• Definition of mediation
• An objects clause?
• Reference of disputes to mediation
• Assignment of mediations
• Consent and participation of the parties
• Involvement of other parties
• Culturally-based community-specific services
• Interaction with other agencies

2.1 Mediation is the principal activity of CJCs. This focus was determined early in the history of the scheme (although the possibility of arbitration was never strictly ruled out).¹ CJCs now refer to providing “conflict management services” in addition to mediation services, although mediation is the primary means by which disputes are managed. Because of the need to ensure that parties can feel confident to come to a mediation conference, the Act provides that certain protections attach to mediation (these are discussed in Chapter 4). The skill, professionalism and conduct of the mediators are also important to public and consumer confidence in the mediations conducted by CJCs. These issues are dealt with in Chapter 3.

2.2 The Act states that the Director is responsible for the provision of mediation services. The sessions are commenced and conducted according to procedures determined by the Director, subject to any policy guidelines or directions issued by the Council.²

DEFINITION OF MEDIATION

2.3 The Act provides for a broad definition of mediation:

mediation includes:

(a) the undertaking of any activity for the purpose of promoting the discussion and settlement of disputes,

(b) the bringing together of the parties to any dispute for that purpose, either at the request of one of the parties to the dispute or on the initiative of the Director, and

(c) the follow-up of any matter the subject of any such discussion or settlement.³

ISSUE 2
Does the definition of “mediation” in the CJC Act need to be changed?

2.4 The CJC Act does not currently contain an objects clause apart from the statement that “Community Justice Centres shall be established and operated in accordance with this Act for the purpose of providing mediation services”.⁶

2.5 The most recent annual report of CJCs lists the following organisational goals:

• To contribute to the safety and harmony of communities by improving individual, group and community responses to and resolution of conflict.
• To provide quality mediation and conflict management services for metropolitan and regional NSW.
• To provide services that are confidential, impartial, accessible and voluntary.
• To empower people to take ownership of the dispute and assist the parties by the transference of skills and knowledge to the community on dealing with and resolving conflict.⁷

• The provision throughout NSW of accessible, innovative, appropriate and diverse conflict management and mediation programs which are benchmarked with national and international best practice.
• Tailored services and programs which meet the needs of Aboriginal and Torres Strait Islander communities, people from culturally diverse backgrounds, and people with disabilities.
• The continuing development of a quality organisation, accredited by an external national standards body, with a priority of promoting equity, safety and harmony in the workplace and ensuring the organisation is fiscally responsible and monitors risks.
• Effective and diverse communication strategies for staff, mediators, the media, stakeholders and the community relevant to a state wide service.
• Maintaining existing mediation services and refining infrastructure and administrative functions across the regions.
• The establishment of partnerships with key stakeholders within the Attorney General’s Department and with related government and non-government agencies in order to promote a whole of government approach to the management of conflict in the community.⁸

2.8 Objectives will differ depending on the nature of the service provided. An Australian Institute of Judicial Administration issues paper has provided a list of possible objectives for court-connected mediation derived from the literature on the subject. These objectives can be adopted in various combinations and not all of them are necessarily compatible with each other. Given that the list is concerned with court-connected mediation some of the objectives may not be so relevant to community mediation schemes. However, in light of the increasing connection of community mediation with the formal justice system, some of these objectives may have more relevance to community mediation than they once had:

Objectives of court connected dispute resolution schemes could be to provide a method/methods of dispute resolution that
• Reduce delay, clear lists, reduce the backlog of court/tribunal.
• Assist in management of cases (which implies a question about the objectives of case management).
• Reduce cost (to parties; court; government; taxpayer).
• Are appropriate to the needs of the case/parties.
• Are responsive to personal as well as business needs.
• Produce fair, equitable outcomes in all the circumstances.
• Achieve party satisfaction.
• Produce enduring agreements.
• Preserve ongoing relationships between the disputants.
• Protect the interests of vulnerable third parties.
• Preserve and, if possible, increase party respect for and confidence in the justice system.
• Encourage the parties to use alternative methods in the future.
• Encourage parties to use ADR earlier, including pre-filing.
• Achieve moral education/transformation.
• Educate/encourage/respond to needs of legal profession.
• Change the legal culture.¹⁰

• to promote uniformity and quality of CDR programs;
• to monitor and evaluate CDR programs and assist managers in implementing them;
• to serve as a clearinghouse for ideas, issues, and new trends relating to CDR, locally and in other jurisdictions;
• to develop CDR pilot projects to meet new needs;
• to monitor training and continuing education programs for mediators; and
• to formalise relationships with the legal profession, the academic sector, and other providers of CDR services.¹¹

ISSUE 3
(a) Should an objects clause be included in the CJC Act?

(b) If, so, what objects should it contain?

2.11 The core activity of CJCs is the conduct of mediation sessions. However, the Act also refers to the provision of “mediation services”¹⁴ which would seem to be broader than simply the conduct of mediation sessions. The CJCs Council has suggested that “provision of mediation services” should at least read “provision of mediation and conflict management services”.¹⁵

2.12 CJCs have provided input/assistance into the development of mediation schemes established in other contexts:

• A program of peer mediation in High Schools was developed by the Department of School Education in partnership with CJCs in 1995.¹⁶
• A pre-release mediation program for inmates of correctional centres and their families was developed in conjunction with the Department of Corrective Services in 1994.¹⁷
• CJCs initially administered the Community Youth Conferencing Program (involving mediation between victims, offenders, families and other community members) in 1993/1994 and conducted training programs for mediators (including police) to take part in the Program.¹⁸
• In 1998/1999 CJC mediators were contracted to undertake conciliation with parties prior to formal hearings before the Residential Tenancies Tribunal.

