Mandatory mediation in England and Wales? A short note on the Civil Justice Council report, “Compulsory ADR”[1]


[1] Bryan Clark, Professor of Law and Civil Justice, Newcastle University Law School, UK; bryan.clark@newcastle.ac.uk

Introduction

There have been few more controversial issues within the UK mediation sphere as mandatory mediation.  While other jurisdictions, without too much accompanying fuss it seems, have shifted to compelling parties to mediate in different contexts, the British have become bogged down in a heated and polarised debate about both the legality and the appropriateness of dragging recalcitrant parties into the process.  From this sea of uncertainty and debate, the recent report published by the Civil Justice Council (‘CJC’) on Compulsory Alternative Dispute Resolution emerges (Compulsory ADR available at Civil-Justice-Council-Compulsory-ADR-report-1.pdf (judiciary.uk)). Undertaken by a range of high-profile lawyers, the report arrives at the conclusion that mandatory mediation is indeed lawful.  And while not making concrete proposals for its future use, the report authors are in favour of expanding ADR on a compulsory basis throughout the English civil justice system.  This blog post examines these issues, with a primary focus on mediation and points to potential future developments in England and Wales in this area.  

The legal issues

In terms of the legal position, the seminal decision bringing forth the notion that compulsory mediation is unlawful was Halsey v Milton Keynes [2004] 1 WLR 3002 in which at para Dyson L.J. (at para 9) held that compelling parties to mediate would fall foul of Article 6 of the European Convention on Human Rights: “[i]t seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.” Although technically an obiter point in that case, this view had an immediate and longstanding impact upon the field.  Ongoing moves by the judiciary to render mediation mandatory were stopped in their tracks.  Courts instead settling into cajoling and arm twisting through a costs sanctions regime in which parties could be penalised in terms of costs for refusals to mediate that were deemed unreasonable (the general basis of this regime was also considered in Halsey).

The CJC report provides a significant amount of analysis on the issue of compulsion and concludes, not surprisingly, that the Halsey point was wrongly determined and that mandatory mediation does not per se contravene Article 6, at least in so far as it does not put real barriers in the way of those seeking to access formal justice.  This view is in line with a number of judicial pronouncements made off the bench questioning the Halsey decision and arguing that it was based on a misapprehension of the Strasbourg jurisprudence (see, for example, the speech by Sir Anthony Clark, MR at the 2nd Civil Mediation Council conference available at Sir Anthony Clarke, Master of the Rolls: A UK Perspective On EU Civil Justice – Impact On Domestic Dispute Resolution (judiciary.uk)).  Compelling recourse to mediation has also received support at the European Court of Justice level (see Rosalba Alassini v Telecom Italia [2010] 3 C.M.L.R. 17). The recent English Court of Appeal decision in Lomax v Lomax ([2019] EWCA Civ)also pushed at the door of mandatory mediation by holding that compulsory judge-led Early Neutral Evaluation was lawful and questioning once more the Halsey view.  Even Lord Dyson, architect of the Halsey opinion, performed a volte face of sorts and accepted that his view on Article 6 was not necessarily correct (“A word on Halsey v Milton Keynes”, speech by Lord Dyson given at the CIArb’s Third Mediation Symposium in October 2010). 

The desirability of mandatory mediation

Quite apart from the issue of legality, however, the question still remains if mandatory mediation is desirable.  As recently as 2018, the Civil Justice Council ADR Working Group reported that the groundswell of opinion in UK mediation circles was against compelling parties into the process (ADR and Civil Justice, CJC ADR Working Group Final Report, November 2018, para 8.24). Mandatory mediation is attractive yet troubling.  Compulsion seems anathema to its roots as a voluntary process. Mediation, however, is often a hard sell to those in a midst of a dispute and it is well known that when mediation remains an optional process then take-up is often low. It is also known that even when parties do not want to mediate, very often they settle and are glad that they participated in the process.  Equally, the current costs sanctions regime for unreasonable refusals to mediate characterised by divergent judicial approaches has been criticised for casting litigants and their lawyers adrift in a sea of inconsistency and unclarity and bringing about compulsion by the back door (for an excellent discussion of this and related issues see (D. De Girolamo “Rhetoric and Civil Justice: A commentary on the promotion of mediation without conviction in England and Wales” (2016) 35(2) Civil Justice Quarterly 162).  A formal compulsory system is in my view certainly preferable to this system.

