THE PROBLEM OF DEFINITION

2.1 A fundamental issue for the Commission was to define the boundaries of dispute resolution for the purposes of this reference. The problem was created by the diverse range of alternative dispute resolution practices in use, the divergent and even conflicting goals, ideologies and assumptions driving them, and the resulting confusion over terminology.

2.2 This Chapter explains that consensual dispute resolution has been the focus of the Commission’s enquiries, and why this approach has been adopted. Without limiting the application of recommendations contained in this Report, the Commission identifies the relevant processes and presents an overview of the current state of consensual dispute resolution practice in New South Wales and the rest of Australia. The processes and activities which the Commission considers fall outside the terms of the reference and its recommendations are indicated.

Alternative dispute resolution

2.3 There is no universally accepted definition on which the Commission can rely for specifying the dispute resolution processes to which its recommendations should apply. The most commonly used term is alternative dispute resolution (ADR). The processes which are given this label show a range of characteristics from ADR’s constituent elements. It may be alternative in procedure, attitude, institutional structure, forum; or in the nature of disputes. The disputes range from those falling within the judicial system, those dealt with by the administrative system, to those for which a litigated solution is either inappropriate, not desired or unavailable. Resolution is achieved predominantly by consensual means, although directive and adjudicative approaches may be used, either initially or if agreement is not possible; and it may have a binding or non-binding status. The various processes which broadly fall within the boundaries of ADR exhibit a complex matrix of characteristics related to the degree of confidentiality, procedural formality and privacy, the role of participants, the role of substantive legal rules, the nature of participation (ie where control of participation, process, content and outcome lies) and the status of the outcome.

2.4 On its widest interpretation, ADR incorporates everything from procedural reforms in the courts and more efficient case management techniques, adjudicative procedures by non-judicial personnel through the now familiar applications of commercial, community and family mediation, to the private operation of grievance handling mechanisms in organisations and the non-specific activities of intermediaries and the use of conflict resolution techniques. The Commission considers that this approach sets too broad a scope and that practices at either end of such a spectrum lie beyond the scope of ADR envisaged by the Commission’s reference.

DESCRIBING CONSENSUAL DISPUTE RESOLUTION

2.5 The focus of this reference is on the activities of neutral third parties in what the Commission describes as consensual dispute resolution, that 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.

Processes which fit this description of the general model include mediation and conciliation. These and other processes are explained below.

2.6 There are several key elements to the processes which fall within this description. The first is the participatory role of the parties who have responsibility for negotiating a mutually acceptable resolution of their dispute. Another is the impartiality of the neutral third party whose function is, by using a structured process, to assist the parties to negotiate a resolution, without power to impose the fact or terms of a settlement. Frequently, negotiation and the settlement focus on the full range of interests and needs of the parties, (substantive, procedural and psychological) rather than strictly on their legal rights. The setting is formal rather than casual. The Commission recognises that these key elements may not always be fully displayed in the processes it considers to fall within the definition of consensual dispute resolution, either because of constraints imposed by the legal or institutional context, or by choice. Variations to the general model will occur, without necessarily placing the process outside the terms of the reference.

2.7 The description does not distinguish between the resolution of disputes in private and those resolved publicly in the justice system or administration. However, not all resolution of disputes between citizens in private will occur in a sufficiently formal setting or with sufficient formality of procedure to fall within the description adopted by the Commission. These exclusions are considered later in this Chapter.

The rationale

2.8 The Commission has adopted this approach for several reasons. In Australia the practice of ADR is only a relatively recent development. The phase of vigorous expansion, experimentation and innovation in the last decade is certain to continue.

Existing programs and processes are being refined with experience. New and more appropriate processes and forums will be created as ADR is applied more extensively and refined. It is both premature and potentially detrimental to impose rigid demarcations at this time. The Commission accepts that there is a need to preserve this flexibility and that our recommendations should not unduly inhibit innovation and experimentation.

2.9 This approach accommodates the current situation where terminology may not be agreed, and institutional, substantive and theoretical variations make more rigid classi-fication both frustrating and futile.¹ The Commission has neither the obligation nor the capacity to prescribe definitions in the field of dispute resolution so as to reduce confusion and disagreement. It may well be necessary to determine more precise definitions for particular purposes such as funding, but that is unnecessary for the purposes of this Report and the recommendations made by the Commission. The better approach is to consider and reflect current practices and allow the boundaries to emerge rather than superimpose them uneasily from outside. Accordingly, the Commission includes an overview of current dispute resolution programs and activities in the Report and has prepared the accompanying Directory of Dispute Resolution.