2.14 It may be appropriate for CJCs to charge for services that do not constitute their core activities, especially in commercial areas.²⁰

2.15 An argument could be made that the Act is only required to regulate the mediation activities of CJCs and that any other activities can be carried out on an administrative level without the need for formal regulation (like many other business centres of the Attorney General’s Department). However, the conflict management and community education roles of CJCs are also important and an argument can be put for including them, at the very least, in a legislative objects clause.

ISSUE 4
(a) Should CJCs have functions beyond the provision of mediation services?

(b) If so, what recognition, if any, needs to be accorded in the CJC Act to services other than mediation?

2.16 It has been suggested that mediation, by providing an informal alternative to the formal justice system, may be an appropriate means for resolving disputes that involve members of particular groups in society who may, for various reasons, be wary of the traditional justice system. Examples include members of immigrant minorities, gay men and lesbians, people with disabilities and young people.²¹ The needs of Indigenous people are considered separately in Chapter 6. The provision of flexible and culturally appropriate services to minority cultural groups could be an important function of CJCs.

2.17 Recognition of the special needs of members of such groups might necessitate, for example, recruitment of suitable mediators or special awareness training for existing mediators.²²

ISSUE 5
Should reference be made in the objects to the provision of mediation services to minorities or disadvantaged groups?

2.18 This part of the chapter considers the types of disputes that are suitable for mediation in CJCs, the means of referring them, and the CJCs’ relationship with other agencies in dealing with appropriate disputes.

Types of disputes

2.19 CJCs were established to provide a means of settling the sort of disputes that conventional court-based procedures are unable to resolve satisfactorily. The kind of disputes that the CJCs’ services aimed to resolve basically fell within a relatively narrow range of domestic or neighbourhood disputes where the disputing parties had, or once had, an ongoing relationship.²³ Such disputes could include disputes between family members, partners, friends, workmates, members of an organisation, neighbours, landlords and tenants.²⁴ In 2001-2002, of the 7,161 files opened by CJCs, 49% involved neighbour disputes, 25% were family disputes (one-quarter of which involved separated or separating spouses and 16% involved children or young people and their parents). Fifteen percent of all dispute files opened related to fences.²⁵

2.20 The Act provides that the CJC Council can determine what classes of disputes may or may not be the subject of mediation sessions.²⁶ The Director may also refuse to allow a particular dispute to be mediated at a Community Justice Centre.²⁷

2.21 An example of the exclusion of specific types of matters may be found in the New Jersey Court Rules which provide:

No referral to mediation shall be made if the complaint involves:

(1) serious injury,

(2) repeated acts of violence between the parties,

(3) clearly demonstrated psychological or emotional disability of a party,

...

(5) matters arising under the Prevention of Domestic Violence Act..., or

(6) a violation of the New Jersey Motor Vehicle Code.²⁸

• Disputes where there is not a continuing relationship between the disputers.
• Disputes where there is evidence of a gross imbalance of power.
• Disputes involving serious criminal matters.
• Disputes involving domestic violence (including child abuse).
• Disputes of a family law nature which are covered by the jurisdiction of the Family Law Act.
• Disputes where the mental health of one or both of the parties indicates that mediation is unlikely to be effective.
• Disputes of the landlord/tenant type which concern occupancy.²⁹

(a) the degree of equality (or otherwise) in bargaining power of the parties; and

(b) the risk of child abuse (if any); and

(c) the risk of family violence (if any); and

(d) the emotional and psychological state of the parties; and

(e) whether one of the parties may be using the mediation option to gain delay or some other advantage; and

(f) any other matter relevant to the proposed mediation.³⁰

2.24 Generally the types of matters that are unsuitable for mediation are identified in regulations, rules or policy documents, that is, lists that are more easily changed than statutory enactments.

ISSUE 6
Should any matters be specifically excluded from the range of matters that can be the subject of a CJC mediation?

2.25 In the period 1 September 2001-30 June 2002, of the 5,859 files opened by CJCs, 77 cases (1%) involved Apprehended Domestic Violence Orders³¹ and 347 cases (6%) involved Apprehended Personal Violence Orders.³²

2.26 There are serious concerns about bringing disputes involving violence to CJCs. First, there is a strong view that domestic violence should not be subject to mediation and is not a negotiable issue. This has always been recognised by CJCs.³³ Secondly, where the violence involves control of one party over the other, there must be serious concerns about free participation in the mediation process and consent to its outcomes.³⁴ Thirdly, there are practical concerns about the physical safety of participants in the mediation process, including the parties and the mediators themselves. Finally, mediation is not a substitute for an AVO which is a protective order. Nevertheless mediation may, in some cases, be able to assist parties to deal with the dispute which provoked the request for protection. Other mediation agencies have developed careful protocols to identify disputes involving violence, to assess whether they are suitable for mediation, and to decide what provisions and protections should be put in place in the mediation in cases where the parties opt to proceed with the mediation.

ISSUE 7
To what extent should CJCs provide mediation in Apprehended Violence Order proceedings?

