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.

The Neighbourhood Justice Centre – 10 years on

Mr David Fanning1

1Neighbourhood Justice Centre, Collingwood, Australia

The Neighbourhood Justice Centre (NJC) opened in Collingwood, Victoria in early 2007 to serve the residents of the City of Yarra. It was and remains the first of its kind in Australia.

There was a high level of enthusiasm and energy from those associated with the NJC as well as many members of the Yarra community when the NJC commenced. Equally there was a level of apprehension and in some quarters, opposition to the establishment of the NJC.

The paper explores the origins and the reasons for the creation of the NJC which centred on a number of aims and concepts including community justice, therapeutic jurisprudence, problem solving, restorative justice, addressing the underlying causes of offending, improving confidence of all participants – victims, accused, respondents, witnesses and the community at large – in the justice system, contributing to the reduction in re-offending and decreasing the breach rate of community correction orders along with contributing to cultural and procedural change in the broader justice system.

Having explored the origins and reasons for the NJC, the paper exams the challenges that were encountered with the establishment of the NJC and the responses to these challenges. It also examines the outcomes of the 10 years of work – both the very favourable outcomes and successes as well where the outcomes were not as anticipated.

The paper seeks to provide knowledge and insight into the NJC over the past ten years with particular emphasis on providing conference participants with an opportunity to learn from the NJC experience and utilise these learnings in their own jurisdictions.

Biography:

Brief CV – HH Magistrate Fanning

Appointed a magistrate in 2006, he has sat as the Neighbourhood Justice Centre there since early 2007. Also appointed a Senior Member of the Victorian Civil and Administrative Tribunal (VCAT) and has subsequently been appointed a judicial member of the Adult Parole Board. Immediately prior to his appointment, he was the Commissioner for Children in Tasmania have been at the Victorian Bar for 14 years where he practised in criminal law, family law and child welfare law as well as coronial work. Having first qualified as a social worker, he worked in mental health, public welfare and child protection.  He holds degrees in Arts, Law and Social Work as well as postgraduate studies in Criminology.

Community-Based, Victim-Centred Restorative Justice for Sexual Violence – A Pilot

Ass Prof Bebe Loff1, Dr Liz Bishop2, Ass Prof Bronwyn Naylor3

1 Michael Kirby Centre for Public Health and Human Rights, Monash University, 1/549 St Kilda Rd Melbourne 3004

2 Michael Kirby Centre for Public Health and Human Rights, Monash University, 1/549 St Kilda Rd Melbourne 3004

3 Centre for Law, RMIT, GPO Box 2576 Melbourne 3001

It has been reliably established that the majority of survivor-victims (SVs) of sexual violence choose not to participate in the formal criminal justice system. Of the small number of SVs who choose to report an offence to police, there is also substantial attrition as cases move through the criminal process. If a case does go to trial, an SV is likely to face a punishing cross-examination and further traumatisation. Ultimately very few SVs have their complaints heard by a court and see their assailant sentenced. We agree with commentators who assert that no amount of reform will produce a formal criminal justice system capable of effectively responding to cases of sexual violence for which little or no evidence is available beyond the survivor-victim’s word.

Our project, the first of its kind globally, is an SV-centred restorative justice (RJ) intervention, adult SVs have been given the opportunity to describe the violence experienced by them and its impact to a group of people, including when possible, the person/s responsible for the violence, and have them acknowledge and take responsibility for the harm that has been done.

We have conducted quantitative and qualitative evaluations of the intervention, with respect to its impact on the participating parties, its ability to deliver a sense of justice, and the practicability of the overall process and its component parts.

This paper will disseminate the results of this research and its potential to inform legal policy and practice in this area.

Biography:

Liz is a lecturer and researcher at the Michael Kirby Centre for Public Health and Human Rights where we undertake research that critically examines the contribution of human rights and law to the realisation of good health, particularly amongst vulnerable communities in Australia and in the developing world.

Koori Court: 15 years young: A review of intended and unintended consequences

Ms Jelena Popovic1

1Magistrates Court Of Victoria, Melbourne, Australia

 

Koori Court didn’t focus on the problem, it focussed on the way forward. And it showed me the importance of connection and getting connected. AR, October 2016.

Since its commencement in Shepparton in 2002, Koori Court now sits in three County Courts, 10 Magistrates’ Courts and 13 Children’s Court locations. It is no longer a boutique pilot, but part of the very fabric of the Victoria court system. Koori Court is the embodiment of cultural safety in the alienating world of the justice system, and strives to address the over-representation of Aboriginal persons in prisons and courts.

The cornerstone of the Koori Court is its Elders and Respected Persons (ERP). The paper will examine the renewed respect toward Elders, and the evolution of the role of Elders and Respected Persons, with reference to the professionalisation of the ERPs through remuneration and continuing professional education.

This paper will review the Koori Court model in comparison with other Indigenous courts and comment on whether it has met its intended aims.   It will look at the continuing evolution of the court and the changes to the model, such as increasing efforts to promote culture, closer affiliation with the Sheriff’s Office to address outstanding fines, the addition of criminal justice diversion and the inclusion of family violence breaches. It will discuss what its presence has meant to the Koori community, the Victorian community, the workforce of the courts, the justice system, the police and the judicial officers who preside over it.

The paper will also look at the challenges, and the strategies to address them, and will conclude with some thoughts about how the Koori Court could continue to evolve over the next 15 years.

Biography:

Jelena is a Victorian Deputy Chief Magistrate of 27 years standing who has a keen interest in solution focussed judging and is the Supervising Magistrate of the Koori Courts.

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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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