• Voluntary participation
• Intake assessment
• Presence of other persons in the mediation
• Enforceability of outcomes

5.1 This chapter deals with various aspects of a CJCs mediation, covering processes before, during and after the mediation itself.

VOLUNTARY PARTICIPATION

5.2 The question whether parties can be compelled (or mandated) to participate in a mediation has excited considerable debate. The debate is, however, largely theoretical. The practical difference between mandated and non-mandated mediations may be minimal. This question is separate from, although related to, the question of 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. While a distinction is often drawn between the question of the consent of the parties to attend the mediation and the consensual nature of the process once the mediation gets underway, these two issues are not necessarily so easily separated. On a purely practical level, for example, a court’s encouragement of mediation may be “robust”, even though that court may have no formal power to order the parties to mediation.¹ It has been observed:

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.²

Mandatory mediation

5.4 Mandatory mediation may arise in a number of ways. For example, parties may be compelled to attempt mediation by order of a court, by the provisions of a statute (for example, in order to be able to commence litigation) or by their own prior agreement in a contract.⁴

5.5 The issue of compelling parties to attend a CJC mediation has arisen from time to time.⁵ 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. In 2003-2004, for example, 3,180 matters (46% of files opened by CJCs) resulted in a mediation.⁶ The review, however, concluded that the purely voluntary nature of the scheme was fundamental to its operation.⁷

5.6 It has also been suggested that in the case of particular types of dispute parties should be compelled to mediate. 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.⁸ Some local Councils have also suggested that CJC mediation should be compulsory in some cases, for example, in relation to dividing fences.⁹ Some Local Courts Registrars while noting the need to be careful about the sort of matters that should be mandatory, suggested that “classic” neighbourhood disputes involving, for example, fences, trees or noise, could be made mandatory.¹⁰ The Law Reform Commission’s 1988 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.¹¹

5.7 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.¹² Compulsory mediation, however, cannot be ordered by the Local Courts which continue to be a significant source of CJCs mediations.¹³ Queensland’s Dispute Resolution Centres can deal with court-ordered mediations (required by what are called “referring orders”)¹⁴ which have been referred by the Supreme Court, District Court and Magistrates Court.¹⁵ The Queensland Act retains the Centres’ discretion to refuse to mediate particular disputes¹⁶ and also retains the voluntariness principle, including the right of any of the parties to terminate a mediation.¹⁷ The Queensland Act allows questions of privilege, evidence and secrecy to be governed by the statutes under which the order for mandatory mediation has been made.¹⁸

5.8 In IP 23 the Commission asked whether CJCs should be required to deal with mandatory mediations.¹⁹

Arguments against mandatory mediation

5.9 There are many arguments against mandatory mediation. Potential problems with making mediation mandatory include:

• the view that participation in mediation must be voluntary to be effective (even though the consensual nature of the process remains unchanged);²⁰
• voluntariness “ensures that parties mediate in good faith and have “ownership” of the outcomes of the mediation and conflict management process”;²¹
• the possibility that compulsory mediation at CJCs might appear to be forcing people into “second class justice” (in comparison with formal court adjudication);²²
• the need for CJCs to regulate the types of cases it accepts for mediation, for example, so it can exclude some matters involving violence;²³
• the possibility that courts dealing with heavy work loads could be tempted to refer cases to CJCs that might not necessarily be appropriate for mediation;²⁴ and
• the possible impact on CJC performance of cases of a type that have not previously been dealt with by CJCs.

if the court were to compel parties to enter into a mediation to which they objected, that would achieve nothing except to add to the costs to be borne by the parties, possibly postpone the time when the court determines the dispute and damage the perceived effectiveness of the ADR process.²⁵

Arguments in favour of mandatory mediation

5.11 Some submissions supported mandatory mediation.²⁷ On a practical level one submission noted that all superior courts were now moving towards mandatory mediation in certain cases and that mandatory mediation could be useful in Local Courts where it is currently not available.²⁸ Benefits of mandatory mediation include:

• it is good for getting issues aired - it helps parties to focus on issues and perhaps realise that legal action is pointless and it may put some disputes off the legal course;²⁹
• in disputes where parties have come to firmly entrenched positions, the parties sometimes welcome being forced into mediation.³⁰

Parties sometimes need to be encouraged by the court to embark on an ADR. The need for such encouragement should diminish in time if the virtue of ADR in suitable cases is demonstrated even more convincingly than it has been thus far... [W]e reiterate that the court’s role is to encourage, not to compel. The form of encouragement may be robust.³²

Continuing participation

5.14 While the arguments favouring and opposing mandatory mediation outlined above may be equivocal, it is widely accepted that the continued participation of parties in a mediation should be 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.⁴¹

Making provision for mandatory mediation at CJCs

5.15 In IP 23 the Commission considered that the possibility that mandatory mediations could be referred to CJCs might necessitate:

• the inclusion of provisions similar to those in Queensland in relation to court-ordered mediations;
• a consideration of the resources needed to take on more mediation work in addition to the current non-compulsory workload;⁴⁶
• the inclusion of mechanisms to ensure the quality of mandatory mediation for disputing parties,⁴⁷ including, for example, provisions for enforcement of standards and accountability (including complaints mechanisms).⁴⁸

5.16 In IP 23, the Commission asked whether special provision should be made to deal with the possibility that mandatory mediations may be referred to CJCs.⁵⁰ In response, some submissions stressed the need for CJCs to be involved in discussions concerning the introduction of compulsory mediation from some referring agencies.⁵¹

