I. INTRODUCTION

A. Classification

2.1 Dispute resolution processes defy neat classification. In theory they range along a continuum from private negotiation between the parties to formal adjudication by a court. The control of the resolution process, of its content (ie issues which can be addressed), and of the outcome, moves away from the disputants to a third party. As well, the process moves from consensual to adversarial, and is conducted with increasing formality.¹

2.2 It is relatively easy to distinguish the primary processes of dispute resolution - negotiation, mediation, arbitration and adjudication - and describe how each should work. It is another matter to describe accurately and classify the great variety of schemes in operation and the things that individual dispute resolvers actually do. Hybrid processes have developed, combining features of the primary processes. Each process is capable of interpretation in different models, and the “purity” of a process can be affected by the constraints of the particular social, institutional, or legal contexts in which a program operates. Many of the programs described offer a variety of ADR processes, either separately or overlapping within the resolution of any one dispute. By private agreement, parties may devise their own process to resolve their particular dispute, using whatever procedures they desire.

B. Terminology

2.3 The terminology of ADR often leads to confusion. The same term may refer to a general technique as well as a specific process or procedure of dispute resolution. Not all those who, in a general sense, are intermediaries between disputing parties can be considered mediators. The term mediation can be used for what may actually be counselling.²

Negotiation

2.4 Use of the word negotiation is another example of the potential for confusion. In its ordinary sense, negotiation occurs when any two or more parties confer and bargain so as to reach agreement. Informal private negotiation by parties in conflict is probably the most usual method of dispute resolution, at all levels of social interaction.

2.5 Interest in ADR has prompted much theorising about the process of negotiation, analysing styles and strategies, objectives and outcomes. The art or even science of negotiation is widely recognised.³ It is a core component of mediator training courses, but one in which a necessary distinction is made between methods of private bargaining and the process of public negotiation.

2.6 In the taxonomy of dispute resolution, public or formal negotiation occurs where there is unstructured third party intervention in a dispute, assisting the parties or acting on their behalf. The parties, however, maintain complete control over the process. Lawyers engage in public negotiation when they attempt to settle their clients’ case in the course of litigation. Broadly applied to any third party involvement in settlement discussions, negotiation is the essential dispute resolution process. Other processes short of adjudication such as mediation and conciliation constitute assisted or structured negotiation.

II. PROCESSES OF ADR - WHAT IS MEDIATION ?

A. Mediation

[Mediation] can be defined as the process by which the participants, together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs.4

2.7 Various theoretical models of mediation have emerged: for example Coogler’s structured mediation developed in the United States for family and divorce mediation,⁵ and the community mediation model used in neighbourhood justice centre settings. In presenting a description of the generic process, we recognise the difficulties in accounting for variations occurring across service providers and training institutions. Additionally, so much of what a mediator does, and how a mediation occurs is a matter of personal style, and the dynamic interaction of a number of factors. Relevant are the nature of the conflict, the issues in dispute, the kinds of parties involved, and their relationship; the mediator’s experience and training; and the impact of social, legal and institutional constraints. Each mediation is unique.

2.8 In the classic model of mediation, the disputants hold the ultimate authority. They enter mediation voluntarily, and may withdraw at any time. They control the content (ie the issues in dispute which are mediated), and the outcome, which, if mediation is successful, takes the form of a non-binding agreement. They select a mediator to whom they entrust control of the process. Their presence at the mediation session is essential. Others in attendance can include legal representatives, professional advisers, personal supporters, and interpreters.

2.9 The mediator is neutral, impartial, and acceptable to all parties. The mediator’s function is to control the process, facilitate communication, assist negotiation and guide the parties towards agreement. This should extend to helping the parties to identify issues of mutual concern and develop mutually acceptable solutions but should not involve imposing a solution. The mediator has responsibility for the impartial and fair conduct of proceedings, although whether this extends to responsibility for the fairness of any agreement reached is a moot point.

2.10 Much is written about the conduct of mediation sessions, even to the mechanics of seating positions, but there is no essential format. There is no requirement that the parties actually meet - in shuttle mediation and caucusing the parties are separated. Key stages of the procedure include establishing a procedural structure, fact finding and the isolation of issues, the creation of options and alternatives, negotiation, and the production of an agreement. As it is a private dispute resolution forum, the parties themselves set the rules, limited only by the house rules of the mediator and an institution or agency.

