RECOMMENDATIONS

The Commission recommends that dispute resolution programs connected with courts and tribunals must operate in accordance with clear guidelines and adequate resources to ensure the integrity of the process and quality of service. One aspect of this concerns program objectives. Case management should not be the sole or primary reason for implementation of a program thereby reducing rather than enhancing the rights of parties.

The Commission also recommends that program guidelines require that mediators undergo appropriate training in dispute resolution techniques as a condition of their employment The Commission makes no other specific recommendations about the content of guidelines because of the formative nature and diversity in application of dispute resolution processes to the justice system.

The rationale

6.1 The use of consensual dispute resolution processes within the justice system has grown markedly in recent years. Court administrators and judicial officers have adopted less formal and adversarial procedures in order to reduce costs and court congestion, as well as to improve the satisfaction of litigants with the dispute resolution process. Government support for these initiatives is on record,¹ as is that of the legal profession.²

6.2 The Commission considers that the State, given its general responsibility for the administration of justice, has an obvious responsibility for the quality, integrity and accountability of consensual dispute resolution processes used within courts and tribunals.

6.3 The principal means by which the responsibility will be met is by the design and operation of dispute resolution programs in accordance with clear guidelines, and with adequate resources to ensure that the integrity of the process and the quality of service are maintained.

6.4 Program procedures must be consistent with objectives. There are differing and conflicting reasons for introducing new processes into the justice system; goals of efficiency and economy as well as improving the process for participants. There is a risk that tension and contradictions among multiple program objectives will threaten rather than enhance the rights of parties, by allowing the process to become a form of coercion. Case management and the reduction of court delay should not be the sole, or the primary, reason for implementation of an ADR program into a court or tribunal, as it is this objective which presents the greatest danger of coercion occurring.

6.5 With the exception of the need for mediators to be trained, the Commission does not make specific recommendations about the content of program guidelines. This position reflects both the formative nature of, and the great diversity in, the current state of dispute resolution practices. This diversity is particularly noticeable in the application of the new processes to courts and tribunals in a range of jurisdictions. Furthermore, because program design at this stage is experimental and pragmatic, there is little uniformity. Programs exhibit widely differing, but nevertheless appropriate and valid, characteristics for rules, standards, personnel, procedures, costs and consequences. It is not yet possible to specify with confidence the detail of guidelines, nor is it appropriate for the Commission to prescribe such detail. These should be developed for each program in accordance with principles which maintain the integrity of the process involved and protect the quality of the service provided.

6.6 Consistent with our conclusion that training is essential for competent practice, and in recognition of the State’s responsibility for the quality of dispute resolution processes, guidelines for the operation of programs connected with courts and tribunals should require that mediators undergo appropriate training.

6.7 This Chapter considers some of the policy issues which must be addressed in the development of guidelines for the implementation of court and tribunal connected consensual dispute resolution. This discussion seeks to overcome what the Commission has found to be a lack of guidance for those responsible for designing dispute resolution programs.³ The Commission’s recommendation for a Database of Dispute Resolution will provide valuable information.⁴ The comments and conclusions in the preceding Chapters relating to training, qualifications and accountability of mediators are equally relevant to practitioners in programs connected with the justice system. Similarly the policy issues considered here specifically in relation to courts and tribunals are common to all dispute resolution practice. Issues of quality and accountability with which the Report is concerned apply whatever the context.

PROGRAM OBJECTIVES

6.8 The active promotion of alternatives to judicial determination in courts has various rationales. Prominent among these are economic goals of improving judicial and administrative efficiency by relieving case load pressures, and reducing delay and costs for litigants. Others look to making qualitative improvements for participants, through more appropriate or satisfying procedures and outcomes. Allied to these are aims to preserve business and personal relationships, build community responsibility for dispute resolution, and avoid untoward precedent-setting results.⁵