The good faith requirement

5.17 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).⁵² 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.⁵³

5.18 Whatever meaning can be given to the good faith requirement will depend on the circumstances of each case. However, if statutory schemes are established mandating participation in good faith, determinations may need to be made as to whether the parties have in fact participated in good faith. Given the availability of provisions protecting against disclosure of what occurs in mediations,⁵⁴ the courts will generally be unable to investigate or review the issue and will instead be compelled to rely on the determination of the mediators in the matter.⁵⁵ If CJCs were to deal with compulsory mediations that are also subject to good faith requirements, a number of questions arise, including whether CJCs mediators would be required to make a determination as to whether the parties in fact participated in the mediation in good faith. It has been noted that in some parts of the United States mediators have been required to report to courts on the nature of the parties’ participation, notwithstanding the breach of confidentiality involved.⁵⁶ Another question that arises is whether the concept of mediation in good faith will be readily understood by parties in the types of matters that are likely to be referred to CJCs. Negotiation in good faith is a concept that is better understood in the commercial context.

5.19 In IP 23 the Commission asked what implications a requirement to mediate in good faith would have for CJCs mediators when dealing with compulsory mediations.⁵⁷ Some submissions raised questions about the difficulty involved in judging whether parties have participated in good faith⁵⁸ as well as the undesirability of requiring mediators to report on such matters.⁵⁹

The Commission’s view

5.20 It is desirable, so far as possible, to distinguish between the ordering of mandatory mediation on the one hand and the voluntary participation of parties once a dispute has been accepted for mediation by CJCs on the other.

5.21 The Commission considers that we may be witnessing a trend that enables courts to require parties to attempt mediation as a prerequisite to litigation or to obtaining a hearing date, at least in certain disputes,⁶⁰ if not generally.⁶¹ The Commission supports this trend. The circumstances in which mediation should be mandatory require an independent investigation that focuses on the jurisdiction and power of the relevant courts or tribunals. These questions are best dealt with in the context of the statutes of the referring bodies, for example, the Local Courts (Civil Claims) Act 1970 (NSW), rather than in the context of a review of the CJCs Act.

5.22 Current practice is satisfactory in that it allows, for example, magistrates to make robust suggestions without impinging on the ability of CJCs to decide what disputes they may or may not accept and without impairing the principle of voluntary participation once the mediation gets under way. The protections under the CJCs Act will continue in place even if mediations are made mandatory under the statutes of various courts and tribunals.

5.23 Even though there would appear to be limited scope for bad faith participation in the context of CJCs mediations, mediators will still be able to terminate a mediation if they consider one of the parties is mediating in bad faith. Bad faith participation is more likely in matters involving substantial sums of money, usually commercial matters before the District or Supreme Courts, for example, where one of the parties might use the opportunity to mediate as a way of testing the strength of their opponent’s case.

5.24 The CJCs approach to mandatory mediation, whether imposed by statute as a pre-condition to litigation or ordered by a court, requires a balancing of various policy considerations and practical questions. These are ultimately questions for the Director to deal with as they present themselves. The input of the reconstituted Council and of the CJCs’ reference groups will be valuable in this area.

INTAKE ASSESSMENT

5.25 Intake assessment has been identified in submissions and consultations as an important feature of the work of mediation service providers and as crucial to the effective operation of some mediation services.⁶² Intake assessment, which involves a person assessing the suitability for mediation of each dispute that presents itself, is referred to by CJCs as “pre-mediation”.

Pre-mediation at CJCs

5.26 CJCs define pre-mediation as “a process in which a third party (the pre-mediator) investigates the dispute and provides the parties or a party to the dispute with advice regarding the issues which should be considered, possible, probable and desirable outcomes and the means whereby these may be achieved”.⁶³ This is similar to the definition of “case appraisal” which is identified by NADRAC as being “a process in which a third party (the case appraiser) investigates the dispute and provides advice on possible and desirable outcomes and the means whereby these may be achieved”.⁶⁴ While there are some broad similarities between pre-mediation and case appraisal, case appraisal (sometimes referred to also as “expert appraisal”) is ultimately quite a different process in that it involves the engagement of a third party expert who will conduct an independent investigation of some factual aspects of the dispute before reporting his or her findings to the parties, sometimes with advice as to the “possible, probable and desirable outcomes”. The role of the appraiser is essentially that of a fact finder and, in some cases, the parties may agree to be bound by the appraiser’s findings.⁶⁵ Pre-mediation, on the other hand, is a process by which a third party assesses the suitability of a dispute for mediation and may make recommendations as to the best method for the parties to proceed with the dispute whether by mediation or some other process.

5.27 Pre-mediation at CJCs is carried out initially by regional staff, referred to as “interviewing officers”. Every matter is pre-mediated before proceeding to mediation. However, the level of pre-mediation will vary depending on the circumstances. For example, additional assessments will be made if a party has an intellectual or psychiatric disability, is under 16, if the dispute is a workplace dispute, or if there is violence present in the relationship.⁶⁶ The 2001-2002 Annual Report observed “face-to-face pre-mediation continues to help prepare clients involved in more complex matters and matters involving potentially disadvantaged and disempowered clients”.⁶⁷

5.28 In the Western region of CJCs, mediators have received training in pre-mediation so that they can assess disputes that present in the Small Claims Division at Local Courts in Western Sydney on list days.⁶⁸ The Small Claims Division deals only with civil claims where the amount claimed is not more than $10,000.⁶⁹

Functions of pre-mediation

5.29 There are a variety of functions that can be usefully performed by pre-mediators. Ultimately the number of functions that are performed and the level at which they are performed will depend on the resources that are made available in terms of staff, time and training. At its most basic pre-mediation is concerned with:

• the filtering of inappropriate cases by identifying the real issues in dispute and the circumstances and positions of the parties; and
• the preparation of the parties for mediation.

