• Commercial matters
• Family law matters
• Factors requiring exclusion of some disputes
• Matters involving violence
• The need for regulation

4.1 The mediation service provided by CJCs is a generalist service. CJCs can potentially deal with all types of disputes anywhere in the State subject to some restrictions.¹ For example, the CJCs Act currently provides that the CJC Council can determine what classes of disputes may or may not be the subject of mediation sessions.² The Director may also refuse to allow a particular dispute to be mediated at a Community Justice Centre.³ However, accessibility is an important feature of mediations conducted by CJCs and in practice few limitations have been imposed.

4.2 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.⁴ Such disputes could include disputes between family members, partners, friends, workmates, members of an organisation, neighbours, landlords and tenants.⁵ This is borne out to an extent by CJCs’ statistics. In 2003-2004, of the 6,824 files opened by CJCs, 44% involved neighbour disputes, 28% were family disputes (65% of which involved separated or separating spouses and 14% involved children or young people and their parents). Twelve percent of all dispute files opened related to fences.⁶ However, in practice, CJCs deal with a wider range of matters, even if some matters are dealt with infrequently; and it is arguably feasible for CJCs to expand their services into some specialist areas. For example, mediators have been trained in handling Development Application and Building Application disputes for Newcastle Council.

4.3 This Chapter considers whether there are particular types of disputes for which CJCs should or should not offer mediation before going on to consider whether there are particular aspects to some disputes that should preclude mediation in some or all cases. A particular focus is on mediations where violence is an element in the relationship between the parties.

COMMERCIAL MATTERS

4.4 Disputes about commercial matters exist along a spectrum. They include disputes involving small sums of money, disputes involving small or family businesses, disputes between ordinary consumers or traders and large corporations, franchise disputes and disputes between large corporations.

4.5 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 by consumer protection agencies and legislation.⁷ 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.⁸ The CJCs Memorandum of Understanding with the Local Courts observes that there are certain categories of disputes that are less amenable to alternative dispute resolution processes, giving as an example “purely commercial disputes, particularly those involving insurance companies or financial institutions”.⁹ For example, it has been noted that small claims relating to motor accidents are problematic because insurance companies often have a policy of not settling.¹⁰ However, some disputes with a commercial aspect are being dealt with by CJCs.

4.6 In IP 23 the Commission asked what provision, if any, should be made to prevent certain types of commercial disputes being brought before CJCs for mediation.¹¹

4.7 Submissions noted that commercial matters are often amenable to mediation at CJCs, because:

• they can involve persons with on-going relationships, whether business or personal;¹²
• experience with pre-trial hearings in the Small Claims Division of the Local Court has shown that they are;¹³ and
• most have underlying issues appropriate for CJC mediation skills and experience.¹⁴

4.9 On the other hand some commercial matters present a particular problem for the type of mediation conducted by CJCs in that, for a mediation to achieve an effective outcome, a business would need to be represented by someone authorised to make decisions on its behalf.¹⁶

4.10 While it can be argued that “small” commercial disputes should be accepted,¹⁷ others have argued that matters should continue to be assessed on a case by case basis since amenability of certain disputes to mediation may change over time.¹⁸

4.11 Other arguments relating to the provision of mediation services in commercial matters centre largely on the question of whether CJCs should be able to charge for some of the services they offer. On the one hand some have suggested that, as a matter of equity, it is unfair that CJCs, as a free service, can compete against commercial mediation services¹⁹ and that this could lead to an undervaluing of mediation in the commercial market.²⁰ However, it was also suggested that free CJC mediations were unlikely to draw small matters away from the commercial sector since the costs involved in commercial mediation (or, indeed, in litigation) were unlikely to make such disputes financially viable - the matters would not have gone to commercial mediation in the first place.²¹ Another suggestion was that parties should be means tested if commercial disputes are to be dealt with and parties that fail the test be asked to contribute at a market rate or the matter be outsourced to another agency.²²

4.12 On the other hand, it was argued that disputes of a commercial nature are seldom presented to CJCs because the parties believed that free services offered no value.²³

4.13 The Commission considers that at present no change in current arrangements is warranted since:

• there are clearly some commercial matters that will be amenable to mediation at CJCs;
• there is no evidence that the services are being misused;
• there is no simple way of imposing a means test on participants; and
• the Director has the discretion to exclude particular cases.²⁴

4.14 Twenty eight per cent of disputes handled by CJCs are classified as family disputes and 65% of family disputes are between separating or separated couples.²⁵ It is not clear how many of these can be classed as disputes under the Family Law Act 1975 (Cth).

4.15 It could be argued that family law disputes are more appropriately dealt with by mediation service providers who meet the requirements of the Family Law Act 1975 (Cth) and regulations. For example, the Victorian Dispute Resolution Project Committee, which recommended the establishment of a neighbourhood mediation pilot project in 1985, stated that “disputes of a family law nature which are covered by the jurisdiction of the Family Law Act” were not suitable for community mediation.²⁶

4.16 One submission suggested that CJCs should only be allowed to mediate in the area of family law if:²⁷

• the mediators assigned to family law disputes meet the qualifications, training (including ongoing training) and experience described in the Family Law Regulations 1984 (Cth);
• the mediators assigned to family law disputes receive the type of supervision articulated in the Family Law Regulations;
• the mediators assigned to family law disputes are trained in and receive ongoing training in areas such as domestic violence, child development and child protection;
• the intake officer or mediator undertakes the assessments as to the appropriateness of disputes for mediation that are stipulated by the Family Law Regulations;²⁸ and
• the intake officer or mediator provides the parties with a written statement outlining the mediation process, the role of the mediators and the rights of the parties.²⁹

4.17 To the extent that mediation of family law matters also involves questions of violence, these are dealt with later in this chapter.³¹ Whether the mediation services offered by CJCs meet the necessary requirements under the Family Law Act 1975 (Cth) and other relevant regulations is a question for the Family Court and/or Commonwealth Government regulation and cannot be dealt with in the context of the CJCs Act.