6.9 Several difficulties with the decision to implement different dispute resolution methods to courts and tribunals are likely to occur, and some caution is called for. There is a danger that innovations will be oversold, creating unfounded expectations on all sides. Many of the evaluations which have been undertaken on court connected programs show that specific benefits are speculative⁶ and it is also clear that the impact of these new processes is not likely to transform courts, individuals or society, at least in the short term. There is bound to be tension and even contradiction between multiple program objectives. The most obvious is that between the desire for early settlement and the desire to improve the quality of process and outcome. Altering the way in which the court’s adjudicatory role is performed will have implications for other functions of courts, such as rule determination and enunciating publicly acceptable standards of behaviour.⁷

6.10 The prospects for successful implementation of court connected ADR will be enhanced by the preliminary clarification of program objectives. These should be articulated, communicated and understood by all who will be involved in the program. These groups include those proposing reforms, policy makers, judicial officers and court administrators, the parties to litigation, and their lawyers, and those who will perform the role of neutral third party. The identified objectives should form the basis for selection of the process, design of program procedures, allocation of resources, and evaluation.

PROCESS

6.11 Selection of the process to be used in any court connected dispute resolution program is crucial. The overriding need is to ensure the process meets the objectives identified and is appropriate to the jurisdiction and the needs of the parties. Courts may adopt any of a range of consensual processes. No general preference can be expressed. Program promoters and designers should consider both the advantages and disadvantages, claimed and confirmed, of potential processes in making the selection, as well as their essential elements.

6.12 The terminological difficulties with disputeresolutionnotedearlierinthisReport8 are nowhere more evident than in connection with courts. The dangers associated with imprecise terminology are heightened when a statute, regulation, court rule or authori-tative policy statement adopts a specific reference or operational defmition.⁹

6.13 Differencesinsubstanceaswellassemanticsarisewhenprocessesdevelopedfor private resolution are introduced into the public justice system. The governing purpose for their use frequently has been to streamline the adjudicatory process rather than adopt consensual or collaborative techniques, in which the parties’ participation, perceptions and joint problem solving predominate over legal issues and perspectives. The latter approach is not as familiar to the judicial system. There may also be concern about fundamental issues such as the courts’ role in and obligations about the fairness of process and outcome in the resolution of disputes. Processes in which the rules of evidence do not apply, or where legal standards are not the only relevant considerations, may sit uneasily in the traditional environment of the judicial process.

6.14 Mediation is most commonly adopted when a consensual process is desired. There are many distinct models, and the opportunity for institutional variations across jurisdictions is great.¹⁰ Features such as using a single or co-mediation model, the limits of the mediator’s role, and the use of caucuses win vary. Another is the distinction between mediation which is strictly rights-based and mediation which considers the underlying interests of parties, which can also be reflected in the content of any settlement reached. Statutes often require or permit conciliation to be attempted before other methods of dispute resolution are used.¹¹ The process of conciliation is not defined, and models must be developed within each context.¹²

PROGRAM DESIGN

6.15 The implementation of a consensual dispute resolution program within a court or tribunal will require consideration of several key questions of policy. These need to be determined at the program design stage, so that operational procedures reflect the objectives of the program and preserve the integrity of the process. Although practical concerns are likely to dominate program design, procedures should be consistent with those objectives as well as the principles of the justice system. This section highlights some of the decisions which must be made.

Dispute Resolution Database

6.16 Programdesignershaveagrowingnumberofmodelsonwhichtodrawtodetermine the most appropriate and effective mechanisms. However access to this information is limited. The Commission’s recommendation for the creation of a Dispute Resolution Database should provide a means by which more information is available. Court and tribunal connected programs should be included in the database so that information will be available when a new program is being developed, avoiding both wasted duplication of efforts and idiosyncratic experimentation. A similar project in the United States National Centre for State Courts has created a courts ADR program database.¹³

Procedural guidelines

6.17 The procedures on which any program operates ought to be established in some detail at the design stage, documented and made widely available to all participants and other relevant parties. In the absence of directions and specific operating standards, the quality of the program is threatened. Programs in geographically dispersed jurisdictions need to rely on guidelines for uniformity and consistency. In processes which rely heavily on the personal style of the third party, idiosyncracies should be reduced by reference to standard procedures. The expectations of parties and their legal representatives need to be, established and clarified for the process to be most effective.

Which disputes?

