Court-referred ADR: perceptions of members of the judiciary in Australia

Dr Nicky McWilliam1

Visiting research fellow, faculty of law UTS, Sydney

A recent study employed qualitative and quantitative methods in examining attitudes of 104 Australian judges across five levels of the Australian court system with respect to court referred alternative dispute resolution (CADR) . CADR was defined as a broad generic term encompassing referral to well-known ADR processes such as mediation, facilitation and negotiation and also processes including judicial case management, specialist opinions and non-adversarial processes born of disciplines including restorative justice, comprehensive law, creative problem solving, diversion, and therapeutic jurisprudence. CADR can occur because of a judge-led discretion or initiative, which may be pursuant to legislation or court-based procedure or practice, with or without the parties’ consent or as a request or application by parties or their representatives.

Judicial attitudes were explored in relation to areas including: engagement with ADR; impact of CADR on court proceedings, work of the court, judicial workload, judicial culture and judicial satisfaction; and if CADR requires judges to understand ADR and requires considerations of needs and interests of the parties appearing before them.  The findings provide some valuable information about how judges perceive CADR and the extent to which its practices influence the way in which judges conduct their matters and carry out their roles.

Dispute Assist – a new service initiative by the Australian Taxation Office providing tailored assistance to unrepresented individual taxpayers.

Cameron Grant1, Ratka Markovska2, Benjamin de Santis3, James Pittar4

1 Australian Taxation Office, cameron.grant@ato.gov.au 

2 Australian Taxation Office, ratka.markovska@ato.gov.au 

3 Australian Taxation Office, benjamin.desantis@ato.gov.au

4 Australian Taxation Office, james.pittar@ato.gov.au

Introducing Dispute Assist – a new service initiative by the Australian Taxation Office (ATO) providing tailored assistance to unrepresented individual taxpayers (Clients).

There are many reasons why Clients find themselves in dispute unrepresented. These can include, but are not limited to: relationship breakdowns, illness (including mental health difficulties) and sudden disability within the family.

These can all greatly affect a Client’s ability to manage their dispute, and are often the catalyst for a sudden drop in compliance with taxation obligations.

This financial year the ATO will be conducting a pilot program where Dispute Assist officers (Guides) will support Clients through ATO dispute processes.

The Guides are not decision makers with respect to a Client dispute; rather, their primary objective is to support Clients in achieving resolution of the dispute in a way that is:

  • Accessible;
  • Fair,
  • Proportionate to the importance and complexity of the dispute; and
  • Promotes public trust and confidence in the decision-making of the ATO.

In congruence with this approach, the Guides will observe the following guiding principles:

  • Connect Clients with the right people so their dispute can be resolved as early as possible;
  • Ensure that all available options to resolve the matter have been explored (including payment options);
  • Provide assurance that the process has been as fair as it can be; and
  • Ensure Clients are aware of their review rights if still dissatisfied with the decision.

Biography:
Cameron Grant is an Executive Director within the Review and Dispute Resolution area of the Australian Taxation Office, currently responsible for disputes in the Individuals market. Cameron also leads the Dispute Assist project, is a case and technical leader, and an ATO facilitator resolving disputes as part of the ATO’s in-house facilitation service. Cameron graduated with a Bachelor of Commerce in 1996, and a Bachelor of Laws in 2003, both from La Trobe University.

Mediation and Conciliation: Identifying Worlds of Difference

Mr Jeremy Gormly1

1Australian Dispute Resolution Advisory Council, Sydney, Australia

Mediation and Conciliation are poorly distinguished but profoundly different.

This presentation will distil Mediation and Conciliation and present the work being done by the think-tank Australian Dispute Resolution Advisory Council (www.adrac.org.au).

Mediation is a usually facilitative, non-advisory dispute resolution tool that is a creature of the marketplace. It leaves both the mediator as a DR practitioner and the parties free to resolve their dispute as the parties choose and with a mediator unaligned to any policy or interest.

Conciliation is a usually evaluative and advisory dispute resolution process designed to promote resolution of a recognized form of dispute within pre-existing policy. Conciliators are trained to promote a resolution that actively encourage outcomes within that statutory or policy framework. Both parties and conciliator are bound to the policy that brings them together.

Whether, when and by what means each of mediation and conciliation is used, is the burning issue.

