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.

 

Respect, Recovery and Risk: exploring the opportunities and challenges of a consumer-focused hearing in the civil and forensic jurisdictions of mental health tribunals

Anina Johnson1, Matthew Carroll2

1 Mental Health Review Tribunal, NSW, PO Box 2019, Boronia Park, NSW 2111

2 Matthew Carroll, Mental Health Tribunal, Vic Level 30, 570 Bourke St, Melbourne Victoria 3000 Australia

In each Australian jurisdiction mental health tribunals make orders that have a considerable impact on individual liberties.  Tribunals can order that individuals be detained in a mental health facility, required to take psychiatric medications, or be subject to electroconvulsive treatment.  Some mental health tribunals also have a forensic jurisdiction, which can have a significant impact on the lives of those found unfit to plead or not guilty of a criminal offence by reason of mental impairment.

The individuals who may be the subject of Tribunal orders are often highly vulnerable.  They can face significant barriers to their participation in Tribunal proceedings, by reason of illness, the impact of treatment or their broader circumstances.

Non-adversarial and solution-focused procedures are an invaluable tool in promoting genuine participation in hearings and decisions.  These approaches are also consistent with human rights and recovery principles which are embedded in modern mental health legislation.

Mental Health Tribunal decisions are made in the context of institutional and community attitudes to risk and to mental illness which can run counter to the implementation of a therapeutic approach.  Like many courts and tribunals, Mental Health Tribunals work in an environment where both the public agencies and the Tribunals are under resource limitations. Articulating non-adversarial and solution-focused processes and promoting adherence to them is an ongoing challenge, and can lead to conflict and resistance.

This workshop will explore these challenges by drawing on the distinct experiences and approaches of the NSW Mental Health Review Tribunal and Victorian Mental Health Tribunal, in exercising both civil and forensic jurisdictions.

Biography:

Anina was appointed as the Deputy President (Forensic) of the NSW Mental Health Review Tribunal in November 2012.

Anina sits regularly on Tribunal hearings in both its Forensic and Civil jurisdiction. She is also responsible for guiding the work of the Forensic Division, and works closely with mental health services, disability services, corrective services and other stakeholders on strategic issues in relation to forensic mental health.

Prior to her appointment to the Tribunal, Anina worked as a lawyer in the public sector for more than 15 years. She has a broad range of experience as both solicitor and advocate across areas including administrative law, criminal law, constitutional law, child protection and coronial inquiries.

Anina has published and presented in the areas of mental health, access to government documents and administrative law.  She is an active member of the NSW Executive of the Council of Australasian Tribunals, and is currently convenor of the COAT Conference organising committee.

Matthew is a lawyer with extensive experience in the field of human rights and anti-discrimination gained from roles in both Australia and overseas.  Matthew was appointed President of the Victorian Mental Health Review Board and Chairperson of the Psychosurgery Review Board in 2010.  Immediately prior to taking up these appointments he was manager of the Human Rights Unit at the Victorian Equal Opportunity & Human Rights Commission.

Upon commencement of Victoria’s current Mental Health Act on 1 July 2014 Matthew became President of the Mental Health Tribunal.

 

Performing Judicial Authority: Engagement and Ethics

Kathy Mack1, Sharyn Roach Anleu 2

1 School of Law, Judicial Research Project, Flinders University, GPO Box 2100, Adelaide SA 5001, judicial.research@flinders.edu.au

2 School of Social & Policy Studies, Judicial Research Project, Flinders University, GPO Box 2100, Adelaide SA 5001, judicial.research@flinders.edu.au

In an adversarial legal system, the judicial officer is expected to perform authority by displaying a particular form of detached impartiality, participating actively only when parties require a decision, ruling or order, which is determined by applying law to facts.  Legal rules are impersonal, and impartiality is the central judicial value, buttressed by norms of judicial restraint and passivity. Yet, applying legal rules and procedures requires judicial authority to be performed.  Judicial officers are the crucial link between formal abstract law, the legal institution of the court, and the everyday practical tasks in the courtroom, often in face-to-face interaction with court users.  Developments such as therapeutic jurisprudence and social psychological understandings of procedural justice, requiring some judicial engagement with court participants, are beginning to inform this everyday judicial work. 