6.18 The matters which are to be included in any court or tribunal connected ADR procedure will depend on the objectives of that particular program. The question of suitability must be addressed at two levels: first, in determining the class of matters to which it should apply, and secondly in deciding whether a particular dispute in that class should be included or exempted.

6.19 It is not appropriate that all disputes in which litigation is commenced or applicable should be dealt with by methods other than formal judicial determination. As a matter of public policy, parties should not be deterred from legitimate use of the judicial system and the court’s function should not be displaced when issues of law are raised or when it is desirable to establish a precedent or enunciate standards.¹⁴

6.20 The characteristics of disputes which are considered relevant to determining their suitability for any process include the nature of and relationship between disputants (including their relative power), the dispute’s length and complexity, the amount of money at stake and the substance and nature of the issues. Where the selection is based on the substance of the matter a wide range has been considered appropriate, including family dissolution, product liability, professional malpractice, personal injuries, and other tort cases, small claims, commercial causes and minor criminal cases. As yet there is no validated mechanism for matching dispute with process so that the decision about which categories of disputes are suitable must be made in each situation, having regard to the objectives and process chosen. An alternative approach is to make the processes fully voluntary, that is available in all matters in a jurisdiction, dependent upon the willingness of parties to negotiate a resolution.

6.21 A second level of determining suitability involves considering whether the parties in each dispute are capable of participating as fully as required in the procedure. Involvement is not advocated where parties lack sufficient capacity to understand the purpose of participation and to negotiate for themselves, or where there is a very significant imbalance or inequality of power or capacity.¹⁵ Alternatively, there may be procedural, substantive or other matters in any particular dispute which could make a judicial determination of the issues most appropriate. A mechanism for assessing the suitability of each matter for participation should be available, with guidelines for determining inappropriate cases. Guidelines already in operation for family law matters refer to criteria for excluding matters where there are allegations of abuse or neglect, current history of domestic violence, urgent need for interim relief and previous unsuccessful attempts at mediation.¹⁶ Commercial matters have criteria such as the complexity of questions of law and fact, the expected length of hearing or whether there are allegations of fraud.¹⁷

Mandatory or Voluntary ?

6.22 Compulsory participation may be required by statute, court rule or practice direction, or may arise indirectly from the operation of procedures adopted in a jurisdiction. Participation may be defined as attending, attending with authority to settle, or negotiating in good faith. There are complex policy issues involved. Mandatory alternatives to adjudication are justified on the grounds of promoting judicial and administrative efficiency, endorsement by participants, and the educative effect of participation¹⁸ However, 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.¹⁹ Others believe that pressure to enter consensual ADR is acceptable so long as there is no coercion within the procedure.²⁰ It is claimed that the traditional judicial view that the court has no right to interfere with a party’s desire to pursue litigation to trial is being questioned on the basis of efficient use of public resources²¹ and that it should not elicit concern if courts encourage parties to attempt amicable resolution.²²

6.23 There are other aspects to consider when participation is mandatory. One concern is the question of where responsibility lies for deciding that an alternative or adjunct process is to be mandatory. Should this lie with court administrators, judges, or the legislature? Another issue relates to the nature and extent of the participation which may be required, and the possible imposition of sanctions for non-compliance.²³ The court’s responsibility for quality control may be expected to be greater in mandatory programs. This would extend to matters such as training requirements, supervision and accountability.

Program operation

6.24 Several decisions must be made about how any program will operate. These include:

• At what stage in the litigation process will the new procedures be available?
• Must any conditions be met before the procedure is used?
• What time period will be allowed for the process?
• Will multiple sessions be available?
• On what criteria will a session be adjourned, extended or another convened?
• Will parties, legal representatives, witnesses and/or support persons be required or permitted to attend?
• Who will have any discretion over attendance?
• Will penalties for non-attendance, or inadequate preparation for partici-pation be imposed? Upon whom?
• Where will sessions be conducted?
• What facilities should be available for use by participants?

6.25 Procedural questions may be inconsistent with processes which are to be much less formal than litigation, but they will be important in the effectiveness of any process. Additional procedural steps such as directions hearings or discovery may be necessary to ensure matters are ready for negotiation. The time allocated should be sufficient. Demands of administrative efficiency must be balanced against the need to provide adequate time for negotiation. It may be necessary to orientate participants to the process, by written or video material. Others may benefit from education about the program’s purpose and form. The suitability and convenience of the location and facilities made available will contribute to the program’s effectiveness.

