• Terms of reference
• Background
• Outline of the CJC Act
• Community Mediation in other Australian jurisdictions
• CJCs' place in the mediation "industry"
• The extent of government involvement

TERMS OF REFERENCE

1.1 In a letter to the Commission received on 2 October 2002, the Attorney General, the Hon R J Debus MP asked the Commission to review the Community Justice Centres Act 1983 (NSW) including:

(a) The role of Community Justice Centres as a statewide conflict management and mediation service;

(b) Whether the current structure of Community Justice Centres sufficiently meets the needs of the indigenous community of New South Wales;

(c) The role and entitlements of mediators; and

(d) Any related matter.

1.2 Community Justice Centres (“CJCs”) were established to provide a means of settling the sort of disputes that conventional court-based procedures are unable to resolve satisfactorily. The disputes envisaged were basically within a relatively narrow range of domestic or neighbourhood disputes where the disputing parties had, or once had, an ongoing relationship.¹ Such disputes could include disputes between family members, partners, friends, workmates, members of social groups and other community organisations, neighbours, landlords and tenants, flatmates and so on.²

1.3 In handling disputes CJCs make use of mediation. Mediation is defined by the National Dispute Resolution Advisory Council (“NADRAC”) as being:

A process in which the parties to a dispute, with the assistance of a neutral third party (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted.³

1.5 The key point often emphasised, particularly in relation to community-based mediation, is that the mediators do not make decisions or impose outcomes on the parties to a dispute, rather, the parties make any settlement themselves.

1.6 Mediation differs from other methods of alternative dispute resolution such as conciliation and arbitration. Conciliation is somewhat similar to mediation except that the conciliator has a more active advisory role than the mediator, NADRAC notes that a conciliator, unlike a mediator, “may have an advisory role on the content of the dispute or the outcome of its resolution” but, like a mediator, still not have a “determinative role”.⁵ Arbitration, on the other hand, is an adversarial process where, following submissions, one or more arbitrators impose an award that is binding on the parties.⁶

1.7 The mediation services that CJCs provide to disputing parties are available free of charge. The mediations are conducted by mediators who provide their services on a voluntary basis (receiving small remuneration) and who are, at least in theory, drawn from the communities where the services are provided. Any changes to the type or level of service provided by CJCs will, therefore, have resource implications for the Government.

Reasons for community mediation

1.8 One main reason for government taking an interest in the provision of community mediation is that it can be an appropriate mechanism for the resolution of some disputes, including, for example:

• those which are otherwise not readily resolvable by adversarial proceedings;
• those which, while able to be determined by traditional legal proceedings, will still be better resolved by mediation, and will also be cheaper for the parties involved and take pressure off the courts; and
• those which, while able to be determined by traditional legal proceedings, will be cheaper for the parties involved and take pressure off the courts.

• they can relieve pressure on the court system, particularly the Local Courts; and
• they can prove an inexpensive and accessible dispute resolution mechanism for members of the community.

Relieving pressure on the court system

1.9 It has been observed that traditional legal methods are ineffective at resolving certain types of disputes. In such cases often neither party is satisfied by the outcome imposed by the court. For example, disputes between neighbours about fences or noise. Such “difficult” cases can tie up court resources and can be relieved, in some cases, by mediation.⁸ This was one of the chief influences on the development of some community mediation programs in the United States.⁹ A number of preliminary submissions accepted the proposition that increased use of mediation in the community would relieve the pressure on Local Courts.¹⁰

Providing services to people and communities

1.10 As already noted, mediators do not make decisions or impose outcomes on the parties to a dispute, the parties make the settlement themselves. The use of community mediation to empower members of communities to resolve their own disputes was also one of the driving forces in the early history of the community mediation movement in the United States in the 1960s and 1970s.¹¹ The empowerment of individuals and communities through community mediation is still recognised in some of the formal documentation emanating from CJCs.¹²

1.11 However, it appears to be the case that community mediation has generally not realised this objective. Community mediation’s close connection with the communities it serves, its responsiveness to local needs and demands, has diminished in many cases in favour of greater institutionalisation and attachment to the formal justice system and the state. For example, many cases in Australia are referred from the formal justice system. Increasingly, in both Australia and the United States, community mediation programs are tied to the state.¹³

1.12 The point about empowering people and communities to take responsibility for managing their own affairs has certain limitations in a post-structural urban society. However, a move away from strictly locality based communities to mediation within communities of interest or particular cultural communities might be a way of strengthening the empowerment of some groups within society.¹⁴

Community mediation in NSW before 1980

1.13 In the past alternative dispute resolution happened informally, often with the sanction of the courts. For example, in the 1840s and early 1850s some matters before the Sydney Police Court were adjourned to allow the parties “to adjust their differences”. These matters were mostly disputes within families,¹⁵ or other relationships, for example, landlady and tenant,¹⁶ apprentice and master,¹⁷ as well as building disputes,¹⁸ and minor assaults.¹⁹ No mention, however, is made of the engagement of a third person to assist the disputing parties in reaching an agreement. Adjournments of this sort no doubt continued at a local level.