2.11 The primary goal of mediation is agreement between the parties to resolve their dispute. In common with other ADR processes, there are additional goals which encompass behavioural and attitudinal outcomes. An agreement can be a guide to future actions of the parties towards each other. Participation in mediation can be designed to create a more harmonious relationship between the parties resulting from perceptions obtained in the process.⁶ Much is made, especially with mediation of interpersonal conflict, of individual empowerment, and of encouraging personal self-determination.

2.12 Many aspects of the classic model of mediation can be altered by the particular setting in which it occurs. Parties may be directed or encouraged to enter mediation, the issues may be determined externally, solutions restricted to those acceptable to outsiders, or the agreement made binding by force of judicial imprimatur or contract between the parties. Some of the models of mediation and the institutional variations are indicated below in Section IV - ADR Programs.

B. Conciliation

2.13 A concept of long standing in the Australian legal system, conciliation has specific meanings and applications in Australian labour disputes, and in anti-discrimination and family law.⁷ In the ADR lexicon, conciliation has two distinct meanings.

• Bringing together disputing parties so that they may agree on and begin procedures to resolve their dispute. The neutral third party acts as a facilitator⁸ only, and does not become involved with the substantive issues in dispute. That person may transmit settlement offers on behalf of each party.⁹
• A distinct process which extends mediation to include elements of expert appraisal. The neutral third party, usually an expert in the subject area of the dispute, not only manages the negotiation, but makes recommendations as to solutions. These usually are not binding but are used as a guide (albeit one of persuasive weight) by the parties in reaching an agreement.

2.14 As practised in many instances under statutory aegis, for example in family law or the protection and enforcement of statutory rights, conciliation precedes more coercive processes such as arbitration or adjudication which occur if agreement is not reached. Conciliation in these situations is much less voluntary for the parties. They have limited control over the process and the decision to submit to it, the content, and the outcome of the dispute. Nevertheless it constitutes a private informal method of dispute resolution in which disputants aim to reach their own agreement with the assistance of a neutral third party who lacks the power to make a binding decision.

C. Moderation or Facilitation

2.15 A process very similar to mediation but one which usually applies to multi-party disputes. The facilitator acts as a chairperson assisting the parties to negotiate an agreement.¹⁰

D. Independent Expert Appraisal (Aust) - Neutral-Expert Fact Finding (USA)

2.16 In disputes which involve complex technical and economic issues of fact, the parties may¹¹ agree to use a neutral person with relevant expertise to investigate the facts and make an impartial evaluation of key issues and how the dispute should be resolved. Although the role is inquisitorial, mediation techniques are used frequently by the neutral expert. The evaluation and any recommendations made by the expert can be used as the basis for mediation or conciliation conducted by the neutral expert or another person, or in arbitration or litigation proceedings should settlement not be achieved. Essential elements of this process are that it is voluntary and non-binding for all parties.

E. Case Presentation (Aust) - Mini Trial (USA)

2.17 A variant on mediation, case presentation involves a formally structured information exchange and settlement negotiation. There is an informal summary presentation of the case of each disputant (by experts or lawyers) before representatives from both sides who have authority to settle the dispute. These parties then confer and attempt to settle the dispute by agreement. It is usual, though not necessary, for a neutral third party to preside, acting as a mediator/facilitator/independent chairperson. That person, often a former judge or expert in the field of the dispute, may control the presentation, act as a sounding board, or advise the parties, but does not deliver judgment. Whilst this process is a more formal procedure, akin to an abbreviated hearing, it remains voluntary and non-binding and a private means of dispute resolution. Much used in the United States, the mini-trial has yet to become popular here, although some have been held.¹²

F. Hybrids using Mediation

2.18 The process of mediation where disputants are assisted by a third party in reaching a consensual settlement can be used as a technique of dispute resolution in a variety of procedures. Especially where the parties make a private agreement to use a particular procedure, mediation may be combined with, or a prelude to settlement where the third party has power to make binding decisions. It is often combined with arbitration.