Personnel

6.26 Selection, training and qualifications of practitioners in court and tribunal con-nected dispute resolution programs raise issues considered in Chapter 3 of this Report. The Commission’s comments and conclusions should be likewise taken to apply in these settings. There are, however, some contentious issues which should be noted.

6.27 The sources from which personnel are employed depend on the program’s objectives, the process involved, human and financial resources available, as well as other less specific influences. Various approaches are currently adopted. Judicial officers or court staff, the legal profession and other professionals, and lay people with relevant experience are being used. Alternatively, the services of an independent public or private dispute resolution agency may be used. No one approach is to be generally preferred, and there is no evidence that any one class of people is automatically qualified by occupational background alone to effectively perform in a particular program.

Judicial officers

6.28 One contentious area is the use of judicial officers in the role of mediator, conciliator or arbitrator. It does not occur often, but it may in at least one Australian court.²⁴ It is argued that not only because of their training, experience and disposition are they unlikely to be accustomed or suited to the role of conciliator, but that the confusion of this role with that of impartial adjudicator is undesirable.²⁵ There is serious concern that actual or perceived breaches of the rules of natural justice will result when the person who mediates a matter may then have responsibility for adjudicating it if no settlement is reached.²⁶

6.29 Other concerns relate to the risk of conscious or unconscious coercive pressures on parties from the authoritative judicial position. A similar concern is expressed when other court employees are used. It is feared that proximity to the court and the shadow of the law will inhibit parties’ voluntary negotiation of a resolution. On the other hand, some see value in using judges as mediators, although appreciating that not all judges make good mediators. One premise is that judicial authority itself should inspire the parties to serious participation.²⁷ It is also recognised that judicial skills should be adaptable to the new roles, but that they and other court officials need adequate and systematic education in the techniques they will use.²⁸ In private dispute resolution former judges are popular as mediators as well as adjudicators.²⁹

Public or private sector?

6.30 There appear to be differences in the conduct of processes between personnel from the private sector and the public.³⁰ There may be advantages in distancing the process from the court and bureaucratic environment; however, this may also present difficulties in supervision and accountability, as well as potential constitutional concerns. Using the public sector (either court staff or other agencies) generates greater administrative efficiency and accountability, but there is a danger that bureaucratic concerns will predominate where the fact of, rather than the quality of, settlement may be the goal. In such circumstances durable outcomes, user satisfaction and procedural protections may not be achieved.

Selection

6.31 The selection of personnel for these programs is likely to be affected by economic and organisational constraints. These may require that existing judicial officers, court staff or the legal profession are used. Where a discretion can be exercised, preferences for criteria related to personal qualities and commitment to consensual processes have been expressed³¹ although views differ as to appropriate selection criteria.³²

6.32 In the absence of accepted measures of ability, program administrators are likely to rely on a combination of reputation, eagerness and availability.³³ Training and supervision should be directed at ensuring quality of service by practitioners, whatever their background qualifications and experience.

Training

6.33 The overwhelming acceptance of the need for training applies as much to programs connected to courts and tribunals as to private dispute resolution.³⁴ Unfortunately, there is evidence which suggests that of all alternative dispute resolution options available, court connected programs compare poorly with formal training in dispute resolution techniques provided or required of practitioners.³⁵ Although the problems of access to training are acknowledged,³⁶ the Commission strongly recommends that practitioners within court and tribunal connected programs be required to undertake appropriate training. This should include knowledge and skills in consensual dispute resolution as well as knowledge of the subject matter and procedures of the jurisdiction.

Funding

6.34 Financial liability for programs connected to courts and tribunals is another critical issue. Resources in the judicial system are limited, and although consensual processes may be seen as the cheaper alternative, they still require an adequate allocation of resources to be effective.³⁷ The issue of funding should be addressed at the program design stage.

