediation there is an additional argument that the outcomes should be measured by legal standards, as parties in court connected mediation should be entitled to expect “equivalency justice” which has both procedural and substantive components. This may be particularly difficult where parties are not represented or are uninformed about their legal rights.
A study of Court Connected Mediation Mediators demonstrates that mediators do engage with substantive law
Preliminary findings from this study provide insights into what is happening in Court Connected Mediations including what role the mediator and law have in this process. The data was collected by Nussen Ainsworth through interviews with 24 mediators, and the observation of 32 mediation across three CCM sites. The research focuses on the mediation process, the role of the mediator and the role of the law in CCM. A number of relevant findings included:
Law was integral to the mediators. Wearing a lawyer hat is very much ingrained in their identity, it is the prism that for the majority of their professional life saw and dealt with everything. The data suggest that for these mediators it is not a simple process to simply take off their legal practitioner hat. It appears that the opposite is true; the mediator relies on and leverages off their legal background when acting in the role of mediator.
Substantive legal knowledge was the most common response mediators gave when asked what skills and knowledge they relied on in the mediation. Based on their responses, substantive legal knowledge can be from general ability to ‘understanding of what the dispute was about’ to ‘it was very important to have substantial knowledge of the VCAT advisory opinion on safety measure and I think that stood me in good stead knowing the current status of that opinion’
In CCM mediators are not reluctant to engage with the legal merits of the dispute, and some even take active steps to embrace such engagement.
The CCM mediators are aware of the prevalence, and beneficial role law has in and on CCM. The vast majority of the mediators said their legal background affects how they conduct a mediation.
The majority of the mediators said that mediators could evaluate or advise of the merits of the substantive dispute of the outcome of the dispute. However many mediators were firmly of the opposite view and said this sort of activity is never appropriate. This remains a complex issue as there was a divergence of opinions between the mediators that said it is appropriate to evaluate and give advice as to what type and how much is appropriate.
Further clarity in the guidelines is required
Although the data focused on the CCM disputes, the evidence suggests that the NAMS Standards are applied by mediators in varied way. The issue of mediators giving advice has long been discussed in the literature and something that is not encouraged and even frowned upon. However, this study demonstrates that this was not reflected in practice. Some mediators do in fact evaluate the dispute from a legal perspective and concern themselves with both procedural and substantive justice. Whilst this may address some of the concerns raised in the literature it should be expressly addressed in the NAMS to ensure that there is a consistency of process and ensure that the obligations are clearly set out in relation to this critical aspect of mediation practice.
Nussen Ainsworth is a Lecturer at the College of Law and Justice, Victoria University. Accredited specialist in mediation, Law Institute of Victoria. Editor in Chief of the Australasian Dispute Resolution Research Network WordPress site from February 2020.
Svetlana German (BSC/LLB (UNSW), LLM (Columbia University) is an academic at the University of Notre Dame, Sydney and barrister and accredited mediator at 10th Floor Selborne Wentworth Chambers. Svetlana teaches in the areas of Dispute Resolution and Property Law and is currently undertaking a PhD at the University of Technology Sydney (UTS) where she holds theQuentin Bryce Law Doctoral Scholarship. Her doctoral research examines mediator perception of their obligation to remain neutral where one of the parties is unrepresented.
This post by Dr Benjamin Hayward is based upon the work in progress that he presented at the ADRRN Roundtable on 9-10 December 2019.
The ingredients for avocado toast. Photo: Nicole De Khors, Creative Commons
Arbitration is an alternative dispute resolution mechanism that can be used to resolve international and domestic commercial disputes. It is a private process, grounded in the parties’ consent and separate to litigation, but it remains related: arbitration is a formal dispute resolution process; it is supported by national laws regulating its conduct; and those laws also set out the ways in which courts may intervene in the arbitral process for the purpose of supporting it. In Australia, the International Arbitration Act 1974 (Cth) regulates international commercial arbitration. Uniform State and Territory Acts, including the Commercial Arbitration Act 2011 (Vic), govern arbitrations relating to domestic commercial disputes.
Significant reforms to Australia’s international commercial arbitration laws were enacted in 2010, seeking to establish this country as a regional arbitration hub, though Australia is yet to realise this dream. Given all of this, and empirical evidence confirming that countries’ formal legal infrastructures are the most important factor motivating parties’ choices of arbitral seat (ie. legal location of an arbitration), two important practical and policy questions arise:
1. What ingredients make up a good arbitration law?; and
2. How do we go about measuring the success of law reform?
Jurisdictions’ arbitration laws are traditionally critiqued on the basis of their arbitration friendliness and/or their pro-arbitration natures. References to these concepts abound in online commentary. Yet these concepts are sometimes misapplied, and sometimes misused. Even aside from their nebulous natures, they may represent a binary and overly simplistic way of viewing what are actually difficult issues. Australia’s quest to become a recognised and respected arbitral centre will be frustrated if there is no way to adequately justify (or predict) the quality of future (or proposed) law reforms. An evaluative framework comprised of something more than just generalisations is required.