PROCESSES OF CONSENSUAL DISPUTE RESOLUTION

2.10 Withoutlimitingthedescriptionofconsensualdisputeresolution,theCommis-sion considers that the following processes are within the concept.

Mediation: a structured negotiation process in which a neutral impartial third party, the mediator, independent of and acceptable to the parties, facilitates their agreement on a resolution of their dispute by assisting them systematically to isolate the issues in dispute, to develop options, and to reach a mutually acceptable resolution which accommodates the interests of all disputants as much as possible. If requested, the mediator may suggest options for settlement but does not have authority to impose a settlement or its terms on the parties.²

Conciliation: is widely understood in Australia to be a process similar to mediation but one in which the conciliator has greater authority or respon-sibility for the terms in which the dispute is resolved by the parties. This occurs either with the consent of the parties or, in many cases, within the terms of legislation under which the conciliation is being conducted. Party participation in the process may also be required under that legislations.³

The model of community mediation widely used in Australia defines conciliation to be the activities of a neutral third party bringing the parties together for the purposes of dispute settlement without becoming involved in the process of mediation.⁴ In this setting it is undertaken by staff rather than mediators and is outside consensual dispute resolution as described in this Report. Dispute counselling would be excluded on similar grounds.⁵

Independent expert appraisal: an independent expert in the subject area of the issues in dispute is appointed to investigate and deliver an opinion on the issues in dispute which may or may not be binding. ‘Me expert often uses mediation techniques, particularly where the opinion is used as the basis of a negotiated settlement.

Facilitation (Moderation): a collaborative process in which a neutral person manages the process by which disputes with multiple parties or interests are resolved by participants reaching consensus on the issues. The disputes are often about matters such as environmental issues, or large community disputes, although the process is also used for commercial disputes.

Case presentation (Aust) - Mini-trial (USA): a structured information exchange followed by negotiation between representatives of the parties in dispute. Brief and concise summaries of each party’s case, and sometimes evidence from expert witnesses, are presented to all parties. The parties then negotiate a settlement, sometimes with the assistance of an independent third person managing the negotiations. This process is usually adopted by corporations, with negotiations conducted by senior representatives of the company who have the authority to settle.

Mediation hybrids: dispute resolution processes which combine the con-sensual features of mediation with the more authoritative resolution meth-ods of arbitration. These include expert appraisal with provision for mediation, appraisal, senior executive appraisal, summary jury trial and neutral-expert fact-finding.⁶ The role of a neutral third party is often to mediate with the parties as many issues as possible. With the consent of the parties, or in compliance with legislation, the issues which remain in dispute are submitted to adjudication. In some versions the same person performs the two roles; in others the facilitating and adjudicative roles are split.⁷

Exclusions

Arbitration

2.11 Arbitration is adjudicative, not consensual, dispute resolution, and outside the focus of this reference. Nevertheless it is closely associated with processes for facilitating a negotiated settlement of a dispute. Recent amendments to the Commercial Arbitration Act 1984 strengthen its provisions for both arbitrators and parties pursuing non-arbitral means of settlements.⁸ Many of those who practise commercial arbitration are also on the Register of Concfliators and Mediators drawn up by the Institute of Arbitrators Australia. The Arbitration (Civil Actions) Act 1983, which has effect in the New South Wales Supreme, District and Local Courts, requires arbitrators to attempt conciliation between the parties.⁹ It is possible that mediation is attempted before arbitration or determination by a referee in matters referred under the Supreme Court Rules Part 72 and Part 72A.

2.12 Although the primary adjudicative function of arbitrators is outside consensual dispute resolution, there are many issues considered in this Report which have direct relevance to their role in facilitating consensual dispute resolution. As well, many issues are relevant to their primary role. The recommendations concerning the Dispute Resolution Database could be considered to extend to arbitration, particularly court connected arbitration. Similarly, the comments in Chapter 6 concerning guidelines for design of court-connected programs are apposite.