FACTORS REQUIRING EXCLUSION OF SOME DISPUTES

4.18 An important question is whether any particular characteristics of the parties or circumstances surrounding the dispute itself should exclude mediation in some cases. The appropriateness of a particular dispute for mediation can be determined at two stages:

• before the mediation commences, in which case the decision will usually be taken by an intake officer; or
• during the mediation when relevant circumstances become known, in which case the decision to terminate will be made by either one of the mediators or one of the parties.

Violence and other reportable behaviours

4.20 One of the most important factors to be taken into account in determining whether to proceed with a mediation is the presence of violence of some sort, either actual or threatened. This includes disputes that have involved:

• serious injury;³²
• repeated acts of violence;³³
• domestic or family violence;³⁴
• child abuse;³⁵
• threats of violence;³⁶ or
• a history of racial or homosexual vilification or sexual harassment.

Mental and physical condition of the parties

4.22 Another range of factors to be taken into account in determining if mediation is appropriate lies in the mental and physical condition of the parties in so far as they may impact on the effectiveness of the mediation. This range of factors includes:

• the emotional and psychological state of any of the parties;³⁹
• the physical health of any of the parties;⁴⁰
• a psychiatric or psychological disability in any of the parties;⁴¹
• the parties’ age, maturity or intellectual capacity;⁴² and
• an alcohol or drug dependency in any of the parties.⁴³

4.23 A power imbalance which results in the disadvantage of one of the parties is also an important factor to be considered.⁴⁴ When the Act was introduced in 1983 it was noted that mediation sessions were, in fact, being terminated in instances:

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.⁴⁵

Lack of good faith

4.24 Mediation may also be inappropriate in circumstances where one of the parties is not approaching the mediation in good faith.⁴⁸ Examples include situations where it becomes clear that one of the parties is using the mediation for the purposes of delaying legal proceedings or to gain some other inappropriate advantage,⁴⁹ or where one of the parties has a history of breaking promises.⁵⁰ Or it may simply be the case that there is no possibility of the parties reaching agreement on any issues, and that time is being wasted.⁵¹

Other relevant factors

4.25 It is clearly not possible to list all the possible factors that might make a mediation inappropriate. The list of factors identified above is not exhaustive and any list of factors, whether in legislation, regulations or policies, should not close off any of the categories and should state clearly that it is not exhaustive.⁵²

MATTERS INVOLVING VIOLENCE

4.26 There are two circumstances to consider:

• mediation of violence itself; and
• mediation of other issues where violence is present in the relationship between the parties.

ADVOs and APVOs

4.27 AVOs, which are provided for under Part 15A of the Crimes Act 1900 (NSW), are the primary legal means by which people may seek protection against actual or threatened acts of personal violence, stalking, intimidation and harassment in New South Wales. While an AVO is a civil order obtained from a Local Court on the balance of probabilities,⁵³ that is according to the less stringent civil, rather than criminal standard of proof, it may be based on actions which in themselves constitute criminal offences. Contravention of the terms of an AVO is a criminal offence.⁵⁴ If there is an AVO in place the terms of which preclude face to face mediation, CJCs’ current practice is to refuse mediation unless the terms of the AVO are altered.⁵⁵

4.28 There are two types of AVOs, Apprehended Domestic Violence Orders (ADVOs) and Apprehended Personal Violence Orders (APVOs). Their application depends on the relationship between the person applying for the AVO and the person against whom protection is sought. ADVOs are granted where the parties are or have been in a “domestic relationship”.⁵⁶ APVOs and ADVOs were introduced as distinct categories in 1999 in order to separate matters involving domestic violence from other “personal” violence from which protection might be sought. This distinction recognised the “difference in the nature and level of violence in domestic and non-domestic matters”.⁵⁷ At the time it was noted that the Government had been “most conscious of concern regarding the conflation of domestic violence matters with non-domestic or ‘personal’ violence matters under the AVO scheme” which had arguably “done a disservice to people experiencing domestic violence”.⁵⁸ There are therefore significant legislative distinctions in the ways that applications for ADVOs are dealt with which emphasise the serious view taken of domestic violence.