It is here that the views of Australia’s arbitration community have an important role to play. International and domestic commercial arbitration laws exist to serve merchants. It therefore stands to reason that the arbitration and merchant communities’ concerns should constitute the criteria against which developments in Australia’s arbitration laws are measured.
A 2009 conference organised by the Australian Centre for International Commercial Arbitration invited its participants to query the extent to which Australia’s international and domestic commercial arbitration laws lived up to efficiency, effectiveness, and economic viability ideals. These ideals reflect matters of continuing concern to the arbitration profession. Academics, practitioners, and their clients continue to critique costs and delay in arbitral proceedings. Effectiveness – which may be defined as the degree to which arbitration secures its intended results – also encompasses ongoing concerns around the degree to which Australia’s arbitration laws are consistent with consistent with the international templates upon which they are based, and market expectations.
The efficiency, effectiveness, and economic viability criteria provide Commonwealth, State, and Territory legislators with a recipe for future reforms to Australia’s international and domestic commercial arbitration laws. The adoption of these criteria as policy standards (and legislative drafting tools) stands to assist Australia in developing high quality arbitration laws, and high quality law reform packages. This, in turn, has the potential to help Australia improve its attractiveness as a place to conduct arbitrations for the resolution of both international and domestic commercial disputes.
This is not merely a matter of semantics. Consistently applying the efficiency, effectiveness, and economic viability criteria to Australian arbitration law reform stands to generate different outcomes to those seen over the 2009 to 2019 period. Returning once again to the confidentiality example, reconsideration of the original 2010 reforms in light of market expectations (a matter of effectiveness) would have led to the International Arbitration Act 1974 (Cth)’s confidentiality provisions having default application from the outset.Commercial parties, when negotiating dispute resolution clauses in their contracts, will ultimately vote with their feet. If Australia’s arbitration laws don’t reach the mark, they will simply choose to arbitrate elsewhere. This is all the more reason to take on board the arbitration and merchant communities’ concerns when seeking to improve Australia’s arbitration laws for the ultimate benefit of commercial parties.
We clocked over 20,000 views by over 13,000 visitors to our adrresearch.net WordPress site, another record of annual growth since we started it in 2013.
This is our 65th post for the year, showing that we have kept to our commitment to regular posting. A big thank you to all our monthly blog editors who take responsibility for organising at least one post per week.
2019 readers accessed adrresearch.net from Australia, the UK, USA, Canada, India, New Zealand, Ireland, Singapore, South Africa, Hong Kong, Germany, Kenya, Spain and many more.
@ADRResearch on Twitter has 1,590 followers.
The most frequent place for people to visit the ADRRN was on our home page, but the other popular posts, with over 300 reads each during 2019, were:
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This post is by Dr John Woodward, of University of Newcastle, and was workshopped at the ADRRN Roundtable 9-10 December 2019. John is the 2020 President of the Australasian Dispute Resolution Research Network.
For all of our progress in advancing the cause of mediation in Australia, there is one problem that remains tantalisingly difficult to resolve. It is the problem of persuading lawyers (including some judges and court administrators) to embrace facilitative mediation in a way that is consistent with the core beliefs that are valued by mediation theory. These include the facilitative role of the mediator, the idea that the mediator is there to assist the parties to work through their problem together, to view their interests and the interests of the other through first-hand discussion and active participation in the consensus building and option creation activities that lead to secure and durable solutions.
This is a problem that can be traced back through what Boulle described as the three stages of mediation development in Australia (Mediation: Principles, Process, Practice 3rd ed p 349-350). The hostile reaction to uncritical acceptance of mediation, concerns that it has the potential to develop a ‘two-tiered’ justice system with only a form of ‘second-class justice’ available for the underprivileged and concerns that vulnerable parties (particularly women) would lose the protection offered by the rules and procedures of the formal justice process are all underpinned by the unarticulated assumption that the rules and procedures of the formal justice process somehow offer a superior form of justice against which all others should be measured.
Lawyers’ instinctive tendency to frame dispute narratives in terms of a rights-based story, their reluctance to look beyond solutions that are consistent with “what the court would order” and their insistence in maintaining control of disputants’ conversations in mediation sessions are all problematic for optimum outcomes in facilitative mediation. They are also redolent of the three core elements of legal professional culture identified by Macfarlane in her work The New Lawyer: How Settlement is transforming the practice of law.
Given the distance we have travelled in advancing mediation as an accepted part of the justice institutions in Australia, and the obvious successes it has enjoyed as a dispute resolution process, it is worth exploring why there remains an undercurrent of resistance from the legal profession and what, if anything, might be done to correct it. The course of my own PhD journey suggests a few preliminary observations which I think are worth making.
Firstly, it is notable that throughout the whole empirical project, not a single lawyer research respondent disagreed with the proposition that mediation is a good thing and is to be applauded and encouraged as an effective means to bring an end to disputes. Of course it is entirely possible that some of those responses were a result of social acceptability bias and that no self-respecting lawyer should, in the twenty first century, be seen as opposing a measure that has gained such wide acceptance among lawyers and justice administrators. However, it is unlikely that their unanimity can be explained in that way. The research data revealed some highly developed and nuanced conversations about various features of mediation, disputant behaviours, issues around enforcement and other matters of practical significance to disputants and their lawyers.
