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The emergence of mediation in the Australian context

The emergence of mediation in the Australian context

It is not the purpose of this paper to engage in any discussion of the definition of “mediation”. I propose to proceed on the basis of the distinction drawn by NADRAC6 between mediation and conciliation and such that mediation will been taken as “a purely facilitative process” and defined as:

Mediation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner7 (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement.

I state a definition in order to delineate the development in Australia as a professional body of mediators and dispute practitioners with specific training in a mode of facilitative assistance and to distinguish this from the myriad forms of dispute resolution interventions that had previously occurred and which might be distinguished as conciliation or facilitated negotiation.8 That is not to be, in any fashion, critical of those modes of ADR but purely to distinguish them so as to be able to identify a “starting point” for mediation services.

This distinction is not entirely artificial. As recently as 1996 it had been noted that:

a bewildering variety of activities fall within the broad, generally accepted definition of mediation – a process in which an impartial third party, who lacks authority to impose a solution, helps others resolve a dispute or plan a transaction.9

Since that time (and perhaps to address the lack of clarity) a number of definitions, professional standards, guidelines and accreditation regimes have come to be. Thus a more regulated and defined body of professionals exist.10

Mediation is no longer a strongly principled, philosophical child it is now a mature adult of 30 years of age or more.

Writing in 1991, with respect to family law, Ilene Wolcott recorded:11

The Noble Park Centre, established in 1985, was one of the first mediation programs funded by the Commonwealth Attorney-General…. Approximately 72 mediation sessions were conducted in 1989.

The Marriage Guidance Council of Victoria’s Family Mediation Service was established in 1984 and received Commonwealth funding in 1988. In each of the past two years 105 couples have participated in mediation. The Family Mediation Services of the Marriage Guidance Councils of South Australia, Queensland and West Australia began operations more recently, either during 1989 or 1990…. Since 1989 a cooperative Family Mediation Service has been run by the Marriage Guidance Council of New South Wales, Centrecare (Catholic Family Welfare) and the Family Court.

UNIFAM NSW began family mediation sessions in 1987…

What is also clear from the early development as a unique practice and distinct discipline is its separation from and development as an alternative to litigation.

In an excellent article for the Queensland Bar Association David Paratz summarises both the genesis and essential, core elements of mediation:12

Born in the United States of America from the 1960’s on, ADR was a new philosophy. It was based around the concept of finding mutually advantageous resolutions to conflict through negotiation. In place of the old combat model where parties were pitted against each other until one defeated the other, this new approach looked to co-operative problem solving as its form of operation. Instead of Win/Lose the outcome was to become Win/Win. Central to the new processes was an emphasis on identifying interests and negotiating resolutions that accommodated the interests of each party.

Ulrich Magnus advances:13

Next to the United States, Australia has become a global forerunner in mediation law and practice. Mediation is officially seen in Australia as a preferred, cheaper and quicker alternative to traditional court litigation. There are a great number and variety of legislative acts providing for mediation, partly enabling courts to order mediation procedures against the will of the parties, partly requiring the parties’ consent. Outside the courts, a whole mediation ‘industry’ has been established with many private organisations and institutions offering mediation services for any kind of dispute.

In discussing the development of mediation in Australia, Jo Kalowski notes:14

The uptake of mediation in Australia has been nothing short of phenomenal. Australia is a nation of “early adopters”, readily embracing new technology and new ideas. Many Australian laws facilitate, even mandate mediation. Most courts encourage it, either as a case management tool to avoid delays or because its effectiveness is openly acknowledged, or both. Most universities offer courses in dispute or conflict resolution, and some provide actual mediation training. 

The early development occurred away from, and largely uninfluenced by, Courts and litigation. Whilst negotiation had always occurred within the process of (and usually also prior to) litigation, the more formalised, third party facilitated  models of negotiation were entirely separate to Court processes.15 However, Courts were quick (and perhaps quicker) than the legal profession (and public) to see the potential financial and workload benefits of mediation and to embrace them and “annex” them to Court processes.

As observed by John North:

Court annexed mediation began in Australia in 1983, when the Victorian County Court Building Cases List made provisions for matters to be referred to mediators for the resolution of cases.16

The Federal Court of Australia has had a mediation program for alternative dispute resolution since 1987….In June 1991 the Federal Court of Australia Act 1976 was amended to allow the court, with the consent of the parties, to refer the proceeding or any part to a mediator…

What started as a ripple on the mediation front in the early-to-mid 1980s, became a wave in the 1990s. Practitioners realised that unless they learned to surf this “new wave” of mediation and alternative dispute resolution, they would be left floundering at sea without the proverbial paddle.

The mediation movement in Australia gained particular impetus and credibility in the early 1990s. In 1992, the then Chief Justice of the Supreme Court of Victoria, Justice Phillips, concluded that delays in the Supreme Court could only be resolved by a “massive and mighty effort using mediation as a vehicle for getting cases resolved.”