Domestic violence

4.29 Domestic violence is a complex issue and needs to be defined in a complex way. Domestic violence involves more than physical violence - it may involve economic duress or control, power imbalance and fear.⁵⁹ In defining domestic violence in its recent report on Apprehended Violence Orders, the Commission defined violence to include the actual or threatened commission of personal violence offences, psychological abuse or damage to property. The Commission emphasised that psychological and emotional harm or abuse is a common form of domestic violence and that an imbalance of power which is exploited by the stronger partner is also often a characteristic of domestic violence.⁶⁰

Violence and CJCs mediations

4.30 It is not clear from the statistics how many disputes mediated by CJCs involve violence. Some records are kept of matters involving APVOs. In the period 1 July 2003 - 30 June 2004, of the 6,824 files opened by CJCs, 1,040 cases (15%) involved Apprehended Personal Violence Orders.⁶¹ (Although it should be noted that only 2,768 of the 6,824 files actually proceeded to mediation.⁶² ) No statistics are published of matters involving domestic violence. It is possible that matters involving domestic violence have been recorded as disputes involving “family - contact” and “division of property” disputes since CJCs’ published data does not take account of domestic violence as a category. Of the 76 participants interviewed for the Commission’s empirical study, 31.6% reported that an APVO was involved in their mediation and 7.9% reported that an ADVO was involved.⁶³

Mediation of violence itself

4.31 When we refer to “mediation of violence” we are referring to the negotiation of a return to a violent relationship or negotiations concerning the level of violence, its incidence, its intensity and its frequency. Mediation of such matters will always be inappropriate. However, mediation of violence itself must be distinguished from mediation that takes place in relation to other issues but within the context of a relationship that involves violence or threatened violence. In some such cases mediation may take place where proper precautions have been taken.⁶⁴

4.32 The commission of violence is a criminal offence. Therefore, violence itself is not a negotiable issue and can never be the subject of mediation. From an ethical standpoint mediators will not condone the negotiation of illegal and violent acts. The fact that violence itself cannot be mediated has been emphasised in relation to domestic violence. This has always been recognised by CJCs which hold the view that “domestic violence is not in itself the subject of mediation, nor a negotiable issue”.⁶⁵ The CJCs policy for dealing with disputes involving domestic violence states:

If the parties are separated at the time of mediation, the CJC will not mediate on the victim returning to violent circumstances or the level of violence.⁶⁶

• Victims of domestic violence ought not to be made to take responsibility for negotiating an end to the violence they are suffering. This is not required of any other victims of violence in the criminal justice system.⁶⁷
• It would undermine the objects of Part 15A of the Crimes Act 1900 (NSW) that refer to protecting people from domestic violence.⁶⁸
• Victims of domestic violence need advocates. Mediators do not take sides in a mediation and so cannot tell perpetrators or victims that domestic violence is unacceptable.⁶⁹
• Mediation cannot offer protection from domestic violence. Protection from domestic violence is offered by the ADVO procedures.⁷⁰

to ensure the safety of mediators, staff and clients, CJC Interviewing Officers carefully screen all clients for mediation through the pre-mediation process. If a possibility of violence is identified, further pre-mediation is arranged. Where there is an indication that violence will occur at mediation the Interviewing Officers, in consultation with the Co-ordinator, will deem the matter unsuitable for mediation and will not proceed with its organisation.⁷¹

Mediation of other issues where violence is present

4.35 While violence itself, or the protection offered by ADVOs or APVOs should never be mediated, there will be matters that come to CJCs for mediation where there is violence present in the relationship, or an AVO is in place or an application pending. Provided any existing AVO does not preclude mediation between the parties⁷³ the question is then whether, and in what circumstances, CJCs should offer mediation of issues where violence is present in the relationship between the parties.

4.36 There are extreme views in this area - ranging from those who think that there is no issue that cannot be mediated, to those who believe, at least in the context of domestic relationships where women are the victims of violence, that no mediation should ever take place:

[V]irtually all relationships involve some sort of inequality of power and/or harm inflicted by one party on the other (most commonly by the male partner on the female partner), mediation is not only inappropriate but serves to perpetuate the conflict and harm it purports to reduce. On such an analysis, mediation should never be pursued in family law matters.⁷⁴

4.37 It can be argued that there is an element of paternalism in excluding victims of domestic violence completely from mediations at CJCs - why should mediation be available to the whole world but not to victims of domestic violence?⁷⁶ Likewise in the field of restorative justice, some advocates promote the extension of restorative justice programs, involving, for example, victim offender mediation, to victims of domestic violence and sexual assault on the basis that “to do otherwise would deny a benefit to victims and offenders because restorative justice is superior to conventional criminal justice practices”.⁷⁷

4.38 Astor and Chinkin suggest that the important issue is “capacity to mediate” and that:

If the target of violence makes a free and informed consent to use mediation she (or he) should be able to do so.⁷⁸

4.40 The Commission puts no premium on the distinction between ADVOs and APVOs in this context. The distinction between ADVOs and APVOs may, in some cases, be an inadequate way of identifying appropriate matters for mediation and more information will usually be required before a properly trained person can make a decision about whether or not to proceed. Some APVO matters may be similar in many respects to some ADVO matters but the relationship between the parties may not be “domestic” under the terms of the law. The dynamics of violence, harassment and controlling behaviours can be present in many relationships besides those that fall within the current definition of “domestic”, for example, where elderly people and people with a disability are abused by their carers, where people in public housing are abused by neighbours in the same apartment complex or where the perpetrator is the partner of a former partner or where the perpetrator is a natural parent of a child and the victim is a foster carer.⁸⁵ ADVOs may be used inappropriately (although such cases may be rare) in much the same way that APVOs are often said to be used inappropriately.⁸⁶ It will also be the case that domestic violence and other violence does not only take place in the context of ADVOs and APVOs. So even if policies regarding mediation of ADVOs and APVOs are dealt with in the context of AVO legislation, some matters involving violence will still come to CJCs by other means. CJCs, therefore, need to deal with domestic violence and other violence when it presents itself as part of a dispute and, while paying due regard to the presence of an AVO (and any restrictions contained in it) or an application for one, should not use the type of AVO as a sole guide to the appropriateness, or otherwise, of a dispute for mediation.

