INTRODUCTION

3.1 The aim of achieving speedy restoration of reputation may be served in some cases by resolving defamation claims outside the court structure. The Legislation Committee on the Defamation Bill 1992, and most submissions to it, were generally supportive of using alternative methods of dispute resolution (primarily mediation) in an attempt to avoid the high costs and long delays common to civil litigation. These problems are especially acute in the area of defamation, where freedom of speech and personal reputation are at stake.

3.2 Mediation is the most prominent of the various methods of consensual dispute resolution, which is:

where a neutral third party uses a structured process in a formal manner and setting to assist the parties to negotiate a mutually acceptable resolution of matters in dispute between them.¹

The Commission wishes to explore whether mediation could be used more widely in defamation cases, in particular, whether it may facilitate the resolution of disputes through publication of a correction, apology or reply.

The benefits of Alternative Dispute Resolution (ADR) in the defamation context

3.3 Costs and delays affect all types of civil litigation. They are exacerbated in defamation actions because of the complexity of the law and the differences in the defamation laws of the various States and Territories. Competent practitioners require specialised knowledge and experience, and as a result there are fewer practitioners available to serve parties’ needs than in less esoteric areas. Genuine plaintiffs seek a rapid vindication of their reputation; a remedy delivered many years later often will be no remedy at all. Defendants wish to exercise their rights of free expression and complain that defending a defamation claim is an unacceptable restriction on that right, which becomes worse the longer the case drags on. Costs also may be increased by the fact that defamation is one of the few areas of civil litigation where juries are still used (unless the parties agree otherwise); this can result in more expensive court time being required, although verdicts are usually delivered more quickly once the hearing is completed.

3.4 An alternative mode of resolving defamation claims offers the promise of reducing costs for all concerned, providing rapid correction of the public record, and removing the threat of excessive awards - the same interests identified when discussing alternative remedies in Chapter 2.

The problem of ADR in the defamation context

3.5 Some plaintiffs may not be interested in vindicating their reputation, nor publicising the truth on a particular issue, but seek only to stifle debate. Some defendants may wish to delay proceedings and wear the plaintiff down, mentally or financially. The costs and delays of litigation are attractive to parties with these attitudes, which may hamper attempts to mediate and finally resolve disputes.

3.6 The nature of the issues in defamation cases (intense personal feelings of the plaintiff, intense commitment to principle - or profitability - on the part of many defendants) makes mediation more difficult in this context than in many others where it has been successful. In the family law context, for example, while feelings are equally or more intense, both parties have an interest in reaching an acceptable solution. In commercial contexts such as building disputes there is often some doubt in the mind of both sides as to the strength and worth of their claim, which creates common ground for a mutually acceptable settlement. However, in many defamation cases the plaintiff will vigorously deny the defamatory imputations while the defendant will insist on its right to publish them. There is little common ground. In addition, the parties do not usually have to maintain a continuing relationship, as do business partners and divorcing parties with children.

3.7 The Defamation List provides ready access to the Supreme Court, and also imposes strict time limits on parties, with costs penalties for delays. This, coupled with the intense commitment of the parties to the dispute, often results in defamation cases being conducted vigorously, with both sides locked into litigation and an adversarial approach. In some other areas of law it may be easier for the parties to stay out of court and resolve the dispute through negotiation.

3.8 From the plaintiff’s point of view, an apology or retraction is the desirable outcome of any mediation process, and is most likely to be accepted at an early stage in the proceedings. Unfortunately, this is precisely the time when the parties are least likely to agree. The plaintiff is angry and upset, but the defendant stands by the imputations while seeking to establish whether it can defend the claim in court. Media defendants in particular are often naturally defensive when complaints are made to them; the professional pride of journalists and concern for their own reputations may hamper attempts to resolve disputes amicably.²

3.9 Concern has been expressed that parties may exploit mediation to gain tactical advantages at any later trial, in particular, by extracting relevant information from the other side without revealing any details of their own case.³ This can be controlled by the mediator to some extent, especially as information will be disclosed only with the parties’ consent, and both parties must agree that the discussions are entirely without prejudice. There is little real prospect of sanctions on parties who attempt to abuse the process - especially defendants (a stay of proceedings could be suggested by the mediator as a sanction on uncooperative plaintiffs).

