THE TERMS OF REFERENCE
1.1 In January 1988 the then Attorney General of New South Wales, the Honourable Mulock, LLB, MP, made the following reference to the Commission:
To inquire into and report on:
(a) the need for training and accreditation of mediators;
(b) any related matter.
1.2 Although the terms refer specifically to mediators, mediation is only one of a wide range of methods of dispute resolution increasingly being used both within the court-based dispute system and privately. For convenience, the Commission has referred to this as the alternative dispute resolution (ADR) reference. The terminological confusion in this area has created difficulties; ADR is a label of convenience, not a unitary concept.
1.3 Alternative dispute resolution in its broad sense is the formal use of procedures other than adjudication in the courts to resolve disputes. This wider view has been used where the focus is on supplementing and complementing as well as replacing traditional court-based adjudication. It embraces modified procedures directed at settlement of litigation in the court system, non-judicial adjudication (arbitration and expert determinations), and various means of dealing with disputes which emphasise consensual resolution. This broad perspective has guided recent government policy documents,1 as well as the recently published journal in this area.2
Consensual dispute resolution
1.4 A narrower view of ADR distinguishes the way resolution is achieved. This is the Commission’s preferred approach for the purposes of this reference. According to this view, ADR methods are consensual or non-adjudicative. Resolution occurs by agreement of the parties themselves, facilitated by the efforts of a neutral third party, usually without power to compel a settlement. These methods may be used in a range of settings in the judicial and administrative systems, and privately. Some maintain an even more limited view of ADR, considering it to be restricted to uses not at all associated with the formal justice system, although the Commission does not accept this narrow view as appropriate for this reference.
1.5 Mediation is the most prominent of a number of consensual methods of dispute resolution. It is defined as a process by which a neutral third party uses a structured process to assist parties to reach agreement about matters in dispute between them.3 Our enquires have considered other forms of consensual dispute resolution.4 These may depart from the pure elements of mediation, but the Commission believes that the issues regarding training and accreditation are similar and therefore fall within the focus of this reference. In this Report the term mediation is used as representative of such consensual dispute resolution processes.
1.6 In this Report and in the accompanying publication of the Directory of Dispute Resolution, the Commission has also used the term dispute resolution. Methods and processes at first labelled alternative are increasingly considered to be within the mainstream of dispute resolution options. The Commission believes that this usage should be encouraged.5 It may diffuse many of the problems with terminology as well as facilitate the inclusion of new techniques which may emerge with experimentation with process and context.
BACKGROUND AND PURPOSE OF THE REFERENCE
1.7 This reference acknowledges recent interest in and the formal use of an array of processes other than the mechanism of judicial adjudication to resolve disputes. Evidence of this was presented in papers at the seminar Alternative Dispute Resolution,6 conducted by the Australian Institute of Criminology in 1987 which examined the use of mediation and conciliation in Australia at that stage, and also arbitration, and drew attention to key policy issues associated with the implementation of ADR both within and outside the court system. Although the practice of ADR was only then limited in Australia, several crucial issues were raised. These included definitional problems, training, quality control and accountability, and the need for assessment and evaluation.
1.8 The Commission was prompted by its participation in the seminar to seek a reference on alternative dispute resolution and provide a forum in which some of the policy issues associated with its implementation could be addressed. In choosing the restricted area of the need for training and accreditation, the Commission intended to focus on one of the key aspects necessary to establish the quality and accountability, and therefore credibility, of practitioners in the eyes of consumers and their advisers. Practitioners, program administrators and policy makers had already acknowledged these to be significant issues.7 This State has a direct interest in the quality of services that are promoted and adopted for the role they play in reducing the number of civil disputes (and, indirectly, criminal matters) in the court system.8 As the use of ADR expands, particularly with public funding, court and program administrators as wen as consumers must face the questions of who are qualified to be neutral third parties, how to select those people, and what specific training is necessary to perform that role.
1.9 A subsidiary purpose in seeking the reference, and a necessary feature of the conduct of the inquiry, was to gather data on the extent and nature of ADR practice in Australia. This has proved a difficult task, given the rate at which new programs and experiments with ADR procedures are being implemented. It has contributed to the nature of the recommendation for creation of a dispute resolution database and the Commission’s decision to produce a Directory of Dispute Resolution to accompany this Report.