6.35 Various sources of funding may be available for experimental programs in courts and tribunals, including governments, statutory interest accounts, the Law Foundation, philanthropic organisations, legal aid, professional pro-bono activities and financing, filing fees and direct fee-for-service payments. Existing programs rely on substantial government funding, although in some the parties pay the direct costs of the neutral third party. The best mechanism for financing is not obvious. The option chosen will reflect available resources, as well as the nature of disputes including the amount at stake, the parties’ resources, whether court or external personnel are used and whether participation is mandatory or voluntary, as well as the program objectives.

State funding

6.36 Controversy surrounds the view that the State should provide and heavily subsidise dispute resolution options other than litigation.³⁸ It is argued that the external benefits flowing from the reduced demand for scarce judicial and court resources are sufficient to justify the State accepting this financial responsibility. It is not only the parties themselves but other users of the court system who benefit from the effects of higher settlement rates. Cost savings in court time and personnel may more than offset the public investment in ADR, and other intangible benefits may flow to the community from less reliance on litigation.³⁹ On the other hand it is believed that the substantial benefits to parties justify their contribution to meeting costs. No preference can be expressed here. The cost/benefit analysis relies on evidence not readily available, so the question remains open.

1. Prime Minister’s Fourth Term Initiatives Statement March 20,1990, implemented by the Courts(Mediation and Arbitration) Act 1991 (Cth).

2. Law Council policy see “LCA Adopts Policy on Alternative Dispute Resolution” (1989) 24 Australian Law News (9) 15. See also Chapter 2 para 2.35.

3. But see Victoria Attorney- General’s Working Party on Alternative Dispute Resolution Report (Attorney-General’s Department, Melbourne, 1990); Australian Institute of Judicial Administration research project (current); Society of Professionals in Dispute Resolution (SPIDR) Mandated Participation and Settlement Coercion: Dispute Resolution as it Relates to the Courts (Draft, July 1990) (SPIDR Mandatory Participation).

4. See also Susan Keilitz “A Court Manager’s Guide to the Alternative Dispute Resolution Database” (1990) 14 State Court Journal (4) 19.

5. Marc Galanter “Reading the Landscape of Disputes: What We Know and Don’t Know (and think We Know) About Our Allegedly Contentious and Litigious Society” (1983) 31 UCL4 Law Review (4) 4 at 28.

6. Richard Ingleby, “Why Not Toss a Coin? Issues of Quality and Efficiency in Alternative Dispute Resolution” Paper presented to AIJA Conference, Melbourne 18 August 1990.

7. Robert Dingwall and John Eekelaar “A Wider Vision” in Robert Dingwall and John Eekelaar (eds) Divorce Mediation and the Legal Process (Clarendon Press, Oxford, 1988) 168at 176, after J Bell “The Judge as Bureaucrat’ in J M Eekelaar and J Bell (eds) Oxford Essays in Jurisprudence (3rd ser) (OUP, Oxford, 1987); Sir Gerard Brennan “Safeguarding the Courts” (1990) 25 Australian Law News (4) 7.

8. Chapter 2, paras 2.1 - 2.10

9. See for example the Family Law Act 1975 (Cth) which espouses consensual dispute resolution and which has a bewildering use of terminology (David Truex “Mediation the Semantic Dispute” National Bicentenary Family Law Conference Proceedings, (BLEC, Melbourne, 1988) 178 at 180) including “conciliation”, “counselling” and “reconciliation.” A Family Court Mediation Service and mediators are to join conciliation counsellors and Registrars who conduct conciliation conferences. Independent mediation services are funded by a mechanism which treats the definition of marriage counselling in the Act as sufficiently broad to include mediation.

10. Hugh Mclssac “Mandatory Conciliation Custody/ Visitation Matters: California’s Bold Stroke” (1981) 19 Conciliation Courts Review (2) 43-51.

11. Anti-Discrimination Act 1977 ss 92, 106, Workers Compensation Act 1987 ss97, 102.

12. David Bryson “Mediator and Advocate: Conciliating Human Rights Complaints” (1990) 1 Australian Dispute Resolution Journal 136.

13. Susan Keilitz “A Court Manager’s Guide to the Alternative Dispute Resolution Database” (1990) 14 State Court Journal (4) 19.