2.27 When Community Justice Centres were first established it was not intended for them to cover disputes arising from the dealings of business organisations with individuals or other businesses. These commercial disputes were seen as better dealt with in the area of consumer protection regulation.³⁵ For example, the current Act governing the Consumer, Trader and Tenancy Tribunal includes sections that promote conciliation, provide for the appointment of mediators and for the payment of the costs of mediations.³⁶ However, by 1993, it was being reported that commercial disputes were in fact being mediated in CJCs:

Community justice centres are being used increasingly for the resolution of commercial disputes. More and more people who have disputes with business houses or commercial organisations are achieving resolution of those disputes at community justice centres.³⁷ More and more organisations are seeking to make use of community justice centres... and now corporate clients are using them. In a period of recession, people who would normally sue are using CJCs to resolve commercial disputes.³⁸

The commercial sector also can access the program to resolve workplace disputes between employees and employers, small debt matters between suppliers and service providers, and partnership disputes.³⁹

2.29 It can be argued that it is undesirable that a free service be made available to resolve commercial disputes. Commercial relationships are not necessarily of the same nature as other ongoing relationships. However, not all disputes that have a “commercial” aspect are of the same nature. An argument could be made that some disputes involving small business and disadvantaged people could be appropriate for mediation at CJCs, particularly small civil claims. The question therefore arises as to what provision, if any, should be made to prevent certain types of commercial disputes being brought before CJCs for mediation.⁴¹

ISSUE 8
Should any commercial disputes be excluded from CJC mediations?

2.30 References may come from the disputing parties themselves, but also the courts (including chamber magistrates), police, welfare bodies, welfare agencies, government departments and agencies (including local government, Legal Aid Commission, Department of Housing) and other organisations. In 2001-2002, 46% of the 7,161 files opened by CJCs were referred from the Local Courts (by Magistrates, Chamber Magistrates or Registrars); 14% were self referred; 13% were referred by State Government bodies (41% of these were from the Police and 32% were from the Department of Housing) and 10% were from Local Government.⁴²

2.31 Various other instruments provide that some disputes may or must be referred to a CJC. For example, the model rules for incorporated associations require that a dispute between members of an association must be referred to a CJC.⁴³ Adjoining landowners may go to a CJC in order to reach an agreement concerning the carrying out of fencing work.⁴⁴

2.32 The Acts relating to many judicial bodies and tribunals now make provision for the referral of matters for mediation provided the parties to the proceedings have agreed. Such provisions either expressly state that they do not prevent referral of the matter to a CJC⁴⁵ or imply this in a broader provision that does not exclude any other form of mediation.⁴⁶

2.33 Some provisions also allow courts to adjourn or make such other orders as are necessary to allow a matter to be mediated at a CJC.⁴⁷ None of these provisions appear to override the requirement of consent by the parties to a dispute.

ASSIGNMENT OF MEDIATIONS

2.34 In practice the mediation sessions are conducted by two mediators assigned by an interviewing officer on behalf of the relevant Centre Coordinator. The responsibility for assigning the mediators rests with the relevant Centre Coordinator on delegation from the CJC Director. The Coordinators attempt to assign the most appropriate mediators to each session, with a view to equal distribution of the workload but also bearing in mind such variables as client comfort and needs, the type of dispute, the mediators’ abilities, availability and any requirements for specialised mediators.⁴⁸

CONSENT AND PARTICIPATION OF THE PARTIES

2.35 A number of issues are dealt with in this section relating to the participation of parties in a mediation, including:

• whether the parties can be compelled (or mandated) to participate in the mediation; and
• the extent to which the parties need to be willing participants in the mediation process (regardless of whether their initial participation is voluntary or not).

The degree of coercion to mediate is not simply a product of a statutory provision allowing the courts to compel the parties to mediate. It is also a function of the social and political circumstances in which the parties must make decisions associated with their dispute.⁴⁹

2.36 The issue of compelling parties to attend a CJC mediation has arisen from time to time.⁵⁰ For example, it was canvassed in the review of the pilot scheme in 1982. Some commentators believed that compulsion might make the system more effective. It was also suggested that compulsion would reduce the administrative costs involved in CJCs attempting to arrange mediations that do not go ahead because one party refuses to attend. The review, however, concluded that the purely voluntary nature of the scheme was fundamental to its operation.⁵¹

2.37 It has also been suggested that parties should be compelled to mediate particular types of dispute. For example, some Department of Housing local client service teams have suggested that there are problems arising from the fact that tenants cannot be forced to attend a mediation session. They suggested that CJC mediation should be compulsory where a public housing tenancy is at risk.⁵² Some local Councils have also suggested that CJC mediation should be compulsory in some cases, for example, in relation to dividing fences.⁵³ The Law Reform Commission’s report on dividing fences considered that compulsory mediation might be of “practical advantage in getting parties to attend a mediation session” but declined to deal with the issue only in relation to dividing fences because of the general “jurisprudential and practical issues raised”.⁵⁴

2.38 Some studies in the United States have suggested that voluntary participation does not appear to be determinative of a successful outcome,⁵⁵ leading one commentator to suggest that one way for community mediation to have an effective impact on court caseloads and court costs is for mediation to be made mandatory as a precondition to litigation.⁵⁶ Such an approach presumes that mediation will produce faster and higher quality dispute resolution.⁵⁷

2.39 Compulsory mediation is not uncommon. In New South Wales it is available in varying degrees, for example, in the Supreme Court, the District Court and in relation to farm debts.⁵⁸ Participation in mediation ordered by the Local Courts, however, continues to be voluntary.⁵⁹

2.40 In Queensland, Dispute Resolution Centres can deal with court-ordered mediations (required by what are called “referring orders”).⁶⁰

2.41 Potential problems with making compulsory mediation possible include:

• the view that participation in mediation must be voluntary to be effective (even though the consensual nature of the process remains unchanged);⁶¹
• the possibility that compulsory mediation at CJCs might appear to be forcing people into “second class justice” (in comparison with formal court adjudication);⁶²
• the need for CJCs to regulate the types of cases it accepts for mediation; and
• the possible impact on CJC performance of cases of a type that have not previously been dealt with by CJCs.