Biography:

Jeremy Gormly SC chairs the Australian Dispute Resolution Advisory Council, a DR think-tank which examines advances in appropriate DR for all forms of dispute. Jeremy Gormly is a Sydney barrrister who has done hundreds of trials, hundreds of mediations and dozens of inquiries as counsel assisting. He has concluded the Lindt Siege inquest. He managed the mediation of the outstanding HMAS Melbourne-Voyager claims.

 

Barriers to ADR in the Arabian Gulf: A Conversation About Training, Capacity, and Culture

Prof. Paula Marie Young1

Qatar University College of Law, P.O. Box 2713, Doha, Qatar, pyoung@qu.edu.qa

I have now lived in Qatar for slightly over a year.  My colleagues at the law school and in private practice have asked me to offer trainings about ADR to local practitioners.  I have hesitated to do it without first understanding the context of those possible trainings.  I have spent the last year trying to get the answers to the following questions:

  • Does the region have a sufficient number of neutrals to handle the disputes arising here? Enough arbitrators, early neutral evaluators, mediators, group facilitators, etc.?
  • To enhance this capacity, what kind of training should neutrals in the region have available to them?
    • Substantive.
    • Procedural.
    • Ethical.
    • Cultural.
  • How do we build demand for alternative dispute resolution (ADR) services among businesses, government entities, civil society, and courts? What kinds of trainings and other interactions should we offer these potential users of ADR services?
  • How do we help lawyers understand ADR and its uses in disputes that they handle on behalf of clients? How do we help them advise clients about arbitration, mediation, and other ADR-processes?
  • What cultural expectations exist about any particular ADR process?
  • How do you add value in a culture known for its bargaining skills?

The answers to these questions has surprised me.  I have learned that the region is fertile ground for building capacity to solve problems using tools that are still not widely accepted in the region.

Biography:

Prof. Paula Marie Young, winner of the first Distinguished Mediator Award presented by the Virginia Mediation Network, teaches as a Clinical Professor of Law at the Qatar University College of Law in Doha, Qatar.  For thirteen years, she taught dispute resolution courses at a U.S. law school as a Professor of Law.  In addition, Virginia and Tennessee recognize her as a qualified trainer for court-approved mediators.

Prof. Young’s undergraduate and graduate degrees are from top-ranked Washington University (B.A.1978, J.D.1982) located in St. Louis, Missouri, and she is licensed to practice law in Missouri and D.C.  She received a Master of Laws (LL.M.) in Dispute Resolution at the University of Missouri School of  Law in August 2003.  U.S. News and World Report has ranked it as a top program for over a decade, exceeding the ranking of the program at Harvard University during several years.

She has written over 50 law review publications, book chapters, and op-ed articles on mediation and arbitration.  For publications: https://scholar.google.com/citations?user=CyIS3ywAAAAJ&hl=en

She has 30 years of experience as a commercial dispute litigator, mediator, and arbitrator specializing in energy, environmental, insurance, reinsurance, and other civil disputes.

Prof. Young is a nationally known mediation ethicist in the U.S.

The State Courts Centre for Dispute Resolution Experience: Towards appropriate mediation styles and strategies in resolving civil, community and criminal disputes

Miss Lih Jeng Low1

1State Courts. Singapore, Singapore, Singapore

The paper examines how the establishment of the State Courts Centre for Dispute Resolution (SCCDR) in March 2015 consolidated the different ADR services offered by separate divisions in the State Courts of Singapore. It examines the framework within which ADR services are offered to parties who are in varying contractual and/or personal relationships. It discusses how adopting an integrated and holistic approach results in the expedient and efficient resolution of disputes that involve aspects of the law and cut across the civil-criminal divide.

SCCDR offers ADR in civil cases, Magistrate’s complaints, applications under the Prevention of Harassment Act and Community Disputes Resolution Act.

Parties are in wide-ranging contractual and/or personal relationships such as business associates, co-workers, family members, friends, acquaintances and neighbours. Parties could be represented by lawyers but there is an increasing number of litigants-in-person. Cases are of small value not exceeding S$250,000 (US$180,000).

The framework for SCCDR’s ADR services is as follows:

  • ADR is for cases that have already been filed in the State Courts.
  1. ADR is used as part of case management to facilitate the expeditious disposal of cases and costs savings for parties.
  2. Half-day sessions are scheduled in keeping with Court ADR’s provision of dispute resolution options with limited judicial resources.

