The Role of Intermediaries in Enhancing Access to Justice in ADR

Posted on 23/12/2024 by Dr Oz Susler

Dr Oz Susler & Dr John Taggart

Introduction

Over the past thirty years, there has been a ‘sea change’ in the treatment of vulnerable court and tribunal users in the United Kingdom. As noted by Lady Justice Hallett in the case of R v Lubemba: ‘Advocates must adapt to the witness, not the other way round.’ Formal rules now place a duty on judges in both civil and criminal cases to ensure that ‘every reasonable step’ is taken to facilitate the participation of witnesses in proceedings.

Emblematic of this culture shift has been the introduction of a new role known as the ‘intermediary’. The intermediary, a communication specialist, is one of a range of ‘special measures’ which were introduced in 1999 through the Youth Justice and Criminal Evidence Act (YJCEA) to improve the quality of evidence available to a court and reduce the stress associated with the justice process. The function of the intermediary is to communicate ‘questions put to the witness ’and ‘to any person asking such questions, the answers given by the witness in reply to them’. As well as assisting witnesses to give evidence in court, intermediaries also advise lawyers and judges on how best to communicate with the witness more broadly.

Background

In England and Wales, the first cohort of intermediaries was introduced in 2004 through what has become known as the ‘Witness Intermediary Scheme’ (WIS) which is run by the Ministry of Justice (MOJ). The WIS matches the vulnerable witness with an intermediary based on their communication needs. The majority of intermediaries operating in England and Wales are speech and language therapists; however, there has been an increase in numbers from other backgrounds, such as teaching, nursing, social work, psychology, and occupational therapy.

In Northern Ireland, a slightly different intermediary scheme operates compared to England and Wales. In 2013, the Department of Justice of Northern Ireland (DOJ) developed a model for the provision of intermediaries in the criminal justice system. This was based on the provisions of the Criminal Evidence (NI) Order 1999, which effectively mirror the provisions of the YJCEA. In Northern Ireland, intermediaries are all trained, registered, and regulated by the DOJ. As in England and Wales, the vast majority of those on the Registered Intermediary Scheme (RIS) register are speech and language therapists, with a number coming from a social work background. A crucial distinction between the intermediary schemes in England, Wales and Northern Ireland is that in the latter, both witnesses and defendants can access the services of registered intermediaries. The DOJ concluded that respect for the principle of ‘equality of arms’ demanded that all vulnerable individuals should be eligible for intermediary assistance.

Beyond Criminal Courts

The special measures regime in both England, Wales and Northern Ireland were originally intended to apply solely to criminal proceedings. However, requests began to be made for intermediary assistance in other justice fora, such as family courts and employment tribunals. Intermediaries now commonly assist vulnerable individuals in these settings in both jurisdictions. In a recent case in England and Wales, the High Court noted how the fundamental role of the intermediary in family courts and criminal courts is the same.¹ As intermediaries have become more commonplace in criminal courts and family courts, relevant guidance has been developed to regulate the scope of their role in court. For example, in 2016, Mr Justice Charles, the Vice President of the Court of Protection in England and Wales published practical guidance entitled ‘Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings’. Another significant development in Great Britain has been the introduction of Practice Direction 1A, which also highlights the intermediary role in assisting vulnerable individuals to participate. In Northern Ireland, Practice Direction No.2/2019 contains detailed guidance on the intermediary role in criminal proceedings. Despite intermediaries regularly attending family court hearings, no equivalent guidance for civil courts has been issued.

Challenges

The intermediary role has played a significant part in the move towards promoting ‘best evidence’ and accommodating the needs of vulnerable individuals in court. In this regard, the role has been ‘little short of revolutionary’. The Victims’ Commissioner in England and Wales recently described it as ‘the single biggest improvement in the criminal justice system over the last thirty years’. While the intermediary role is becoming further embedded into justice processes, the role has encountered several challenges. Here are a few of the most important ones:

Duration of Appointment

Ultimately, the duration of an intermediary’s appointment is at the discretion of the court. The court may allow for an intermediary to assist the vulnerable individual for the period of oral evidence or for the entire court proceedings (or possibly for something in between). Understandably, the role of a defendant in a criminal trial is different from a witness so the length of time communication assistance will be required can vary. For example, a defendant will have legal conferences with their lawyers throughout a trial whereas a witness will not. The relevant Practice Direction in Northern Ireland states that the intermediary role is restricted to the period of oral testimony while in England and Wales, a court may exercise its powers to appoint an intermediary for longer. Again, this is at the discretion of the judge. Certain commercial providers of intermediaries, such as Communicourt, strongly argue that communication as a concept is broad and that providing intermediary assistance only for the period of evidence is superficial. The counterargument to this point is that with limited resources, intermediaries should be appointed where they are most needed.

Neutrality

As a relatively new actor to the justice system, the scope of the intermediary role has been contested. One key aspect of the role is that intermediaries operate as officers of the court and, as such, are impartial. How intermediaries operate to facilitate communication and remain impartial is a question that warrants attention. For example, if an intermediary assisting an extremely emotional witness feels that reassuring them might help them and reduce anxiety, is this breaching their impartiality? One anecdotal example from Northern Ireland involved an intermediary putting their arm around a young witness in court to comfort them. It was ultimately held by the judge that this ‘crossed the line’ and the intermediary’s involvement in the case ceased. Regardless of the venue, consideration should be given to how intermediaries can be enabled to carry out their primary role of facilitating communication and be viewed as impartial.

Skills and Qualifications

As discussed above, the majority of intermediaries in both England, Wales and Northern Ireland come from a background in speech and language therapy or social work. The MOJ in England and Wales has tried in recent years to diversify the registered intermediary cohort. In terms of the ‘matching’ of intermediaries to vulnerable individuals based on the nature of the communication issue, it is preferable that there is a wide pool of background and skillsets. For example, some intermediaries work exclusively with young children while others work with the elderly or with people diagnosed with autism spectrum disorder² or an intellectual disability. Ultimately, a court or tribunal appointing an intermediary should have the confidence that the intermediary has the requisite skillset to facilitate communication and provide clear, practical advice to the legal professionals. Although increasingly rare in practice, some courts have permitted lawyers to effectively cross-examine the intermediary about their experience and suitability for the role. It is suggested such a practice could underline the legitimacy of the role as well as the matching process undertaken by the DOJ or MOJ which have recruited, trained and ‘matched’ the intermediary to the vulnerable individual.

Intermediaries in Australia: Scope and Application

Following on from England, Wales and Northern Ireland, New South Wales was the first Australian jurisdiction to pass legislation for intermediaries in 2015.³ Currently, intermediaries are used within the criminal justice system in Tasmania, Queensland, South Australia⁴, New South Wales, Victoria⁵ and the Australian Capital Territory.⁶ Intermediaries are primarily used to assist vulnerable witnesses including children to give evidence for sexual offences and homicide cases.⁷ In the Victorian and ACT programmes, in addition to young people, any adult with a mental illness, intellectual disability, dementia or brain injury may be eligible to have an intermediary assist them in giving evidence in a police interview or court for particular criminal matter hearings.⁸ The reality is that vulnerable individuals experience barriers in access to justice not only in the criminal justice system, but, also in other areas that are connected to the broader legal system, including the civil justice system and court ordered Appropriate Dispute Resolution (ADR). In Australia, ADR processes are highly integrated in the legal system, thus many courts refer parties to participate in an ADR process. In many jurisdictions attempting to participate in the ADR process may be a prerequisite to the matter proceeding to a hearing before the court.⁹

Potential Applications of the Intermediary in the Australian Civil Legal System

It can be argued that particular individuals who are identified as more likely to encounter greater barriers in access to justice than the general population, such as Autistic persons, or otherwise neurodivergent individuals, those living with a mental health condition or other neurological/intellectual disabilities, stand to benefit from an intermediary programme that is available in court ordered or legislation-based ADR processes. Although it is recognised that ADR processes can be varied, this post focuses on the needs of Autistic persons who are subject to court ordered mediation. While there is no research focused specifically on access to justice for Autistic people, there is significant research in relation to access to justice for people with disabilities.¹⁰ The Australian Law Reform Commission’s report¹¹ details issues that may commonly arise when people with disabilities seek access to justice which include ‘communication barriers’ and ‘issues associated with giving instructions to legal representatives and capacity to participate in litigation’. The Report also discusses the issue of capacity to make decisions in their own best interest and in particular, the need for support in Decision-Making.¹² Legal reform is likely to have limited practical impact if people do not have access to the support necessary to enable them to participate in legal processes.¹³ It is at this juncture that intermediaries have the opportunity to play an important role in supporting such individuals who participate in court ordered mediations, hence fostering greater access to justice.