4.41 The Commission, however, remains concerned about mediation taking place where violence is a factor, particularly in situations involving domestic violence.

The power differential

4.42 The principal reason why mediation is inappropriate in any matter where domestic violence is a factor is that the concept of mediation being voluntary and between equals does not fit the domestic violence context. This is because the power differential between the parties in a domestic violence situation means that the possibility of a voluntary, uncoerced agreement is compromised regardless of the subject of the mediation.⁸⁷ Mediation where there is such a power imbalance can be seen as undermining the legislative intention of the CJCs Act that participation in mediations should be voluntary, with each party free to leave at any time.⁸⁸ It is argued that the power imbalance in the domestic violence context is quite different to the power imbalance that might exist in the case of a regular assault because the gendered power imbalance is entrenched in domestic situations.⁸⁹

4.43 One particular aspect of the power differential is the fear that one party has of the other. This fear is unlikely to be substantially altered by the presence of two mediators and will prevent the former party from being able to make a voluntary agreement as a solution to the “dispute”.⁹⁰ Fear of repercussions following the mediation may also be a factor that vitiates the voluntary nature of any agreement. Such concerns are so great that some mediation providers will not offer mediation in circumstances where the parties continue to live together or have some other form of regular contact.⁹¹

4.44 Furthermore the power differential does not go away during mediation, so the mediation itself becomes a vehicle for further abusing, harassing, intimidating or controlling the victim.⁹² Some parties, for example, may use subtle physical messages to intimidate their victims during mediation proceedings and these subtleties may not be evident to others in the room at the same time.⁹³

4.45 In domestic violence situations where the power imbalance exists the use of a “neutral” mediator as the only other participant in the process arguably reinforces the status quo.⁹⁴ On the other hand, it has also been suggested that, in some cases, mediators will balance power relationships and in this context terms such as “non-judgmentalism” or “appropriate treatment” are to be preferred to “neutrality”.⁹⁵ However, it can also be argued that any attempts to balance the bargaining power between the parties cannot re-establish genuine equality and may only provide an illusion of safety for victims of domestic violence.⁹⁶

4.46 While the power differential is particularly relevant in the case of domestic violence, there are other situations where the power differential is equally relevant, for example, in situations where older people are living next door to violent people in public housing, or in some workplace situations.⁹⁷

Other reasons

4.47 Other reasons for opposing mediation in the context of domestic violence include:

• It is difficult to separate from a situation involving domestic violence the issues that do not involve domestic violence so that they can be mediated.⁹⁸
• In the court context parties are too easily manipulated by procedures into accepting mediation in ADVO matters, especially when mediation is suggested by a magistrate.⁹⁹ The pressure to take part in mediation may be particularly strong because the victim often does not want the matter to end up in court in the first place.¹⁰⁰ The involvement of a court also places greater pressure on the parties to reach an agreement regardless of its appropriateness in the circumstances.¹⁰¹
• The use of mediation may contribute to the revictimisation of victims of domestic violence,¹⁰² even in circumstances where, for example, the violence is directed at a mediator or other person in the mediation rather than the victim.¹⁰³
• The use of mediation (and its attendant confidentiality) returns the issue of domestic violence to the private sphere and effectively “decriminalises” the conduct of the perpetrator.¹⁰⁴ It has been argued that the Government’s “policy of ensuring that all domestic violence offences are taken before the courts” is reflected in the part of the CJCs Act that provides that the exoneration from liability for police officers for failure to bring a matter to the courts is excluded in the case of domestic violence offences.¹⁰⁵
• CJCs mediators may not be as well trained to deal with domestic violence matters as some other mediation service providers, for example, those who operate under the Family Law Act.¹⁰⁶

4.48 Mediation of disputes where one of the parties is a child who has committed or threatened violence, presents some different considerations to disputes involving an adult who has committed or threatened violence. These different considerations may make it appropriate to mediate where violence is present in a dispute, where it might otherwise be inappropriate in the case of adults. This different approach in relation to children is consistent with the general approach of the legal system to treat children differently with a greater emphasis on rehabilitation, by, for example, the use of specialist Children’s Courts, the varying of AVOs to allow for youth conferencing and so on.

4.49 It is currently CJCs practice to mediate when APVOs and ADVOs are sought against children.¹⁰⁷ Solicitors from the Children’s Legal Service report that matters involving violence committed by young people appear to be resolved in as far as the clients do not come back to them either by way of further offences or by another application for an AVO.¹⁰⁸

4.50 It has been suggested that the mediation of disputes where a child has committed violence is different¹⁰⁹ because:

• violence by children is often a response to parental behaviour, which also needs to be modified;¹¹⁰
• it is a question of establishing an appropriate hierarchy between parents and children which can be achieved by mediation;¹¹¹
• parents often use ADVOs in an attempt to control the behaviour of their children;¹¹²
• there are no other services for dealing with young AVO defendants without issuing an AVO or proceeding to conviction;¹¹³ and
• unlike adult domestic violence, most young people “grow out of” the offending behaviour.¹¹⁴

Dealing with violence

4.51 Dealing with violence in the context of mediation is a serious issue and requires proper consideration. A blanket rule is unlikely to deal with all potential situations appropriately and may result in harm to some participants.