• the inclusion of provisions similar to those in Queensland in relation to court-ordered mediations;⁶³
• a consideration of the resources needed to take on more mediation work in addition to the current non-compulsory workload;
• the inclusion of mechanisms to ensure the quality of mandatory mediation for disputing parties,⁶⁴ including, for example, provisions for enforcement of standards and accountability (including complaints mechanisms).⁶⁵

ISSUE 9
(a) Should CJCs be required to deal with compulsory mediations?

(b) Should special provision be made to deal with the possibility that mandatory mediations may be referred to CJCs?

2.43 In cases where parties are compelled to take part in mediation they may also be required to participate in the mediation in a particular way, usually “in good faith”. A good faith requirement may be imposed, for example, either contractually – by way of an agreement to mediate, or by the courts – supported by statutory good faith provisions such as those found in the Supreme Court Act 1970 (NSW).⁶⁷ There has been considerable debate in recent years about good faith requirements in the context of mediation, including their meaning, their enforceability, and also whether good faith can in fact exist when the parties to a dispute necessarily act in their own interests.⁶⁸

2.44 A recent decision of the New South Wales Supreme Court has considered the question of the content of an obligation to mediate in good faith (in the context of a contractual agreement between the parties):

These are matters to be determined depending always on the precise circumstances of each individual case. But the “certainty” issue does require that the court spell out, even in non-exhaustive terms, the perceived essential or core content of an obligation to negotiate or mediate in good faith. To my mind, but without being exhaustive, the essential or core content of an obligation to negotiate or mediate in good faith may be expressed in the following terms:

(1) to undertake to subject oneself to the process of negotiation or mediation (which must be sufficiently precisely defined by the agreement to be certain and hence enforceable).

(2) to undertake in subjecting oneself to that process, to have an open mind in the sense of:


(a) a willingness to consider such options for the resolution of the dispute as may be propounded by the opposing party or by the mediator, as appropriate.

(b) a willingness to give consideration to putting forward options for the resolution of the dispute.


Subject only to these undertakings, the obligations of a party who contracts to negotiate or mediate in good faith, do not oblige nor require the party:

(a) to act for or on behalf of or in the interests of the other party;

(b) to act otherwise than by having regard to self-interest.⁶⁹

ISSUE 10
What implications would a requirement to mediate in good faith have for CJC mediators when dealing with compulsory mediations?

2.45 It is considered important that the continued participation of parties to a mediation is voluntary. This accords with the US Model Standards of Conduct for Mediators which states:

Self-determination [by the parties] is the fundamental principle of mediation. It requires that the mediation process rely upon the ability of the parties to reach a voluntary, uncoerced agreement. Any party may withdraw from mediation at any time.⁷³

where the respective bargaining positions of the parties to a dispute are manifestly unequal. It is well recognized that such cases are not amenable to the mediation process, and the parties are rightly left to pursue their legal remedies.⁷⁶

• “there is an imbalance of power between the parties that the mediator cannot overcome”;
• “there is abusive behavior that the mediator cannot control”;
• “the mediator believes continued mediation is inappropriate or inadvisable for any reason”.⁷⁷

2.49 A mediation could also be terminated for the same reasons that disputes are refused by CJCs at intake if the relevant circumstances, for example, the presence of domestic violence, become evident during the course of the mediation.

ISSUE 11
In what circumstances should a mediation be terminated?

2.50 On some occasions the question has arisen of the presence at a mediation of persons other than the parties to the dispute. The issues of the presence of lawyers at a mediation and other agents to support or represent a party to a dispute are discussed below.

Presence of lawyers

2.51 It has been intended from the beginning that lawyers not be involved in the mediations conducted at CJCs.⁷⁹ Reasons for this include the need to maintain informality and the need to ensure that those who cannot afford lawyers are not disadvantaged with respect to those who can. It is the practice in CJCs to advise the parties to a dispute to seek legal advice before they mediate.⁸⁰ The presence of legal practitioners might become more of an issue if, for example, more matters from Local Courts were referred to CJCs for compulsory mediation.

2.52 On the other hand, there can be practical reasons for lawyers to be involved in a mediation process. For example, lawyers may be useful in clarifying facts or assisting with inarticulate or stressed persons who are parties to a mediation.⁸¹ Lawyers may also provide disputants with assessments of the likely outcome, or range of outcomes, if a matter is litigated, thus giving parties information they need in order to assess offers to settle in mediation. There is some evidence to suggest, at least in relation to family law matters, that the presence of lawyers in the process (to provide, among other things, advice and support) can often be beneficial, being more likely to result in consensual agreements.⁸² The question of representation of, or assistance to, people who are unable to articulate their position effectively, and the mechanisms to achieve this, are dealt with later in this chapter.⁸³

2.53 However, despite the policy to exclude lawyers, there is currently no express provision prohibiting their participation.⁸⁴ Indeed, it has been observed that there is no bar to legal practitioners attending the mediation session (presumably in a non-representative capacity) so long as the mediators and parties have consented. In practice, however, legal practitioners do not attend mediation sessions.⁸⁵ No problem would appear to have arisen from the absence of an express ban on the attendance of legal practitioners.

ISSUE 12
Should lawyers who are not parties to the mediation have any role in mediations conducted by CJCs?