Critique not attempted
1.10 The Commission has not attempted any critique of the new approaches to dispute resolution beyond that which is incidental to the issues of training and regulation. We are aware of significant research which suggests that introduction of the new approaches should be done with care so as to avoid, as far as is consistent with the program’s aim, the disadvantages for which they have been criticised. These relate to the emphasis on compromise in the absence of substantive and procedural legal protections and the possibility of coercion in reaching a negotiated settlement. Questions of access to, and the quality of justice, the extension of state control, and quantifying the savings claimed for these approaches have also been raised.9 The Commission believes that the experimentation and expansion of ADR which has increasingly occurred in recent years will continue. The perceived advantages of ADR to those who use it are that it is a faster, cheaper, less formal and more accessible and satisfying way of resolving conflicts.10 The appeal for governments lies in the savings of money, time and resources which can be achieved. The future of ADR is assured.11
1.11 This Report does not evaluate ADR processes, nor does it endorse any particular ADR program or process. The reference did not require or permit such enquiries, and the Commission is not currently in a position to make those judgments. The Commission believes that experimentation with ADR programs is valuable and also that it is essential to evaluate programs, processes, training courses and mechanisms for quality control and regulation. Evaluation should and frequently does occur as an internal process, but there is also a need for external review. The Australian Institute of Judicial Adminis-tration is conducting a project on ADR which will combine an analysis of the merits of ADR, with an empirical study of programs already operating in Australia.12 It should provide very useful assessments of the efficacy of some ADR programs, and provide data on which policy decisions can be based. Further research is likely to be conducted by institutions such as the Bond University Dispute Resolution Centre and the Centre for Conflict Resolution at Macquarie University.
CONDUCT OF THE REFERENCE
1.12 The reference required the Commission to undertake wide-ranging research and engage in extensive public consultation. The research was necessary because of the nature of ADR, its novelty, and the lack of easily accessible materials. The consultation was vital to ensure the effectiveness of our enquiries, and acceptance of our recommendations. The Commission has been assisted greatly by the willingness of many in the dispute resolution community to provide assistance and information about ADR programs and courses. In return, the Commission has been an information source for practitioners and researchers in the area who have drawn on the reference material collected by the Commission and on its experience.
1.13 The Discussion Paper was the Commission’s principal means of public consultation, seeking to stimulate debate by presenting the issues and asking for responses to the specific questions it posed. Submissions were received from across Australia, representing the views of those in ADR agencies and programs, professional associa-tions and of individual practitioners, academics and interested persons. Appendix A contains a list of those from whom submissions were received. The views expressed are referred to throughout the Report. The Discussion Paper has also been in demand as a teaching resource and as a guide for other policy discussion.
1.14 The Commission also engaged in direct consultation with various people and groups in the dispute resolution community, both formally and informally. Meetings were held with representatives of the Family Mediation Centre, New South Wales Law Society, the Dispute Resolution Committee, Lawyers Engaged in Alternative Dispute Resolution (LEADR), the Australian Commercial Disputes Centre (NSW) (ACDC) and Community Justice Centres (NSW). Informal discussions were held with numerous mediators, ADR program and court administrators, lawyers and others interested in the use of ADR.
1.15 The Commission developed specific options for the regulation of mediators and sought comments on these from a number of interested people. The Commission appreciates the support given by the dispute resolution community to this reference. The information provided and opinions expressed have been vital to understanding dispute resolution practice and formulating the recommendations in this Report.
1.16 The Commission appointed Jennifer David as Honorary Consultant to the Division on the ADR reference. Ms David is currently Adjunct Professor of Law, University of Technology, Sydney and Chief Executive Officer, LEADR. The Commission expresses its thanks to Ms David for her advice on dispute resolution practice and policy which was generously given.
THE REPORT
1.17 This Report presents the Commission’s conclusions and recommendations. Chapter 2 indicates the range of dispute resolution programs and processes across which the recommendations should apply. This is supplemented by the accompanying publication, the Directory of Dispute Resolution noted below.