2.19 Court-annexed mediation, followed by non-binding arbitration (that is where an award given becomes final if neither party objects and seeks a trial de novo in the regular court system) is a blend increasingly in use in the United States.¹³ The use of mediation as an adjunct to adjudication within the court system is being explored in some Australian jurisdictions.¹⁴

III. THE NEUTRAL THIRD PARTY - WHO IS A MEDIATOR?

2.20 The role of a neutral third party in ADR processes varies from simply facilitating negotiation, through managing the negotiation process, to proposing settlement terms (which may even become binding). The role adopted by any particular neutral is determined by institutional and personal factors, such as the preferred model used by an agency, or the neutral’s individual style, the wishes of the parties, or the neutral’s statutory position. It is therefore difficult to describe definitively the function of any category of neutral, or to rely on a descriptors such as “mediator” or “conciliator” as conclusive of role.

2.21 There are some definitions relevant to ADR in Australian statutes, although their application is usually specific. Examples of statutory references include:

• A mediator, for the purposes of the Community Justice Centres Act 1983 is the Director of a Community Justice Centre or any accredited person; and
• Mediation under the Community Justice Centres Act includes any activity undertaken for the purpose of promoting the discussion and settlement of disputes and bringing together of the parties to any dispute for that purpose.¹⁵
• A mediator hears disputes under the Retail Shop Leases Act 1984 (Qld) between landlords and tenants, and is not empowered to make a binding decision.¹⁶
• An arbitrator under the Commercial Arbitration Act 1984 has power to order the disputing parties to attend what amounts to a mediation conference conducted by the arbitrator prior to or during the arbitration hearing.¹⁷
• A mediator can assist parties to a building dispute in the Victorian County Court in reaching a settlement, but may not decide the dispute.¹⁸
• An arbitrator under the Arbitration (Civil Actions) Act 1983 must attempt conciliation before making an award.¹⁹
• The Anti-Discrimination Act 1977 requires that, wherever possible, complaints are to be resolved by conciliation, by enabling “the parties to negotiate with a view to settlement of the complaint by amicable arrangements.”²⁰
• A family mediator for the purposes of the Evidence Act 1958 (Vic) is either a marriage counsellor under the Family Law Act 1975 (Cth), or a person declared to be one under the Act.²¹

IV. ADR PROGRAMS - WHERE IS MEDIATION USED?

2.22 Mediation and related ADR techniques are used in a variety of circumstances. The major types of ADR programs in Australia are outlined below.

A. Neighbourhood Mediation

2.23 Perhaps the most prominent use of mediation, the neighbourhood justice movement, has adapted American models to create a forum in which people can resolve minor civil and criminal disputes for which the conventional legal system does not always provide satisfactory solutions. Some centres evolve purely as an expression of community identity, and others are established with government support. Alternatively such centres may be created and regulated by statute. Mediation is the preferred process at such centres but is not used exclusively. Neighbourhood centres handle a wide range of minor civil disputes which may or may not be litigable. Mediators comprise volunteer lay people drawn from the local community and trained for the particular service, and receive nominal remuneration.

2.24 Pioneers in neighbourhood mediation were the New South Wales Community Justice Centres which now have four offices.²² There is also a Community Mediation Centre at Fairfield. Four Neighbourhood Mediation Centres have been established in Victoria,²³ and mediation is available at various community centres in South Australia²⁴ and also in Western Australia.²⁵ There is a Canberra Conflict Resolution Service, and in Queensland government-backed community mediation centres will open soon.²⁶

B. Court-based Processes

2.25 Various procedures are being used in many jurisdictions as an adjunct to litigation, directed to achieving earlier and cost-efficient settlement. As yet the programs are specific, and there is no general promotion of mediation prior to trial,²⁷ nor has the concept of the multi-door courthouse been tried.²⁸ ADR procedures in two areas, family law and rights administration, are considered separately below. Examples of the use of ADR procedures in litigation include these:

• Court-annexed arbitration is available for civil actions brought in the Local and District Courts of New South Wales under the Arbitration (Civil Actions) Act 1983. Arbitration may be mandatory or voluntary. The use of less formal procedures and conciliation is encouraged. Part 72 of the Supreme Court Rules permits the whole of a case or selected issues to be remitted to an arbitrator or referee.
• Court-annexed mediation is available in some specific instances, for example in disputes over retail shop leases in Queensland,²⁹ and in the Victorian County Court, in the Building Cases List and for certain personal injury actions.³⁰ Mediation is not compulsory and, if no agreement is reached, the matter proceeds to trial as usual. In the Queensland Supreme Court Commercial Causes List, parties may be directed, in effect, to go to mediation by a judge.³¹ Mediation by Registrars of the Federal Court in Sydney occurs in many Trade Practices Act and other commercial matters.³²
• Various specialised courts and tribunals are empowered to use less formal procedures at hearing and to conciliate matters before them. The actual process used will vary with the forum and personnel. Small claims courts in all states employ this approach.³³ Conciliation may be used in some way in proceedings in the NSW Land and Environment Court, before the Residential Tenancies Tribunal, and the Administrative Appeals Tribunal (Cth).³⁴

C. Family Dispute Resolution

1. Family Law Court Conciliation³⁵

2.26 The original non-adversarial approach of the Family Law Act emphasing conciliation is now formalised and it is an obligatory part of most custody and property proceedings.³⁶ Conciliation is performed in the Family Court in two ways. Counsellors deal with matters involving children and related issues, compulsorily once litigation commences, or voluntarily, without an application to the Court being necessary. Registrars deal with most property disputes in the context of litigation. They have in common an emphasis on consensual resolution, but differ as to the role of the third party, the focus of settlement, and the process by which it is reached. A grant in 1988 was made to enable the Family Court counselling service (and marriage counselling organisations) to undertake family mediation work.³⁷

2. Other Services

2.27 Several non-court agencies and individuals provide various services, including mediation, by which agreements may be reached which are ratified under the Family Law Act. These mediation services also deal with general family conflicts outside the scope of family law. Examples include:

• Family Mediation Centres, New South Wales.³⁸
• Family Mediation Centre, Noble Park, Victoria.³⁹
• Divorce Mediation Services of the Marriage Guidance Councils of Victoria and South Australia.
• Family Mediation Service of the Legal Aid Commission of Victoria.
• Conflict Resolution Network.⁴⁰
• Private family law arbitrators.⁴¹
• Private judging by a former Family Court judge.⁴²
• Mediation by private practitioners, many of whom are also legal practitioners.⁴³
• Neighbourhood or community justice centres.

2.28 Methods of dispute resolution within family law are currently under much scrutiny. An arbitration scheme has been proposed by the Family Law Council,⁴⁴ which also recommends a system incorporating all available processes, that is negotiation, mediation, conciliation, arbitration, and adjudication.⁴⁵ The Australian Institute of Family Arbitrators has proposed a private consensual scheme of arbitration. There is some concern about neighbourhood mediation services expanding into the area of family mediation, especially in the shadow of the Family Law Act,⁴⁶ although this concern is not generally accepted by those services.⁴⁷

D. Rights Administration

2.29 Human rights and anti-discrimination legislation generally requires that conciliation or mediation procedures are used before resort to litigation to resolve disputes arising under the Acts.⁴⁸ Conciliation is defined only indirectly, as enabling the parties to negotiate with a view to settlement by amicable arrangements.⁴⁹

2.30 Implementation of the policies embodied in anti-discrimination legislation has led to a number of public and private employers establishing structures to facilitate the resolution of grievances relevant to equal opportunity principles by consensual means, usually a form of conciliation or mediation.⁵⁰ Similar procedures apply in various public bodies which administer areas in which claims of discrimination or grievances relating to people’s rights may arise, for example the New South Wales Department of Housing Tenancy Service.

E. Commercial Disputes

2.31 Parties in dispute who have a commercial relationship are increasingly choosing private means of resolution. Commercial arbitration has long been accepted as preferable to litigation in many instances, particularly building and construction disputes. However dissatisfaction with both these adjudicative methods has resulted in growing support for consensual dispute resolution.⁵¹ Mediation is probably the most popular, although this type of dispute can be resolved by using a wide variety of processes, often tailor-made for the particular circumstances.