4.52 Some submissions supported mediation of some matters in which violence was a factor but this support is conditional, requiring, in some instances, modification of current CJCs mediation practice. For example, it was suggested that mediation about issues other than violence (where violence is present) could be beneficial so long as the mediation is properly conducted,¹¹⁷ for example, by use of shuttle mediation (that is, where each party is in a different room and the mediator moves between them as an intermediary),¹¹⁸ and the mediators are sufficiently skilled, properly trained and sufficiently informed of alternative pathways for disputants.¹¹⁹ However, there will be situations where procedures, such as shuttle mediation, will still be inappropriate, for example, where one of the parties has a significant fear of retaliation after the mediation has concluded.¹²⁰ It has also been noted that in some relationships, power and control does not necessarily end with the physical separation of the parties.¹²¹

4.53 A safe environment for mediators and disputants was also considered necessary if such matters were to be mediated.¹²²

Industry practice

4.54 Some 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 cases where the parties opt to proceed. In the case of family mediation schemes some requirements, including the qualifications and experience of mediators, are tied to funding.

4.55 The Commonwealth’s Family Law Regulations 1984 include a list of considerations that an intake officer must have regard to in deciding whether a dispute is suitable for mediation:

(a) a history of family violence (if any) within the meaning of subsection 60D(1) of the Act, among the parties;

(b) the likely safety of the parties;

(c) the equality of bargaining power among the parties (for example, whether a party is economically or linguistically disadvantaged in comparison with another party);

(d) the risk that a child may suffer abuse;

(e) the emotional, psychological and physical health of the parties;

(f) any other matter that the mediator considers relevant to the proposed mediation.¹²³

In situations of family violence RDM will perform a comprehensive assessment as to the safety of the client and their family. RDM also acknowledges the potential inter-relationship between family violence and child abuse. RDM’s Case Management Team will make inquiries with clients as to both family violence and child abuse including:
• The nature and extent of the violence, including mutual violence between the parties and/or other family members.
• The impact on the survivor and their family.
• The current level of risk to the survivor and their family.
• The survivor’s willingness to attend an RDM Conference.
• The suitability for an RDM Conference.
• Measures taken to protect the survivor and their family, including Intervention Orders and Undertakings.
• Whether particular safety interventions are required to protect the survivor and their family.¹²⁵

• Individual lockable “security rooms” for survivors and their lawyers to access throughout the day of the RDM Conference.
• Separate waiting areas at reception, with a receptionist in attendance at all times.
• The availability of staggered arrival and departure times for survivors and alleged perpetrators.
• Security doors and separate entrance and exit points within the building.
• Duress buttons, video monitors and security personnel.
• Facilities to conduct an RDM Conference without clients being in the same room including “shuttle conferencing”, “video conferencing” and “telephone conferencing”.
• Prior to scheduling an RDM Conference to take place at a venue other than RDM {338 La Trobe Street, Melbourne}, an assessment will be made as to the suitability of that proposed venue.¹²⁶

4.59 Local Courts and CJCs have been working on a standardised protocol for referrals from Local Courts in relation to civil claims and Apprehended Personal Violence Orders to ensure that mediation at a CJC is considered early in the process. A kit was finalised in December 2004.¹²⁸

Submissions

4.60 Regardless of their position on the question of mediation where violence is present, some submissions highlighted deficiencies in current CJCs practice in dealing with such matters. There was a strong view in some submissions that CJCs need to revise their practices, particularly in light of those adopted by other organisations offering mediation in cases where violence is present.

4.61 Need for more stringent intake assessment. Many submissions highlighted the need for improved intake procedures to identify issues of violence.¹²⁹

4.62 One submission suggested that CJCs should only be allowed to provide mediation in ADVO proceedings if:

the intake officer or mediator undertakes an assessment which, amongst other things, explores the type of violence that occurred in the relationship (as it can take many forms such as psychological, financial, social, sexual and physical), the frequency and context of the violence, whether there are any ADVOs in place, the parties’ perceptions of the violence, whether a party’s safety or ability to negotiate freely is affected by the violence and the impact of any violence on any children of the relationship.¹³⁰

a more comprehensive ongoing training program needs to be developed by the CJC for mediators undertaking mediations that not only involve AVOs but any sort of aggressive behaviour. This should include issues such as masculinity, violence and mental health, adolescent aggression and the difference between male and female aggression.¹³³

4.65 The Women’s Domestic Violence Court Assistance Program, which is administered by the Legal Aid Commission, was identified as providing support schemes whose workers were appropriately trained and had considerable skills and experience in relation to domestic violence issues.¹³⁵

4.66 Need for better security. Some submissions considered that if matters involving physical violence are accepted for mediation there is insufficient security even at the larger court facilities to guarantee the physical safety of the parties and mediators either during the mediation or at its conclusion. This concern is greater in rural areas where there is likely to be even less access to protective services.¹³⁶

THE NEED FOR REGULATION

4.67 The chief questions that the Commission has considered are:

• whether there are any factors that ought to exclude mediation entirely in particular cases;
• whether, in addition to, or instead of these, there should be a non-exhaustive list of factors to be considered in deciding whether or not to exclude mediation in particular cases; and
• how any such regulations should be imposed, whether by legislation, regulation or policy guidelines.