Autistic people communicate differently to non-Autistic people. Further, Autistic people may misinterpret communication by others and may be misinterpreted in their own communication.¹⁴ This may give rise to challenges in access to justice in ADR contexts, particularly in mediation which is based on communication between the parties facilitated by a mediator. To fulfil the aims of the International Principles and Guidelines on Access to Justice for Persons with Disabilities,¹⁵ Autistic parties engaging in court-ordered ADR processes should have access to an intermediary for support if necessary. A pilot programme may be trialled where intermediaries are made available for court ordered¹⁶ family dispute resolution (FDR) mediations, based on clear eligibility criteria. Given the role of the intermediary is to facilitate communication and communication challenges being one of the most commonly challenging aspects of mediation for Autistic persons, this presents a valuable opportunity for Australia to lead other courts and extend the role of the intermediary into a new realm. Drawing on the experiences of England, Wales and Northern Ireland, Australia stands to benefit in taking part in such a significant step towards improving access to justice in ADR for vulnerable individuals, who often experience disadvantage as parties in ADR processes.¹⁷

Author Biography

Dr Özlem Sűsler is a graduate of the University of Melbourne and La Trobe University. She holds degrees in Arts, Education and Law and has been admitted as a Barrister and Solicitor of the Supreme Court of Victoria.

Özlem is a senior lecturer at La Trobe University, School of Law, where she coordinates and teaches ADR and Contract Law in the JD and LLB programmes. She is the immediate past director of the JD Programme. Dr Susler has researched and published internationally on ADR in the fields of international commercial arbitration and the scholarship of learning and teaching. More recently she has conducted qualitative research into the experience of Autistic persons engaging in ADR processes (publication forthcoming). Dr Susler has also played a key role in coaching La Trobe Law students in various ADR Mooting competitions. She is a graduate of the Chartered Institute of Arbitrators, the Australian Institute of Company Directors and an AMDRAS accredited mediator.

Dr John Taggart is a Lecturer in Law at Queens’ University, Belfast and the Director of the Institute of Criminology and Criminal Justice (ICCJ). He holds a PhD in Law from the London School of Economics (LSE) and is a member of the Inn of Court of Northern Ireland and a member of Lincoln’s Inn. John’s research focuses on the criminal process, criminal justice and socio-legal approaches to criminal law. John’s research looks at special measures in criminal courts and the role of the intermediary as a communication specialist for vulnerable court users. He has recently worked as an academic consultant to the Australian Capital Territory (ACT) Human Rights Commission and as a legal trainer to the Northern Ireland Department of Justice. John has published widely in publications including the Criminal Law Review, International Journal of Evidence and Proof, International Journal of Law in Context and the Journal of Law and Society.