1.14 An early statutory attempt at providing for the voluntary mediation of civil disputes was adopted in Queensland in 1892 when Sir Samuel Griffith introduced the Courts of Conciliation Act 1892 (Qld). The scheme, which was based on Prussian and Norwegian models, was apparently not successful and attracted few clients.²⁰

1.15 Similar schemes, based on courts of conciliation in Denmark, the Netherlands, Norway and Germany, were proposed in New South Wales in 1881, some 10 years earlier than Queensland, when various proposals were unsuccessfully put forward to establish courts of conciliation to act as an alternative to traditional court-based procedures. One member of Parliament framed the following motion (that was not formally put):

1. That the satisfactory administration of justice is and should be the chief duty of Government.

2. That the proper object of law is to endeavour to allay hot blood between those at variance.

3. That these principles are being seemingly overlooked in our courts of so-called justice, where the delay, expense, difficulty, and uncertainty of obtaining redress are aggravated by an entire absence of such legal endeavour as exists in many civilised countries to settle disputes rather by conciliation than by litigation.

4. That this want is oppressive even to citizens of the metropolis; but in the country, where justice, except in minor courts of restricted jurisdiction is beyond its worth to the few and inaccessible to the multitude, the defect is paralysing.

5. That this desirable preliminary of an endeavour to conciliate can be best effected by legislation introduced by the Government, and that their action in this direction cannot, for the public good, be too soon commenced.²¹

Whereas the procedure of civil justice has become antiquated and is now too tedious and expensive to be any longer of practical service in alone solving the legal complications of a busy and advancing age. And whereas in consequence of such deficiency all business would long ago have come to a stand did not the community (as a rule well-meaning and averse to strife) habitually defer or desire to defer in the settlement of dispute claims to good sense and honorable feeling.

And whereas it is expedient in the Legislature to render general this peaceful substitution of equitable custom for the heartburnings of imperfect justice and to suppress all obstruction to the same through professional jealousy. And whereas the enforcing of extreme rights by law has become synonymous with persecution and matter of reproach from even tribunals themselves unable to dispense full practical justice. And whereas great relief under similar hardship has been afforded to the lay community of several other countries by the institution of courts of conciliation and by legislation in connection therewith be it enacted...²³

Establishment of CJCs

1.17 CJCs were first established as a pilot program in 1980.²⁵ They were heralded as “the most promising step taken this century to provide a system for the settlement of a class of dispute which the adversary processes of our courts have never been able to resolve satisfactorily”.²⁶ The project was monitored by the Law Foundation of New South Wales. A favourable report was produced in 1982²⁷ and the scheme was made permanent in 1983 with the passing of the Community Justice Centres Act 1983 (NSW) (“CJC Act”).²⁸

1.18 Three centres were established at Wollongong, Bankstown and Surry Hills (originally proposed to be in Redfern). CJCs are now administered in four regions – the northern, southern, western and Sydney regions²⁹ with offices at Campbelltown, Penrith, Wollongong, Bankstown and Newcastle.

1.19 The Act has been used as a model for other legislation. In New South Wales it has supplied model provisions that were introduced into the statutes of various courts in 1994³⁰ as well as the Legal Aid Commission.³¹ The New South Wales provisions have also provided a model for the establishment of similar schemes in other Australian jurisdictions.³²

OUTLINE OF THE CJC ACT

1.20 The Act provides for the administration of the CJCs Council covering such matters as:

• the constitution of the Council (s 5);
• the functions of the Council (s 6); and
• the use by the Council of facilities and staff of other organisations (s 8).

• the Director (s 10);
• the Deputy Director;
• mediators (s 11); and
• other staff (s 12).

• the use of premises (s 15, s 16);
• the keeping and disposal of records (s 17); and
• their operation within the Attorney General’s Department (s 18).³³

• the conduct of mediation sessions (s 21);
• the types of disputes suitable for mediation (s 22);
• the voluntary nature of any mediation conducted (s 23, s 24); and
• representation of some parties by agents (s 25).