Case management procedures

2.13 There has been considerable progress made within court administration in recent years to address the perceived problems of delay and costs. Many initiatives in procedural reform and case management techniques involve a greater degree of non adjudicative activity by judicial and quasi-judicial officers, and administrative intervention in both the pre-trial process and hearing to facilitate settlement of an action or narrowing of the issues for judicial determinations.¹⁰ The Commission believes that informal or procedural encouragement or assistance to parties and their counsel to settle matters does not constitute a consensual dispute resolution process for the purposes of this reference. However, where there is a distinct procedure occurring in a formal setting in which a neutral third party uses a structured process in order to facilitate negotiation by anyone involved in the conduct of the matter with a view to encouraging a settlement or at least narrowing the issues in dispute, this would fall within the boundaries. For example, Issues and Listings Conferences in the Supreme Court would be considered a consensual dispute resolution procedure whilst a trial judge urging the parties to find a settlement themselves would not.

Administrative dispute processing

2.14 Similar distinctions need to be made for the use of consensual dispute resolution procedures in association with proceedings in administrative tribunals, and generally pursuant to the administration of departments, agencies and legislation. The establish-ment of separate forums and tribunals for the more appropriate resolution of disputes in particular categories has usually involved the adoption of less adversarial and more informal procedures which encourage negotiation of a settlement between the parties. As well, approaches to the processing of grievances, complaints and disputes which occur within administrative agencies use procedures which aim to resolve disputes by means which avoid courts and value compromise. The Ombudsman is one example. In determining whether a procedure falls within the concept of consensual dispute resolution, the Commission would use the test of whether there is a distinct or separate procedure in a formal setting in which a neutral third party uses a structured process to facilitate the negotiation of a settlement by the parties themselves. According to this, conciliation by the Anti-Discrimination Board would be included, while the Chairman of the Motor Vehicle Repairs Disputes Committee “using his best endeavours to settle the dispute” would not.¹¹

Informal conflict resolution

2.15 Structures and techniques for the prevention and processing of grievances and disputes in organisations, social groups and interpersonal relationships have been implemented in response to recent community interest in conflict management and conflict resolution. These occur within an organisational structure such as a school, workplace or community group, or are used at an interpersonal level. In the latter sense, conflict resolution processes merge with the field of personal growth and development. Alternatively, they may be a management response to conflict, either on an informal basis or formally with the creation of a dispute processing system.¹²

2.16 Some examples serve to indicate the diversity of dispute and conflict resolution activities which currently exist.

• Conflict Resolution Network activities, including conflict counselling, meeting facilitation, and mediation.
• Management consultancy techniques of mediation, conciliation, and fa-cilitation of negotiation.
• Dispute processing or grievance handling mechanisms created in firms and organisations for personal and industrial disputes which arise internally eg State Rail, Civil & Civic.
• Certain occupations are called upon to perform in the role of conciliator or mediator, eg architects under standard form contracts.
• Crisis mediation, such as that by police in civil emergencies.
• Celebrity mediation, where the intermediary’s status brings parties in dispute together .¹³

2.17 The Commission considers that these applications generally will not amount to a sufficiently formal procedure and setting to be considered to fall within consensual dispute resolution as described for the purposes of the reference. For these activities questions of quality and accountability will be private issues, for the parties or management. However some will be appropriate for inclusion in the Database. The exact terms of the guidelines for inclusion should be determined by the Advisory Council recom-mended by the Commission.

OVERVIEW OF CONSENSUAL DISPUTE RESOLUTION

2.18 Inthissection,theCommissionpresentsanoverviewofcuffentdisputeresolution practices which it considers within the boundaries of its terms of reference. The area is developing rapidly; it is a constantly changing picture. The categories by which dispute resolution programs and activities were presented in the Discussion Paper have been maintained in the Report, although it is acknowledged that the distinction based on substantive contexts may not always be the most helpful. Included are the activities of public and private bodies and agencies, government and non-government bodies and associations. As the private practice of consensual dispute resolution is difficult to document, few references are made to private practitioners.

Community mediation

2.19 Several agencies offer mediation to the communities in which they are located. These are listed in Appendix B. Their aim is to provide a mechanism for the inexpensive, expeditious and fair resolution of minor civil (and sometimes criminal) disputes between people in ongoing relationships. Their preferred method of dispute resolution is mediation, although conciliation and dispute counselling services are also provided. They were inspired by the neighbourhood justice movement in the United States, although there is now an identifiable Australian model of community mediation, pioneered by the Community Justice Centres (CJC) in New South Wales which has been adopted in Victoria, Queensland and the Australian Capital Territory. These centres are government funded and are usually under the administrative responsibility of the Attorney General. The Victorian Dispute Resolution Centres have community management committees with administrative and policy functions. In other States, centres have been established at the instigation of the local community, or another community legal or advice agency.