Identifying persons at risk

5.30 One function of pre-mediation is to identify whether one of the parties (or certain third parties, for example, children) is not in a position to negotiate freely or will be at risk. Pre-mediators in such circumstances will need to have awareness of such matters as family/domestic violence issues, protection of children, and disability.⁷⁰

Filtering out inappropriate cases

5.31 The types of cases that may not be suitable for mediation by CJCs can be identified at intake by pre-mediators. These are discussed elsewhere in this Report.⁷¹

Referral to other services

5.32 Mediation may not always be the best approach to every dispute that presents itself to CJCs. In some cases one or more of the parties may be unaware of other options that may be available to assist with aspects of their dispute. These other more appropriate options could include legal advice, counselling, medical assistance, financial advice, disability support or dispute resolution by a specialist service.⁷²

5.33 Relationships Australia reported that their mediators consider they have a duty to refer parties to appropriate services and will, for example, refer parties to counselling or legal advice for both individuals and families. In some cases men have been directed to services that help them address their violence.⁷³

5.34 It has been put to the Commission that the need to match problems with appropriate processes, whether involving alternative dispute resolution or not, is an issue that needs to be addressed by the whole mediation industry.⁷⁴

Preparing participants for mediation

5.35 Pre-mediation can be used to prepare the participants for mediation, for example, by:⁷⁵

• educating the parties about the mediation process;⁷⁶
• educating the parties about alternative ways of dealing with aspects of the dispute;
• identifying and correcting informational disparities between the parties; and
• (if pre-mediation is conducted by one of the mediators) allowing one of the mediators to build rapport with the parties in advance of the mediation thereby making the participants less apprehensive about the mediation.

5.36 Pre-mediation also provides the opportunity to match particular disputes with mediators who have appropriate skills or characteristics.

5.37 At CJCs mediators are assigned to disputes by an interviewing officer on behalf of the relevant Centre Co-ordinator. The responsibility for assigning the mediators rests with the relevant Centre Co-ordinator on delegation from the CJCs Director. The Co-ordinators 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.⁷⁷

5.38 One submission highlighted the desirability of taking account of other life experience in allocating mediators to particular disputes.⁷⁸

5.39 Cultural issues. The question of allocating mediators when disputants from different cultures are involved in a mediation is an important one, the more so in the context of a community mediation service. There are two ways of dealing with cultural issues at the pre-mediation stage. One is to allocate one or more mediators who come from the same cultural background as one or more of the parties to the dispute. The other is to allocate mediators who have training in cross-cultural issues.

5.40 In some cases it will be appropriate to have a mediator from the same cultural or ethnic background as one of the parties. For example, it has been suggested that some Indigenous people would feel more comfortable with an Indigenous mediator present in the mediation.⁷⁹ It was also suggested that if there was a dispute between an Indigenous person and a non-Indigenous person the non-Indigenous person might feel threatened by having two Indigenous mediators.⁸⁰

5.41 However, there will also be circumstances in which the parties may prefer that the mediators not come from their community because they are worried about their private business becoming known in their community. In other cases parties from other cultures may simply be looking for a respectful attitude in a mediator rather than for someone from their own culture.⁸¹ The assessment of such matters is a question for the intake officer.

Pre-mediators

5.42 Some submissions suggested that pre-mediators required special training and skills.⁸² Ideally pre-mediators would have the depth of experience or knowledge to be aware of several approaches to the resolution of a dispute.⁸³ They would also have the independence to say when mediation is not the answer to a particular dispute⁸⁴ and be able to identify when specialist assistance is needed.⁸⁵

5.43 There were a number of suggestions as to who could carry out pre-mediation. One suggestion was that an appropriately trained chamber magistrate could do a good job.⁸⁶ It was also suggested that other agencies could provide pre-mediation, for example, the Housing Department.⁸⁷ It was also noted that in the United States intake officers are usually highly skilled and embedded in their organisation (for example, in-house lawyers or human resources specialists).⁸⁸ It was suggested that lawyers might be useful since they can understand the legal options available to the parties.⁸⁹

5.44 It was also suggested that mediators themselves could undertake pre-mediation, one suggestion being that higher level mediators could act as intake assessors at a higher remuneration.⁹⁰ At Relationships Australia, for example, after an initial contact with an intake officer, the parties are referred to a mediator for a detailed pre-mediation assessment. The mediator who conducts the pre-mediation sessions then goes on to conduct the mediation, usually with another mediator. The whole assessment process at Relationships Australia usually takes about 3 hours.⁹¹

Need for competency standards

5.45 While CJCs have a set of competencies for mediators that requires a degree of familiarity with some aspects of pre-mediation, there is no specific set of competencies that relate to the work of those who must conduct pre-mediations.⁹² However, the training currently offered by CJCs in pre-mediation aims to equip pre-mediators with certain competencies in three broad areas:

• assessment of the suitability of the dispute for mediation or other conflict management process;
• preparation of the parties for the process they are about to undertake; and
• administration.

