Updates and background for this project (Digest)
SUMMARY OF FINDINGS
Pre-Mediation processes
3.1 The findings on pre-mediation processes are:
- The majority of participants reported that they felt they had a choice in attending the mediation. Some of the participants referred to CJC mediation by either a magistrate or the police reported they did not feel they had a choice in attending the mediation.
- The majority of participants reported that they felt they understood what was to happen in the mediation session. A lower percentage of participants, although still in the majority, reported they were aware that they could stop the mediation and that they had enough information about mediation prior to attending the mediation session.
- Some participants reported that the time it took between initial contact with CJCs and the mediation date was too long, while most reported it was satisfactory. The majority of participants reported there was enough time during the mediation to deal with the disputed issues.
Conduct of mediation
3.2 The findings on the conduct of mediation are:
- Some participants reported they felt pressured during the mediation session to make an agreement, although the majority of participants did not. The most frequent reason given for feeling pressured was the other party involved in the mediation.
- The majority of participants reported the mediators did not favour any one party over another in the mediation. Most participants reported the mediators understood their concerns. The majority reported that the mediators allowed them to have their say in the mediation.
- Almost all participants reported that it helped to have two mediators during the mediation session.
Mediation outcomes
3.3 The findings for the outcomes of mediation are:
- For most participants the outcome of the mediation was either an agreement or partial agreement. For those participants who reported a partial agreement, most had a further mediation session arranged by CJCs.
- The majority of participants reported they were either satisfied or partially satisfied with the outcome of the mediation. Of those who reported they were not satisfied with the outcome, none of the mediation sessions had resulted in an agreement (statement of resolved issues) between the parties.
- Most participants felt that the mediation had improved their situation. Almost all participants reported that they would use the mediation service at CJCs again.
Comments about mediation
3.4 The findings on participants’ comments regarding the mediation are:
- The most common responses about the best aspect of the CJCs mediation were the mediators’ skill, the opportunity to discuss the dispute with the other party, the opportunity to understand the other party’s point of view, avoiding court and that it is a free service.
- About half the participants reported no problems with the mediation at CJC’s. Problems raised by participants varied but included having to return to court and the conduct of the other party during the mediation.
- The most common suggestions for improvement that participants gave about the mediation service at CJCs were increasing public awareness of the service and making agreements legally binding.
DETAILED FINDINGS
Apprehended Personal and Domestic Violence Orders
3.5 In the survey, participants were asked if their dispute involved an Apprehended Personal Violence Order (APVO) or Apprehended Domestic Violence Order (ADVO). Responses to this question are set out in Figure 3.1.
Figure 3.1: Percentage of particpants reporting that an APVO or ADVO was involved in their dispute
3.6 Of the total number of surveyed participants, 31.6% (n=24) reported that an APVO was involved in their mediation and 7.9% (n=6)9 reported that an ADVO was involved.
3.7 These numbers are higher than outlined in recent CJC annual report statistics.10
3.8 One reason for the higher number obtained in the Commission’s survey is that CJCs’ figures on APVOs and ADVOs are based on the number of files opened annually where the cases involved an order. The Commission’s survey statistics are based on individual participants and not cases, thus both parties participating in the survey and more than one participant interviewed from either Party A or B would elevate the incidence of APVOs and ADVOs compared to CJC statistics. All survey participants could not be reliably matched if both Party A and Party B were interviewed to provide a direct comparison with CJC statistics. The overall incidence of APVOs and ADVOs in this survey should be regarded as higher than would be obtained in CJCs annual reports.
3.9 The 30 participants where mediations involved either an APVO or ADVO were also asked whether they had applied for the order or if the order had been made against them. A greater number of participants (n=19) reported that they had applied for the apprehended violence order involved in their dispute, compared to 11 participants that reported the order had been made against them by the other party in their mediated dispute.
Pre-mediation
Voluntary attendance
3.10 Voluntary participation and attendance in mediation is provided under section 23 of the CJC Act. It has been acknowledged that coercion to mediate is not simply influenced by statutory provisions to do so, but may also be influenced by social and political factors 11.
3.11 The Commission asked participants if they felt they had a choice in attending the mediation session. Responses to this question are set in Figure 3.2.
3.12 The majority of participants (85.5%, n=65) reported they felt they had a choice in attending the mediation, compared to 7.9% (n=6) who responded that they felt they did not have a choice, 6.6% (n=5) reported they were “unsure”.
