Dispute Resolution-Where from and where to?

On 30 June I joined ADRA at the Australian Museum to celebrate their 30th anniversary. As a lawyer and mediator it was a great opportunity to explore the evolution of dispute resolution over this time, and consider where this movement has come from, and what position it has come to in this industry. Most importantly, this was a gathering to acknowledge the major contribution of one of our gurus-Sir Laurence Street.

IMG_3518When I began my journey as a practicing mediator in the early 90s, I looked to the USA for guidance as to research, trends, policy and practice in this area. I was enthusiastic and motivated by what was happening there and how it might be able to be introduced and adapted to the Australian way. I and my colleagues, searched for some unifying force, and it was ADRA that took the initiative and since 1987 has provided leadership, direction and growth in Dispute Resolution in Australia.

ADRA has relied on volunteers and a dedicated team to make a significant and undeniable contribution. They have conducted regular meetings, seminars, networking opportunities, policies, submissions, newsletter and even a journal for the benefit of all mediators and other working in this area. Their current website is a testament to the great efforts of many people over the past thirty years. I recommend a visit to capture the history, the people providing leadership, the policies, templates and procedures that are available for the benefit of all, even those not yet members. Of particular note are the policy documents they have developed on family violence, standards for training and development, their code of conduct, and their complaints handling procedures.

One of the major players in mediation and the establishment, support and growth of ADRA in Australia is Sir Laurence Street. Very early on in his illustrious career he recognized the important part that mediation could play in dispute resolution. His major contribution is in his view not of mediation as a parallel process, but one that could work with litigation in a linear way. He had a vision of the co-functioning between the court procedures and ADR that stemmed from the early 1990s. He acknowledged the sovereign dispute resolution function of the courts, and was clear that ADR was “additional” and “appropriate” rather than “alternative”. This set the platform for ADR becoming part of the court framework-something we all have the benefit of today! What an amazing man and definitely one who could accurately be described as a “change agent” and an inspiration! I have learned much from him, and base my own business on the ideas he developed.

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The ADRA conference presented many contrasting ideas about Dispute Resolution from eminent leaders in this field including Mary Walker, Anne and David Ardagh, Paul Gibson, Katherine Johnson and Laurence Boulle. Some of the issues presented by them that stood out for me are:

The evolution of what was previously sacred to mediation:

  • It is no longer considered vital that mediation be voluntary at the point of entry. In fact we now accept that it is compulsory in some contexts for mediation to be attempted prior to initiating court proceedings, or progressing to a court hearing.
  • It is not always expected that the mediator will be neutral. In early days the emphasis was on the mediator managing the process and the parties determining the content of the dispute being discussed. Today in some forms of Dispute Resolution it is anticipated that the facilitator will be robust in their reality testing and provision of legal information that will require them to stray into the substantive matters being discussed and thereby deviate from their apparent neutrality.
  • An important cornerstone of mediation has been the confidential nature of the process. This is limited by law and process, and continually the subject of further comment. In the family context, there is a strong opinion supported by many judges that information regarding child abuse and family violence uncovered in the FDR process should be capable of being disclosed in the court process.
  • The need to facilitate self-determination . Mediation was regarded as the opportunity for parties to a dispute to come together to be empowered to make their own decisions regarding their future. Again to use the family context as an example, this requirement has become compromised in many settings. The consequences of not resolving the dispute can place pressure on parties to agree to outcomes that they do not really support. Recommendations regarding ongoing legal funding by Legal Aid can force parties to agree to outcomes that they are not committed to and undermine their sense of making the best decisions for themselves and their family.


Where is mediation going?

The notion of mediation that I was presented with in the late 80s and early 90s was limited to disputes where:

  • The parties were capable of communicating what was important to them and those relevant to the dispute
  • Disputes were screened out where there was any significant issue with capacity including such issues as family violence, mental health issues, or substance abuse
  • Equality of bargaining power could be established or facilitated by the mediator
  • The parties may be recommended to obtain legal advice, but the mediation process was separate to litigation and there was an agreement that for the time that they were participating in mediation, litigation would not be pursued
  • Mediators could mediate any dispute as they were confined to managing the process and not the content of the dispute.-the background and expertise of the mediator was not seen as relevant.
  • Mediation was an alternative to going to court and if successful would replace this.

But the world has changed dramatically since then, and many factors have influenced the way that we operate as mediators:

  • Research about ADR has informed us regarding many aspects of mediation process
  • Funding issues impact on access to justice and the type and timing of dispute resolution
  • Social science research has taught us a lot about cognitive processes that inform dispute resolution
  • The development of movements such as neuroawareness, these inform of the functioning of the brain and how this might be relevant in dispute resolution
  • The shift to more interventionist processes such as conciliation, lawyer assisted mediation, shuttle processes, arbitration, med/arb etc,

This has resulted in a very rich and diverse practice in this area, and the need to gather together to compare experiences, to share ideas of what works well and what could be done better. It is difficult to have this discussion without an understanding of all of these influences and developments. Opportunities such as that presented by ADRA and the National Mediation Conferences are crucial in opening up this dialogue so that we as dispute resolvers can work towards best practice. The NMC is to take place at the Gold Coast in September and has a very exciting programme. Come and share with me what you are doing so that we can learn from each other and plan for the next 30 years!

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