RECOMMENDATIONS
The Commission recommends that an Advisory Council on Dispute Resolution be established with the primary function of advising the Government on dispute resolution policy issues.
Members of the Advisory Council should be broadly representative of practices, programs, and users which will ensure that its advice to the Government will enable policies to be developed which are effective across the diversity of dispute resolution practice.
The Commission further recommends that the Advisory Council have responsibility for the creation and publication of a Database of dispute Resolution containing information about programs, agencies, practitioners and training, which will assist the Advisory Council in preparing advice to the Government and allow the public to make more informed choices about dispute resolution options.
The rationale
7.1 The Commission believes these recommendations will meet the needs for government regulation which have been identified.1 The first is the need for the public to have information about the nature of dispute resolution options available and qualifications of practitioners. The second relates to the State’s responsibility for providing information about dispute resolution.
7.2 The creation of a representative body to provide advice to the Government on dispute resolution practice will enable informed policy decisions to be made. Its advice will contribute to a better understanding of how quality dispute resolution may best be achieved by considering issues such as training, standards of practice and guidelines for the implementation and operation of services.
7.3 Public benefits will flow from the public disclosure of the information in the Database about dispute resolution services. The information which the Commission proposes for inclusion is noted below at para 7.23. Public access to information will enable parties to make more informed choices about the use of these dispute resolution options. It will provide comprehensive and up-to-date information on which the Advisory Council can base its advice to the Government about developments in dispute resolution on which an assessment can be made about the need for regulation and how it may best be achieved. There may be benefits conferred on those who are recognised by inclusion on the Database, but these are not sufficient to distort the benefits to the public. It should contribute to the development of standards of practice by signalling to program designers and practitioners intending to enter the field the commonly held qualifications of practitioners and the usual characteristics of a service.
7.4 A greater degree of regulation or control is currently not warranted. The risks of harm from the activities of mediators are at an acceptable level in the circumstances, particularly when other mechanisms for accountability and quality control are available. In this Report the Commission has indicated the formative state of dispute resolution practice in Australia and the uncertainty which exists about standards of practice on which more formal regulation could rely. The proposal for a Database should be cost effective; although it will require modest funding from the State, indirect benefits to the public purse will flow from the greater use of dispute resolution processes outside the formal judicial system.
ADVISORY COUNCIL
Membership
7.5 The Advisory Council should comprise representatives of a range of interested parties, selected by the Minister for the breadth, depth and objectivity of the advice they can give. The representatives should include practitioners and administrators of dispute resolution from different services and diverse contexts, members of professional associations, people with expertise in teaching and training, and those who can offer academic and research perspectives. The Council should have judicial and executive representatives, legal profession and consumer participation.
7.6 The widely based representative composition of the Advisory Council is very desirable. In the administrative structure until recently operative in this State, the Attorney General has had responsibility for, and received advice about dispute resolution policy from, the Community Justice Centres Council, the Australian Commercial Disputes Centre as well as courts’ administration. The contribution of each to the Advisory Council will be valuable. However, the composition of the Advisory Council must embrace the full spectrum of dispute resolution service providers and programs. It must have a comprehensive approach to policy making which will be ensured with representatives drawn from all groups concerned with practice.
7.7 Participation of dispute resolution practitioners themselves is very desirable and will be most valuable. Their knowledge and experience will inform and direct the Council, and is likely to make the Council more successful in earning acceptance and support from practitioners generally. Practitioner involvement will reflect the responsibility they take for developing their own standards. For these objectives to be achieved, it is necessary that representation should be substantial and reflect the full diversity of programs and processes.
7.8 The Commission expects the Advisory Council to offer a mechanism for promoting co-operation and greater knowledge and understanding among the various branches of the dispute resolution community. The Council should provide practitioners with a forum in which to overcome the relative isolation of different areas and styles of dispute resolution which the Commission has identified, and also the professional tensions and rivalries which have been observed.2
7.9 There are good reasons for the involvement of the other groups proposed. The legal profession traditionally advise their clients on options for resolution of disputes. They also currently play a significant role in provision of mediation and accreditation of mediators, and supporting alternatives to litigation. Public participation will provide the balance and insight to the consumers’ perspective. The role of the executive and judiciary reflects the State’s responsibility for dispute resolution in the community, and the extent to which dispute resolution processes are now part of the justice system. However, the weight of participation should not be in favour of government, the judiciary or, indeed, the legal profession.
Responsibilities and functions
7.10 The principal function of the Advisory Council is to provide advice to the Government on dispute resolution practice. Creation and supervision of the Dispute Resolution Database would be a major responsibility. Information gathered by this means and by consultation should provide the basis for the Council’s advice to the Government. Its role in relation to practitioners would be consultative, educative, and information-gathering, but not regulatory or disciplinary.