2.32 Apart from private mediators being engaged by the parties by agreement, disputants can use various agencies which provide a full range of dispute resolution services. The major examples are these:

• Australian Commercial Disputes Centre (ACDC),⁵² which provides a wide range of processes, although mediation is the preferred method.
• The Institute of Arbitrators Australia⁵³ which, in addition to representing practising arbitrators, trains and accredits mediators and conciliators.
• Australian Centre for International Commercial Arbitration (ACICA),⁵⁴ for the settlement of international trade or commercial disputes, preferably by arbitration, but also by conciliation and mediation.
• Western Australian Dispute Resolution Service, Small Disputes Scheme,⁵⁵ where disputes up to $10,000 may be settled by mediation or arbitration.

F. Other Uses of Alternative Dispute Resolution

2.33 By way of emphasising the vast range of uses of alternative dispute resolution techniques currently in Australia, the following are noted.

• The Canberra Interfaith Dispute Resolution Service provides mediators to assist with the resolution of disputes within and between religious communities.
• “Optional Conciliation Rules” being trialled by the Victorian Law Institute Council provide for voluntary conciliation of solicitor - client disputes, by a panel of conciliators to be nominated by the Council.⁵⁶
• The Health Services (Conciliation and Review) Act 1987 (Vic) provides for conciliation of disputes about the delivery of health care services.⁵⁷
• The Australian-American Trade Dispute Agreement, signed by ACDC and the American Arbitration Association for companies engaged in US-Australia trade and commerce provides for resolution of disputes by ADR.⁵⁸

2.34 It is clear that there is no limit to the range of disputes which can be mediated. Undoubtedly the use of ADR, including mediation, will increase for two reasons. First, there is a growing public awareness and acceptance of non-adversarial dispute resolution, and of the value of conflict resolution strategies. Secondly, there is the obvious enthusiasm of those who seek to practise as mediators who make and take opportunities to demonstrate the value of what they do. It can occur either by the informal application of conflict resolution techniques, on the institutionalisation of dispute resolution mechanisms. In recent American experience ADR has been used to resolve disputes such as:

• environmental and major public interest disputes (eg siting of hazardous waste, zoning and land use questions);⁵⁹
• community civil rights disputes which threaten the public peace;⁶⁰
• educational disputes, in tertiary institutions and schools, over academic, policy and personal conflicts;
• barking dog and other animal nuisance cases;⁶¹ and
• victim-offender mediation, in addition to or as a substitute for criminal proceedings.⁶²

V. DEFINING MEDIATORS

2.35 As is demonstrated in the preceding overview, ADR occurs in several autonomous programs and situations. The common factor is the formal presence of at least one neutral third party whose primary function is not to decide the dispute but to assist the disputants to reach a consensual settlement of their dispute. For the purposes of consistency the terms mediator and mediation are used throughout this Discussion Paper for ADR processes where a neutral third party is involved.

For the purposes of the Commission’s Report and any recommendations, who should be considered to be mediators?

FOOTNOTES

1. See generally Stephen B Goldberg, Eric D Green and Frank E A Sander Dispute Resolution (Little Brown, Boston, 1985); Jenny David “The ADR Movement: Introduction to Concepts and Overview” Paper delivered at Alternative Dispute Resolution Seminar, Continuing Legal Education, University of Sydney Faculty of Law, 6 October 1987.

2. The distinction is outlined in Eric W Stevenson “The Development of Family Mediation Services in Relation to the Approved Marriage Counselling Organisations” Unpublished paper, Unifam, 1988.

3. See Roger Fisher and William Ury Getting to Yes (Arrow Books, London, 1987); Howard Raiffe The Art and Science of Negotiation (Harvard University Press, Cambridge, 1982).

4. Jay Folberg and Alison Taylor Mediation: A Comprehensive Guide to Resolving Conflict without Litigation (Jossey-Bass, San Francisco, 1984) at 7. For descriptions of the mediation process see Folberg and Taylor Mediation; Goldberg, Green, and Sander Dispute Resolution at 91; Gordon Pears, Beyond Dispute note 3 ch 1 at 39; and Christopher W Moore The Mediation Process: Practical Strategies for Resolving Conflict (Jossey-Bass, San Francisco, 1986).