Figure 3.2: Percentage of participants reporting that they felt there was no choice in attending mediation
3.13 Of those participants who reported feeling they did not have a choice in attending the mediation at CJCs, 5 were identified as Party A and 1 as Party B. The referral source of the Party A participants was 3 by magistrates, 2 by police officers and one by a chamber magistrate.
3.14 The following are quoted from the participants who responded they did not feel they had a choice in attending the mediation:
- “because it was from the magistrate”
- “the other party had an eviction notice so I had to”
- “the police couldn’t sort it out beforehand, so I had no choice”
- “because it was work”
- “court told me I had to”
Information about the mediation
3.15 Participants were asked if they had enough information about mediation prior to attending the mediation session. The responses to this question are set out in Figure 3.3.
Figure 3.3: Percentage of participants reporting they had enough information prior to attending the mediation
3.16 Many of the participants (63.2%, n=48) reported they felt they had enough information, although 28.9% (n=22) reported they did not have enough information and 5 participants (9.4%) reported they were unsure.
3.17 Participants were asked if they understood what was going to happen in the mediation session. The responses to this question are set out in Figure 3.4.
3.18 The majority of participants (77.6%, n=59) said they understood what was going to happen in the mediation prior to attending.
Figure 3.4: Percentage of participants reporting they understood what was going to happen in the mediation
Figure 3.5: Percentage of participants reporting they were made aware they could stop the mediation
3.19 Participants were also asked if they were aware that they could cease the mediation at any time. Responses to this question are set out in Figure 3.5.
3.20 Almost two thirds of participants (63.2%, n=48) responded that they were aware they could cease the mediation at any time. Of those 27.6 % (n=21) participants who reported they were not aware several provided additional comments about the issue (although not specifically asked):
- “I would have stopped it had I known I could have”
- “I tried to leave the mediation in the first hour, the mediator said I couldn’t leave”
3.21 Participants were asked their opinion about the time it took from the initial contact with CJC through to the start of the mediation session. Responses to this are set out in Figure 3.6.Figure 3.6: Participants' responses to the duration between contact from CJC and the mediation session
3.22 A total of 57 (75%) participants responded that the time from initial contact with the CJC through to the mediation session was satisfactory. For those participants who responded it was too long (18.4%, n=14) some provided reasons for this, (although they were not specifically asked):
- “Not the Community Justice Centres fault, we had to get council approval”
- “Not Community Justice Centre’s fault but the other party”
- “Because there was five people involved, difficult to organise everybody”
- “Had to have it to suit CJC”
3.23 Participants were asked if there was enough time during the mediation session to deal with the issues. Figure 3.7 sets out their responses.Figure 3.7: Percentage of participants reporting they felt there was enough time to deal with the issues during the mediation
3.24 The majority of participants (76.3%, n=58) said they felt there was enough time during the mediation session to deal with the issues from their point of view, compared with 21.1% (n=16) of participants who reported there was not enough time.
Conduct of mediation
Pressure to make an agreement
3.25 Participants were asked if they perceived any pressure to make an agreement during their mediation session. Responses to this question are set out in Figure 3.8.
Figure 3.8: Percentage of participants who reported they felt pressured to make an agreement during mediation
3.26 Over one quarter of participants (26.3%, n=20) responded they felt pressured to make an agreement during the mediation session, with the majority (72.4%, n=55) reporting they did not feel pressured.12
3.27 For participants who said they felt pressured to make an agreement during the mediation session, they were also asked what they thought was the source of the pressure. Figure 3.9 sets out their responses.
Figure 3.9: Percentage of responses on the source of pressure to make agreement
3.28 Of the 20 participants responding they felt pressured to make an agreement during the mediation, the most frequently reported source of the pressure was from the other party (n=11), followed by the mediators (n=7) and time (n=5).13 Two participants cited the pressure as being self imposed.
Mediators
3.29 One of the core skills and requirements of mediators is the ability to conduct mediations in a neutral or impartial manner. It has been suggested that when a disputing party perceives a mediator as being partial to one party, the confidence of the disputing parties in the process can be undermined.14
3.30 Participants in this survey were asked if they felt the mediators favoured one party’s point of view over another. Responses to this question are set out in Figure 3.10.