3.10 In many cases, then, mediation will not be likely to work, and will result only in increasing costs and delays. Against this, it can be argued that where mediation does work, substantial money and time will be saved.

3.11 A fundamental objection to imposing a compulsory mediation process on defamation actions is that many disputes already are resolved by negotiation and settlement. Arguably, where the parties are likely to participate seriously in mediation, they may be able to resolve the dispute themselves.

CURRENT ALTERNATIVES TO LITIGATION

Direct negotiation with publishers

3.12 This usually occurs as a prerequisite to litigation. In some cases, it may achieve resolution of the dispute. For example, in its Submission to the Legislation Committee on the Defamation Bill 1992, News Limited argued that “there is already in place an effective and low-cost informal system whereby publishers frequently retract and apologise”, and often pay the legal costs of the aggrieved party. Greater use of formalised procedures for handling complaints with courtesy and tact could be more successful in avoiding litigation than a mediation system.

Media complaints bodies

3.13 Several methods of resolving media disputes outside the courts already exist in New South Wales. Complaints to these bodies are not confined to defamation, but may result in avoidance of defamation suits.

Australian Press Council

3.14 The Council deals with complaints about the editorial and article content of the print media. Complaints must first be directed to the editor or other representative of the publication concerned; if not resolved, they must be lodged with the Council within three months of publication. The Council requires complainants to sign a waiver of the right to take legal action over the subject-matter of the complaint.

3.15 The Council secretariat may negotiate with the publication concerned and achieve settlement of the complaint; or it may mediate; or it may submit the complaint to adjudication by the Council. Procedures are informal and at no cost to the complainant. While most adjudications are published by the publication concerned (and sometimes by others), there is no power (legal or consensual) to sanction publishers.⁴

3.16 The Council has expressed a willingness to assist in the speedy resolution of defamation claims, making increased use of its facilities and expertise in mediation of complaints against newspapers and magazines. Waiver of legal rights would not be required in appropriate circumstances, such as where litigation has commenced and both parties agree a waiver is not required.⁵ It has been suggested that the composition and funding of the Council would need to be changed to make it a more appropriate forum to resolve general defamation disputes. More than half of the Council members are media industry representatives or journalists, and it is funded by press organisations.⁶ While all major publishers are currently represented, membership is voluntary.

Other media complaints bodies

3.17 While not appropriate for complaints over damage to reputation, other bodies may provide an informal and low-cost service to individuals aggrieved by media activities. The Judiciary Committees of the Journalists’ Section of the Media, Entertainment and Arts Alliance will hear complaints about individual journalists. Many other bodies exist for hearing complaints over published and broadcast material, especially advertising.⁷

Non-media dispute resolution bodies

Commercial contexts

3.18 Professional mediators are available to parties willing to bear the cost through the Australian Commercial Disputes Centre and similar bodies. Professional associations such as Lawyers Engaged in Alternative Dispute Resolution (LEADR) accredit their members as mediators or specialists in dispute resolution.⁸

Local community contexts

3.19 Defamation claims occasionally arise between neighbours or other people in ongoing relationships at a local level, for example, in sporting clubs. Mediation of community disputes is available through Community Justice Centres and similar bodies.⁹

Summary

3.20 There are many alternatives for resolving disputes; but there are clearly many cases where the services provided by these bodies are inadequate. Considerable time and resources are used up in fighting defamation claims in the courts, with results both uncertain and inappropriate (plaintiffs either get damages or nothing, as discussed in Chapter 2). Mediated settlements leading to the publication of a correction (with or without financial compensation) would better suit the interests of the parties and the public.