2.54 It is recognised that some persons, particularly those with a disability, may require an agent to represent their interests effectively in mediation. In practical terms such a person’s role may vary depending on the needs of the person with the disability and could range from being a support person who can assist in understanding what is going on or in presenting their own views, to being an advocate who represents the perceived interests of the person with the disability.⁸⁶ This agent (whether a support person or advocate) need not be a lawyer.

2.55 One reason for restricting the situations where parties to a dispute can be represented by an agent (whether a lawyer or not) is that it is sometimes thought that such representation is only really effective where the issues in dispute have been narrowly confined. Such confinement of the issues restricts the processes of “explanation, exploration and negotiation” which are said to be necessary to successful mediation.⁸⁷

2.56 The Act makes specific provision for allowing agents to take part in a mediation session in certain circumstances, subject to the approval of the Director of CJCs.⁸⁸ In 1985 it was observed that:

There have been few occasions where the Director has approved representation by an agent. In almost every case, representation has restricted the scope of the mediation to a narrow range of issues, has severely limited the effectiveness of the mediation and reduced the satisfaction of all parties. In a comparatively few cases, an agent has effectively represented a disputant at a mediation session. Without exception these were disputes involving a single issue with little or no emotional component.⁸⁹

2.57 Consideration needs to be given as to whether the current provisions adequately allow for support persons to attend mediation sessions. One submission particularly raised the issue of Department of Community Service workers.⁹³ The CJC Professional Reference Group has suggested that the Act could authorise a “representative agent to be present under any Memorandum of Understanding or Agreement made between any Department or Authority with the CJCs”.⁹⁴

2.58 The Anti-Discrimination Board has suggested greater provision be made for representation of parties who might not otherwise be able to participate effectively in mediation.⁹⁵ Current provisions in s 25 of the Act leave it to the discretion of the Director of CJCs. The Anti-Discrimination Board has suggested s 88 of the Anti-Discrimination Act 1977 (NSW) as a model. This may, however, not be entirely appropriate because s 88 deals with complaints lodged by one person against another in relation to contraventions of the Anti-Discrimination Act and some of the provisions deal with the participation of interest groups. However, some of the provisions that relate to a person representing another person who is otherwise unable to look after their own interests effectively may provide a useful model. For example, provision is made that a person may represent a party with a disability only if the President of the Anti-Discrimination Board is satisfied the person consents and that the President may decline to continue with a matter if the President thinks that the representative “has subsequently lost the confidence or authority of the complainant”. If the person is incapable of consenting, the consent may be given by a parent or guardian or “by anyone else who the President is satisfied has a genuine concern for the person’s welfare”.⁹⁶

ISSUE 13
What provision should be made for parties who are not able to take part in CJC mediations effectively on their own account, in particular in relation to:

(a) the presence of support persons in the mediation; and

(b) the representation of their own interests in the mediation?

2.59 Culturally-based community-specific CJCs have been proposed in addition to the existing geographically based services. Nothing in the Act would appear to prevent this from occurring.

2.60 Suggestions have been put forward that CJCs should provide special services to Aboriginal and Torres Strait Islander people as well as ethnic communities and communities of interest (for example, housing tenants and young people).⁹⁷ The specific question of CJCs for Aboriginal and Torres Strait Islander people is discussed in Chapter 6.⁹⁸

2.61 Mediation has the advantage of being flexible and able to respond to varying cultural assumptions and needs. It can be adapted to the needs of various communities – for example, by the adoption of special procedures, by the identity and skills of the mediator, by location, and by language.

2.62 If CJCs are expected to provide a service to “the community” this presumably means the community in all its diversity. The question remains, however, as to how this can be best achieved. Establishing specific CJCs may be appropriate in some circumstances. However, it can also be argued that the current regionally-based CJCs should be equipped to provide services to particular communities and communities of interest in their regions, for example, through the recruitment of mediators who represent the particular communities or by the training in relevant cultural issues of CJC mediators who do not come from the particular communities. Some of these issues are already being dealt with by CJCs. For example, CJCs aim to recruit mediators taking into account “age, gender, availability, ethnic and cultural background and any specific program needs”.⁹⁹

ISSUE 14
(a) Should there be CJCs that cater for particular communities in addition to the geographically based CJCs?

(b) Are there other ways in which CJCs can make better provision for the needs of particular communities?

2.63 Interaction with other agencies is one specific way for CJCs to receive appropriate disputes for mediation. But the relationships are more complex than that, with issues also arising concerning the use of resources, the provision of mediation services on a commercial basis and the reference of various disputes to other relevant agencies in order to aid resolution.

2.64 Current provisions relate only to the use of resources and secrecy. One of the secrecy provisions of the Act deals specifically with the reference of matters to another agency, allowing disclosure of information:

where the disclosure is reasonably required for the purpose of referring any party or parties to a mediation session to any person, agency, organisation or other body and the disclosure is made with the consent of the parties to the mediation session for the purpose of aiding in the resolution of a dispute between those parties or assisting any such parties in any other manner.¹⁰⁰

2.65 In 1999-2000 CJCs were able to report that they had:

forged partnerships with a variety of other agencies including local courts, legal aid, local councils, neighbourhood centres, and government departments, to enhance effective whole of community responses to conflict. An added bonus has been easier access to local venues for its mediation programs. This is vital if consumers are not to be disadvantaged by their ability to access a centre because of cost, location, distance, disability and so on.¹⁰¹

2.66 CJCs have developed a Memorandum of Understanding with the Office of the Public Guardian (“OPG”) in July 2001.¹⁰³ The aim of the Memorandum is to help the OPG in responding to situations where family members of the person under guardianship are in dispute, either among themselves, or with professionals and agencies that provide care for the person.¹⁰⁴