Figure 3.10: Percentage of participants reporting they felt the mediators favoured one party's point of view
3.31 The majority of participants (81.6%, n=62) reported they did not feel that the mediators favoured one party’s point of view over another.
3.32 Participants were also asked if they felt the mediators understood their concerns. Figure 3.11 sets out their responses.
3.33 The majority of participants (84.2%, n=64) reported they felt the mediators understood their concerns.
3.34 Participants were also asked if they felt the mediators allowed them to have their say during mediation. Responses to this question are set out in Figure 3.12.
Figure 3.11: Percentage of participants reporting they felt the mediator understood their concerns
Figure 3.12: Percentage of participants reporting they felt the mediators allowed them to have their say during the mediation
3.35 Again, the majority of participants (86.8%, n=66) responded that they felt the mediators allowed them to have their say during the mediation session.
Co-mediation
3.36 Participants were asked if they thought it helped to have two mediators. Almost all participants (94.7%, n=72) said that it helped having two mediators. Common reasons given by participants for this were:
- gender balance with a male and female mediator
- different views
- two different perspectives
- so points aren’t missed
- one might be able to see a point more clearly than the other and can clarify it
- more objective
- less chance of bias
- ensures neutrality
- complement each other’s skills
- to help each other manage the session
3.37 Overall, most participants in the survey responded positively on questions regarding the mediators’ skills in terms of not favouring one party’s point of view over another, understanding of participants concerns and allowing participants to have their say during mediation. 15
Mediation outcomes
Agreements between the parties
3.38 Of the 2,786 cases that were mediated at CJCs between 1 July 2002 and 30 June 2003, 82% resulted in an agreement between the parties. Mediation outcomes at CJCs are defined either as an agreement (statement of resolved issues), a partial agreement (statement of unresolved issues) or no agreement. Mediations can also be terminated by either the mediators or the parties involved. Participants were asked the outcome of their mediation. Figure 3.13 sets out their responses to this question.
Figure 3.13: Mediation outcomes reported by participants
3.39 The majority of participants (75%, n=57) reported that an agreement (statement of resolved issues) was obtained between the parties in their mediation, and 14.5% (n=11) reported their mediation resulted in a par2tial agreement (statement of unresolved issues). For 9.2% (n=7) of survey participants, no agreement was made.
3.40 For the 11 participants where partial agreements had been obtained in the mediation, most of these participants (n=8) also reported that a further mediation session had been arranged by the mediators. This may account for the slightly lower number of agreements reported by participants compared to the CJCs annual statistics. No participants reported that their mediation session had been terminated.
Satisfaction with mediation outcome
3.41 In this survey, participants were specifically asked if they were satisfied with the outcome of their mediation. Responses to this question are set out in Figure 3.14.
Figure 3.14: Percentage of participants reporting satisfaction with the mediation outcome
3.42 Over half (59.2%, n=45) of the participants reported they were satisfied with the outcome, 19.7% (n=15) reported being ‘partially’ satisfied with the outcome, 17.1% (n=13) reported they were not satisfied with the outcome and 3.9% (n=3) reported they were ‘unsure / it was too early to say’. These results are similar to those obtained in the 1982 review of the CJC pilot program.17
3.43 Figure 3.15 shows the mediation outcomes according to participant satisfaction with the outcomes.
Figure 3.15: Mediation outcome and satisfaction
3.44 For the 7 participants who reported no agreement was made in the mediation, 4 reported they were not satisfied with the outcome and 3 reported they were partially satisfied. For the 57 participants where an agreement was made, the majority reported they were either satisfied with the outcome (n=38) or partially satisfied with the outcome (n=9).
3.45 There were 8 participants who reported an agreement was made and also reported they were not satisfied with this outcome. Some of these participants provided reasons for not being satisfied with the outcome:
- “The other party hasn’t complied. I will have to go to court”
- “The other party only went because they were told they had to by the magistrate, they weren’t serious about it”
- “We went back to court anyway”
- “The other party wouldn’t budge and didn’t mean it. I will have to go back to court to get an AVO”
- “It didn’t cover all the issues”.
- “I’m glad it’s resolved, but a lot of damage has been done by the other person…I gave in for my own peace of mind”
Mediation outcome and relationship between parties
3.46 For the majority of participants, an agreement was made regardless of the nature of the relationship between the parties. Figure 3.16 shows the types of mediation outcomes according to the relationships between the parties.