ISSUES TO BE RESOLVED

3.21 The Hon A R Moffitt CMG QC, in a detailed submission to the Legislation Committee on the Defamation Bill 1992, raised several issues to be resolved in any mediation scheme for defamation actions:¹⁰

• Should mediation be compulsory in all cases? If not, in what cases should it be used?
• When and how often should mediation sessions be held?
• Who should attend them?
• Should there be any obligations on the parties to disclose information? If so, when and what information? Should disclosure be made privately to the mediator only? Who should disclose first?
• What sanctions should there be on parties who abuse the process?
• Who should bear the costs of the mediation process if it does not succeed?

In addition, other questions must be resolved, such as:

• What qualifications and attributes should a mediator have?
• What is the role of the mediator?

Should mediation be compulsory in all cases?

3.22 Advantages. Compulsory mediation forces parties to negotiate. Even parties who are initiating or defending a claim for ulterior purposes may come to realise that lengthy and costly litigation is not in their interests. It is possible that the adversarial posture and the accompanying hostility of litigation could be avoided. This may encourage the settlement of disputes without the involvement of the courts, effectively promoting the current informal system.

3.23 Disadvantages. There are serious objections to compulsory mediation. From a policy point of view:

...there is undeniable concern that mandatory participation is a denial of access to justice through the courts, that parties are subject to unacceptable pressures to settle, and also that mandatory mediation is a contradiction in terms. Coercion may come about by compulsion to participate, and from covert structural pressures and procedural hurdles which create pressure to settle. Others believe that pressure to enter consensual ADR is acceptable so long as there is no coercion within the system.¹¹

These concerns are especially serious if the proposals of several media groups are adopted and mediation must be attempted before a plaintiff may sue.¹²

3.24 From a practical point of view, there may be many cases where mediation is unlikely to succeed. In those cases, forcing parties to negotiate would only increase tension and waste time and money.

3.25 If mediation is not to be compulsory in all cases, in what circumstances should it be used? Possible criteria in deciding whether to arrange mediation include:

(1) when both parties agree to participate;

(2) when the defamation is essentially “accidental” and not researched and intended by the defendant;¹³

(3) where there are multiple issues which could apparently be narrowed;¹⁴

(4) on the other hand, where there are no lengthy and complicated issues of fact;

(5) where one party has significantly less resources than the other and cannot afford a full trial.

Where some of these criteria ((1), (2) and (4)) are present, the parties may be able to resolve the dispute without court involvement at all, as discussed above. The Commission welcomes submissions on ways of determining when mediation should be used.

When should mediation occur?

3.26 As mentioned above, several media groups proposed that parties should be required to attempt mediation before being allowed to commence proceedings. This is likely to be a waste of time and money and a denial of access to justice if it is recognised that mediation sometimes will be futile or inappropriate.

3.27 Mediation should be attempted as soon as possible after publication, given that the objective is to settle on a correction (which will be ineffective if published too long after the defamatory matter). The Legislation Committee proposed the following procedure:

Compulsory pre-trial conferences before a court-appointed mediator, within a short period (say 7-10 days) of the issue of a writ [sic], at which conference mediation and the issues of accuracy or correction can be explored.¹⁵

This proposal is that a conference should be compulsory soon after proceedings have commenced. At that conference, the possibility of resolving the dispute through mediation can be explored. The mediator would be able to terminate the proceedings at any stage if mediation appeared hopeless and the parties’ battle lines were drawn.

3.28 If the aim of the conference is to assess the parties’ attitude to mediation, this could be done by the judge at the first directions hearing, which in many defamation cases in New South Wales is held within 7-10 days of commencement of proceedings by issue of a statement of claim. This would avoid the clash which could otherwise result if the first directions hearing and the conference were both to be held within 7-10 days of commencement.