5. O J Coogler Structured Mediation in Divorce Settlements (Heath, Lexington Mass, 1978).

6. Lon L Fuller “Mediation - Its Forms and Functions” (1971) 44 Southern California Law Review 305.

7. See Justice Elizabeth Evatt “Conciliation in Australian Law” (1986) 11 Sydney Law Review 1.

8. The term preferred by the Australian Commercial Disputes Centre (ACDC) which offers this service.

9. As defined in the Community Justice Centres Annual Report 1986-87 at 12, and applied to CJC-assisted settlement reached without the holding of a mediation session.

10. Patrick Cavanagh “ACDC and Alternative Dispute Resolution” in Developments in Litigation (College Of Law, Sydney, 1989) at 31.

11. By private agreement: Rules 53, 706 Federal Rules of Evidence in the United States allow for court appointment of an expert at the request of one party or on the court’s own motion.

12. Justice Andrew Rogers “Mini trials - diverting the adversarial instinct” (1986) 24 Law Society Journal (No 4) 27.

13. An example is the Hawaii Civil Claims Trial Project, see “ADR in Hawaii” [1989] Reform (No 55) at 145.

14. See below paragraphs 2.21, 2.25.

15. Community Justice Centres Act 1983 s4.

16. Retail Shop Leases Act 1984 (Qld) ss17-27.

17. Commercial Arbitration Act 1984 s27(1).

18. Victorian County Court Rules 1979 as amended by the County Court (Building Cases) Rules. 1983 (SR No 207).

19. Arbitration (Civil Actions) Act 1983 s9.

20. Anti-Discrimination Act 1977 s106, see also s92.

21. Evidence Act 1958 (Vic) s21I.

22. Surry Hills, Bankstown, Wollongong and Penrith. See Wendy Faulkes “Pursuing the Best Ends by the Best Means” (1985) 59 Australian Law Journal 457; Proceedings of a Seminar on Community Justice Centres, Proceedings of the Institute of Criminology No 60 (Institute of Criminology, Sydney Law School, 1982).

23. At Heidlberg/Preston, Ringwood, Bendigo, Geelong. See David Bryson “Victoria’s Neighbourhood Mediation Centres Project” (1987) 12 Legal Service Bulletin 108.

24. Noarlunga, Norwood, Belair, Brompton, and the Willunga district.

25. At Gosnells Information Service.

26. See proposals contained in Queensland Department of Justice Green Paper on Community Mediation, 1989.

27. As contained in the United States Federal Rules of Civil Procedure 1983, although Sir Laurence Street, the former Chief Justice of New South Wales, proposed such a move.

28. For discussion of this concept refer to Frank E A Sander Paper given at the 26th Australian Legal Convention, Sydney 1989; Larry Ray and Anne Clare “The Multi-Door Courthouse Idea: Building the Courthouse of the Future ... Today” (1985) 1 Ohio State Journal on Dispute Resolution 7.

29. Retail Shops Leases Act 1984 (Qld) ss17-27.

30. Victorian County Court Rules 1979 Order 54 as amended by the County Court (Building Cases) Rules 1983 (SR No 207); “Mediation in the County Court” (1988) 62 Law Institute Journal 11.

31. Supreme Court of Queensland, Practice Direction 4 of 1987.

32. Jim Howard “Federal Court of Australia - Alternative Dispute Resolution” (1989) 2 Resolution of Commercial Disputes (ACDC No 4) at 7.

33. See, for example, Michael Levine “The Small Claims Experience” in Attorney General’s Department (Cth) Dispute Resolution in Commercial Matters, Colloquium Papers (AGPS, Canberra, 1986) at 161.

34. Land and Environment Court Act 1979 s34; Residential Tenancies Act 1987 s109; Administrative Appeals Tribunal Act 1975 (Cth) s34.

35. In Australia the term conciliation has been used consistently in relation to the Family Law Act 1975 (Cth). In the United States the resolution of family disputes is usually referred to as mediation, see J McDowell “Mediation of Disputes in Separated Families” Paper delivered at Law Week Law Week Seminar, Resolving Disputes By Mediation, 29 April 1987 at 2-3.