In adopting an integrated and holistic approach to resolving conflicts that involve different aspects of the law and cut across the civil-criminal divide, SCCDR:

  1. Adopts different forms of ADR (including neutral evaluation, collaborative ADR) and different styles of mediation (evaluative, facilitative and transformative).
  2. Invests in continuing training and accreditation of Judge Mediators.
  3. Engages volunteer mediators.
  4. Partners ADR stakeholders in Singapore to increase awareness of ADR

Biography:

Lih Jeng has served as a District Judge in the State Courts since 2010 and, since 2013, at the Centre for Dispute Resolution (‘SCCDR’), providing dispute resolution in civil, criminal and community justice matters.

She is an accredited mediator with

  1. Centre for Effective Dispute Resolution (CEDR), UK
  2. Eagles Mediation & Counselling Centre (EMCC), Singapore
  3. International Mediation Institute (IMI)
  4. School of Psychotherapy and Psychology, Regent’s University London, UK
  5. Singapore International Mediation Institute (SIMI)
  6. Singapore Mediation Centre (SMC)

Beyond her judicial duties, Lih Jeng is the editor of SCCDR’s e-bulletin. She is leading SCCDR’s joint research project with the Business School of Nanyang Technological University to study the impact of parties’ cultures on their preferences at mediation. She also conducts training sessions for Judges and Court Administrators at SCCDR and is leading SCCDR’s initiative to develop a Court-Annexed Mediators Programme.

Outside of her professional duties, from 2010-2016, Lih Jeng served as Chairman of the Asia Pacific (AP) Region of the World Association of Girl Guides and Girl Scouts (WAGGGS) and a member of WAGGGS’ World Board. During her tenure, the AP Region grew by 1 million girls to become WAGGGS’ largest Region with more than 3.5 million girls and young women.

In recognition of her outstanding service and contribution to the AP Region, she was conferred the highest Award by

  1. The Bharat Scouts and Guides of India (Silver Elephant Award)
  2. The Sri Lanka Girl Guides Association (Twin Swans Award)
  3. The Girl Guides Association of Malaysia (Honorary Star)
  4. International Scout Guide Fellowship (Honorary Fellow)

Culture and Ethics in Mediation

Dr Lola Akin Ojelabi1

1 School of Law, La Trobe University, Kingsbury Drive, Bundoora, Melbourne VIC 3086

Cultural differences may become an issue in mediation in many respects. There may be cultural differences as between the parties and the mediators (party/mediator cultural differences); cultural differences as between parties (inter-party cultural differences); cultural differences which lead to inner conflicts for one party (intra-party cultural differences) and between parties and the process of mediation (party/process cultural differences). Drawing from empirical research, this paper presents an analysis of mediators’ approach to managing cultural differences in a mediation process. While the National Mediator Accreditation System, Practice Standards promote the value of self-determination and require that the mediator remain neutral in relation to content and refrain from providing advice or information to parties, it also requires that mediators take steps to address power imbalances and determine when a proposed term of settlement is unconscionable in order to determine when termination would be appropriate. This paper discusses, within this ethical landscape, issues that may arise in mediating a dispute involving cultural differences either between parties or between the parties and the mediator. It seeks to answer the following questions: How should a mediator respond to ethical dilemmas that arise based on cultural differences between the mediator and the parties? How should a mediator respond when parties make decisions that conflict with the mediator’s values without exhibiting cultural supremacy? What approach can be taken by the mediator in supporting self-determination when cultural beliefs conflict with the principle of self-determination?

Biography:

Lola Akin Ojelabi is a Senior Lecturer in the School of Law, La Trobe University, Melbourne, Australia. Her research is in the field of conflict/dispute resolution including on DR processes and access to justice for disadvantaged groups and individuals and ethics and justice in DR practice. Lola was involved in research project evaluating the Broadmeadows Family Relationship Centre for cultural appropriateness and addressing family violence in Family Dispute Resolution. Lola is also interested in the role of international law in promoting global peace and justice. She has researched on the impact of culture on conflict and conflict resolution and how underlying values of the United Nations’ Charter may assist with resolution of seemingly intractable conflicts. This research resulted in the development of a framework for conflict resolution. Lola conducts professional development workshops on culture and conflict resolution and ethics in DR practice

ADR Processes: Impact of Purpose and Values on Ethics and Justice

Dr Lola Akin Ojelabi1  and Professor Mary Anne Noone 2

1 Law School, La Trobe University, Victoria Australia 3086 o.akinojelabi@latrobe.edu.au

2 Law School, La Trobe University, Victoria Australia 3086 m.noone@latrobe.edu.au 

ADR processes are now used extensively in Australia to resolve disputes in courts and tribunals, between businesses and individuals, consumers and retailers, employees and employers and between health service providers and patients to name a few. In addition, government sees ADR as an important tool in improving access to justice for ordinary citizens. However, what justice means in different ADR contexts may differ. One possible explanation for the divergence of views on justice and ethics in ADR practice is the fact that practitioners function within specific legislative contexts, come from different professional backgrounds and disciplines and also use a range of processes.  While some processes have clearly stated normative purposes under enabling legislations and charters, others do not. There are also industry-scheme ADR processes with normative purposes beyond individual disputes.