Especially in lower courts, judging is more social, more interactive, and more varied than conventionally understood, as investigated in detail in our recent book:  Performing Judicial Authority in the Lower Courts (Palgrave, 2017). This engagement can require greater attention to emotions, different judicial emotional capacities and more emotion work, including management of the judicial officer’s own emotions or those of others.

However, as this research shows, the ethical norms regulating judicial performance do not adequately address the intersection between emotion and the practical demands of everyday judicial work.  While there is some implicit recognition of emotion in the emphasis placed on interactional qualities such as patience, courtesy, temperament, or detachment, the place of emotion in judicial work is rarely directly addressed. General or abstract ethical statements do not provide sufficient guidance for the actual emotional demands and experiences faced by judicial officers in their everyday work.

 

Biography:

Kathy Mack is Emerita Professor of Law at Flinders University, Adelaide. She is the author of a monograph, book chapters and articles on alternative dispute resolution, and articles on legal education and evidence. With her co-author, Sharyn Roach Anleu, she has also conducted empirical research involving plea negotiations.

Sharyn Roach Anleu is Matthew Flinders Distinguished Professor in the School of Social and Policy Studies at Flinders University, Adelaide, and a Fellow of the Australian Academy of the Social Sciences in Australia. She has published widely on sociology of law, deviance and social control, and gender in the legal profession.

Sustainable Justice: the Future for Courts

Dr Andrew J Cannon AM FAAL1

1 Adjunct Professor at Flinders University South Australia and Muenster University Germany, Deputy Chief Magistrate and Senior Mining Warden South Australia

The purpose of the original European legal system was to moderate the exercise power in a consistent and just way and to resolve conflict credibly so order was preserved throughout the Roman Empire.  That primary purpose found its way into the nation state legal systems under the common law arrangements that developed in England and the later civil code systems spread by the Napoleonic conquests in Europe.

Old power arrangements are changing.  We moved from the justification of ruling by divine right to a social contract.  The nation state is declining as the sole source of legitimate exercise of power over the life, liberty and property of citizens and power is shifting to larger negotiated power structures such as the UN, IMF, EU and international courts and arbitration.  Old social values of Loyalty, Authority and Sanctity are being supplanted by liberal global notions of care, fairness and liberty.

Meanwhile our inherited court processes inflame conflict rather than reduce it.  Adversarial processes drive people into extreme positions. Monetarising justice devalues it and provides incentives to lie.  Our focus on the past magnifies the harm already done and distracts from what is necessary to repair it.  The decision by the judge removes responsibility from the participants.  The media and politicians use fear of crime and terrorism to prop up their declining legitimacy as they foster fear and offer only the solution of punishment.

Courts need to move beyond a primary focus on due process in the exercise of power to maintain order to methods of improving social harmony.  This paper will discuss how the guiding principle of Sustainable Justice is a way to bring together the many strands of non-adversarial justice to address the underlying causes of conflict, to repair harm and improve people who appear before the courts.

Biography:

Dr Andrew J Cannon AM is Deputy Chief Magistrate and Senior Mining Warden in South Australia. He has managed and conducted therapeutic and restorative justice programs in the Magistrates Court, including mental health, drug, family violence and gambling courts and Aboriginal Sentencing Conferences.  He established the civil procedure for the court in the Magistrates Court (Civil) Rules 1992.  He has a long experience in resolving disputes between landowners and miners and in the opal mining fields at Coober Pedy, Mintabie and Andamooka.  He is accredited as an experienced qualified mediator under the National Standard.