36. Family Law Act 1975 (Cth) s16A;ss 64(1)(b), 79(9).

37. “Attorney Supports ADR Moves” (1988) 23 Australian Law News (No 8) at 17.

38. A division of UNIFAM, Marriage and Family Counselling Service NSW, with metropolitan and country branches.

39. Established by the Commonwealth Attorney General in 1985, along with another, since closed, at Wollongong as Family Conciliation Centres to offer a range of pre-litigation options, to all types of families. See Lynda Donnelly “Establishing an Alternative Dispute Resolution Project with a Community Based Philosophy” in Jane Mugford (ed) Alternative Dispute Resolution note 3 ch 1 at 251, and “The Noble Art of Family Mediation “in Robyn McKenzie (ed) Exploring Family Mediation in Australia Papers presented at Family Mediation Seminar, 28 May 1988, (ADRAA, Sydney, 1988) at 14.

40. A Peace Program of the United Nations Association of Australia, Sydney based, but with members throughout Australia.

41. The Australian Institute of Family Law Arbitrators has been formed recently.

42. “How the judge-for-hire beats the Family Court to it” Sydney Morning Herald, 19 August 1988 at 1.

43. See “Standards of Practice for Lawyer Mediators in Family Disputes” (1985) 59 Law Institute Journal 1163.

44. Family Law Council, Arbitration in Family Law 1988.

45. Family Law Council Annual Report 1987-88, at 3, 17.

46. For example, the comments of Chief Justice Nicholson of the Family Court, made at the Bicentennial Australian Law Convention (September 1988), see (1989) 63 Law Institute Journal 306.

47. See Linda Fisher “Community Justice Centres and Family Mediations - Preliminary Findings” in Exploring Family Mediation in Australia, note 39 at 28-29, also Wendy Faulkes “Runs on the Mediation Scoreboard” (1985) 59 Law Institute Journal 206.

48. For example Anti-Discrimination Act ss92,106.

49. In practice this means a variety of processes, including negotiation, mediation, expert appraisal, and conciliation as defined above, and other informal approaches.

50. Equal Opportunity (EEO) Units in government workplaces, and various grievance resolution programs set up by private employers (such as Civil and Civic and IBM) use ADR and conflict resolution techniques widely. An example is the State Rail Authority scheme, see “Alternative Dispute Resolution-An Initiative in the Workplace” ADRAA Newsletter, August 1987 at 2.

51. See for example, Australian Federation of Construction Contractors “Strategies For The Reduction of Claims and Disputes in the Construction Industry - A Research Report”, 1988.

52. Offices exist in Sydney, Perth and Brisbane, and facilities are available in other state capitals. See David A Newton “Alternative Dispute Resolution and the Lawyer” (1987) 61 Australian Law Journal 562.

53. A professional association operating throughout Australia.

54. Established by the Institute of Arbitrators Australia.

55. An initiative of the Alternative Dispute Resolution Joint Committee, which includes the Law Society of WA, ACDC, Citizens Advice Bureau and Institute of Chartered Accountants.

56. (1988) 62 Law Institute Journal 600.

57. (1988) 62 Law Institute Journal 932.

58. (1989) 4 Resolution of Commercial Disputes (No 4) at 1.

59. See Murray Rankin “The Wilderness Advisory Committee of British Columbia: New Directions in Environmental Dispute Resolution?” (1989) 6 Environmental and Planning Law Journal 5.

60. Staff of the Community Relations Service of the US Department of Justice will mediate in communities experiencing civil rights conflicts, see Gordon Pears, Beyond Dispute note 3 ch 1 at 15, 17. Police in the Community Relations Bureau of the NSW Force use mediation techniques in their dealings with target community groups: Detective Sergeant C S Ireland “Alternative Dispute Resolution: A New South Wales Police Perspective” in Jane Mugford (ed) Alternative Dispute Resolution note 3 ch 1 at 213.

61. In the Los Angeles “Canine Court”; see (1988) 74(1) American Bar Association Journal 31.