2.20 Mediators are “ordinary people” selected from the local community and trained for their role as neutral third parties to assist the disputants to negotiate an agreement on any matter in dispute between them. The selection seeks to reflect the diversity in age, ethnic and social backgrounds of the community in which they operate. Community mediation is offered for disputes between neighbours, family members (including matters arising in the separation and dissolution of marriage) and members of groups in the community, and for disputes arising in the workplace and over commercial transactions. Other areas in which community mediation is being applied are environmental disputes and public and private multi-party disputes. CJC mediators are being used in a pilot project for the mediation of civil claims in the Local Court, Sutherland.

Family dispute resolution

2.21 Consensual dispute resolution services are available for a range of family situations in which conflict can arise: general family and inter-generational conflict, specifically for parent/adolescent conflict, disputes between separating and divorcing spouses, and for de facto and homosexual couples. Mediation and conciliation are the dominant processes used, although family law arbitration and private judging are also available. The Commission distinguishes, for the purposes of this reference, marriage and family counselling and therapy services, none of which is a Consensual dispute resolution process within the Commission’s description.

2.22 The Family Court has emphasised non-adversarial approaches to the resolution of matters coming under the Family Law Act 1975 (Cth), whether or not dissolution of the marriage is sought.¹⁴ Conciliation is conducted by counsellors and Registrars of the Court, generally for custody, and for property and financial matters. In some Registries, joint conferences are conducted by a Registrar and a counsellor for all matters in dispute. The Family Court has recently considered the establishment of a separate stream within the Court of family mediation to be conducted by Family Court mediators.¹⁵ The proposal is accepted in principle and preparations are now being made for a pilot project in one or two Registries.

2.23 Outside the Court, a range of approaches has been adopted. Several private and government sponsored agencies throughout Australia offer family mediation. These are listed in Appendix C. Many are funded by the Commonwealth Attorney-General’s Department for the mediation of disputes which may otherwise result in litigation through the Family Court. Some community mediation centres have a significant caseload relating to family disputes, in family law matters, parent/adolescent conflict, and other interpersonal disputes. There is also a small private practice in divorce mediation. Practitioners come from the ranks of lawyers, social workers, psychologistsand counsellors; the practice of mediation supplements their primary professional practice. In response to the report of the National Inquiry into Homeless Children in Australia (Human Rights and Equal Opportunity Commission 1989), the Commonwealth Attorney-General’s Department has allocated funds for youth homelessness services in adolescent mediation and family therapy. These are also noted in Appendix C. Each service has its own organisational structure and approach to the mediation process, and some are yet to become operational. Legal Aid Commissions in New South Wales, Victoria and Queensland, have policies which require or encourage the use of mediation for those receiving legal aid for the dissolution of a marriage.¹⁶

Commercial dispute resolution

2.24 Various processes from several sources are available to those wishing to negotiate resolution of commercial disputes. The sources are noted in Appendix D. The dominant consensual process is mediation, although it is common for parties to agree to a particular form such as independent expert appraisal or case presentation, or to use a hybrid process in which mediation is followed by arbitration if necessary. Their use is challenging the pre-eminence of arbitration as the alternative to litigation of such disputes. The uniform Commercial Arbitration Acts now require arbitrators to attempt conciliation of matters before making a determination.

2.25 Govemment-sponsoredagencieshavebeencreatedtoincreasetheoptionsforthe resolution of commercial disputes: Australian Commercial Dispute Centres (ACDC) in Sydney and Brisbane, and the Australian Centre for International Commercial Arbitration, Melbourne. The ACDC in NSW is also the Asian Pacific Registry for the London Court of International Arbitration. In some States the legal profession has been responsible for establishing dispute resolution schemes with their members as practitioners. There are several independent practitioners of commercial dispute resolution, both in the areas of mediation and arbitration. The professional associations, Institute of arbitrators Australia, Lawyers Engaged in Alternative Dispute Resolution (LEADR), the Bar Association of Queensland and the Law Institute of Victoria all accredit their members as mediators, arbitrators or specialists in dispute resolution. Mediators can be drawn either from the legal profession, or from the industries from which the disputes emanate.