Andrew has a PhD from the University of Wollongong on court policy and is an Adjunct Professor at the Flinders University Law School South Australia and at Münster University in Germany.  He has a Doctor of Laws honoris causa from Flinders University and is a Fellow of the Australian Academy of Law.  He is a Member of the Order of Australia (General Division).  He is widely published and speaks in relevant fields nationally and internationally.

Emotional Responses in Medical Negligence: Failing to Provide Emotional Closure?

Tina Popa1, Kathy Douglas2

1 PhD Candidate, Graduate School of Business and Law, RMIT University. 

2 Associate Professor, Graduate School of Business and Law, RMIT University

Exploration of emotion is identified in the mediation literature as the opportunity to explore underlying interests and concerns of parties through a discourse that allows for expression of emotions such as anger. The expression of emotion may contribute to the successful settlement of a dispute. Similarly, the therapeutic jurisprudence movement values the expression of emotion for court users.  Therapeutic jurisprudence is a philosophy that interrogates the actions of legal actors to consider the impact of their decisions on the emotional life and psychological wellbeing of those affected by our justice system.

One area where expression of emotion may be valuable to court users is medical negligence cases. Litigating in medical negligence can be stressful and nearly all cases are sent to mediation as part of case management. This article explores the role of emotion in mediation in the context of medical negligence cases. This paper draws on data from a doctoral thesis where 24 senior tort lawyers were interviewed about key challenges in medical negligence litigation and mediation. The analysis of the data shows that consideration of emotion is an important part of medical negligence mediation. Lawyers endorsed the value of mediation as a relatively quick, more informal opportunity to settle a dispute. Unexpectedly, they saw emotion not as arising out of the discussion in the mediation. Rather, the participants saw mediation was beneficial to their client because it provided the opportunity to avoid the emotional cost of pursuing a negligence claim.  Arguably, lawyers in this study did not capitalise on the opportunity that mediation presents to express emotion in a way that assists parties to obtain emotional closure.

Biography:

Tina Popa is a PhD candidate and sessional lecturer at RMIT University. Tina teaches the Law of Torts in the Juris Doctor program at RMIT. Her doctoral thesis is exploring the challenges in litigation and mediation of medical negligence disputes.

Associate Professor Kathy Douglas is a lecturer and mediator. She researches and publishes extensively on alternative dispute resolution.

Viewing Hawaii’s opportunity probation with enforcement (HOPE) program through a therapeutic jurisprudence lens

A/Prof Lorana Bartels1

1 Head, School of Law and Justice, University of Canberra, Canberra ACT 2601, lorana.bartels@canberra.edu.au 

Swift, certain and fair (SCF) sanctions have attracted both support and criticism for their apparent focus on deterrence to ensure participants’ program compliance. This paper examines the best-known SCF program, Hawaii’s Opportunity with Probation Enforcement (HOPE) program, through the lens of therapeutic jurisprudence. The paper will provide a brief overview of HOPE, including relevant findings from process and outcome evaluations. It will then describe observations of HOPE in practice, with particular focus on the warning hearing, sanctions for non-compliance and early termination for good behaviour. It will also consider the intersections between HOPE, therapeutic jurisprudence and procedural justice. These findings demonstrate that although the focus to date – by both proponents and critics – has been on deterrence, the model in fact demonstrates many features of drug courts. The paper concludes by arguing that HOPE can be best understood when viewed through a therapeutic jurisprudence lens.

Biography:

Lorana Bartels (BA LLB LLM PhD GDLP GCTE) is the Head of the School of Law and Justice at the University of Canberra and an Honorary Associate Professor at the University of Tasmania. Her key areas of research interest include sentencing and correctional policy and practice, as well as the treatment of women and Indigenous peoples in the justice system.

Navigating Proceedings through the Multi-Door Court house: Moving beyond an ‘adversarial’ or ‘non-adversarial’ characterisation

Justice B J Preston, Chief Judge1Joanne Gray, Registrar2

1 Land and Environment Court of NSW, GPO Box 3565 Sydney, NSW, 2001

2 Land and Environment Court of NSW, GPO Box 3565 Sydney, NSW, 2001

The rise of non-adversarial justice has been achieved through the use of active and differential case management by courts to diagnose disputes, refer them to an appropriate dispute resolution process, and to ensure that the way in which that dispute resolution process is managed is effective and fair.