4.69 While submissions were generally content to leave the matter to the discretion of the mediators, the question does arise as to whether a non-exhaustive list might provide a level of guidance to mediators and participants and bring some issues, particularly those of violence and power imbalance, to the forefront of considerations. Even if a general list is produced it must still remain a matter for judgment of intake officers or mediators as to whether mediation is appropriate in the particular circumstances of the case. The factors outlined above may indicate that it is inappropriate for mediation to continue in some circumstances but not in others. In some cases the presence of one of the factors may exclude mediation entirely but in others the presence of one of the factors may be of little concern in the particular context or may be ameliorated by various strategies that are available to appropriately skilled mediators.

4.70 The Commission considers that violence is such a serious issue in the context of mediation that the policy concerns should be dealt with expressly. In reaching its conclusions, the Commission has had regard to the following considerations:

• violence itself, whether domestic or otherwise, that is, its occurrence and intensity, can never be mediated;
• the safety of all participants is paramount;
• mediation will usually not be voluntary when domestic violence is present; and
• in appropriate cases special procedures may need to be adopted to ensure the safety of all parties and ensure that any agreements reached are voluntary.

• it will highlight the unacceptability of mediating violence for all participants; for example, one submission suggested that the requirements of the Family Law Act and regulations keep domestic violence high on the agenda and, therefore, make mediators more aware of the issue;¹³⁹ and
• it will serve a more general educative function.

4.72 Following are the factors the Commission considers that intake officers and mediators should take into account when considering whether a particular dispute is suitable for mediation:

• the safety of all parties to the mediation;
• any ADVOs or APVOs that may have been granted or that are pending;
• the degree of equality (or otherwise) in the bargaining power of the parties;
• the occurrence of violence and/or the risk of future violence between the parties or between one of the parties and a third party (including children of the relationship);
• the mental, physical and psychological state of the parties;
• the relationship between the parties;
• whether one of the parties may be using the mediation tactically to gain delay or some other improper advantage;
• the extent to which the issues in dispute are related to any violence between the parties;
• whether the party who has committed or threatened violence is a child; and
• any other matter relevant to the proposed mediation and the parties.

4.73 A more specific example of the sort of area where policy determinations and directions will be needed can be seen in the issue of the presence of mediators at Local Courts when AVO matters are being dealt with. The Commission has received some evidence of CJCs mediators actively recruiting matters involving violence and being present in Local Courts on AVO list days.¹⁴³ While on-the-spot mediation to reduce court lists is desirable in some circumstances, for example, small civil claims, there are risks involved in promoting mediation to victims of domestic violence. The presence of CJCs mediators at Local Courts promoting the services of CJCs on AVO list days runs the risk of blurring the distinction between the formal court procedures that will offer protection to victims and the mediation offered by CJCs.¹⁴⁴

4.74 The Commission considers that while the current practice of having mediators present at Local Courts to conduct mediation in relation to small civil claims is appropriate, it is not appropriate for them to be actively promoting mediation in the context of AVO applications which will require careful assessment before mediation can take place, if it takes place at all. CJCs should clearly articulate the need for proper assessment of matters involving violence (in accordance with the requirements set out above) in relation to the promotion of CJCs’ services in the Local Courts.

RECOMMENDATION 7

The CJCs Act should include a list of the following factors that must be taken into account when considering whether a particular dispute is suitable for mediation:

• the safety of all parties to the mediation;
• any ADVOs or APVOs that may have been granted or that are pending;
• the degree of equality (or otherwise) in the bargaining power of the parties;
• the occurrence of violence and/or the risk of future violence between the parties or between one of the parties and a third party (including children of the relationship);
• the mental, physical and psychological state of the parties;
• the relationship between the parties;
• whether one of the parties may be using the mediation tactically to gain delay or some other improper advantage;
• the extent to which the issues in dispute are related to any violence between the parties;
• whether the party who has committed or threatened violence is a child; and
• any other matter relevant to the proposed mediation and the parties.

1. CJCs, Consultation.

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

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

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

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

6. CJCs, Annual Report 2003-2004 at 7.

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

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

9. Memorandum of Understanding Between NSW Local Courts and the Community Justice Centres, NSW (28 January 2000).

10. Registrars, Local Courts, Consultation.

11. IP 23 Issue 8

12. D Rollinson, Submission at 1.

13. R G Jones, Submission at 2.

14. Confidential 2, Submission at 1.

15. Registrars, Local Courts, Consultation.

16. CJCs, Consultation.

17. Law Society of NSW, Submission at 4.

18. CJCs, Submission 1 at 7.

19. ACDC, Consultation; LEADR, Consultation.

20. ACDC, Consultation.

21. Registrars, Local Courts of NSW, Consultation.

22. Law Society of NSW, Submission at 4.

23. CJCs, Consultation.

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

25. CJCs, Annual Report 2003-2004 at 6.

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

27. Greater Sydney Families in Transition Network, Submission at 5.

28. Family Law Regulations 1984 (Cth) reg 62.

29. Family Law Regulations 1984 (Cth) reg 63.

30. Law Society of NSW, Submission at 2.

31. See para 4.26-4.74.

32. New Jersey Court Rules 1969 r 1:40-8(a)(1).

33. New Jersey Court Rules 1969 r 1:40-8(a)(2).

34. New Jersey Court Rules 1969 r 1:40-8(a)(5); “Neighbourhood mediation service pilot” (1985) 59 Law Institute Journal 153; Family Law Rules 1984 (Cth) O 25A r 5(c) (repealed); Family Law Regulations 1984 (Cth) reg 62(2)(a); WDVCAS, Submission at 9; Redfern Legal Centre, Submission at 16

35. “Neighbourhood mediation service pilot” (1985) 59 Law Institute Journal 153; Family Law Rules 1984 (Cth) O 25A r 5(b) (repealed); Family Law Regulations 1984 (Cth) reg 62(2)(d).