This led to the so-called ‘Spring Offensive’ in Victoria in 1992, in which 762 cases waiting for trial were reviewed by a Panel of judges. Two-hundred-and- eighty of these cases were sent for mediation and 104 were settled at mediation….By 1993 mediation was on the rise and was described by the editor of the Australian Law Journal as “the flavour of the year”.

In 1995, the Federal Attorney-General announced the establishment of the National Alternative Dispute Resolution Advisory Council (NADRAC) to foster the expansion of alternatives to court action in civil matters.

In announcing the establishment of NADRAC, the Attorney-General said “the Government was encouraging the expansion of Alternative Dispute Resolution as part of its strategy to lower legal costs and improve access to justice”.

In 1990 the Family Court of Australia followed the Federal Court’s lead and established its own mediation program service which involved the provision of training to Registrars of the Court. At that time, whether reflective of the paucity of services available in the community or otherwise, the Court was reluctant to (and, in practice, did not) make significant referrals to external agencies. The Court’s service delivery at that time included both forensic and confidential services (including counselling, mediation and conciliation). Since the early 2000s the Family (and Federal Circuit Court) have ceased to provide such confidential services.17

The Federal Court systems have, arguably, been unique in establishing and, in the case of the Federal Court,18 retaining mediation services within the Court. State and Territory Courts have always operated with a preference for Court referred and controlled mediation but undertaken by external agencies.

By 1993 the first Legal Aid Commission auspiced mediation programmes were established in NSW and almost simultaneously Queensland and Victoria.

As a consequence of these developments mediation is now, to a very large extent, mandatory as a “pre action procedure” at a Federal level. This requirement was introduced by the Civil Dispute Resolution Act 2011 (Cth). Whilst the CRDA does not apply in FLA proceedings there is, of course, s 60I creating a similar obligation and both as a pre action procedure and an obligation upon the Court.19

Section 60I precludes a parenting application being filed with a Court or heard and determined absent attendance (or attempted attendance) at Family Dispute Resolution and in the following terms:

a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner.

Exemptions to this requirement based on urgency, family violence and child abuse are set out. However, even if those exempting circumstances apply the Court has an obligation and an enduring obligation to consider ordering parties to attend FDR and in the following terms:

the court must consider making an order that the person attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to that issue or those issues.20

A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make…[an] order… that the parties to the proceedings attend family dispute resolution.21

Laurence Boulle has opined that at least one reason for the rapid growth of mediation in Australia has been “economic rationalism” whereby:22

Mediation [has] develop[ed] in a context in which the value of social activities is located within the structure of the market-place.

There is to a large extent fundamental truth to this proposition. The theme is taken up, at least to the extent that cost and financial cost in particular are reflected in Court resources and their use, by Campbell Bridge.23 In doing so he links the economic rationale of mediation, case management by Courts and the increasing interest and involvement of Courts in mediation:

Historically Australia has been among the most litigious societies in the world. The burden, financial and otherwise, on litigants was severe. The public purse was severely strained by the necessity of allocating huge resources in terms of infrastructure and personnel (judges, juries, facilities and support staff) to the hearing of all these cases. In the late 1980s and early 1990s the courts decided that the days of litigation being conducted at whatever leisurely pace the protagonists chose were over. Case management became the weapon of choice of the judiciary in its quest to confine cases to real and relevant issues and compel litigants to conduct litigation quickly and efficiently. Compelling parties to settle those cases that should be settled as early as possible and to seriously address issues of resolving the more recalcitrant disputants were both philosophies at the centre of the case management drive. It is no accident that the rise of mediation in Australia coincided with the rise of case management and its underlying philosophy. Now the courts and the parties are very much focussed on alternative dispute resolution, with mediation in the forefront of that push. 

Perhaps the most eloquent statement of the role of Courts in addressing these financial considerations, which fundamentally addresses and preserves the role of the rule of law in both litigation and mediation, comes from NSW Supreme Court Chief Justice Tom Bathurst:24

…it is evident that today’s courts are not only bound to deliver justice that is impartial and discharged with due process, they must also deliver justice efficiently and in a way that mitigates rising legal costs. In this way justice encompasses two separate facets: justice to the parties and justice to the wider community.

Whilst the economic and broader “resources” arguments for growth are compelling and valid there must surely be other reasons why mediation has grown so strongly. This is perhaps best encapsulated by retired US Supreme Court Chief Justice Warren E Burger:

Traditional litigation is a mistake that must be corrected… For some disputes trials will be the only means, but for many claims trials by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for really civilized people. 

If this is so (and I strongly believe it to be so) then it is necessary to consider the fundamental differences between litigation and mediation to gain any real understanding to the exponential increase in interest in and support of mediation by government, Courts, the public and even, by and large, the legal profession.

Read more from Judge Joe Harman here

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