Historically, however, the traditional adversarial approach to the conduct of litigation has been characterised by the control of court proceedings by practitioners. The representatives decide for themselves how the case will be brought before the Court, the early mentions are simply ‘call-overs’ adjourned until fixed for hearing, and the parties arrive at the trial with their own battle lines drawn and every possible issue, however remote, prepared for ventilation.

The first step in moving away from this traditional adversarial approach has been to recognise that the nature of court proceedings does not inherently necessitate them being adversarial. Second, individual proceedings need not and should not be characterised as either ‘adversarial’ or ‘non-adversarial’ at any particular stage. To do so stigmatises those proceedings rather than recognising that at each stage of the proceedings steps can be taken by the court that are non-adversarial in nature.

Third, in moving away from the traditional approach, the modern court recognises that there are many different ways of resolving proceedings. The concept of a court offering a range of dispute resolution services has been described as there being a ‘multi-door’ courthouse. In navigating proceedings through a multi-door courthouse, the court uses active and differential case management to determine the best way that the proceedings ought to progress. In so determining, various approaches to non-adversarial dispute resolution can be explored. These include both alternate dispute resolution methods, such as conciliation and mediation, as well as non-adversarial approaches to the conduct of the hearing itself, including through the giving of concurrent evidence, conducting a hearing outside of a court room, hearing from persons who are not parties to the proceedings, and the court having a more active inquisitive role throughout the conduct of the hearing.

Fourth, the introduction of uniform civil procedure rules has allowed the courts to use increasingly active case management and to move toward a more inquisitorial approach to the conduct of hearings, including directions hearings, whilst also maintaining procedural fairness. To achieve non-adversarial justice, early mentions have moved away from being a ‘call-over’ to a hearing on the appropriate directions, enabling the court to determine what the issues are and to exercise control over what documents or evidence the parties seek to rely on. Further, all evidence is filed and served well in advance of the hearing, and various techniques can be used to ensure that the evidence is discussed between experts prior to the hearing.

The move away from the traditional adversarial approach toward non-adversarial techniques in a multi-door courthouse therefore increases efficiency and promotes fairness, ensuring that the dispute is met with the appropriate dispute resolution process and that the chosen process is managed in a way that avoids the ills of the adversarial approach. This paper will examine the role of active and differential case management in achieving this, the various non-adversarial processes that can result, and how this is used in the Land and Environment Court in environmental and planning disputes.

Biography

Ms Joanne Gray was appointed as the Registrar of the Land and Environment Court of NSW on 1 October 2010, having acted in the position since January 2009. Ms Gray has a Bachelor of Laws with first class honours and a Bachelor of Science (Psychology). Ms Gray is also a nationally accredited mediator. She has a background in registry and case management in NSW courts, commencing with her employment in Local Courts in 2005 and subsequent employment as a Deputy Registrar and Senior Deputy Registrar of the Supreme Court.

As the Director and Registrar, Ms Gray has the overall responsibility for the administration of the Land and Environment Court and also exercises judicial powers by delegation, including conducting directions hearings and hearing and disposing of motions and costs hearings. The Registrar also conducts mediations and conciliation conferences, and presents regularly on practice and procedure in the Land and Environment Court. Ms Gray has recently been appointed as a Commissioner of the Court, commencing on 18 April 2017.

Non-adversarial Criminal Justice in Australia: Surviving, Reviving and Thriving

Arie Freiberg1,

1 Faculty of Law, Monash University, Arie.Freiberg@monash.edu

This paper examines the history and evolution of problem-oriented courts and various intervention or diversion programs in a number of Australian jurisdictions.

Since their inception, not so many years ago, some courts and programs have survived changes of government, some have thrived and expanded, some have changed in form while others have been abolished and revived.