Court connected alternatives to litigation

Federal Courts

2.26 In the Federal Court, assisted dispute resolution consists of voluntary mediation conducted by a Registrar or Judge where the agreement reached becomes a consent judgment.¹⁷ In the Family Court, several strategies noted above have been adopted for the resolution of disputes other than by judicial determination. The Courts (Mediation and Arbitration) Act 1991 (Cth) assented to on 27 June 1991 provides a legislative framework in which appropriate methods of alternative dispute resolution may be developed in the Federal and Family Courts. The use of external agencies and providers is contemplated, as well as officers and staff of the Courts.

New South Wales Courts

2.27 There are only a few procedures within New South Wales Courts which can be identified as falling within the description of consensual dispute resolution adopted by the Commission. Within the Supreme and District Courts, pre-trial conferences are conducted by Registrars who mediate certain matters to explore settlement or narrowing of the issues before trial or arbitration.¹⁸ In the Land and Environment Court, voluntary mediations are conducted by Registrars for disputes in Classes 1, 2 and 3 under the Land and Environment Court Act 1979.¹⁹ In the Local Court at Sutherland, a pilot program for mediation of civil claims has been implemented, using mediators from Community Justice Centres.²⁰ The concept would also embrace Settlement Week such as is proposed for the Supreme Court for October 1991 in which cases awaiting trial are to be mediated by lawyer mediators in an attempt to achieve early settlement .²¹

2.28 Several other procedures to expedite or encourage resolution have been adopted. In the Supreme Court Commercial Division, the Construction List of the Common Law Division and the Commercial and Building and Engineering Lists of the District Court, procedures are designed to encourage early exploration of settlement by the parties, including the involvement of technical experts to assist in determination of matters in dispute. Such procedures would normally fall outside the concept of consensual dispute resolution except where a mediation session is arranged or occurs pursuant to a reference to arbitrations.²²

Other Australian jurisdictions

2.29 Courts in most jurisdictions use various procedures to encourage settlement or narrow the issues for judicial determination. Some of these constitute consensual dispute resolution as described by the Commission, the use of a structured process in a formal setting where a neutral third party assists the parties to negotiate a settlement. A representative sample would include pre-trial conferences in the Victorian Supreme and County Courts, mediation under the Building Cases Rules in the Victorian County Court, pre-trial conferences in the Western Australian District Court and mediation by Masters in the Supreme Court of Queensland. Excluded from the description are arbitration, either by a judicial officer or a court appointed arbitrator, or other assessor of fact, and procedural steps or informal encouragement of settlement.

Tribunals

2.30 The creation of separate tribunals has frequently been accompanied by the adoption of procedures which provide for conciliation or other attempts to facilitate the settlement of disputes by negotiation between the parties as well as more informal procedures and hearings. Distinctions are difficult to draw, however it is possible to identify consensual dispute resolution procedures in some tribunals, primarily those required under human rights and anti-discrimination legislation to use conciliation. The Commonwealth Administrative Appeals Tribunal is currently assessing the feasibility of introducing a mediation stream for all matters. Appropriate matters are mediated in the Victorian Administrative Appeals Tribunal. Small Claims and Consumer Claims Tribunals in some instances will attempt negotiation of a resolution by the parties before them, and the South Australian Planning Appeals Tribunal has a compulsory conference procedure at which settlements are agreed.

Administrative agencies

2.31 In all jurisdictions Government administrative agencies dealing with a wide variety of legislation and community services have implemented dispute processing systems in which parties are encouraged to resolve their disputes before resorting to tribunals or courts. In New South Wales the Anti-Discrimination Board and the Department of Housing Tenancy Service offer conciliation. Under other legislation, public officials or members of disciplinary and complaints processing authorities may be given powers or instructions to promote a settlement between the parties of matters brought before them. The Commission does not consider that their activities would normally be within the description of consensual dispute resolution adopted for this reference.