West Northamptonshire Council (acting via Northamptonshire Children’s Trust) v KA (Mother & Anor) (Intermediaries) [2024] EWHC 79 [43].
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Autism Spectrum Disorder is referred to as ‘autism’ hereafter. The term ‘autism’ throughout this paper intends to refer to individuals with a diagnosis of autism and no co-occurring intellectual disability. This article uses identity-first language (e.g., ‘Autistic person’) because many autistic people prefer it (Bury et al., 2020; Kenny et al., 2016), and it is considered less discriminatory (Bottema-Beutel et al., 2021).
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See Criminal Procedure Amendment (Child Sexual Offence) Evidence Pilot Act 2015 (NSW).
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South Australia provides a communication assistance scheme. See Evidence Act 1929 (SA) and Summary Offences Regulations 2016 (SA).
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New South Wales introduced an intermediary programme in 2016 and Victoria in 2018.
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Evidence (Miscellaneous Provisions) Amendment Act 2019 (ACT).
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See eg <https://www.justice.vic.gov.au/justice-system/courts-and-tribunals/intermediary-program/about-the-intermediary-program#program-history>.
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See eg <https://www.justice.vic.gov.au/justice-system/courts-and-tribunals/intermediary-program/about-the-intermediary-program#program-history>. In Victoria the criminal matters are restricted to witnesses in homicide matters and victims of sexual abuse.
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For example. the Federal and Family Circuit Court of Australia generally makes it mandatory (unless exceptions apply) for the parties to be referred to Family Dispute Resolution under s.13C(1)(b) of the Family Law Act 1975 (Cth) to attempt to resolve their disputes.
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See, eg, ‘The Justice Project’ Final Report, Part 1 ‘People with Disability’ (August 2018) Law Council of Australia <https://lawcouncil.au/justice-project/final-report>.
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Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws – Final Report, August 2014 available at <https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-alrc-report-124/>.
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Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (Final Report, August 2014) p 4. (Access to justice issues | ALRC).
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Ibid p 7.
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See eg, Maya Albin, Isabella Chawrun, and Ami Tint, “Rethinking Social Communication Support: Exploring Communication Partner Training for Autistic Adults and Their Neurotypical Communication Partners” (2024) Autism in Adulthood <https://doi.org/10.1089/aut.2023.0>
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‘International Principles and Guidelines on Access to Justice for Persons with Disabilities’ (2020) United Nations Special Rapporteur on the Rights of Persons with Disabilities. Hereinafter referred to as ‘Guidelines’.
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This programme would be implemented through the Australian Family and Federal Circuit Courts.
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Forthcoming qualitative research article on the disadvantage experienced by Autistic adults who participated as a party to mediation is available upon request from Dr Ozlem Susler.
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The central role of party self-determination in mediation ethics

Posted on 19/12/2017 by Jonathan Crowe

Written by Professors Rachael Field and Jonathan Crowe. The post is a version of a paper delivered at the 6th ADR Research Network Roundtable, 4 -5 December 2017.

RF and JC Image

The dominant paradigm of mediation ethics has traditionally given a central role to the notion of mediator neutrality. However, this focus has been criticised in recent decades for being unrealistic and overlooking the power dynamics between the parties. In our forthcoming book, Mediation Ethics: From Theory to Practice, we advocate a new paradigm of mediation ethics focused on the notion of party self-determination. Why, then, is party self-determination a suitable candidate for this role?

The justification for making party self-determination the primary ethical imperative of mediation centres on two main arguments. The first argument is that the possibility of achieving self-determination for the parties is what distinguishes mediation from other dispute resolution processes and makes it a distinct and valuable process in its own right. The second argument is that the achievement of party self-determination provides a principled foundation for the legitimacy of the mediation process. We discuss these arguments briefly below.

Mediation as a distinct process

Party self-determination is the key factor distinguishing mediation from litigation and other dispute resolution processes, because mediation provides the parties with the ultimate power to decide how to resolve their dispute. A mediator’s role is to use their expertise so as to enable and empower the parties to reach their own decision. This characteristic of mediation is special and distinct.

This point is emphasised by the fact that in litigation, arbitration, and even conciliation processes, the focus is not on enabling and empowering the parties to take control of their dispute and to reach an outcome of their own determination. Rather, the focus is on the third party decision-maker or specialist judging the merits of the parties’ cases and imposing a decision. Such adjudicative activity is generally guided by objective norms or criteria—most often centred on the law. There is limited opportunity for party self-determination in such processes.

Party self-determination in mediation is also distinctive because it is relational—grounded in connection, cooperation and collaboration. This concept of self-determination is very different from an atomistic notion of autonomy that emphasises privacy and self. An atomistic conception of self-determination arguably underpins the adversarial legal system, because each party is encouraged to advocate single-mindedly for their own interests. In mediation, by contrast, party self-determination does not exist on an individual level; rather, it is holistic and relational, encompassing the needs and interests of both parties. If only one party experiences self-determination, the process has not succeeded in its aims.