This paper reports on a project that begins to identify and explore ethical issues arising for a range of Australian ADR practitioners. Drawing from this empirical research, this paper discusses the relationship between the purpose of an ADR process, its legislative basis and underlying ADR values, the practitioner’s ethical responsibilities and ethical issues that arise for ADR practitioners working in different fields. It also examines the potential of ADR processes to promote substantive and procedural justice.

Biographies:

Lola Akin Ojelabi is a Senior Lecturer in the School of Law, La Trobe University, Melbourne, Australia. Her research is in the field of conflict/dispute resolution including on DR processes and access to justice for disadvantaged groups and individuals and ethics and justice in DR practice. Lola was involved in research project evaluating the Broadmeadows Family Relationship Centre for cultural appropriateness and addressing family violence in Family Dispute Resolution. Lola is also interested in the role of international law in promoting global peace and justice. She has researched on the impact of culture on conflict and conflict resolution and how underlying values of the United Nations’ Charter may assist with resolution of seemingly intractable conflicts. This research resulted in the development of a framework for conflict resolution. Lola conducts professional development workshops on culture and conflict resolution and ethics in DR practice.

Mary Anne Noone
The thread drawing together Mary Anne’s research, teaching, professional and community service activities is a passion for improving access to justice. Her current research focuses on ethics and justice in mediation and integrated legal and health services. Amongst a range of previous appointments, she served 12 years as a part-time member of Social Security Appeals Tribunal. She is an accreditated mediator. As well as her academic work, Mary Anne is currently a Board member of Carers Victoria and President of South Port Community Housing Group.

 

Socio-Legal Constructions of Impartiality in Mediation

Dr Susan Douglas

University of The Sunshine Coast, School of Law, Maroochydore DC, Maroochydore Qld, 4558

sdouglas@usc.edu.au

The National Mediator Accreditation System (NMAS) 2015 requires that accredited mediators demonstrate an understanding of ‘impartiality, including the avoidance of conflicts of interest.’ In the original version of the NMAS established in 2007 mediators were required to demonstrate an understanding of ‘neutrality and impartiality’. The 2015 amendments to the NMAS have omitted any reference to neutrality. The NMAS 2007 requirement that mediators understand both neutrality and impartiality suggests that these two concepts are separate and distinct. Yet while some scholars distinguish them, others treat them as synonymous. It is timely to consider the similarities and differences ascribed to these concepts and to explore their meaning in the context of actual practice. This paper reports on an empirical study of the meaning attributed to the concept of impartiality by mediation practitioners as part of a larger study of the meaning attributed to neutrality and impartiality. The sample of mediators is drawn from a Family Relationship Centre and a government funded community mediation service. The research design used is qualitative, consisting of a series of in depth interviews. Analysis proceeds from a grounded theory approach and social constructionist ontology. The results demonstrate significant socio-legal construction of impartiality in mediation, which extend the often purely legalistic definitions found in the literature. These wider constructions have implications for the practice of impartiality in mediation.

Biography:

Susan (Sue) works as is a legal academic at the University of the Sunshine Coast who identifies as a socio-legal scholar. Her background includes law and social work. She is a volunteer with the Suncoast Community Legal Service  (SCLS), where she conducts an employment law clinic and is a member of the SCLS management committee. She is also a long time committee member of the Maroochy Neighbourhood Centre management committee and actively engaged in social justice projects there. Sue’s research interests include appropriate dispute resolution, non-adversarial justice, humanising legal education and wellness in law.

About the Association

The Australasian Institute of Judicial Administration (AIJA) is a research and educational institute associated with Monash University. It is funded by the Law, Crime and Community Safety Council (LCCSC) and also from subscription income from its membership.

The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems.

Conference Managers

Please contact the team at Conference Design with any questions regarding the conference.
Photography Credits: Destination NSW, Paul Foley, Bridge Climb Sydney
© 2015 - 2016 Conference Design Pty Ltd