3.29 The other possibility is to hold the conference after a defence has been filed. This would help to define the issues in dispute. However, it may also delay the mediation session for too long for a published correction to be satisfactory, and allow the parties to become locked into litigation. To define the issues at the mediation session, the defendant could be required to present “points of defence” only.

Who should attend the conference and mediation sessions?

3.30 Several submissions argued that lawyers should not be present at conferences.¹⁶ However, this could put the inexperienced personal plaintiff at a disadvantage. Representatives of media defendants may attend many such conferences and so be far more experienced and comfortable with the procedure. Imbalance of power between the parties is potentially a serious problem in any informal dispute resolution mechanism.¹⁷

3.31 The question then is whether the parties themselves should be present. The intensity of feeling discussed above may obstruct settlement.¹⁸ In many cases, however, settlement is more likely to be reached if the parties do see each other. Plaintiffs may appreciate the opportunity to put their grievances directly to the defendant, who may realise the harm that their publication has done. It has been suggested that, in media cases, the journalist who wrote the material should not be present; professional pride and attachment to the story as written may hamper attempts to settle.¹⁹ However, it seems more likely that settlement will be reached if plaintiffs can ask the journalist directly what steps were taken to research the material and so on. Both sides would then have some chance to understand the other’s position; the plaintiff may realise that the defendant in fact acted reasonably, or the defendant may realise that the story has no foundation. For this reason, both the journalist and someone with authority to settle (such as an editor or news director) normally should be present.

3.32 Thus, in the Commission’s preliminary view, the parties should attend in person, with someone who has authority to settle if necessary. Both parties should be permitted to bring lawyers.

What procedures should be adopted, especially with regard to disclosure of information?

3.33 The conference should be informal and not governed by any special rules regarding disclosure of information. As with most mediation sessions, the mediator should meet each party separately and ascertain their attitude to the case, the issues in dispute, the information they are willing to disclose, and the result sought. This will help to focus further discussion. The information gained by the mediator should not be disclosed without the consent of the party, but would be useful for the mediator’s attempt to reach settlement.²⁰ The proceedings should be confidential and details of what occurred during them should not be admissible in later litigation.

What role should the mediator play?

3.34 The aim of mediation should be to assist the parties to reach their own solution. Therefore, the mediator should assist the parties to analyse the dispute and concentrate on areas of disagreement. The mediator’s role is to advise the parties and guide their discussion about relevant issues and information. The mediator may offer suggestions and point out things the parties may have overlooked, helping to clarify issues. The mediator may work with both sides to establish realistic, acceptable claims and offers.²¹ No power to order a remedy should be given.

3.35 When meeting each party separately, the mediator should be entitled to make proposals as to the areas which should be discussed, and suggest solutions. The mediator would then be able to assess each party’s attitude to settlement on terms such as publication of a correction and the payment of costs.

3.36 If mediation results in the publication of a retraction, apology or reply (whether pursuant to the mediator’s recommendation or otherwise), but the dispute is not settled and litigation proceeds, this could bring to defendants the benefit of the correction defence proposed in Chapter 2 and bar general damages.²²

Should there be sanctions on parties who abuse the process?

3.37 One proposal was that the mediator be empowered to recommend a solution, such as publication of a correction and payment of costs. If litigation proceeded, sanctions could be imposed at the assessment of damages stage on parties who did not accept the recommendations of the mediator.²³ This would go beyond mediation, which is consensual dispute resolution - helping the parties to reach their own solution. Knowledge that the mediator was empowered to recommend a solution, which could have costly consequences if not accepted, would be counterproductive and inhibit attempts to reach settlement.

3.38 Thus, the only “sanction” available on parties who abuse the process and do not act in good faith would be termination of the process and continuation of litigation.

Who should bear the costs of mediation?

3.39 Successful mediation normally would include an agreement as to costs. If mediation fails and litigation proceeds, it may be simplest to provide that costs of mediation will follow the result. If mediation fails but the litigation is discontinued, each party would normally bear their own costs.