• evaluation of the operations and activities of CJCs (s 26);
• exoneration from liability (s 27);
• privilege (evidence) (s 28); and
• secrecy (non-disclosure of information) (s 29).

1.25 Other Australian jurisdictions have statutes that are modelled closely on some of the New South Wales provisions.

Queensland

1.26 The Queensland legislation is the most closely modelled on the New South Wales Act.³⁴ The Dispute Resolution Centres Act 1990 (Qld) includes provisions dealing with the establishment and functioning of a Dispute Resolution Centres Council, the staff of the Centres, the establishment and functioning of Dispute Resolution Centres, the conduct of mediation, protections for various parties and other miscellaneous matters.

1.27 In practical terms Dispute Resolution Centres are operated by the Alternative Dispute Resolution Branch of the Department of Justice and Attorney General. The Branch also manages other mediation services that are not operated through Dispute Resolution Centres. The Dispute Resolution Centres Council, in accordance with the Act,³⁵ merely provides advice to the Minister on the provision of mediation services by the Alternative Dispute Resolution Branch as well as on dispute resolution generally.³⁶

Court-ordered mediations

1.28 The chief difference from the New South Wales Act is that, in 1997, formal recognition was accorded to court-ordered mediations (called “referring orders”) meaning that Dispute Resolution Centres now have to deal with mediations that are not voluntary.³⁷ This type of court-ordered mediation is increasingly the principal function of Dispute Resolution Centres in Queensland.

Victoria

1.29 Victoria’s legislation (first enacted in 1987) provides the simplest possible administrative framework, by stating that a “dispute settlement centre” is an organisation so declared by Order of the Governor in Council and that a “mediator” is a person who is so declared by notice by the Secretary to the Department of Justice published in the Government Gazette.³⁸ Provision is then made for the types of protections that are contained in the New South Wales Act in relation to mediations conducted at dispute settlement centres.³⁹

Australian Capital Territory

1.30 The Australian Capital Territory’s provisions⁴⁰ differ from those in New South Wales in that they do not specify an organisation to provide the mediation services but still include the types of protections that are contained in the New South Wales Act.⁴¹

Other States

1.31 South Australia, Western Australia and Tasmania provide funding to non-government community organisations (referred to as “Community Mediation Services”) to run mediations.⁴² There would appear to be no statutes to back up the community mediation services that are available in these States.

1.32 In South Australia however, there is some legislative protection for the mediation of disputes that have already been brought to court. In these cases the relevant judicial officer of the Supreme Court, District Court or Magistrates Court may, with or without the consent of the parties, refer a matter to mediation. The mediator appointed by the court has the same privileges and immunities as a judicial officer in that court and the mediator must not disclose information obtained in the course of the mediation “except as required or authorised to do so by law”. Evidence of anything said or done in an attempt to achieve settlement at such a mediation is not admissible in subsequent proceedings and the terms of any settlement reached may be embodied in a judgment of the court.⁴³

CJCs’ PLACE IN THE MEDIATION “INDUSTRY”

1.33 Since CJCs were established more than 20 years ago, there has been an explosion in the provisions for mediation in New South Wales. Far from being one of the few providers of mediation services, CJCs are now one of many. For example, most courts and tribunals in New South Wales now make provision for mediation with each of the courts and tribunals maintaining their own lists of suitable mediators.⁴⁴ Mandatory mediation is provided for in the Supreme Court, District Court and Consumer, Trader and Tenancy Tribunal.⁴⁵ Voluntary mediation is provided for in the Compensation Court, the Land and Environment Court, Local Courts and the Administrative Decisions Tribunal.⁴⁶ In the Federal sphere, mediation is available in relation to family law matters as well as in the Federal Court.⁴⁷

1.34 Mediation may also be conducted in relation to a variety of different matters under the auspices of various government instrumentalities, including, for example, the New South Wales Rural Assistance Authority (in relation to farm debts), the Legal Aid Commission, the Department of Agriculture (in relation to agricultural tenancies), the Department of Fair Trading (in relation to, among other things, community land management and strata schemes) and the Legal Services Commissioner (in relation to consumer complaints about lawyers).⁴⁸ The Law Society of New South Wales also conducts a mediation program and has adopted a mediation model for accredited members to follow.⁴⁹

1.35 Given the increased availability of mediation to deal with all manner of disputes that might otherwise be dealt with by formal methods, a general question arises as to the place of CJCs within the mediation industry as it currently exists and as it is likely to develop.