5.46 NADRAC has identified “a variety of analytical and interpersonal skills used to conduct a sound assessment of a dispute for any particular ADR process or processes”. These skills can be demonstrated by:

• accurately and concisely analysing the issues presented to assess the most suitable process

• accurately and effectively referring parties to other services which may be more appropriate

• assessing parties’ capacity to negotiate

• understanding the emotions and expectations of parties

• determining the parties’ readiness to consider and commit to ADR processes, rather than continue the fight

• preparing and counselling parties in preparation for an ADR process

• assessing power differentials between parties, including the timely and effective exclusion of ADR where appropriate

• providing accurate, timely and relevant information about the ADR processes available, and other resources

• evaluation of factors such as apprehension of violence, security issues, age of the parties, issues affecting a party from a non-English speaking background, the need to seek advice, the legal or factual complexity of the matter, the precedential value of a formal resolution of an issue and the need for public sanctioning of particular conduct

• reassessing when necessary during the process in the light of new information.⁹⁴

RECOMMENDATION 8

CJCs should develop a set of competencies to be met by those who conduct pre-mediation at CJCs.

5.48 Some pre-mediation training is being offered by CJCs.⁹⁵ CJCs pre-mediation training looks at the process and the issues that pre-mediators need to consider.⁹⁶ Currently, beyond what CJCs have to offer, there is no training available for intake assessors.⁹⁷ The current pre-mediation training⁹⁸ would appear not to deal specifically with issues of violence and power imbalance. While this is the case, there is a danger that neither interviewing officers nor mediators may be sufficiently trained in dealing with issues that go to the heart of the question whether a particular dispute is suitable for mediation.

The Commission’s view

5.49 The Commission is of the view that CJCs should investigate the desirability of diverting further resources into pre-mediation, including pre-mediation training, with a view to the overall improvement of their mediation service. A variety of issues need to be considered including:

• whether CJCs staff, higher level mediators or a combination of both, could undertake pre-mediation;
• what training should be required and in particular whether pre-mediators should be trained to identify and deal with such matters as, for example, intellectual disability, age and violence; and
• what guidelines and policies should be in place to regulate the operation of pre-mediation at CJCs.

PRESENCE OF OTHER PERSONS IN THE MEDIATION

5.50 On some occasions the question has arisen of persons other than the parties to the dispute being present at a mediation. Such people may perform a number of roles including that of a representative or agent of one of the parties to the dispute, a support person or advisor, or an interpreter. Agents and representatives are people who stand in the place of a party to the dispute and take a direct role, either for all or part of the mediation instead of that party. Support persons and advisors, however, do not represent parties to a mediation but merely assist those who are already participating in the mediation on their own account. In some cases each of these roles is important for assisting parties to participate effectively in a mediation. For example, 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 the person with the disability to understand what is going on or to present their own views, to being an advocate who represents the perceived interests of the person with the disability.⁹⁹

5.51 The Act makes specific provision in relation to the situations when agents may represent parties to a dispute.¹⁰⁰ However, the Act does not make any specific provision for the presence of persons other than agents, such as support persons, advisors or interpreters but merely states that “persons who are not parties to a mediation session may be present at or participate in a mediation session with the permission of the Director”.¹⁰¹

5.52 The question of the presence of lawyers, whether as agents/representatives or as support persons, has been the subject of some debate in the mediation community and is dealt with separately, below.¹⁰²

Representatives and agents

5.53 The Act restricts the use of agents to represent the parties in a mediation. It essentially does two things in this regard. First, it identifies the circumstances in which an agent may be used without the need to seek approval from the Director of CJCs and, secondly, it identifies situations where an agent may be used subject to the approval of the Director of CJCs.¹⁰³

5.54 Agents may be used where one of the parties to the dispute is a corporate entity.¹⁰⁴ In the case of a corporation under the Corporations Act 2001 (Cth) the agent must be an officer of the corporation; in the case of an owners corporation under the Strata Schemes Management Act 1996 (NSW) the agent must be one of the proprietors or leaseholders under the scheme; and in the case of any other corporation (including, presumably, an incorporated association under the Associations Incorporation Act 1984 (NSW)), the agent may simply be somebody appointed by that organisation.

5.55 In all other cases a party to a mediation is not entitled to be represented by an agent unless the Director considers that, in the dispute in question:

(i) an agent should be permitted to facilitate mediation, and

(ii) the agent proposed to be appointed has sufficient knowledge of the matter in dispute to enable the agent to represent the party effectively.¹⁰⁵

5.57 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.¹⁰⁷

5.58 The position of CJCs would appear not to have changed since 1985 when 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.¹⁰⁸

5.59 In IP 23 the Commission asked 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 the representation of their own interests in the mediation.¹¹²

5.60 Some submissions stated that no change was required because the Act currently provides an adequate framework for dealing with such issues.¹¹³ One submission stated that there needed to be a clear delineation of roles between representatives and agents on the one hand and support persons or advisors on the other.¹¹⁴ Another submission suggested that the consent of all parties to the mediation should be required before a person could act as a representative or agent of one of the parties to a dispute.¹¹⁵

The Commission’s view

5.61 The current legislative provision is adequate to deal with the question of the participation of agents and representatives at a mediation. The use of agents or representatives will be appropriate in some circumstances, but these need to be assessed on a case by case basis. There has been nothing in our submissions or consultations to suggest that this should be otherwise. Also no additional provision would appear to be required. In particular there is no need for an express provision requiring the consent of the parties to the presence of others in the mediation since the absence of consent from one party will mean the mediation will not go ahead in any case. Consent from all parties should be just one factor the Director takes into consideration in deciding whether to allow agents or representatives to take part in a mediation.