Principled and legitimate outcomes

A second argument for emphasising party self-determination is that it provides a principled foundation for the legitimacy of the process. Party self-determination can be said to lead to principled outcomes because it reflects foundational values of our legal, social and political order. These include traditional liberal values, such as consent, autonomy, respect, privacy and dignity. However, they also include relational values, such as empathy, emotional expression and interpersonal dialogue.

These values highlight the importance of party involvement and collaboration in the negotiation, creative option generation and decision-making components of mediation. In mediation, the parties can achieve a principled outcome because they are deeply and thoroughly involved in working through the issues, discussing their individual and mutual perspectives, and developing the terms of the final resolution. Party engagement also promotes the personal dignity of the parties, particularly when the result is to avoid the inevitable costs and uncertainties of litigation.

Party self-determination also promotes principled outcomes because it yields a form of real world justice. Many disputes take place in a context where the parties have different needs, priorities and values. Parties value different things, and also value things differently. This means that compromises and trade-offs are an inevitable and constructive part of the process. Compromise, then, does not mean the process is unprincipled or illegitimate. Rather, the value of compromise represents a key principle in its own right. It can lead to a more principled and legitimate result than rule-based or adversarial approaches. The notion of party self-determination recognises and embodies this important value.

Nearly Neutral: A Mediator’s Best Bet

Posted on 08/02/2017 by Associate Professor Becky Batagol

By Amanda Selvarajah

This post is the third in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

‘The Gate’ by Guillaume Delebarre: Creative commons source

The National Mediator Accreditation System removed “neutrality” as a requirement on their list of ethical standards in 2015. This may suggest a trend away from the truly “neutral” mediator in the sense of a ‘detached third-party’. But does this mean we are to rule out neutrality entirely as an ethical consideration in mediation? With a trend of increasingly interventionist mediators, a complete disregard of the concept could place participants at great risk of being subjected to ethically dubious decisions.

Perhaps the reason for the mediation community’s shift from neutrality is not because of a flaw in neutrality itself, but rather a failure to grasp a version of neutrality that can and should be an important element of an ethical mediation. Instead of defining neutrality as an unattainable attribute intrinsic in the nature of a mediator, perhaps we should be viewing neutrality as a constant practical endeavour throughout the mediation process, a mediator who’s nearly neutral.

Why Neutral At All?

A mediator in its simplest description is a ‘trained, impartial third party’ who assists parties in making their own decisions. However, mediation remains unregulated and virtually unmonitored as it is typically conducted in private with assurances of confidentiality. Mediated parties are expected to relinquish a guarantee of the principles of justice and fairness that would be inescapable in a common law court. It is these qualities of mediation that leave participants particularly vulnerable to a biased decision in the event of a potentially opinionated, interventionist mediator. Therefore, it is the consensual participation in the process and the assurance of “neutrality” that many consider the source of the process’s legitimacy.

On the spectrum of mediator involvement in mediation, the facilitative approach, which focuses a mediator’s role to procedural stages, leaves parties with as much freedom and control in the substance and outcome of the mediation as possible. The evaluative approach, on the other hand, has even been disregarded by some, like the Victorian Association for Dispute Resolution, as being a form of mediation at all. They argued that the mediator’s ‘input into the content, and sometimes the outcome’ of the mediation made the process inherently contrary to the core principles of mediation.

Such or any mediator involvement may suggest, as critics of the evaluative mediation approach do, an immediate breach of neutrality. But this is only the case if neutrality is restricted to a ‘strict, dualistic sense of the mediator either being or not being neutral.’

Why Not Be Absolutely Neutral?

To truly make the case for a re-imagined concept of neutrality, one must first accept the bold suggestion that mediations are not neutral in its literal sense and could likely never be so. Mental health professionals have found that ‘there is no such thing as total impartiality, neutrality, or lack of bias when working with people, even though as practitioners they may strive for such ideals.’ In mediation specifically, research has shown that in practice, mediators may affect and influence mediation at almost all stages of the process. Examples include ‘the ways they structure the interchange between the parties, in terms of the sequencing of storytelling and the framing of responses and what needs to be responded to.’ It follows then that any assessment of a mediator’s success in reference to their ability to be neutral, in the literal sense of the word, would set almost all our mediators up for failure.