ISSUE 1
What place do CJCs have in the mediation industry in New South Wales?

1.36 The brief descriptions of the regimes in other Australian jurisdictions illustrate the point that government can make provision for mediation services in numerous ways and to various extents. There are broadly three ways in which government can operate. It can:

• establish, fund and operate mediation services, either connected with courts and tribunals or operating outside the formal justice system;
• provide funding for private mediation services; or
• provide a legal framework within which mediators operate, for example giving protections of confidentiality and immunity to mediators.

Forms of regulation

1.37 In assessing the desirability of changes to the way CJCs are governed, consideration must also be given to how this governance is to be achieved. In Australia statutes governing community mediation services differ widely in the level of issues covered.⁵⁰ Areas not covered by statute may, in some cases, be covered by regulations, policies and guidelines determined by administering agencies and their advisors.

1.38 In the United States there is a much broader range of options for governmental provision. One of the more comprehensive attempts at regulating the provision of state-wide dispute resolution services can be found in New Jersey.⁵¹ The system in New Jersey covers over 37 different types of dispute resolution programs including community mediation programs associated with the municipal courts. Rules and guidelines under this scheme cover various aspects of the provision of dispute resolution services. Some of these are mentioned, where relevant, in the course of this paper.

1.39 Much of this paper is concerned with the question of whether the current arrangements by which CJCs are governed are effective and necessary and further, if changes are desirable. An issue for this review concerns what matters should appropriately be covered by statue, what by regulation and what by the development of policies and guidelines by CJCs and their advisors. Throughout this paper the question of the most appropriate vehicle for regulation and control of the activities of CJCs is left open. For instances of regulation that are not covered by statute, questions will arise as to how the regulations, policies and guidelines can be arrived at. For example, regulations can be framed by the responsible Minister with input from advisory bodies; policies and guidelines can be framed by advisory bodies themselves or by the management of CJCs with input from various other participants. In framing issues for possible reform in the rest of this paper, the Commission welcomes submissions on the most appropriate means of achieving the desired changes.

1. NSW Parliamentary Debates (Hansard) 19 November 1980 at 3147.

2. NSW Parliamentary Debates (Hansard) 26 November 1980 at 3696; 19 October 1983 at 1881.

3. National Alternative Dispute Resolution Advisory Council, Alternative dispute resolution definitions (1997) at 5. See also National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at 116; Australian Standard (AS4608).

4. See, eg, L Boulle, Mediation: principles, process practice (Butterworths, Sydney, 1996) at 28-30. See also National Alternative Dispute Resolution Advisory Council, ADR terminology: a discussion paper (2002) at 17

5. National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at 116.

6. See H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 89.

7. See para 2.4-2.10.

8. See, eg, L Street, “Mediation and the judicial institution” (1997) 71 Australian Law Journal 794 at 794. But see J Schwartzkoff and J Morgan, Community Justice Centres: a report on the New South Wales pilot project, 1979-81 (Law Foundation of NSW, 1982) at 156 for an alternative view point.

9. See D McGillis, Community mediation programs: developments and challenges (US National Institute of Justice, 1997) at 7; American Bar Association, Report of pound conference follow-up task force (1976) at 9-10.

10. Law Society of NSW, Preliminary submission at 1; Confidential 1, Preliminary submission at 2; H Sham-Ho, Preliminary submission.

11. D McGillis, Community mediation programs: developments and challenges (US National Institute of Justice, 1997) at 7. W Faulkes and R Claremont, “Community mediation: myth and reality” (1997) 8 Australian Dispute Resolution Journal 177 at 178.

12. For example, promoting the “empowerment of individuals and communities” is an objective of the Memorandum of understanding between NSW Local Courts and the Community Justice Centres, NSW (28 January 2000).

13. H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 14-15, 33-37.

14. See, eg, W Faulkes and R Claremont, “Community mediation: myth and reality” (1997) 8 Australian Dispute Resolution Journal 177 at 180-181; S E Merry, “Going to court: strategies of dispute management in an American urban neighborhood” (1979) 13 Law and Society 891 at 898, 916, 920. See also below at para 2.59-2.62 and Chapter 6.

15. See, eg, C A Corbyn, Sydney revels (the eighteen-fifties) of bacchus, cupid, and momus (Ure Smith, Sydney, 1970) at 37, 40, 53; The Sentinel (8 October 1845) at 2.