Other initiatives

Environmental mediation

2.32 Interest is growing in the use of mediation to resolve public policy disputes, particularly those concerning the environment. Governments are exploring alternatives to the bureaucracy and to the court’s role in determining public policy issues,²³ as are those within the dispute resolution movement.²⁴ Practitioners are likely to be drawn both from the ranks of mediators practising in other substantive contexts, and from people with expertise in the subject matter of these disputes. Services may be offered through public and private agencies, or by private practitioners. The Commission considers that these activities fall within consensual dispute resolution for the purposes of this reference, and should be covered by the Database and Advisory Council recommended in Chapter 7.

Industry dispute resolution

2.33 Some industries and professions have established formal dispute processing systems which emphasise informal and consensual approaches, and avoid litigation. The approaches can also be more appropriate to the particular industry - the nature of the dispute, disputants, the values and complexities of the substantive context and organisation.²⁵ The insurance industry has experimented with various approaches: in Queens-land with the Personal Injury Mediation Program in co-operation with ACDC providing for the voluntary mediation of claims arising out of motor vehicle accidents; with an ombudsman within the SIO Consumer Appeals Centre established by the Victorian State Insurance Office; and with many privately arranged mediations over disputes which include those between reinsurers.²⁶ The Banking Ombudsman scheme, created in 1990, is in fact an industry sponsored private enterprise dispute resolution system in which conciliation is emphasised.²⁷ Professional associations frequently offer conciliation for disputes between members and their clients.²⁸

2.34 Classification of these activities in accordance with the concept adopted by the Commission for this reference can be difficult. They may not be sufficiently formal, public or consensual in approach to warrant inclusion. The Commission considers it is preferable to eff on the side of wide interpretation of the ambit of the Database and Advisory Council, particularly for disputes in which legal rights of parties are at issue.

Legal profession

2.35 The legal profession, although often criticised for its opposition to alternatives to litigation, has been involved in many initiatives which implement dispute resolution programs, as well as promoting and supporting the use of consensual dispute resolution. The Law Council of Australia has a Policy Statement in support of ADR and has proposed a uniform mediation system in all Federal and State courts. Dispute resolution schemes have been established by the Queensland and Victorian Bar Associations, and the Western Australian Law Society participates in a Dispute Resolution Scheme with other associations. The Law Institute of Victoria has Conciliation Rules for use in solicitor-client disputes, and other dispute resolution panels. The New South Wales Law Society Dispute Resolution Committee has instituted Settlement Week ²⁹ as part of an extensive program of activities supporting ADR.³⁰ LEADR has been established by lawyers to promote ADR and educate and accredit lawyers as mediators, and the Law Institute of Victoria has approved Alternate Dispute Resolution as an area of speciali-sation. LEADR is also involved with the implementation of a mediation scheme in the Legal Aid Office, Queensland for the pro-bono mediation of civil disputes (excluding family law matters), which should be the forerunner of schemes in other States.

FOOTNOTES

1. If it can be seen as possible and desirable, see Austin Sarat “The New Formalism in Disputing aid Dispute Processing” (1988) 21 Law & Society Review 95.

2. Jay Folberg and Alison Taylor Mediation: A Comprehensive Guide to resolving Conflict without Litigation (Jossey-Bass, San Francisco, 1984); Christopher W Moore 77 The Mediation Process: Practical Strategies for Resolving Conflict (Jossey-Bass, San Francisco, 1986); New South Wales Law Society’s “Guidelines for Solicitors who Act as Mediators” (1988) 26 Law Society Journal (6) 29.

3 . Anti-Discrimination Act 1977 s102, see also s92, Workers’ Compensation Act 1987 s102. See also Terence Beed, R William Fitzgerald, Deborah Worthington The Role of Conciliation (The Civil Justice Research Centre, Sydney 1990).

4. Community Justice Centres Council (NSW) Report of the Community Justice Centres Council for the year ended 1990 (Govt Printer, Sydney, 1990) at 14.

5. The CJC suggested that conciliation in this sense, dispute counselling and other contacts with clients prior to mediation are even more in need of safeguards for clients than mediation as we have defined it. (CJC) The difficulties which confront efforts to regulate mediation acknowledged in this Report demonstrate the magnitude of such a task. It is clearly beyond the scope of this Report.

6. See Richard G Collins “Alternative Dispute Resolution- Choosing the Best Settlement Options”, and Sir Laurence Street “Expert Appraisal with Provision for Mediation” (1989) 8 Australian Construction Law Newsletter 17.