36. Law Society of NSW, Submission at 3.

37. Greater Sydney Families in Transition Network, Submission at 6.

38. See para 4.26-4.66.

39. Family Law Rules 1984 (Cth) O 25A r 5(d) (repealed); Family Law Regulations 1984 (Cth) reg 62(2)(e).

40. Family Law Regulations 1984 (Cth) reg 62(2)(e).

41. Law Society of NSW, Submission at 3; “Neighbourhood mediation service pilot” (1985) 59 Law Institute Journal 153; New Jersey Court Rules 1969 r 1:40-8(a)(3).

42. United Nations, Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (2000) Annex, article 9.

43. Law Society of NSW, Submission at 3.

44. CJCs, Professional Reference Group, Submission at 5; CJCs, Submission 1 at 8; Greater Sydney Families in Transition Network, Submission at 6; “Neighbourhood mediation service pilot” (1985) 59 Law Institute Journal 153. See also New Jersey Court Rules 1969 r 1:40-4(f); Family Law Rules 1984 (Cth) O 25A r 5(a) (repealed); Family Law Regulations 1984 (Cth) reg 62(2)(c).

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

46. See, eg, Family Law Regulations 1984 (Cth) reg 62(2)(c).

47. See para 4.42-4.46.

48. CJCs, Professional Reference Group, Submission at 5; CJCs, Submission 1 at 8; CJCs, Consultation.

49. Family Law Rules 1984 (Cth) O 25A r 5(e) (repealed).

50. Law Society of NSW, Submission at 3.

51. CJCs, Professional Reference Group, Submission at 5; CJCs, Submission 1 at 8; Law Society of NSW, Submission at 5.

52. See, eg, Family Law Rules 1984 (Cth) O 25A r 5(f) (repealed). See also Family Law Regulations 1984 (Cth) reg 62(2)(f); New Jersey Court Rules 1969 r 1:40-4(f)(1) and (2).

53. Crimes Act 1900 (NSW) s 562AE and s 562AI.

54. Crimes Act 1900 (NSW) s 562I.

55. Information supplied by D Sharp, Director, CJCs (30 September 2004).

56. Crimes Act 1900 (NSW) s 562A(3).

57. NSW, Parliamentary Debates (Hansard) Legislative Council, 25 November 1999 at 3674.

58. NSW, Parliamentary Debates (Hansard) Legislative Council, 25 November 1999 at 3674.

59. Redfern Legal Centre, Community consultation; WDVCAS, Submission at 4-5.

60. NSWLRC, Apprehended Violence Orders (Report 103, 2003) at para 4.14-4.22.

61. CJCs, Annual Report 2003-2004 at 6. This number could be significantly increased if recommendations in the Law Reform Commission’s Report on Apprehended Violence Orders are adopted: see NSWLRC, Apprehended Violence Orders (Report 103, 2003) at chapter 5.

62. CJCs, Annual Report 2003-2004 at 5.

63. C Bourne, Mediation and Community Justice Centres: An Empirical Study (NSWLRC Research Report 12, 2004) at para 3.5.

64. See para 4.52-4.53, 4.57, 4.66.

65. CJCs, Annual Report 1998/1999 at 6.

66. CJCs, Submission 1 at 5.

67. Redfern Legal Centre, Community consultation.

68. See Crimes Act 1900 (NSW) s 562AC.

69. Redfern Legal Centre, Community consultation.

70. Redfern Legal Centre, Community consultation.

71. CJCs, Submission 1 at 5.

72. WDVCAS, Submission at 5; Redfern Legal Centre, Submission at 11, 15.

73. The standard orders allow that “the defendant must not approach, contact or telephone the protected person(s) except as agreed in writing or for any purpose permitted by an order or directions under the Family Law Act 1975 as to counselling, conciliation or mediation”: NSWLRC, Apprehended Violence Orders (Report 103, 2003) at Appendix B.

74. R Alexander, “Mediation, Violence and the Family” (1992) 17 Alternative Law Journal 271 at 271.

75. See H Astor and C Chinkin, Dispute Resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 353.

76. The Trillium Group, Consultation.

77. J Stubbs, Restorative Justice, Domestic Violence and Family Violence (Australian Domestic and Family Violence Clearing House, Issues Paper 9, 2004) at 1. Such views, however, fail to take adequate account of the differences between one-off criminal acts which are typically the subject of restorative justice programs and domestic violence which involves recurrent activity and a continuing exercise of power and control over the victim: Stubbs at 6-7.