2.67 CJCs are a “provider” to the Department of Community Services.¹⁰⁵ In 2000/2001 a CJCs/Police project group established two working parties, one of these concentrated on community policing.¹⁰⁶

2.68 At a less formal level, the Department of Fair Trading arranges mediations (for example, through the Consumer, Trader and Tenancy Tribunal, and Strata Schemes and Mediation Services Branch of the Department) and provides referrals to CJCs in some instances where CJC mediations are more appropriate because of the after-hours service provided or because of the neighbourhood nature of the dispute in hand.¹⁰⁷

2.69 The Anti-Discrimination Board, in its preliminary submission, has proposed a memorandum of understanding whereby the Board and CJCs may be able to deal more effectively with disputing parties where a dispute could feasibly be dealt with by either agency.¹⁰⁸ This form of referral of matters may not be appropriate in terms of confidentiality and consent of the parties. Informal referral of parties to legal assistance does occur,¹⁰⁹ however formal reference of matters to other agencies may not be consistent with the aims and culture of mediation.

Relationship with Local Courts

2.70 There is a close relationship between CJCs and Local Courts in terms of both use of facilities and referrals.¹¹⁰ These links have provoked some discussion over the years. The close relationship in terms of referrals has certainly ensured a steady stream of cases that might not otherwise come to CJCs for resolution.¹¹¹

2.71 In past years some Local Courts have entered into informal local arrangements with CJCs. A formal Memorandum of Understanding has now been entered by the Director of CJCs and the Director of Local Courts¹¹² which aims at offering clients an “enhanced client service by providing information, referrals and timely and efficient access to mediation services”.¹¹³ The early interventionist approach adopted by the Memorandum of Understanding aims to prevent the bringing of unnecessary and costly matters before the Local Courts.¹¹⁴ The Memorandum includes protocols for operation covering such matters as the transfer of information, the provision of venues for mediation where feasible and training of CJC and Local Courts staff.¹¹⁵

2.72 Ultimately the issue of CJCs’ relationship with Local Courts raises a number of broad questions, including whether:

• CJCs should have a role and identity that are separate to the courts and the formal justice system;
• mediation should be encouraged as the first port of call rather than relying on the formal justice system to refer matters on to mediation at a later stage; and
• CJC mediators should be able to refuse to mediate some matters.

Use of Local Courts facilities

2.73 Another vexed question is whether it is appropriate that CJCs use Local Court facilities. Obviously they are convenient and cost effective. Often the Local Court is the only locally based outpost of the Attorney General’s Department in rural areas.

2.74 If mediation is about providing an alternative to traditional methods of dispute resolution and encouraging the participation of people who may, for various reasons, be wary of the justice system,¹¹⁶ close relationships with the courts (in terms of provision of venues etc) may not be a good idea.¹¹⁷ This could be especially so in the case of groups who have a history of poor relations with the criminal justice system, for example, Indigenous people. It was originally proposed that the Redfern CJC be located at the Redfern Local Court and operate “in a fashion which could be more formal and more obviously allied to the traditional legal system”. However, consultations with organisations and individuals in the area at the time revealed that this would be an “unpopular decision and one which might well prejudice the ability of the centre to attract cases and clients”.¹¹⁸

2.75 Close associations with alternative dispute resolution programs may also present problems for the standing and integrity of traditional courts which “fill a highly specific role as custodians of the sovereign power of adjudication of disputes through the mechanism of due process and by the application of principles and rules of law”. It is considered by some that ADR programs are “additional or complementary to litigation” and should not be seen as “alternative procedures within the services provided by the court system”.¹¹⁹ Others have pointed out that confusion may result where “courts, identified with authoritative third party decision-making, become the locus of dispute resolution services of an entirely different character”.¹²⁰

2.76 On the other hand, it has been suggested that close physical associations with the courts and other “legal” agencies has made little difference to the types of clients who approach the CJCs:

It was in fact with some reluctance that CJCs initially used court houses or legal aid officers for local mediation sessions. To everyone’s surprise, it did not seem to make any difference to the service users or the effectiveness of the process.¹²¹

2.78 An alternative venue to the Local Courts could be found in government schools which will also generally have a presence in most large country towns. Regional Legal Aid Commission offices may also provide potential venues but the advocacy and “legal” functions of the Legal Aid Commission may make them inappropriate for use by CJCs¹²³ and further, the Legal Aid Commission now offers its own family law conferencing program.

ISSUE 15
Should CJCs make use of court facilities for mediation and administrative support?

1. 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 13-14.

2. Community Justice Centres Act 1983 (NSW) s 20, s 21.

3. Community Justice Centres Act 1983 (NSW) s 4(1).

4. Community Justice Centres Act 1983 (NSW) s 21(4). See also 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 25.

5. CJCs, Preliminary submission at 2; J Hallinan, Preliminary submission at 2.

6. Community Justice Centres Act 1983 (NSW) s 14.

7. CJCs, Annual report 2001-2002 at 5.

8. CJCs, Annual report 2001-2002 at 5.

9. Legal Profession Act 1987 (NSW) s 123, s 124, s 125; Disability Services Act 1993 (NSW) s 3; Optometrists Act 2002 (NSW) s 3; Community Relations Commission and Principles of Multiculturalism Act 2000 (NSW) s 12.

10. H Astor, Quality in court connected mediation programs: an issues paper (Australian Institute of Judicial Administration Inc, 2001) at 5.