5.62 An important protection for parties who are being represented by an agent is the ability of the mediators to terminate the mediation if the mediators believe that the agent or representative has “subsequently lost the confidence or authority” of the party they are representing.¹¹⁶ Nothing would appear to prevent a mediator from exercising their discretion in this regard.

5.63 If circumstances alter in the future it may be necessary for the Council to develop a policy to guide the Director in the exercise of the discretion. However, there is no evidence to suggest that such a policy is required.

Support persons

5.64 Support persons are those who are present not in a representative capacity, but rather to provide some form of assistance or advice to parties who are already participating in the mediation to some extent. Support persons and advisors are not covered by the provisions in the Act that cover agents who act as representatives. Yet some of the concerns about the imbalance that agents may cause in a mediation would apply equally to support persons and advisors. CJCs’ current practice is to advise potential parties to a mediation that support people may attend if required, but they may not participate in the session.

5.65 In IP 23 the Commission asked 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 the presence of support persons in the mediation.¹¹⁷

5.66 Some submissions considered that no further provision needed to be made to deal with the use of support persons, since the Act currently provides adequate framework for dealing with such issues.¹¹⁸

5.67 One submission called for a clear delineation of roles in respect of support persons.¹¹⁹ Another submission suggested that the consent of all parties to the mediation ought to be required before a support person could be used.¹²⁰

5.68 One submission suggested it should be possible to have a support person “such as an advocate, guardian or family member” for people with disabilities.¹²¹ One submission particularly raised the issue of the presence of Department of Community Service workers.¹²² 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”.¹²³

The Commission’s view

5.69 The presence of support persons in a mediation is an issue of a different order to that of the presence of representatives and agents. While it is possible that the presence of support persons or advisors could advantage particular parties to a mediation in much the same way as the presence of an agent could, the Commission nevertheless considers that a different response ought to be adopted. This is because there is a difference between an agent or advocate, who essentially acts in place of a party, and a support person who helps a party to participate in the mediation. The presence of a support person is often very important to deal with issues of power relationships in mediations. The presence of a support person may make the difference between a person being able to negotiate effectively having regard to their own needs and interests and the mediation not proceeding. Support persons can be common in some types of disputes, and mediators should be able to negotiate the participation of support persons with the disputing parties and handle the dynamics once the mediation gets under way.

5.70 Making the presence of agents or representatives subject to approval by the Director is essentially a means of managing a situation that could impact negatively on a mediation.¹²⁴ The presence of support persons, on the other hand, is more likely to have a positive effect on a mediation, so the participation of support persons is best managed by the mediators at the time the issues present themselves. The ability of the parties to the mediation to terminate the mediation at any time is also an important protection in this context.

5.71 Particular care ought to be exercised, however, to ensure that some mediation outcomes are not subject to challenge on natural justice grounds, for example, on the basis that one party in the mediation was allowed a support person and one party was denied it. Such challenges might conceivably occur in situations where the mediation is a precondition to proceedings in a court or tribunal.¹²⁵ Mediators will also need to ensure that the use of support persons and advisors is not a back-door means of getting around the restrictions on the use of agents and representatives.

5.72 Nothing in the CJCs Act currently prevents the presence of support persons in a mediation being dealt with as discussed above. No change is, therefore, necessary.

Lawyers

5.73 Lawyers have been singled out as a group because of their connection with more traditional means of resolving disputes and the impediments their presence may place on a successful resolution of a dispute by mediation. Lawyers may be present in a mediation as agents or representatives, support people and/or advisors. The arguments above about the general undesirability of the use of agents to represent some parties apply equally to the use of lawyers as such agents. Much of the discussion that follows assumes that the attendance of a lawyer will be in a supportive or advisory capacity rather than as a representative or agent.

5.74 Despite there being no express provision prohibiting the participation of lawyers in CJCs mediations, it was intended from the beginning that lawyers not be involved in the mediations conducted at CJCs.¹²⁶ However, there would appear no bar to legal practitioners attending the mediation session (presumably in a non-representative capacity) so long as the Director, mediators and parties have consented. In practice, however, legal practitioners do not attend mediation sessions.¹²⁷ It is the practice in CJCs to advise the parties to a dispute to seek legal advice before they mediate.¹²⁸ In consultations with the Commission CJCs emphasised the importance of lawyers in supporting the mediation process and in helping clients to understand their legal rights and obligations.¹²⁹

5.75 In IP 23 the Commission asked whether lawyers who are not parties to the mediation should have any role in mediations conducted by CJCs.¹³⁰ Most responses to this issue either supported the current position of not having any formal provision¹³¹ or made comments about the desirability or undesirability of having lawyers present in a mediation.

Benefits

5.76 The presence of lawyers in a mediation may be beneficial in some cases. 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.¹³² They can also help the parties in drafting the terms of an agreement.¹³³ It has also been suggested that lawyers have proved useful where a party has, for example, a cognitive disability.¹³⁴

5.77 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.¹³⁵ In some cases they may also go beyond the provision of information and actually recommend compromise.¹³⁶ 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.¹³⁷

5.78 Another point in favour of lawyers as support persons is that they are “rational and unemotionally attached to the conflict”.¹³⁸ They may also assist in redressing some power imbalance situations¹³⁹ and help the parties to negotiate from a position of knowledge.¹⁴⁰

5.79 Some submissions suggested that if all parties are adequately informed and freely consent to the presence of lawyers, there should be no reason why lawyers should not be able to participate in a mediation.¹⁴¹ Another submission suggested that lawyers must be “willing to act as support to parties, prepared to help their client negotiate a compromise agreement which both parties can live with and follow the direction of the mediators”.¹⁴²