14. But see Chris McRobert “Mediation in Local Courts” (1991) 2 Australian Dispute Resolution Journal 94 at 97.

15. See Robert H Mnookin ‘Divorce Bargaining: The Limits on Private Ordering” (1984-5) 18 University of Michigan Journal of Law Reform 10 15.

16. New South Wales Legal Aid Commission Policy Manual at 37A.

17. Local Courts (Civil Claims) Act 1970 s21 H (3) ; District Court Act s63A in relation to arbitration; Magistrates Act 1989 (Vic) s102(3).

18. SPIDR Mandatory Participation note 3 at 11 - 12.

19. eg withdrawal of legal aid for failure to genuinely participate in mediation, costs sanctions for failure to attend, or the exercise of an option for trial or re-hearing: see Julian Reikert “Alternative Dispute Resolution in Australian Commercial Disputes: Quo Vadis?” (1990) 0 l Australian Dispute Resolution Journal 31; Dingwall and Eekclaar note 7 at 171; Robert E McGinness and R J Cinquegrana “Legal Issues Arising in Mediation: The Boston Municipal Court Mediation Program” (1982) 67 Massachusetts Law Review 123 at 125.

20. Stephen B Goldberg, Eric D Green and Frank EA Sander(eds)Dispute Resolution (Little, Brown and Co, Boston, 1985).

21. Paul de Jersey “Alternative Dispute Resolution: Why All the Fuss?” Paper presented to AIJA Conference, Melbourne 18 August 1990 at 7.

22. Sir Laurence Street “The CourtSystem anda]temativc Dispute Resolution Procedures” (1990) 1 Australian Dispute Resolution Journal 5 at 10.

23. Margaret Shaw and J Michael Keating Alternative Dispute Resolution Programs in Ohio, Michigan and Illinois (Institute of Judicial Administration, New York, 1990) at 82.

24. Federal Court of Australia Rules of Court O.10 r 1(2)(9). Supreme Courts in Western Australia and Queensland, as well as several District Courts use judges and Registrars in this role.

25. Justice Gleeson, Chief Justice of New South Wales quoted by Alan Limbury “A Practitioner’s View of ADR” Paper presented at the AIJA Conference, Melbourne 18 August 1990 at 12-13.

26. Victoria Attorney-General’s Working Party Report note 3, paras 3.7,6.19; Judith Resnik “Managerial Judges” (1982) 96 Harvard Law Review 376; but see Steven Flanders “Blind Umpires - A Response to Professor Resnik” (1984) 35 Hastings Law Journal 505.

27. R S French, “Hands On Judges, User Friendly Justice” Paper presented at AIJA Conference, Melbourne 18 August 1990 at 18.

28. Id; de Jersey note 21 at 6.

29. In this State the former Chief Justice, Sir Laurence Street frequently acts as a mediator and expert appraiser.

30. Jessica Pearson, Nancy Thoeness “Divorce Mediation: An American Picture” in Robert Dingwall, John Eekelaar (eds) Divorce Mediation and the Legal Process note 7 at 21.

31. See para 3.27-3.33.

32. But see Brad Honoroff, David Matz, David O’Connor “Putting Mediation Skills to the Test” (1990) 6 Negotiation Journal 37, using an approach devised by Christopher Honeyman, “On Evaluating Mediators” (1990) 6 Negotiation Journal 23; and paras 3.31-3.38.

33. Honoroff et al note 32 at 37.

34. See Chapter 3 paras 3.1-3.10.

35. See Jennifer Adams Mastrofski “Mediation in Court-Based Systems: More Variations than Similarities” (1990) 6 Negotiation Journal 257; Tillett.

36. DP 21 para 3.21.

37. Greg Tillett “Conciliation: Processes, Projections and Problem” Address to the National Conciliators’ Conference, Sydney May 1990 at 10.

38. See Rowland Williams “Should the State Provide Alternative Dispute Resolution Services?” (1987) 6 Civil Justice Quarterly 142.

39. Canadian Bar Association Task Force Report: Alternative Dispute Resolution (Canadian Bar Association, Ottawa, 1989) at 70.