11. NJ Court Rules 1969 r 1:40-3(b).

12. Anti-Discrimination Board, Preliminary submission at 3.

13. CJCs, Preliminary submission at 6.

14. Community Justice Centres Act 1983 (NSW) s 20.

15. CJCs Council, Report to Legislation and Policy: review of the Community Justice Centres Act 1983 (2001) at 7.

16. NSW, Parliamentary Debates (Hansard) Legislative Council, 30 October 1995 at 2581. School-based mediation schemes have spread rapidly across the US: D McGillis, Community Mediation Programs: Developments and Challenges (US National Institute of Justice, 1997) at 27-28.

17. See CJCs, Annual report 1993/1994 at 5; NSW, Parliamentary Debates (Hansard) Legislative Council, 30 October 1995 at 2581.

18. See CJCs, Annual report 1993/1994 at 5; NSW, Parliamentary Debates (Hansard) Joint Estimates Committee (Attorney General and Justice), 20 October 1994 at 4302.

19. D McGillis, Community Mediation Programs: Developments and Challenges (US National Institute of Justice, 1997) at 25-30.

20. See, eg, Victoria, Parliamentary Debates (Hansard) Legislative Assembly, 31 October 1990 at 1649. See also para 2.67 and para 5.42-5.45, below.

21. H Astor and C Chinkin, Dispute Resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 168.

22. See H Astor and C Chinkin, Dispute Resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 168-169. Services to Indigenous people and communities are dealt with below in Chapter 6.

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

24. NSW Parliamentary Debates (Hansard) Legislative Council, 26 November 1980 at 3696; Legislative Assembly, 19 October 1983 at 1881.

25. CJCs, Annual report 2001-2002 at 23-24.

26. Community Justice Centres Act 1983 (NSW) s 22(1).

27. Community Justice Centres Act 1983 (NSW) s 24(1).

28. NJ Court Rules 1969 r 1:40-8(a).

29. “Neighbourhood mediation service pilot” (1985) 59 Law Institute Journal 153.

30. Family Law Rules 1984 (Cth) O 25A r 5.

31. Notwithstanding the view that “domestic violence is not in itself the subject of mediation, nor a negotiable issue and this has always been recognised by the Community Justice Centre”: CJCs, Annual report 1998-1999 at 6.

32. CJCs, Annual report 2001-2002 at 22. This number could be significantly increased if recommendations in the Law Reform Commission’s Report on Apprehended Violence Orders are adopted: see NSW Law Reform Commission, Apprehended violence orders: review of part 15A of the Crimes Act (Report 103, 2003) at chapter 5.

33. CJCs, Annual report 1998/1999 at 6.

34. H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 350-351.

35. NSW Parliamentary Debates (Hansard) Legislative Assembly, 26 November 1980 at 3696.

36. Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Part 5.

37. NSW, Parliamentary Debates (Hansard) Legislative Council, 14 September 1993 at 3033.

38. NSW, Parliamentary Debates (Hansard) Estimates Committee No 5, 21 October 1993 at 4286.

39. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 19 September 2001 at 16873.

40. Memorandum of understanding between NSW Local Courts and the Community Justice Centres, NSW (28 January 2000).

41. See also para 5.42-5.45 below.

42. CJCs, Annual report 2001-2002 at 21-22.

43. Associations Incorporation Regulation 1999 (NSW) Sch 1 rule 10(1).

44. Dividing Fences Act 1991 (NSW) s 12(1).

45. See Administrative Decisions Tribunal Act 1997 (NSW) s 99; Compensation Court Act 1984 (NSW) s 38A; Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) s 64; Dust Diseases Tribunal Act 1989 (NSW) s 32G; Land and Environment Court Act 1979 (NSW) s 61A; Local Courts (Civil Claims) Act 1970 (NSW) s 21I. The Supreme Court Act 1970 (NSW) which provides for compulsory mediation also does not prevent referral of a matter to a Community Justice Centre: Supreme Court Act 1970 (NSW) s 110H, s 110K.

46. For example, Legal Aid Commission Act 1979 (NSW) s 60A(2).

47. See, eg, Local Courts (Civil Claims) Rules 1988 (NSW) rule 8(2)(b); Criminal Procedure Act 1986 (NSW) s 203 (in relation to summary criminal proceedings); Residential Parks Act 1998 (NSW) s 91(2)(d).

48. CJCs, “Assigning mediators” (unpublished paper, 10 January 1996).

49. H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 274.

50. See, eg, H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 271-272. See also E Laginha, Preliminary submission.

51. 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 194-195.

52. NSW Department of Housing, Preliminary submission at 3.

53. Blacktown City Council, Preliminary submission at 2; Penrith City Council, Preliminary submission.

54. NSW Law Reform Commission, Community Law Reform Program: dividing fences (Report 59, 1988) at para 3.31.

55. J Pearson, “Evaluation of alternatives to court adjudication” (1982) 7 Justice System Journal 420 at 429.

56. Pearson at 439-441.

57. D McGillis, Community mediation programs: developments and challenges (US National Institute of Justice, 1997) at 64.

58. Supreme Court Act 1970 (NSW) s 110K, s 110L; District Court Act 1973 (NSW) s 164A, s 164B; Farm Debt Mediation Act 1994 (NSW) s 8, s 9B, s 11.

59. Local Courts (Civil Claims) Act 1970 (NSW) s 21L, s 21M.

60. Amendments allowing this were introduced by Courts Reform Amendment Act 1997 (Qld) Pt 5. See also Queensland, Parliamentary Debates (Hansard) Legislative Assembly, 30 April 1997 at 1176.