16. See, eg, C A Corbyn, Sydney revels (the eighteen-fifties) of bacchus, cupid, and momus (Ure Smith, Sydney, 1970) at 60.

17. The Sentinel (17 September 1845) at 2.

18. The Sentinel (8 October 1845) at 2.

19. The Sentinel (8 October 1845) at 2.

20. See M Tilbury, M Noone and B Kercher, Remedies: commentary and materials (2nd edition, Law Book Company, Sydney, 1993) at 46-50.

21. NSW Parliamentary Debates (Hansard) Legislative Council, 1 September 1881 at 910.

22. Courts of Conciliation Act 1892 (Qld) s 14.

23. NSW Parliamentary Debates (Hansard) Legislative Council, 3 August 1881 at 432.

24. NSW Parliamentary Debates (Hansard) Legislative Council, 3 August 1881 at 432-437.

25. Community Justice Centres (Pilot Project) Act 1980 (NSW).

26. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 19 November 1980 at 3147.

27. J Schwartzkoff and J Morgan, Community Justice Centres: a report on the New South Wales pilot project, 1979-81 (Law Foundation of NSW, 1982) at 155, 191.

28. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 19 October 1983 at 1881.

29. See CJCs, Annual Report 2001-2002 at 8.

30. Courts Legislation (Mediation and Evaluation) Amendment Act 1994 (NSW). See also NSW, Parliamentary Debates (Hansard) Legislative Council, 4 May 1994 at 1858.

31. Legal Aid Commission Act 1979 (NSW) Pt 3A.

32. These are outlined in para 1.26-1.30, below.

33. Community Justice Centres Act 1983 (NSW) s 18 refers to the Department of Courts Administration. All references to the Department of Courts Administration are to be construed as a reference to the Attorney General’s Department: Administrative Changes (Departments) Order 1995 (NSW) cl 8.

34. See Queensland, Parliamentary Debates (Hansard) Legislative Assembly, 17 May 1990 at 1718.

35. Dispute Resolution Centres Act 1990 (Qld) s 3(2).

36. Queensland, Department of Justice and Attorney General, Annual Report 2001-2002 at 154-156.

37. See Queensland, Parliamentary Debates (Hansard) Legislative Assembly, 30 April 1997 at 1176.

38. Evidence Act 1958 (Vic) s 21K.

39. Evidence Act 1958 (Vic) s 21L-21N.

40. Mediation Act 1997 (ACT).

41. See Mediation Act 1997 (ACT) s 9, s 10, s 11, s 12.

42. See National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at para 2.20.

43. Supreme Court Act 1935 (SA) s 65; District Court Act 1991 (SA) s 32; Magistrates Court Act 1991 (SA) s 27.

44. By the Courts Legislation (Mediation and Evaluation) Amendment Act 1994 (NSW). See, for example, Compensation Court Act 1984 (NSW) s 38J; District Court Act 1973 (NSW) s 164G; Land and Environment Court Act 1979 (NSW) s 61J; Local Courts (Civil Claims) Act 1970 (NSW) s 21R; Supreme Court Act 1970 (NSW) s 110Q. See also Legal Aid Commission Act 1979 (NSW) s 60F.

45. Supreme Court Act 1970 (NSW) Pt 7B; District Court Act 1973 (NSW) Pt 3A; Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Pt 5 Div 2.

46. Compensation Court Act 1984 (NSW) Pt 4A; Land and Environment Court Act 1979 (NSW) Pt 5A; Local Courts (Civil Claims) Act 1970 (NSW) Pt 3C; Administrative Decisions Tribunal Act 1997 (NSW) Pt 4.

47. Family Law Act 1975 (Cth) Pt 2 and Pt 3; Federal Court of Australia Act 1976 (Cth) s 53A.

48. Farm Debt Mediation Act 1994 (NSW) Pt 3; Legal Aid Commission Act 1979 (NSW) Pt 3A; Agricultural Tenancies Act 1990 (NSW) Pt 4 Div 3; Community Land Management Act 1989 (NSW) Pt 4 Div 2; Legal Profession Act 1987 (NSW) Pt 10 Div 4; Strata Schemes Management Act 1996 (NSW) Ch 5 Pt 2.

49. See Law Society of NSW, Mediation and evaluation information kit (2003). See also “Society adopts charter on mediation practice” (1997) 35(11) Law Society Journal 68.

50. See para 1.26-1.30, above.

51. See D McGillis, Community mediation programs: developments and challenges (US National Institute of Justice, 1997) at 31.