Criminal justice is a political exercise. As with other areas of contentious public policy, it is subject to changes in government, ideological fashions and budgetary constraints. Non-adversarial justice initiatives are particularly vulnerable in those jurisdictions where the penal climate is feverish and problem-oriented approaches to crime are regarded as being ‘soft on crime’, ineffective or too expensive.

Australian drug courts, mental health courts, indigenous courts, family violence courts and various court lists and programs continue to evolve in the light of practice, experience, internal and external evaluations and the accumulation of evidence locally and from overseas.

Through the use of case studies, this paper will discuss the dynamics of law reform in the sphere of non-adversarial criminal justice.

Biography:

Arie Freiberg is an Emeritus Professor at Monash University.  He was Dean of the Faculty of Law at Monash University between 2004 and 2012.  Before this, he was Dean of the Faculty of Arts at the University of Melbourne in 2003.  he was appointed to the Foundation Chair of Criminology at the University of Melbourne in 1991 where he served as Head of the Department of Criminology between January 1192 and June 2002.  In 2013 he was appointed an Emeritus Professor of the University.

His particular areas of expertise are sentencing, non-adversarial justice and regulation.  He has been a Visiting Scholar at Harvard Law School (2014) and Tel Aviv University (2008) and served as a consultant to the Federal, Victorian, South Australian and Western Australian governments on sentencing matters as well as the Australian and South African Law Reform Commissions.  He has also consulted for a number of state government agencies and departments on regulatory reform.

He has around 140 publications in areas such as sentencing, confiscation of proceeds of crime, tax compliance, corporate crime, juries, juvenile justice, sanctions, victimology, superannuation fraud, trust in criminal justice, commercial confidentiality in corrections, dangerous offenders, the role of emotion in criminal justice and public policy, drug courts, problem-oriented courts, non-adversarial justice and regulatory theory.

Developing a Mental Health Court in Western Australia: Dealing with Competing Views

Mr Kevin  Tavener1

1WA Magistrates’ Court, Perth, Australia

The Start (mental Health) Court initially followed the standard drug court model, but changes have been introduced which reflect the individualised focus of the court and the participants.  The court deals with an increasingly broader range of mental health presentations and criminal charges, having   moved from relatively simple offences to persons facing imprisonment, including mandatory imprisonment.

The court’s tolerance towards drug use is different from the drug court and is reflective of the person’s particular mental health problems.  Experience has shown the best approach is to make a thorough individual assessment and establish a multi-disciplinary program to address the particular criminogenic needs. The court’s practices reflect its growing experience and, for example, we have sought to identify means by which the judicial officer can add value to the court.

The court works with an integrated clinical team, community corrections and an Outcare supplier which provides psychiatric assessments, psychological support as well as accommodation, training and living skills. The court accepts people most offences, as well as referrals from the District and Supreme courts, except for those persons who present as a risk.  A participant must be on bail, which the court can grant after consideration of the particular circumstances.

As a pilot program (3 year funding now approved) the Treasury Review required the Court to prove it saved money, by reducing offending and presentations to mental health hospitals. Treasury was satisfied the Court achieved that outcome.  One consequence is the Start Court magistrate has responsibility for the separate intellectual disability court.

There are intrinsic tensions between the legal and mental health systems, such as deciding on priorities in relation to an individual’s mental health and criminogenic needs. The underlying theory is to promote long-term stability, which often starts with accommodation and/or immediate mental health interventions. The sentencing process is a challenge when there has been a prolonged interaction between the defendant and the court.

Biography:

Prior to becoming a Magistrate, Kevin was a barrister working in criminal law and asset forfeiture.  He has been a UN War Crimes Prosecutor, a lecturer in International Human Rights Law and a Mining Warden. He holds Masters degree in Taxation, International Law and Criminology.  Since 2014 he has been the Magistrate assigned to the Start (Mental Health) Court operating from the Perth Central Law Court.

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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.

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