78. H Astor and C Chinkin, Dispute Resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 353.

79. WDVCAS, Submission at 7; Redfern Legal Centre, Submission at 13.

80. Redfern Legal Centre, Submission at 15.

81. Redfern Legal Centre, Community consultation.

82. Redfern Legal Centre, Community consultation.

83. See Crimes Act 1900 (NSW) s 562AK(5).

84. NSWLRC, Apprehended Violence Orders (Report 103, 2003) at para 5.24.

85. See NSWLRC, Apprehended Violence Orders (Report 103, 2003) at para 4.27, 4.31, 4.32.

86. See NSWLRC, Apprehended Violence Orders (Report 103, 2003) at para 3.64-3.82.

87. Redfern Legal Centre, Community consultation; WDVCAS, Submission at 4; Redfern Legal Centre, Submission at 4.

88. Community Justice Centres Act 1983 (NSW) s 23. See WDVCAS, Submission at 5. See also para 5.14.

89. Redfern Legal Centre, Community consultation.

90. Redfern Legal Centre, Community consultation.

91. Relationships Australia (NSW), Consultation.

92. Redfern Legal Centre, Community consultation; WDVCAS, Submission at 9

93. Redfern Legal Centre, Community consultation.

94. Redfern Legal Centre, Community consultation; Redfern Legal Centre, Submission at 5.

95. Relationships Australia (NSW), Consultation.

96. WDVCAS, Submission at 10. See S Hooper and R Busch, “Domestic Violence and Restorative Justice Initiatives: The Risks of a New Panacea” (1996) 4 Waikato Law Review 3.

97. Redfern Legal Centre, Community consultation.

98. WDVCAS, Submission at 4.

99. Registrars, Local Courts of NSW, Consultation; Redfern Legal Centre, Community consultation; Redfern Legal Centre, Submission at 19.

100. Redfern Legal Centre, Community consultation.

101. Redfern Legal Centre, Submission at 21.

102. WDVCAS, Submission at 7.

103. Redfern Legal Centre, Submission at 12.

104. WDVCAS, Submission at 8, 11; Redfern Legal Centre, Submission at 20, 21.

105. Community Justice Centres Act 1983 (NSW) s 27(5). NSW, Parliamentary Debates (Hansard) Legislative Assembly, Hon F Walker, second reading speech, 19 October 1983 at 1882. See also Redfern Legal Centre, Submission at 5-6.

106. Redfern Legal Centre, Community consultation.

107. Children’s Legal Service, Consultation; R Dive, Submission.

108. Children’s Legal Service, Consultation.

109. See R Dive, Submission.

110. Relationships Australia (NSW), Consultation.

111. Relationships Australia (NSW), Consultation.

112. Children’s Legal Service, Consultation.

113. Children’s Legal Service, Consultation. For example, counselling is only available under a bond supervised by the Department of Juvenile Justice, and conferencing is excluded in matters where young people breach AVOs.

114. Children’s Legal Service, Consultation.

115. See para 4.72.

116. Relationships Australia (NSW), Consultation.

117. ACDC, Consultation; The Trillium Group, Consultation; Greater Sydney Families in Transition Network, Submission at 6; Confidential 2, Submission at 1; Registrars, Local Courts, Consultation.

118. Registrars, Local Courts of NSW, Consultation.

119. LEADR, Consultation. See also WDVCAS, Submission at 11; Redfern Legal Centre, Submission at 9. These submissions considered that mediation under the Family Law Act was better equipped to deal with such mediations.

120. Relationships Australia (NSW), Consultation.

121. NSWLRC, Apprehended Violence Orders (Report 103, 2003) at para 4.10.

122. LEADR, Consultation; CJCs, Consultation; Registrars, Local Courts of NSW, Consultation.

123. Family Law Regulations 1984 (Cth) reg 62(2). See also the list in the now repealed Family Law Rules 1984 (Cth) O 25A r 5.

124. Victoria Legal Aid, “Roundtable Dispute Management: Family Violence Policy” (2004) §3.1.

125. Victoria Legal Aid, “Roundtable Dispute Management: Family Violence Policy” (2004) §5.4.

126. Victoria Legal Aid, “Roundtable Dispute Management: Family Violence Policy” (2004) §7.1.

127. C Brown, “A new breed of mediation - the ‘labradoodle’” (2004) 31(10) Brief (The Law Society of Western Australia) 6 at 7.

128. Registrars, Local Courts of NSW, Consultation; Information supplied by D Sharp, Director, CJCs (10 January 2005).

129. G Eggleton, Submission at 14; Greater Sydney Families in Transition Network, Submission at 5-6. On intake procedures more generally, see para 5.25-5.49.

130. Greater Sydney Families in Transition Network, Submission at 5-6.

131. Redfern Legal Centre, Community consultation; WDVCAS, Submission at 11; Redfern Legal Centre, Submission at 9.

132. WDVCAS, Submission at 4-5.

133. G Eggleton, Submission at 14.

134. Greater Sydney Families in Transition Network, Submission at 5-6.

135. Redfern Legal Centre, Community consultation.

136. WDVCAS, Submission at 5; Redfern Legal Centre, Submission at 15.

137. D Rollinson, Submission at 1; CJCs, Consultation.

138. CJCs, Consultation; CJCs, Professional Reference Group, Submission at 4; CJCs, Submission 1 at 5; Law Society of NSW, Submission at 3.

139. Redfern Legal Centre, Community Consultation.

140. See para 10.17-10.20; Recommendation 13.

141. See Community Justice Centres Act 1983 (NSW) s 20(3) and s 22(1).

142. See para 4.56-4.57.

143. NSW Women’s Domestic Violence Court Assistance Scheme Network, Submission at 5, 7, 11-14; Redfern Legal Centre, Community Consultation; Redfern Legal Centre, Submission at 8, 13, 18, 19.

144. Redfern Legal Centre, Submission at 18.