Secondly, lawyers’ perceptions of problems with mediation were almost always framed in rights-based terms. They complained that too much time was taken up with petty, emotional, irrelevant matters that were inadmissible in the case or that mediators were too facilitative and not directive enough so that the parties were not getting the benefit of what the mediator considered would happen if the case were to proceed to trial. The latter complaint explained why some research respondents preferred to have a retired judge as mediator. It was, they said, a more legitimate process if the mediator could bring judicial expertise to the mediation so that the parties could see what would happen if the case were to be decided by that judge. This tendency to “legalise” the mediation process is well recognized in the literature and was described in the Australian Productivity Commission’s Report Access to Justice Arrangements of 5th September 2014, which (at page 13) noted a “creeping legalism” by which institutions which were set up to provide low cost alternatives to the court with an emphasis on self-representation were becoming increasingly formal with the introduction of legal representation, lawyers behaving as if they were in court and bringing an adversarial tone to the proceedings.
A third observation, and one which emerged as a major concern for lawyers engaged in court-connected mediation, is the uncertain limits of confidentiality and admissibility of communications in and around the mediation process. In fact this feature emerged from the research as the single most problematic inhibitor of lawyers’ engagement in court-connected mediation. It deserves further attention and is the subject of my paper to the 8th ADR Research Roundtable in Melbourne.
Confidentiality is one of the foundational pillars of mediation (Morris and Shaw p 320). It features in every published book on mediation. Some books dedicate entire chapters to the subject of confidentiality in mediation. As Hardy and Rundle have observed, there are competing public policy considerations in relation to whether or not parties should be able to use information disclosed in mediation in later court proceedings. On one hand, there is a public interest in parties being able to resolve their disputes outside the court using a frank and open exchange of information without the fear of that information returning to haunt them if, despite their best endeavours, the dispute should prove incapable of resolution by negotiation. See Field v Commissioner for Railways (NSW) (1957) CLR 285. On the other hand there is also a public interest in ensuring that the best evidence is available in court proceedings to ensure that a just and equitable outcome is possible by way of court determination. See AWA Ltd v Daniels t/as Deloitte Haskins and Sells (1992) 1 ACSR 462.
The parliaments of Australia have attempted to reconcile these two competing public policies by introducing legislation to prohibit the introduction into evidence of information obtained during settlement discussions or in mediations. Statutes such as the Evidence Act, 1995 (NSW) and the Civil Procedure Act 2005 (NSW) have been very effective in protecting client settlement privilege and preventing privileged communications from being disclosed in court proceedings. They have thus well-served the interests of the traditional justice institutions.
But they have not well-served mediation whose very different interests are not so much in non-disclosure of protected information as in preventing misuse of protected information as the research data revealed. Mediation’s concern is much broader than merely the exclusion of protected information from evidence. As Boulle explained, one of mediation’s great benefits is:
“…its attraction to potential users wishing to avoid adverse publicity and increase parties’ willingness to enter mediation and engage in open and frank negotiations in the knowledge that disclosure cannot damage them publicly among competitors or prospective adversaries.”
An examination of the relevant statutes in NSW reveals that lawyers’ expressed anxieties around the limits of mediation confidentiality may well be justified and that the values identified by Boulle and others may not be available to disputants who mediate in the shadow of the law. Even if this conclusion paints an unduly pessimistic picture of the objective reality of court-connected mediation in NSW, the research evidence clearly revealed that lawyers’ perceptions of mediation are that they must be cautious in allowing their client to speak or otherwise to participate directly in mediation except through their lawyer. Many research respondents explained that they counselled a cautious approach when advising their clients about mediation and most preferred that their clients not speak. A few admitted positively forbidding their clients from saying anything at mediation.
There is evidence going back as far as Rosenthal in 1977 to support the view that settlement outcomes are directly and proportionately related to the level of client involvement in the subject matter of the dispute. Since then a long line of social researchers from Pruitt (1981), Daubman (1984), Johnson, Mertz and Robinson (1985) have conducted research experiments which have confirmed these findings.
In 1986 Carnevale and Isen conducted a series of experiments designed to establish the effect on disputants’ ability to engage in integrative bargaining of suggestion by their lawyers. Participants in the study were subject to a contrived negotiation under control conditions in which some respondents were provided with supportive and positive reinforcement (called ‘positive affect’) and others were not. The study concluded that negotiators in whom positive affect had been induced achieved consistently higher outcomes than negotiators not in a positive state.From this literature and the results of my own empirical researches it is concluded that the quality of court-connected mediations in NSW is being compromised and that it will continue to be so until we are able to come to terms with the need to construct an appropriate framework of mediation confidentiality which goes beyond the present limited protections afforded by the statutory provisions for settlement privilege.
The Australian Dispute Resolution Research Network 