61. H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 273; J Pearson, “Evaluation of alternatives to court adjudication” (1982) 7 Justice System Journal 420 at 440.

62. 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 195.

63. See para 1.28 above.

64. See H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 275.

65. On standards and codes of practice, see para 3.53-3.58 below.

66. Australian Law Reform Commission, Review of the federal civil justice system (Discussion Paper 62, 1999) at para 9.36.

67. Supreme Court Act 1970 (NSW) s 110L.

68. See Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 at para 79-159; H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 193-202.

69. Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 at para 156 (Einstein J).

70. See para 4.11-4.19 and para 4.26-4.32 below.

71. See Gain v Commonwealth Bank of Australia (1997) 42 NSWLR 252 at 256 (Gleeson CJ), 262-263 (Cole JA) and 266 (Sheppard AJA); State Bank of New South Wales v Freeman (NSW SC, No 12670/1995, Badgery-Parker J, 31 January 1996, unreported) at 17; H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 202.

72. H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 273-274.

73. US Model Standards of Conduct for Mediators item I.

74. Community Justice Centres Act 1983 (NSW) s 23(2).

75. Community Justice Centres Act 1983 (NSW) s 24(2).

76. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 19 October 1983 at 1882.

77. NJ Court Rules 1969 r 1:40-4(f)(1) and (2).

78. Australian Law Reform Commission, Review of the federal civil justice system (Discussion Paper 62, 1999) at para 11.148.

79. NSW Parliamentary Debates (Hansard) Legislative Council, 26 November 1980 at 3591.

80. See W Faulkes, “Runs on the mediation scoreboard” (1985) 59 Law Institute Journal 206 at 207; J Williams, “Community Justice Centres: marking 10 years of service” (1990) 28(11) Law Society Journal 48 at 50.

81. M Thornton, “Equivocations of conciliation: the resolution of discrimination complaints in Australia” (1989) 52 Modern Law Review 733 at 754.

82. R Hunter “Adversarial mythologies: policy assumptions and research evidence in family law” (2003) 30 Journal of Law and Society 156 at 158-161, 176.

83. See para 2.54-2.58 below.

84. See NSW Parliamentary Debates (Hansard) Legislative Council, 26 November 1980 at 3589.

85. C McRobert, “Mediation in Local Courts: an alternative to contested hearings” (1990) 28(11) Law Society Journal 50 at 51.

86. J Simpson, “Guarded participation: alternative dispute resolution and people with disabilities” (unpublished report on a research project carried out with funding from the Law and Justice Foundation of NSW, 2002) at 10-11.

87. W Faulkes, “Pursuing the best ends by the best means” (1985) 59 Australian Law Journal 457 at 458.

88. Community Justice Centres Act 1983 (NSW) s 25.

89. Faulkes at 458-459.

90. J Simpson, “Guarded participation: alternative dispute resolution and people with disabilities” (unpublished report on a research project carried out with funding from the Law and Justice Foundation of NSW, 2002) at 10.

91. Community Justice Centres Act 1983 (NSW) s 25.

92. Simpson at 10.

93. CJCs, Preliminary submission at 5.

94. CJCs Professional Reference Group, Preliminary submission at 7.

95. Anti-Discrimination Board, Preliminary submission at 9.

96. Anti-Discrimination Act 1977 (NSW) s 88(2), (2A), (2B), (2C).

97. CJCs, Annual report 2001-2002 at 12.

98. See para 6.15-6.20.

99. CJCs, “Becoming an accredited mediator with the Community Justice Centres” «http://www.lawlink.nsw.gov.au/cjc.nsf/pages/training4» (as at 1 September 2003).

100. Community Justice Centres Act 1983 (NSW) s 29(2)(d).

101. CJCs, Annual report 1999-2000 at 6.

102. CJCs, Annual report 2000-2001 at 4.

103. Memorandum of understanding between the Office of the Public Guardian and the Community Justice Centres NSW (July 2001).

104. CJCs, Annual report 2000-2001 at 4.

105. CJCs, Annual report 2000-2001 at 5.

106. CJCs, Annual report 2000-2001 at 5.

107. Department of Fair Trading, Preliminary submission.

108. See Anti-Discrimination Board, Preliminary submission at 9.

109. See W Faulkes, “Pursuing the best ends by the best means” (1985) 59 Australian Law Journal 457 at 459.

110. See NSW, Parliamentary Debates (Hansard) Legislative Council, 23 September 1999 at 1133.

111. See W Faulkes and R Claremont, “Community mediation: myth and reality” (1997) 8 Australian Dispute Resolution Journal 177 at 180.

112. Memorandum of understanding between NSW Local Courts and the Community Justice Centres, NSW (28 January 2000).

113. CJCs, Annual report 2000-2001 at 4

114. CJCs, Annual report 1999-2000 at 6.

115. Memorandum of understanding between NSW Local Courts and the Community Justice Centres, NSW (28 January 2000).

116. For example, Aboriginal and Torres Strait Islander peoples, immigrants, gay men and lesbians, people with disabilities and young people: H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 168.

117. 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 197.

118. Schwartzkoff and Morgan at 16.

119. L Street, “Mediation and the judicial institution” (1997) 71 Australian Law Journal 794 at 795.

120. H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 270 referring to S Roberts, “Three models of family mediation” in R Dingwall and J Eekelaar (ed), Divorce mediation and the legal process (Clarendon Press, Oxford, 1998) at 148.

121. W Faulkes, “The Modern development of alternative dispute resolution in Australia” (1990) 1 Australian Dispute Resolution Journal 61 at 66.

122. Faulkes at 66.

123. 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 197.