1. 18 Chapter 3 is concerned with the issue of training. Submissions overwhelmingly argued that training for mediators was desirable, if not essential, and the Commission has endorsed this position. It has declined, however, to make a formal recommendation to implement any legal requirement for training at this stage. Chapter 3 refers to opinions expressed in submissions about the questions posed in the Discussion Paper on training, and some conclusions about issues in mediator training.
1.19 Chapter 4 considers the policy issues which are relevant to the question of regulation of dispute resolution practices. Chapter 5 presents a range of approaches already in operation and considered by the Commission. In Chapter 6 the Commission makes recommendations for court and tribunal connected ADR. The unique position of these services and programs gives rise to some important issues, particularly concerning quality and accountability.
1.20 Chapter 7 presents the Commission’s main recommendations: that a Dispute Resolution Advisory Council be created to advise the government about dispute resolution practice; and that a Dispute Resolution Database be established. The information contained on the Database would be made available to the public and provide a valuable resource to the Advisory Council on which to base its advice to the government.
Directory of Dispute Resolution
1.21 In the course of this reference, the Commission faced the difficulty of precisely identifying the nature and extent of ADR programs and services available. This stemmed from two causes: the lack of readily available sources of information; and the rate at which programs are being established and modified. This problem must be common to many: researchers, new program administrators, lawyers and others who advise clients with disputes, and potential users alike.
1.22 The Commission therefore determined that data about programs and services, including training courses, should be published. Such a publication should contain information about the nature of dispute resolution services provided as well as promote the availability of the services. It can be seen as a forerunner of the Database of Dispute Resolution which the Commission recommends, and serve those functions which are identified for the Database. The Directory was published with the financial assistance of the Law Foundation of New South Wales, which the Commission gratefully acknowledges.
FOOTNOTES
1. See New South Wales Attorney General’s Department Alternative Dispute Resolution and the New South Wales Court System (Sydney, January 1990); Victoria Attorney-General’s Working Party on Alternative Dispute Resolution Report (Attorney-General’s Department Melbourne, June 1990); and South Australia Attorney-General’s Department Alternative Dispute Resolution: Green Paper (Adelaide, 1990).
2. Australian Dispute Resolution Journal (Law Book Co, Sydney, 1990).
3. Jay Folberg and Alison Taylor Mediation: A Comprehensive Guide to Resolving Conflict without Litigation (Jossey-Bass, San Francisco, 1984) at 7; New South Wales Law Society’s “Guidelines for Solicitor Mediators” (1988) 26 Law Society Journal (6) 29; New South Wales Law Reform Commission Training and Accreditation of Mediators (DP 21, 1989) paras 2.7-2.12.
4. See Chapter 2.
5. See also Editorial (1990) 1 Australian Dispute Resolution Journal 175.
6. Jane Mugford (ed) Alternative Dispute Resolution, Proceedings of a Seminar on Alternative Dispute Resolution held by the Australian Institute of Criminology, Canberra, July 1986 (AIC, Canberra, 1986).
7. Ibid.
8. See Alternative Dispute Resolution and the New South Wales Court System note 1 at 18-20.
9. Richard Ingleby “Why Not Toss a Coin? Issues of Quality and Efficiency in Alternative Dispute Resolution” Paper presented to Australian Institute of Judicial Administration Conference, Melbourne, 18 August 1990; Richard L Abel (ed) The Politics of Informal Justice (Vols 1 & 2) (Academic Press, New York, 1982); Roman Tomasic and Malcolm M Feeley (eds) Neighbourhood Justice, Assessment of an Emerging Idea (Longman, New York, 1982).
10. See Jennifer David and Patrick Cavanagh “Taking the Plunge” (1990) 25 Australian Law News (10) 3 1.
11. See, for example, the Prime Minister’s Fourth Term Initiatives Statement supporting arbitration and mediation and its implementation by the Courts (Mediation and Arbitra-tion) Act 1991 (Cth) assented to 27 June 1991; Australia, National Legal Aid Advisory Committee Legal Aid for the Australian Community: Legal Aid Policy, Programs and Strategies: a Report; (AGPS, Canberra, 1990) at 198-202.
12. Mediation conferences in the Federal Court, Family Court Order 24 Conferences, and the Small Claims Tribunal, Victoria; Ingleby note 9.
13. For example, for the Victorian Attorney - General’s Working Party Report see note 1.