Figure 3.16: Mediation outcome and relationship between parties
3.47 Of the 4 participants whose mediation involved a work relationship between the parties, all resulted in an agreement. For those 23 participants where the dispute involved a family relationship, an agreement was reported by 14 participants, a partial agreement was reported by 9 participants and none reported that their mediation had resulted in no agreement between the parties. Of those 9 participants where there was a family relationship and the mediation had resulted in a partial agreement, 7 reported that a further mediation session had been arranged.
Mediation outcome and satisfaction among participants with either an APVO or ADVO
3.48 Figure 3.17 shows the types of mediation outcomes according to whether an APVO or ADVO was involved in the dispute. All of the participants where an APVO or ADVO was involved in their dispute reported that their mediation resulted in an agreement or partial agreement.
Figure 3.17: Mediation outcome where an APVO or ADVO was involved in the dispute
3.49 Figure 3.18 shows participants’ satisfaction with the outcome of mediation according to whether there was an APVO or ADVO involved in their dispute. The 6 participants where an ADVO was involved in the dispute reported they were either satisfied or partially satisfied with the outcome. Of the 24 participants who reported an APVO was involved in their dispute, 14 reported they were satisfied with the outcome, whereas 5 reported they were not satisfied and 4 reported they were partially satisfied.Figure 3.18: Satisfaction with outcome where an APVO and ADVO was involved in the dispute
Impact of mediation on the situation
3.50 Participants were asked what impact they thought the mediation had on the situation in dispute. Responses to this question are set in Figure 3.19.
Figure 3.19: Participant responses to the impact that mediation had on their situation
3.51 The majority of participants (76.3%, n=58) reported they felt the mediation had improved their situation, compared to 7.9% (n=6) and 10.5 % (n=8) of participants who reported they felt the mediation had worsened their situation or made no difference respectively.
Likelihood of using CJCs again
3.52 Participants were also asked if they would use mediation at CJC’s again. Figure 3.20 sets out the responses to the question.
Figure 3.20: Percentage of participants reporting they would use CJCs again
3.53 The majority of participants (85.5%, n=65) responded they would use mediation again at the CJCs.18 Of the 45 participants who said they were satisfied with the outcome, almost all (n=44) reported they would use CJCs again and 1 participant said they were “unsure”. Of those 13 participants who said they were not satisfied with the outcome, 7 reported they would use CJCs again, 3 reported they were unsure and 3 reported they would not use CJCs again.
FOOTNOTES
9. Of those participants who said an ADVO was involved in their mediation, one participant made the following response when asked “what problems, if any, did you have with the mediation at CJC?”:
(the other party) had a chance to run me down in the session, what (the other party) thought about me personally rather than the issues. The mediators didn’t stop it, but they probably didn’t know (the other party) was doing it. It undermined my confidence and self-esteem. It’s not a problem, just a query.
10. See CJCs Annual Report 2002-2003 and 2001-2002. In the year ending 30 June 2003, 16% of files opened at CJCs involved an APVO. For the period 1 September 2001 to 30 June 2002, 1% of files opened involved an ADVO.
11. H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, Lexis Nexis Butterworths, Australia, 2002) at 274.
12. A survey of individuals who participated in court-based small claims mediation in the UK found that 14% participants reported they felt pressure to settle during the mediation. See S Prince, Court based mediation: A preliminary analysis of the small claims mediation scheme at Exeter County Court (a report prepared for the Civil Justice Council, 2004) at 54.
13. The total responses are higher than the number of participants as some participants gave multiple answers.
14. See US Model standards of conduct for mediators, item II.
15. In the 1982 CJCs pilot project, 78.8% and 16.8% of participants reported they were very satisfied or partly satisfied with the mediators respectively. See J Schwartzkoff and J Morgan, Community Justice Centres: a report on the New South Wales pilot project, 1979-1981 (Law Foundation of NSW, 1982) at 112.
16. One participant declined to answer.
17. See J Schwartzkoff and J Morgan, Community Justice Centres: a report on the New South Wales pilot project, 1979-1981 (Law Foundation of NSW, 1982) at 113.
18. In the 1982 review of the CJCs pilot program, 74.8% of participants reported they would use CJCs in the future. See J Schwartzkoff and J Morgan, Community Justice Centres: a report on the New South Wales pilot project, 1979-1981 (Law Foundation of NSW, 1982) at 116.