Disadvantages

5.80 However, the presence of lawyers may:

• inhibit the open discussions that may take place during mediation;¹⁴³
• disempower individuals and prevent them from resolving their own issues;¹⁴⁴
• create a power imbalance if one party does not have or cannot afford a lawyer;¹⁴⁵
• lead, in some cases, to the lawyer dominating the proceedings;¹⁴⁶
• impede the reaching of settlement in civil claims because of the adversarial approach of lawyers;¹⁴⁷ and
• impact adversely on the informality that is considered a positive feature of mediation proceedings.¹⁴⁸

The Commission’s view

5.81 There are good arguments for and against the presence of lawyers in a mediation. There are clearly circumstances in which the presence of lawyers may be beneficial. No problem would appear to have arisen from the absence of an express ban on the attendance of legal practitioners.

5.82 The presence of legal practitioners might become more of an issue if, for example, more matters from Local Courts, where lawyers might already have been engaged by some parties, were referred to CJCs for compulsory mediation.

5.83 Clearly a case by case assessment is required as to whether it is appropriate for a lawyer (who is not a party to the mediation) to be present in a mediation.

Interpreters

5.84 There is currently no provision governing the use of interpreters in a mediation session. The provision of interpreters is a necessary component of a mediation service if CJCs are to provide services to culturally and linguistically diverse communities.

5.85 The question is probably not so much whether a provision is required to regulate the use of interpreters but rather to protect an important right for some members of the community to access public facilities on an equal footing with the general community. Clearly each party who needs one ought to have an interpreter as of right. And the use of an interpreter ought not to require consent by the other parties to the mediation.

5.86 However, the use of one interpreter for both parties in some mediations was called into question. It has been suggested that a single interpreter may take sides against one party, especially in some ethnic communities where there may be traditional views about the role of women, for example. The use of one interpreter for each party was considered to be better practice.¹⁵⁰ The Commission agrees that each party ought to be entitled to their own interpreter to ensure that their individual interests are adequately represented in the mediation.

5.87 The Commission considers that no provision need be made for interpreters in the Act. The Director, in managing the conduct of mediations, will be subject to government policies that require the provision of interpreters in the delivery of Government services. It is currently government policy that interpreter assistance is provided to clients who require assistance to ensure equality of access to all government services.¹⁵¹ No regulation is, therefore, necessary at present.

ENFORCEABILITY OF OUTCOMES

5.88 The Act provides that any agreement reached at a mediation session “is not enforceable in any court, tribunal or body”.¹⁵² This provision was included because court enforcement of such resolutions would not be “consonant with the basic concept” that resorting to a CJC is a “real alternative to the court system”.¹⁵³ However, there is nothing to prevent the parties, if they wish, from concluding an enforceable legal agreement at a later date.¹⁵⁴ Such outcomes are common in other areas, for example, agreements incorporated into consent orders in family law cases.

5.89 Concerns have been raised about the non-enforceability of mediated agreements at CJCs. Some commentators consider that making agreements enforceable would make CJCs more effective.¹⁵⁵ The problem has also been raised of some parties acting in reliance upon unenforceable agreements and incurring expenditure as a result. For example, one party to a fence dispute could incur expenses under a mediated outcome and the other party could simply refuse to pay.¹⁵⁶

5.90 However, there are a number of problems with allowing for enforceable agreements. For example, the question arises as to how such agreements are to be enforced, presumably by legal proceedings of some sort. There are also issues surrounding the need for legal advice:

• some parties might be reluctant to sign agreements without getting them checked by lawyers first;¹⁵⁷
• there may be risks involved in some parties entering a binding agreement without the opportunity to obtain legal advice;¹⁵⁸ and
• it is possible that such agreements may be unconscionable if the parties have not been able to refer to legal advisors.¹⁵⁹

5.91 Queensland adopted the New South Wales provision verbatim in 1990. However, in 1997, the following proviso was added to the non-enforceability of any agreement reached at a mediation session:

unless the parties agree in writing that the agreement is to be enforceable.¹⁶¹

5.92 The Commission does not consider that change to the current provisions is warranted given:

• the possibility of harm arising from an enforceable agreement entered into without legal advice; and
• the difficulty involved in actually enforcing any agreement so made.

1. See the comments of the English Court of Appeal in Halsey v Milton Keynes General NHS Trust (England and Wales, Court of Appeal, B3/2003/1458, 11 May 2004, unreported) at para 9-11. See also R Dive, Submission.

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

3. C Bourne, Mediation at Community Justice Centres: An Empirical Study (NSWLRC Research Report 12, 2004) at para 3.12-3.14.

4. See, eg, National Alternative Dispute Resolution Advisory Council, Dispute Resolution Terms (2003) at 9.

5. 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.

6. Of those that did not proceed to mediation, 246 were resolved to the satisfaction of the parties: CJCs, Annual Report 2003-2004 at 5.

7. J Schwartzkoff and J Morgan, Community Justice Centres: A Report on the New South Wales Pilot Project, 1979-81 (Law Foundation of New South Wales, 1982) at 194-195.

8. NSW Department of Housing, Preliminary Submission at 3.

9. Blacktown City Council, Preliminary Submission at 2; Penrith City Council, Preliminary Submission.

10. Registrars, Local Courts, Consultation.

11. NSWLRC, Community Law Reform Program: Dividing Fences (Report 59, 1988) at para 3.31.

12. 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.