7.11 The Advisory Council should provide advice at the request of the Government, but should also initiate consideration of issues relevant to its advisory role on dispute resolution. It should report to the Minister directly on matters referred to it, and on any other matter it determines necessary. In addition it should be required to report annually to the Minister for presentation to Parliament.
7.12 The Council should also be able to contribute to informed debate on dispute resolution policy amongst practitioners and the general public. It should be able to make a valuable contribution on many policy issues, both as a source of information and analysis. This role could be performed by various means, including:
- commissioning and in other ways supporting research and evaluation of dispute resolution practice;
- publishing materials relevant to dispute resolution policy and practice;
- acting as a clearing-house for information;
- and encouraging and providing a forum for public debate.
7.13 The Dispute Resolution Database would be created and maintained at the direction of the Advisory Council. The operation of the Database is considered below.
7.14 The Advisory Council should also act as a reference point on dispute resolution for the general public. The Council should be able to consider matters of concern referred to it by any interested party. Its activities could be directed at educating the community about the full range of dispute resolution processes, their availability and use.
Organisation
7.15 TheeffectivenessoftheAdvisoryCouncilwilldependonadequateresourcesand staff being made available. The Council would require a permanent secretariat, albeit of a very modest size. Most of its functions, including management of the Database, could be carried out by one officer with secretarial support.
7.16 The Council’s effectiveness will also depend on its independence and ability to represent the entire spectrum of dispute resolution practice. It should have personnel and a location separate from courts’ administration, and from any one area of dispute resolution practice in the public or private sector.
THE DISPUTE RESOLUTION DATABASE
Creation of the database
7.17 The Database would be created by individuals, firms, programs or services making application for inclusion, with listings providing information about their services. Categories should be created to allow for listing of private practitioners, either individually or collectively, and for listing private and public programs and agencies, and court and tribunal connected programs. A category for training courses should be considered. This would enhance its consumer protection function by providing better information about the nature of practitioner qualifications.
Eligibility for inclusion
7.18 Participationshouldbevoluntary.TheCommissionrecognisesthatitsvoluntari-ness may limit the effectiveness of the Database but believes that a compulsory approach at this time is neither necessary nor desirable.
7.19 The Database should contain information about practitioners and programs of consensual dispute resolution as defined for the purposes of this Report. This win allow sufficient flexibility to reflect the changes and developments in methods of dispute resolution which will undoubtedly occur. A more narrow approach would limit the effectiveness of the information-gathering function and risk imposing unnecessary restrictions on the way dispute resolution methods develop.3
7.20 The Advisory Council should be responsible for determining appropriate guidelines for inclusion in the Database. It is envisaged that these guidelines should be minimal, with relevance being the dominant criterion. Provision should be made in the guidelines for the grounds on which an entry may be rejected or withdrawn from the Database, for example information about programs or qualifications which is false or exaggerated.
7.21 Privatepractitionerswithrelevanttrainingand/orexperienceshouldbeentitledto offer information for inclusion. Programs or agencies which offer to the public a formal dispute resolution service should be entitled to an entry. It may not be appropriate for a program or service which operates privately, such as internal grievance processing mechanisms within a firm, Organisation or association to seek inclusion, although some of these have a public profile and a significant role in the development of dispute resolution practice. Neither is it appropriate for the advertising of the informal practice of conflict resolution.4 A category for programs which are connected to courts and tribunals is also necessary. This includes programs where services are provided other than by court personnel, and where external agencies or providers are used.
Information on the database
7.22 The information which is recorded and published in the Database should specify the range of services available to the public and should inform the Advisory Council and the Government about dispute resolution practice in the State. Although reasonable effort should be taken to verify the information which is published, there would be no warranty to consumers of its correctness, nor of the competence or appropriateness in any situation of any provider or service included. Publication should not be construed as endorsement.
7.23 The information which the Commission believes should be on the Database is indicated below.
Identification: name, address, telephone
Training courses completed
Accreditation/qualifications awarded Professional associations
Other relevant training, education, experience Services, procedures provided.
Dispute resolution programs
Identification: name, address, telephone
Management and governing body
Staff and their qualifications
Services and procedures available
Type of cases accepted
Other service information, including client eligibility, fees, and rules.
Court and tribunal connected programs
Procedures available
Eligibility
Staff and their qualifications
Other program information.
Training courses
Management
7.24 Administrative functions associated with the Database would extend to applying any guidelines for inclusion, preparing the information and maintaining its currency, and arranging for printing, publication and distribution. Effectiveness of the Database will depend on its dissemination and encouragement for the community to use the informa-tion it contains.
FOOTNOTES
1. See Chapter 4 paras 4.15-4.27.
2. See for example “Peacemakers at Each Others Throats” Business Review Weekly June 9,1989; Wendy Faulkes “The Modem Development of Alternative Dispute Resolution in Australia” (1990) 1 Australian Dispute Resolution Journal 61 at 67; Wade.
3. See Chapter 2 paras 2.5-2.10.
4. See Chapter 2 paras 2.15-2.17.
