I. TERMS OF REFERENCE

1.1 In November 1987 the Attorney General of New South Wales, the Hon R Mulock, LLB, MP made the following reference to the Commission:

To inquire into and report on:

(a) the need for training and accreditation of mediators;

(b) any related matter.

The Commission refers to this as the alternative dispute resolution (ADR) reference.¹

II. PURPOSE OF THE REFERENCE

1.2 ADR refers to a variety of methods by which disputants may reach agreement to resolve their differences. A common element is the role played by a neutral third party whose function is not to impose a decision on the disputants but to facilitate their consensual resolution of the conflict. Mediation is one form of ADR. The ADR reference to the Commission recognises the growth and significance of ADR procedures in Australia. These procedures are being used increasingly in preference, or as an adjunct to the settlement of disputes by the courts or by arbitration. This trend is likely to continue given the expense and delay associated with the traditional methods of resolution and the perceived benefits to participants in the new processes.²

1.3 Some forms of ADR, most notably conciliation, have been in use for a long time in Australia but during the past decade there has been a rapid increase in the use of ADR. Processes which can be used include conciliation, public negotiation, and mediation, as well as variations on these, hybrids combining two or more techniques, and the combination of ADR with adjudication. Programs are administered variously by private and community agencies, by or in government agencies and departments, or within the court system itself. The nature of disputes which are currently being resolved by these means is diverse: neighbourhood conflicts, domestic relations, human rights, employment, and commercial disputes of all sizes.³

1.4 ADR methods are alternatives to but are not necessarily unassociated with adjudication.⁴ Approximately 90-95 % of disputes in which litigation commences settle before final adjudication. The specific use of ADR procedures is replacing informal negotiation in the resolution of many of these cases which would not normally proceed to adjudication. They are also being used in disputes where litigation is either not possible or is not the most appropriate way of resolving the dispute.⁵ The private determination of rights and interests in all these situations raises important questions about the processes involved in ADR as well as the role played by any neutral third party.

1.5 Overseas experience of ADR has greatly influenced Australian developments. In the United States where the ADR movement has great momentum, there has been vigorous experimentation and ADR is firmly entrenched. However, the initial enthusiasm, often uncritical, is now being tempered by some reassessment of the claims made for ADR.⁶ The Commission is closely examining the overseas experience to determine what lessons can be learnt for Australia.

III. PURPOSE OF THE DISCUSSION PAPER

1.6 The purpose of this Paper is to encourage debate on the general question of ‘the need for training and accreditation of mediators’. However in examining this specific question it will be necessary for the Commission to obtain an understanding of what is currently happening in ADR in Australia. This Paper is therefore seeking information. It does not contain any proposals for the regulation of mediators but rather puts forward a series of questions. The responses the Commission receives to these questions will greatly assist it to engage in further consultation on the issues raised by

the reference and also to formulate its recommendations to the Attorney General.

1.7 The structure of the Discussion Paper is as follows.

• Chapter 2 - examines ADR processes and their use in Australia.
• Chapter 3 - considers arguments about the need for training, and the ways in which mediators can be trained.
• Chapter 4 - canvasses the appropriateness of, and means for regulating mediators, and discusses relevant criteria for accreditation.
• Chapter 5 - raises questions of the accountability of mediators through legal liability.

IV. THE COMMISSION SEEKS YOUR RESPONSE

1.8 The Commission wishes to hear from you:

• If you have information about the settlement of disputes using ADR procedures which would be relevant to the Commission’s inquiry.
• If you are involved in a program for training or accreditation of mediators.
• If you have views to express to us on the issues raised in this Paper, or otherwise related to the reference. Questions appear throughout the Discussion Paper. They may be used to guide your responses but should not be taken as the only topics on which your views will be of value.

The questions posed throughout the Discussion Paper are reproduced at the end of the paper.

FOOTNOTES

1. For some, the preferred term is “additional” dispute resolution methods: Sir Laurence Street, Paper given at 26th Australian Legal Convention, Sydney 1989.

2. See, for example, direction to New South Wales ministers to use the Australian Commercial Disputes Centre, “Greiner orders Government to steer clear of Courts” Sydney Morning Herald 1 September 1989 at 3, and proposals for the extension of court based ADR and Community Justice Centres contained in the Coopers & Lybrand W D Scott Report on a Review of the New South Wales Court System May 1989.

3. For examples of the use of ADR in Australia see: Micheline Dewdney Alternative Disute Resolution, Developments in Australia, the United States and the United Kingdom Macarthur Institute of Higher Education, 1987; Jane Mugford(ed) Alternative Dispute Resolution, Proceedings of a Seminar on Alternative Dispute Resolution held by Australian Institute of Criminology, Canberra July 1986 (AIC, Canberra, 1986); Gordon Pears Beyond Dispute, Alternative Dispute Resolution in Australia (Corporate Impacts Publications, Sydney, 1989).

4. There are many court-based uses of ADR. See Chapter 2 paras 2.21, 2.25.

5. For example, conflicts within families, inter-and intra-community conflicts, and public policy matters.

6. See, for example, Richard L Abel (ed) The Politics of Informal Justice Vols 1 and 2 (Academic Press, New York, 1982); Roman Tomasic and Malcolm M Feeley Neighborhood Justice, Assessment of an Emerging Idea (Longman, New York, 1982); Harry T Edwards “Alternative Dispute Resolution: Panacea or Anathema?” (1986) 99 Harvard Law Review 668; Howard R Sacks “The Alternative Dispute Resolution Movement: Wave of the Future or Flash in the Pan?” (1988) XXVI Alberta Law Review 233.