3.40 If mediation were to be made a prerequisite to suit, media groups may be willing to bear the cost of the mediation sessions, given that they are effectively being insulated from litigation.²⁴ This would mean mediation would be compulsory only before suing a media defendant (unless the system was made available for the mediation of all defamation claims). However, as discussed above, mediation should not be compulsory.

3.41 Print media organisations already fund the Australian Press Council which can mediate complaints. In England, the Supreme Court Procedure Committee examining Practice and Procedure in Defamation (the Neill Committee) received suggestions that publishers may be willing to fund an arbitration system, which would have the power to award modest amounts of compensation.²⁵ Using this system would presumably bar the plaintiff from suing for defamation and receiving damages. If such a system was cost-effective for publishers, it could possibly be set up here. Media groups may feel, however, that this would encourage claims against them. In addition, as the Neill Committee stated, issues such as when this system could be used and the relationship between this system and the traditional court process would need to be resolved.

What qualifications and attributes should the mediator have?

3.42 This issue was extensively canvassed before the Legislation Committee.²⁶ Most submissions agreed that a panel of suitable mediators should be established. The primary quality was an ability to “sensibly and strongly” resolve the dispute. Knowledge of the law and the media industry would be required, as would experience in the conduct of mediation. This tends to suggest either media lawyers or journalists with some legal training. The former may be thought to intrude excessive legalism and formality into the process, while the latter may be objected to as possibly appearing biased towards media defendants. Nevertheless, many people with the requisite attributes could be found. A set of proposed mediators could be put forward by each party.

Giving mediators a more active role

3.43 It may be helpful to explore whether mediators could play a more active role in the resolution of defamation disputes.

Fact-finding powers

3.44 The mediator may be empowered to investigate the facts of the case and state findings. These findings could be used by the parties to negotiate a possible settlement.²⁷ The problem is that the mediator would need coercive powers to compel the production of documents and the answer of interrogatories and so forth. Without these powers, the version of the facts arrived at by the mediator is likely to be incomplete, or at least quite different to the version which would be established in court.

Expert appraisal

3.45 The mediator may be empowered to offer an assessment of the relative strengths and weaknesses of each party’s case, and an opinion on how the dispute would be likely to be resolved in court and why. Again, without coercive powers to examine evidence it seems likely that any version of the facts arrived at by the mediator would be quite different to the version established in court, and this would reduce the usefulness of the mediator’s opinion. However, it would be possible for a mediator to offer an expert opinion on whether the imputations arise and are defamatory, and the likelihood of the various defences succeeding.²⁸

AN ARBITRATION SYSTEM?

3.46 The system discussed above is little more than a gloss on the litigation process, although it may be effective in avoiding litigation in many cases. It may be possible to remove defamation disputes from the courts altogether and resolve them in an alternative forum. Since informal negotiations do not always reach settlement, and mediation (even if compulsory) is unlikely to do so either, it would be necessary for an alternative process to include the power to impose a remedy. This would mean some kind of arbitration system.

3.47 The proposed benefits of such a system would be a reduction in complexity, delay and cost. It may also facilitate the use of more appropriate remedies than damages, designed to restore the plaintiff’s reputation. It may also provide a system in which inexperienced parties feel less alienated and more in control of the issues.

3.48 The possible models of informal (or less formal) adjudicative processes are varied. All of them do require some kind of structure, and it is arguable that the complexity of the issues in many defamation cases would require something looking very much like a traditional court case for their resolution. Another drawback is that a new arbitration system would require the commitment of funding and resources to establish and run it, although it may be cheaper than relying on the courts.

The Libel Dispute Resolution Program

3.49 A comprehensive proposal for the resolution specifically of defamation disputes has been developed by the Iowa Libel Research Project.²⁹ The Libel Dispute Resolution Program (“the Program”), which is being run in conjunction with the American Arbitration Association, provides a voluntary process for resolving media libel cases outside the courts.