7. There is some debate as to the appropriateness of the former situation. It is believed to militate against candour and frankness by the parties, or their commitment to negotiating an agreement. The Commercial Arbitration Act 1984 s27 requires the arbitrator to attempt conciliation, but it may also prevent the use of caucusing, that is, speaking to each party separately, to investigate the possibility of settlement.

8. Commercial Arbitration Act 1984 s27 as amended by the Commercial Arbitration (Amendment) Act 1990. As to the power of arbitrators see IBM Australia Limited v National Distribution Services Pty Ltd unreported, Court of Appeal (NSW) CA 4086 1/ 90, 5 March 1991 and earlier related decisions by Mahoney JA (4 February 1991) and Rogers J (Com D No 50554/90 5 October l990)[1991] ATPR 41-077. For comment on these cases see Warren Pengilley “Trade Practices Act issues and remedies: Can they be arbitrated?” (1991) 29 Law Society Journal (4) 65 and “Court of Appeal confirms trade practices matters can be arbitrated” (1991) 29 Law Society Journal (5) 77.

9. Arbitration (Civil Actions) Act 1983 s9(l).

10. eg Supreme Court Common Law Division Issues and Listings Conference, procedures in the Common Law Division Construction List, District Court pre-trial conferences. See also Annesley H De Garis “The Summary Jury Trial: Judicial Alternative Dispute Resolution” (1991) 2 Australian Dispute Resolution Journal 51; Andrew Rogers “Mini-trials-diverting the adversarial instinct” (1986)24 Law Society Journal(4)27.

11. Motor Vehicle Repair Act 1980 s53(l).

12. William L Ury, Jeanne M Brett Stephen B Goldberg Getting Disputes Resolved: Designing Systems to Cut the Cost of Conflict (Jossey-Bass, San Francisco, 1988).

13. Most recently, the appointment of Sir Ninian Stephen as mediator for the talks on Northern Ireland.

14. Family Law Act 1975 (Cth) ss15, 16A, 43,62,64(1B), 79(9) and 0 24 r 1. See also Courts (Mediation and Arbitration) Act 1991 (Cth) introducing anew Part 111A - Mediation and Arbitration in the Family Law Act 1975.

15. Family Court of Australia Alternative Dispute Resolution Within the Family Court of Australia Discussion Paper (June 1990); and also Family Law Council Family Mediation Discussion Paper (1990).

16. See Family Law Matters, Guidelines, Mediation, in Legal Aid Commission of NSW Policy Manual (September 1990) at 37A. Legal Aid Office (Queensland) Early Intervention Conferencing Project provides a modified form of mediation prior to grant of legal aid.

17. Practice Note 8 “Assisted Dispute Resolution” May 1990.

18. Supreme Court Practice Note 59 Common Law Division, 28 February 1990; District Court Practice Note 13, Guidelines for Registrars presiding at call-overs and pre-trial conferences 16 August 1990.

19. Land and Environment Court Practice Direction April 1991.

20. Chris McRobert “Mediation in Local Courts - An Alternative to Contested Hearings” (1991) 2 Australian Dispute Resolution Journal 94.

21. See “The Law Society Inaugurates Settlement Week” (1991) 29 Law Society Journal (2) 33; and “Settlement Week” (1990) 28 Law Society Journal (7) 29.

22. See paras 2.11-2.12 supra.

23. Public Issue Dispute Resolution Conference, Brisbane, 18-19 February 1991 sponsored by the New South Wales and Queensland Governments; consultancy by ACDC to the NSW Minister for State Development, April 1991 on the use of environmental mediation;

Peter Adier “Resolving Public Policy Conflicts Through Mediation” (1990) Australian Dispute Resolution Journal 69; John P McCrory “Environmental Mediation- Another Piece for the Puzzle” (1981) 6 Vermont Law Review 49.

25. Jennifer David “An Australian Perspective on ADR” (1991) Australian Insurance Institute Journal 20 at 20.

26. Ibid at 27ff.

27. Di Everett, “Australian Banking Industry Ombudsman” (1990) 5 Banking Law Bulletin

28. See for example Royal Australian Institute of Architects, Institute of Surveyors (NSW) and the Law Institute of Victoria’s Optional Conciliation Rules.

29. See note 21.

30. Including publication of a Draft Mediation Agreement, Model Dispute Resolution Clauses and Guidelines for Solicitors Acting as Mediators.