However, regardless of a mediator’s ability to be neutral, there is the added consideration that absolute neutrality may not even be conducive to the goals of a truly successful mediation. For example, in the case of the simultaneous expectations that a mediator be both absolutely neutral but also committed to facilitating an equal conversation, one often comes at the cost of the other.

Mediated parties often experience a power imbalance. Therefore, a hands-off mediator may in these cases fail to protect ‘vulnerable parties from inappropriate pressure’. In family law mediation (family dispute resolution or FDR), for example, parties often meet at very unequal terms. Mediators in these cases may be caught between either claiming a position of absolute neutrality, thereby stripping them of the power to ‘redress imbalances’, or recognising a role in sometimes having to take ‘affirmative action… to achieve a balanced agreement.’

Family dispute resolution practitioners must consider if ‘family dispute resolution is appropriate’ before mediation is undergone. This may allow for vulnerable parties to be excluded from the mediation process, sparing mediators the struggle of balancing these competing expectations. But some victims still ‘feel that FDR processes fail to identify and manage the risk of family violence effectively.’ The exclusion also does nothing for parties beyond family abuse dynamics who may still be more vulnerable than the other party due to cultural, societal or financial factors.

This concept of absolute neutrality is similarly challenging for indigenous mediators, to whom Western notions of neutrality may not make sense. In indigenous mediation it has been recommended that a respected elder would likely be the more appropriate choice of mediator than a neutral third-party. Selecting a mediator for their ability to intimately understand the parties as opposed to their ability to detach themselves from them is arguably in direct opposition to Western expectations of a successful mediator. A commonality in our understandings of a successful mediation, however, may be the increasing interest in addressing the conflict at the heart of mediations.

Therapeutic jurisprudence, a philosophy focused on critically viewing our legal systems to maximise the health and wellbeing of those who engage with it, has been applied to improve and direct law reform throughout Australia’s legal system. Critically assessing the purely facilitative mediation process through a therapeutic jurisprudence lens unearths the potentially anti-therapeutic effects of having a non-interventional, solution-centric mediator who as a result, fails to address and redress the underlying tensions at the heart of parties’ relationships. The development of therapeutic jurisprudence throughout Australia is proof that the indigenous community’s focus on rebuilding and strengthening relationships is not unique and could be facilitated in mediations with a more involved mediator.

A New, Nearly Neutral Approach

Neutrality was seen as a cornerstone of mediation’s procedural fairness, the idea that ‘what is required by procedural fairness is a fair hearing, not a fair outcome’. The facilitative approach has, therefore, been described as having the highest regard for procedural fairness on the basis of perhaps a rather simplistic equating of a fair hearing with a decision-maker who allows parties to make their own case with as little intervention as possible.

This argument assumes, however, that participants of mediation are always equally capable of articulating and pursuing their own interests and that they are always more concerned with a practical outcome than a resolution of the underlying feelings and conflict which brought on the mediation in the first place.

However, research has shown that in mediation ‘the basis of authoritativeness (e.g. of the ability to gain voluntary acceptance from members of the public) is changing from neutrality-based to trust-based.’ This suggests that contrary to advocates for neutral mediators, parties may actually prefer a more interventionist mediator who is willing to foster openness and build a relationship of trust over a detached one.

So perhaps instead of aligning neutrality with a mediator who never intervenes, it would be best to hold mediators’ interventions to standards ‘of non-partisan fairness or impartiality’ instead. For example, weighing, as an objective third-party, whether an intervention would make sense to ‘facilitate a productive dialogue by encouraging or even coaching reticent or inarticulate parties’ to promote a generally more just proceeding. After all, in the immortal words of Theodore Roosevelt, ‘Impartial justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.’

Amanda Selvarajah is (@amanda_darshini) currently in her third year of the Bachelor of Law (Honours) program at Monash University. Her research has focused on questioning the limits of the law and its rooms for improvement across a variety of fields. Last year, her research into the abuse of forensic evidence in court was selected for presentation at the International Conference of Undergraduate Research.