3.50 Disputes to be submitted to the Program should be likely to be seriously litigated. They must involve statements of a factual nature which have damaged the plaintiff’s reputation, since the truth or falsity of the statements and the existence of harm to reputation are the only issues to be decided. (Malice, if any, on the part of the defendant is irrelevant). The plaintiff must identify the specific statements alleged to be false; show that they have caused harm to reputation; and (unless the parties agree otherwise - which seems unlikely) prove that they are false.

3.51 Staff of the Program will explain the procedures available and help the parties to decide which of them to use. The parties negotiate the details of the process and the remedy to be available, which will usually be a written finding by the “neutral” on the falsity issue. The defendant would usually agree to publish or broadcast these findings or pay for their publication or broadcast in a comparable medium. The parties may agree on any other non-monetary remedy, and on whether costs should be awarded to the winning party. These agreed-upon details of the procedures and the remedy are included in a submission agreement, which also states that the parties agree to waive further legal action.

3.52 The “neutral” is the arbitrator who will conduct the formal hearing. Within seven days of signing the submission agreement, the neutral is selected or appointed. The parties advise which of a list of neutrals is acceptable, and the administrator of the program selects one. Any contacts or interests between the parties and the neutral must be disclosed.

3.53 The program is tightly scheduled, with strict time limits. Within 21 days of signing the agreement and commencing the program, a structured exchange of information takes place in lieu of discovery (although the parties can agree to discovery). The information is subject to agreement, but may include: identification of witnesses and a summary of their evidence; description of physical evidence; copies of documents; summaries of claims and defences and underlying facts; and offers of admission and stipulation. This information is relied upon at the hearing, although the neutral has a discretion to admit other information.

3.54 Parties may then agree to hold a settlement conference with a mediator or special master (who provides expert appraisal of the case). This must be held within 30 days of the program’s commencement. It requires the attendance of both parties and their lawyers, and is designed to reduce the scope of the dispute and encourage settlement discussions.

3.55 Alternatively, parties may proceed directly to a hearing, in which case they need only have a telephone conference with the neutral beforehand to resolve questions over information to be exchanged and the conduct of the hearing. The hearing must be held within 50 days of commencement. The parties, by mutual agreement, control the range of issues to be resolved, the remedy available, and the procedures used. Generally, the plaintiff presents its proofs and witnesses first, and these may be examined. Conformity to the rules of evidence is not required. On request of the neutral, the parties “shall” produce whatever additional evidence is sought; the neutral has powers to subpoena witnesses or documents. The neutral is “empowered to take whatever steps seem appropriate for non-compliance with the procedures.”

3.56 The neutral must issue a finding within 10 days of the conclusion of the hearing. The entire program should be completed within 75 days of commencement.

Assessment of the Program

3.57 The first issue to be noted is that the Program is designed to avoid many of the faults of United States libel law, only some of which exist in New South Wales. It is designed to reduce delays, costs, and the use of judicial resources, which could be beneficial here. However, most problems of United States law derive from the focus on the defendant’s state of mind, irrelevance of the issue of truth or falsity, and intrusion into editorial processes, which are required by the public figure test.³⁰ United States contingency fee arrangements also may encourage speculative litigation; such arrangements could not be used under the Iowa program, because no damages can be awarded. Contingency fees are not yet available in New South Wales, although a form of these may be permissible soon.

3.58 The absence of damages may be thought to remove the main deterrent to media carelessness. The promoters of the Program counter this by arguing that regular findings of falsity will be a significant deterrent to media excesses.³¹ In reply, it is noted that the relaxation of the rules of evidence may enable media defendants to establish their version of the facts more easily (remembering that the plaintiff in the United States must prove falsity). It must be asked whether there will be any real or perceived difference between a finding of “truth” by an arbitrator, and a finding by a court.