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

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

15. Dispute Resolution Centres Act 1990 (Qld) s 2(1).

16. Dispute Resolution Centres Act 1990 (Qld) s 28(5).

17. Dispute Resolution Centres Act 1990 (Qld) s 31, s 32.

18. Dispute Resolution Centres Act 1990 (Qld) s 36(7), (8), s 37(7), (8).

19. IP 23 Issue 9(a).

20. 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.

21. CJCs, Professional Reference Group, Submission at 4.

22. See J Schwartzkoff and J Morgan, Community Justice Centres: A Report on the New South Wales Pilot Project, 1979-81 (Law Foundation of New South Wales, 1982) at 195.

23. See para 4.18-4.74.

24. Refern Legal Centre, Community consultation. See also Local Courts Registrars, Consultation.

25. Halsey v Milton Keynes General NHS Trust (England and Wales, Court of Appeal, B3/2003/1458, 11 May 2004, unreported) at para 10.

26. Halsey v Milton Keynes General NHS Trust (England and Wales, Court of Appeal, B3/2003/1458, 11 May 2004, unreported) at para 9.

27. Confidential 2, Submission at 1; Law Society of NSW, Submission at 4.

28. Law Society of NSW, Submission at 4.

29. Confidential, Consultation.

30. Local Courts Registrars, Consultation.

31. C Bourne, Mediation at Community Justice Centres: An Empirical Study (NSWLRC Research Report 12, 2004) at para 3.12-3.14; Redfern Community Centre, Consultation. See also R Dive, Submission.

32. Halsey v Milton Keynes General NHS Trust (England and Wales, Court of Appeal, B3/2003/1458, 11 May 2004, unreported) at para 11.

33. Para 5.9-5.10.

34. J Pearson, “Evaluation of Alternatives to Court Adjudication” (1982) 7 Justice System Journal 420 at 429.

35. J Pearson, “Evaluation of Alternatives to Court Adjudication” (1982) 7 Justice System Journal 420 at 439-441.

36. D McGillis, Community Mediation Programs: Developments and Challenges (US National Institute of Justice, 1997) at 64.

37. R G Hann and C Baar, Evaluation of the Ontario Mandatory Mediation Program (Rule 24.1): Final Report - The First 23 Months (Robert Hann and Associates Ltd, 2001) at 96-101.

38. R G Hann and C Baar, Evaluation of the Ontario Mandatory Mediation Program (Rule 24.1): Final Report - The First 23 Months (Robert Hann and Associates Ltd, 2001) at chapter 3

39. R G Hann and C Baar, Evaluation of the Ontario Mandatory Mediation Program (Rule 24.1): Final Report - The First 23 Months (Robert Hann and Associates Ltd, 2001) at chapter 4.

40. D Rollinson, Submission at 1.

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

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

43. Family Law Regulations 1984 (Cth) reg 64.

44. Strata Schemes Management Regulation 1997 (NSW) cl 22.

45. See para 7.64.

46. See Law Society of NSW, Submission at 4.

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

48. See para 7.47-7.48 and para 7.79-7.93 below.

49. Australian Law Reform Commission, Review of the Federal Civil Justice System (DP 62, 1999) at para 9.36.

50. IP 23 Issue 9(b).

51. CJCs, Professional Reference Group, Submission at 4; CJCs, Submission 1 at 7.

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

53. See Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 at para 79-159; T Sourdin, Alternative Dispute Resolution (Lawbook Co, Sydney, 2002) at 130-132; H Astor and C Chinkin, Dispute Resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 193-202; D Spencer and T Altobelli, Dispute Resolution in Australia: Cases, Commentary and Materials (Lawbook Co, Sydney, 2005) at 485-496.

54. See para 6.14-6.30 and para 6.33-6.40 below.

55. 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.

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

57. IP 23 Issue 10.

58. D Rollinson, Submission at 1.

59. D Rollinson, Submission at 1; Law Society of NSW, Submission at 4.

60. For example, in the Supreme Court and District Court in NSW.

61. For example, in Ontario.

62. See, eg, ACDC, Consultation. There are some services to which intake assessment is not crucial, for example, services that deal with contractually mandated mediations, for example, building construction contracts: ACDC, Consultation.

63. CJCs, Annual Report 2003-2004 at 8.

64. National Alternative Dispute Resolution Advisory Council, ADR Terminology: A Discussion Paper (2002) at 30.

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

66. CJCs, Consultation.

67. CJCs, Annual Report 2001-2002 at 15.

68. CJCs, Annual Report 2002-2003 at 5.

69. Local Courts (Civil Claims) Act 1970 (NSW) s 12(3) and s 12(4).

70. On general training in these matters, see para 8.41-8.44.

71. See para 4.18-4.74 above.

72. See, eg, LEADR, Consultation.

73. Relationships Australia, Consultation.

74. LEADR, Consultation.

75. Relationships Australia (NSW), Consultation.

76. See para 7.62-7.66.

77. CJCs, “Assigning Mediators” (unpublished paper, 10 January 1996); CJCs, Consultation.

78. J Courcier, Submission at 2.

79. Redfern Community Centre, Consultation.

80. Redfern Community Centre, Consultation. On co-mediation, see para 7.51-7.56.

81. Relationships Australia, Consultation. See also para 2.22-2.27 and para 9.32.

82. ACDC, Consultation; LEADR, Consultation.

83. LEADR, Consultation; ACDC, Consultation.

84. LEADR, Consultation.

85. ACDC, Consultation.

86. ACDC, Consultation.

87. ACDC, Consultation.

88. LEADR, Consultation.

89. LEADR, Consultation.

90. LEADR, Consultation.

91. Relationships Australia (NSW), Consultation.

92. See para 7.10.

93. Information supplied by D Sharp, Director, CJCs (21 October 2004).

94. National Alternative Dispute Resolution Advisory Council, A Framework for ADR Standards (Report to the Commonwealth Attorney General, 2001) at 105.