3.59 If the Program were adapted for use in New South Wales, the onus could be left on the defendant to prove truth, to compensate plaintiffs for having no chance of damages (see the discussion of declaratory judgments in Chapter 2). The relaxation of the rules of evidence could make things easier for defendants; and the arbitrator could, in appropriate circumstances, issue creative findings such as “truth has not been established, but the defendant acted reasonably in publishing the material”. It must be noted that the Program’s requirement that the plaintiff prove the existence of harm to reputation would be a radical change to the law if introduced in New South Wales: here harm to reputation is presumed.

3.60 One difficulty is that the arbitration hearing could well become a mini-trial, depending on the complexity of the procedures agreed upon by the parties.

3.61 The most fundamental criticism of the Program is a variant of that directed at all alternative dispute resolution proposals for defamation. If the parties were amicable enough to agree on the many details that are left to their discretion, they probably would be amicable enough to resolve the dispute themselves without help.³²

3.62 In practice the Libel Dispute Resolution Program has not been as successful as was hoped. During a three-year research phase (1987-1990), lawyers acting for parties in 128 libel disputes were contacted and asked whether they wished to use the Program. Only five disputes were formally submitted to the Program; only one was successfully resolved. Some responsibility for this failure apparently can be attributed to resistance from media and plaintiff lawyers.³³

ISSUES ARISING IN CHAPTER 3 - ALTERNATIVE DISPUTE RESOLUTION

1. Given the current alternatives to litigation, is it desirable to create a formalised system aimed specifically at the resolution of defamation disputes outside the court structure?

Mediation

2. Should mediation be compulsory in all defamation actions?

3. If not, in what circumstances should mediation be used?

4. When should mediation occur - before suit; after issue of a statement of claim; or after filing of a defence?

5. Who should attend mediation sessions - lawyers? the parties themselves? the journalist who wrote the article in the case of a media defendant?

6. Should there be any formal rules governing procedure and disclosure of information at mediation sessions?

7. Should the mediator’s role be restricted to helping the parties to find their own solution? Or should the mediator have any power to make findings of fact, offer an expert opinion on the likely result at trial, or recommend a solution?

8. Should there be any specific rules governing payment of the costs of mediation?

9. What qualifications and attributes should the mediator have?

Arbitration

10. Should an arbitration system designed specifically for the resolution of defamation disputes be created? Would such a system be cost-effective?

11. Should participation in such a system be entirely voluntary? If so, would many disputes be submitted to it?

1. New South Wales. Law Reform Commission Training and Accreditation of Mediators (Report 67, 1991) at para 2.5.

2. R P Bezanson, G Cranberg, J Soloski, Libel Law and the Press: Myth and Reality (Free Press, New York, 1987) at 29-53; R M Ackerman “Defamation and alternative dispute resolution: healing the sting” (1986) Missouri Journal of Dispute Resolution 1 at 18-20; R A Smolla “Taking libel reform seriously” (1986-7) 38 Mercer Law Review 793 at 804-807.

3. The Hon A R Moffitt CMG, QC Submission to NSW Legislation Committee on the Defamation Bill 1992 (23 March 1992) at 4-6.

4. Australian Press Council Annual Report No 16 (Sydney, 30 June 1992) at 58-62, 143; M Armstrong, M Blakeney and R Watterson Media Law in Australia: A Manual (2nd edition, OUP, Melbourne 1988) at 208.

5. Australian Press Council Submission to NSW Legislation Committee (10 February 1992) at 17-18.

6. Law Council of Australia Submission to NSW Legislation Committee (30 January 1992 - first drafted 27 February 1991) at 15-16; Law Institute of Victoria Submission to NSW Legislation Committee (14 February 1992 - first drafted March 1991) at 19-20.

7. Australian Press Council Annual Report 16 at 175-176.

8. NSW LRC Report 67 at paras 2.24-2.25, Appendix D.

9. NSW LRC Report 67 at paras 2.19-2.20, Appendix B.

10. Moffitt at 4.

11. NSW LRC Report 67 at para 6.22.

12. Australian Broadcasting Corporation Submission to NSW Legislation Committee (7 January 1992); John Fairfax Group Pty Ltd Submission to NSW Legislation Committee (7 February 1992); Australian Press Council Submission to NSW Legislation Committee (17 June 1992) at 6-9.

13. A A Henskens Evidence before the Legislation Committee on the Defamation Bill 1992 (19 February 1992) at 23-24.

14. Moffitt at 7.

15. Legislation Committee on the Defamation Bill 1992, Report on the Defamation Bill 1992 (Legislative Assembly, Parliament of New South Wales, October 1992) (NSW Legislation Committee Report) at 155. Note that defamation proceedings in New South Wales are commenced by statement of claim, not by writ.

16. Australian Broadcasting Corporation Submission to NSW Legislation Committee (7 January 1992), although the ABC later conceded that parties should be permitted to bring lawyers: Submission to NSW Legislation Committee (7 August 1992) at 4; Australian Society of Authors Submission to NSW Legislation Committee (24 March 1992) at 1.

17. NSW LRC Report 67 at paras 4.19-4.20 (“empirical studies of informal dispute resolution have found that the rhetoric of self-determination and voluntary participation is matched with the realities of capitulation and coercion.”)

18. M G Sexton Evidence before NSW Legislation Committee (18 February 1992) at 70.

19. P L Bartlett Evidence before NSW Legislation Committee (18 February 1992) at 25-26.

20. Moffitt at 7.

21. J Soloski and R L Wissler “The Libel Dispute Resolution Program: a way to resolve disputes out of court” in R T Kaplar (ed) Beyond the Courtroom: Alternatives for Resolving Press Disputes (The Media Institute, Washington, 1991) at 92.

22. Although the proposed time limit for publication of a correction (seven days from issue of a statement of claim) may not be satisfied if the defendant waits for mediation to be completed. This would provide incentive for defendants to begin negotiating earlier.

23. Australian Press Council Submission to NSW Legislation Committee (17 June 1992) at 8.

24. Australian Broadcasting Corporation Submission to NSW Legislation Committee (7 January 1992) suggested that a system of compulsory mediation before suit could be funded by publishers on a levy basis loosely related to output and / or circulation; there would be no cost to the complainant.

25. England and Wales. Supreme Court Procedure Committee Report on Practice and Procedure in Defamation (July 1991) at 160-162.

26. NSW Legislation Committee Report at 131-155. The Commission has already considered the question of desirable attributes for mediators in its Report on Training and Accreditation of Mediators (NSW LRC Report 67), especially ch 3.

27. Ackerman at 20-25.

28. The Hon Justice M J R Clarke Evidence before NSW Legislation Committee (8 September 1992) at 16.

29. Full details of the methods and findings of the Project can be found in Bezanson, Cranberg and Soloski (1987). This summary of the Libel Dispute Resolution Program is drawn from Soloski and Wissler in Kaplar (ed) at 83-111.

30. See Chapter 10 below.

31. R L Wissler, R P Bezanson, G Cranberg and J Soloski “Resolving libel cases out of court” (1988) 71 Judicature 197 at 201.

32. D Bartlett “Alternative routes to conflict resolution: is this trip necessary?” in Kaplar (ed) at 122.

33. R L Wissler, R P Bezanson, G Cranberg, J Soloski, and B Murchison “Resolving libel disputes out of court: the Libel Dispute Resolution Program” in J Soloski and R P Bezanson (eds) Reforming Libel Law (Guilford Press, New York 1992) at 294-310. The authors note that this low participation rate is typical of voluntary ADR programs in other areas of the law. See also D J DeBenedictis “Little interest in libel ADR”, American Bar Association Journal (January 1992) at 22.