95. See, eg, para 5.28.

96. CJCs, Consultation.

97. LEADR, Consultation.

98. Information supplied by D Sharp, Director CJCs (21 October 2004).

99. 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.

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

101. Community Justice Centres Act 1983 (NSW) s 21(5).

102. See para 5.73-5.83.

103. Community Justice Centres Act 1983 (NSW) s 25. The required assessment and approval can be delegated to other CJCs staff, for example, Co-ordinators or intake officers, but apparently not to mediators: Community Justice Centres Act 1983 (NSW) s 13.

104. Community Justice Centres Act 1983 (NSW) s 25(2).

105. Community Justice Centres Act 1983 (NSW) s 25(1).

106. Community Justice Centres Act 1983 (NSW) s 25(3).

107. W Faulkes, “Pursuing the Best Ends by the Best Means” (1985) 59 Australian Law Journal 457 at 458.

108. W Faulkes, “Pursuing the Best Ends by the Best Means” (1985) 59 Australian Law Journal 457 at 458-459.

109. 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.

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

111. 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.

112. IP 23 Issue 13.

113. CJCs, Professional Reference Group, Submission at 6; CJCs, Submission 1 at 9.

114. D Rollinson, Submission at 1.

115. D Rollinson, Submission at 1; Law Society of NSW, Submission at 5.

116. Compare Anti-Discrimination Act 1977 (NSW) s 88.

117. IP 23 Issue 13(a)

118. CJCs, Professional Reference Group, Submission at 6; CJCs, Submission 1 at 9.

119. D Rollinson, Submission at 1.

120. D Rollinson, Submission at 1; Law Society of NSW, Submission at 5.

121. J Mann, Submission at 2.

122. CJCs, Preliminary Submission at 5.

123. CJCs Professional Reference Group, Preliminary Submission at 7.

124. See para 5.57-5.58, 5.61-5.62.

125. See, eg, M Thornton, “Equivocations of Conciliation: The Resolution of Discrimination Complaints in Australia” (1989) 52 Modern Law Review 733 at 754-755. See also Koppen v Commissioner for Community Relations (1986) 11 FCR 360.

126. NSW, Parliamentary Debates (Hansard) Legislative Council, 26 November 1980 at 3589, 3591.

127. C McRobert, “Mediation in Local Courts: An Alternative to Contested Hearings” (1990) 28(11) Law Society Journal 50 at 51.

128. 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.

129. CJCs, Consultation.

130. IP 23 Issue 12.

131. D Rollinson, Submission at 1; CJCs, Professional Reference Group, Submission at 6; CJCs, Submission 1 at 9.

132. M Thornton, “Equivocations of Conciliation: the Resolution of Discrimination Complaints in Australia” (1989) 52 Modern Law Review 733 at 754.

133. Law Society of NSW, Submission at 5.

134. J Courcier, Submission at 2.

135. R Hunter “Adversarial Mythologies: Policy Assumptions and Research Evidence in Family Law” (2003) 30 Journal of Law and Society 156 at 158-161, 176.

136. Law Society of NSW, Submission at 5.

137. R Hunter “Adversarial Mythologies: Policy Assumptions and Research Evidence in Family Law” (2003) 30 Journal of Law and Society 156 at 158-161, 176.

138. Confidential 2, Submission at 2.

139. Law Society of NSW, Submission at 5.

140. Law Society of NSW, Submission at 5.

141. R G Jones, Submission at 2; Law Society of NSW, Submission at 5.

142. J Courcier, Submission at 2.

143. J Mann, Submission at 1.

144. J Mann, Submission at 1.

145. CJCs, Professional Reference Group, Submission at 6; J Mann, Submission at 2; CJCs, Consultation.

146. CJCs, Consultation.

147. J Mann, Submission at 2.

148. M Thornton, “Equivocations of Conciliation: The Resolution of Discrimination Complaints in Australia” (1989) 52 Modern Law Review 733 at 754, 756.

149. J Mann, Submission at 2.

150. Redfern Legal Centre, Community consultation.

151. See NSW, Premier’s Memorandum 98-22.

152. Community Justice Centres Act 1983 (NSW) s 23(3).

153. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 19 November 1980 at 3149.

154. See W Faulkes, “Runs on the Mediation Scoreboard” (1985) 59 Law Institute Journal 206 at 207.

155. J Schwartzkoff and J Morgan, Community Justice Centres: A Report on the New South Wales Pilot Project, 1979-81 (Law Foundation of New South Wales, 1982) at 194; W Harris, “Consumer Disputes and Alternative Dispute Resolution” (1993) 4(3) Australian Dispute Resolution Journal 238 at 242.

156. Registrars, Local Courts, Consultation.

157. CJCs, Submission 1 at 17.

158. Law Society of NSW, Submission at 11.

159. See R P Meagher, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (4th edition, Butterworths, 2002) at 16-035.

160. Confidential 2, Submission at 3; Law Society of NSW, Submission at 11.

161. Dispute Resolution Centres Act 1990 (Qld) s 31(3) as amended by Courts Reform Amendment Act 1997 (Qld) s 34.

162. Courts Reform Amendment Act 1997 (Qld) Part 5.

163. Registrars, Local Courts, Consultation.