Nonetheless, compulsion into mediation raises questions about the quality of those providing mediation services.  As the report authors (at para 100) note, “If we are going to compel participation in an activity, we need to be confident as to who is providing the service and what is involved”.  Although the Civil Mediation Council has developed a profession-led set of standards, there is a dearth of formal regulation of mediation activity in general civil matters at the moment in England and Wales and according to the report authors, “more systematic regulation is required” (at para 103).   Such matters as timing of referral to mediation (discussed in the CJC report at paras 106-111), providing accessible and affordable provision of mediation services (paras 93-98) and how to deal with perfunctory performance (paras 112-113) also need addressing.

Equally, the issue of having access to legal advice and assistance in and around the process becomes more important in environments where mediation is compulsory. This is an especially live issue in lower value disputes involving litigants without lawyers.  One of the central, although debated, critiques of mediation is that it is not well equipped to resolve power imbalances that exist between the parties.  By dint of their neutrality, it has been argued that mediators may be powerless to redress such imbalances and their ability to ensure objectively fair outcomes has been questioned (H. Genn, Judging Civil Justice: The Hamlyn Lectures (2009: 116-117)).  Providing relevant legal information or advice may serve to remedy some of these difficulties and aid the informed consent of participants within mediation.

Conclusion

It would be misleading to suggest that elements of compulsion into ADR are not already part of the English civil justice system. Pro-settlement mechanisms are a key feature of the current Civil Procedure Rules.  More specifically, although falling short of requiring participation in mediation, parties seeking to attend family court are generally required to attend a compulsory Mediation Information and Assessment Meeting (MIAM) (under the Children and Families Act 2014, s10(1)).  Similarly, ACAS ‘early conciliation’ (in short, discussing the option of conciliation) is also a compulsory feature of Employment Tribunals under s.18A(4) of the Employment Tribunals Act 1996.  Furthermore, under a new Small Claims Portal for road traffic accidents, litigants are expected to attempt to settle the case prior to instigating the action (see https://www.officialinjuryclaim.org.uk/). 

Mandatory mediation is thus a small step from where we already are. On the back of the CJC report, formal compulsion for mediation and other forms of ADR seems likely to expand through amendments to the current Civil Procedure Rules and legislation governing specific dispute areas.  This is especially so, given that the new Master of the Rolls, Sir Geoffrey Vos, has signalled a desire to expand the use of settlement-based practices throughout English civil justice for which the CJC report provides a fresh impetus.  But the CJC report is not the end of the matter.  It rather signals the beginning of a journey of examination into effective implementation.  For this, we need to look beyond our shores for guidance from more developed jurisdictions and ensure that all steps taken in pursuance of compulsory mediation and other forms of ADR are properly evaluated. 

Analysis of apologies – and how to spot a fake apology – especially an insult-and-justification-masquerading-as-an-apology

Good mediators think a lot about apologies because they are always searching for things that a party can contribute to the settlement “pie” that may not cost that party much (or anything) but nonetheless have value in the eyes of the party receiving them. I have mediated disputes in which a party viewed an apology from the other party, plus a promise to take remedial action, as more important than a monetary settlement. That makes it important to be able to distinguish between a real apology and a fake apology.

What is an apology? You have to be able to recognise a real apology before you can detect all the fake ones out there. On analysis, there seem to be several essential ingredients in an apology: 

  1. An acknowledgment of responsibility for an act that caused harm: “I ran over your cat.” Some “apologies “ don’t even extend this far, e.g., “I’m so sorry that your cat was run over.” The presence of the passive voice should be a red flag to you, indicating a probable phony apology, because it does not attribute responsibility to anyone.
  2. An acceptance that the act that was done was wrong: “It was wrong of me to run over your cat – I shouldn’t have been speeding down the driveway.” Many “apologies” don’t extend this far but, instead, merely state that the apologiser is sorry that the other party has been injured, without either accepting responsibility for the act that caused the harm, or acknowledging that it was wrong to have done the act, e.g.“I am so sorry that you are upset at your cat having been run over. Note, again, the use of the passive voice to avoid attributing responsibility to anyone.
  3. An apology for having done the act that was wrong and caused harm: “I apologise for running over your cat.
  4. A request for forgiveness: “Please forgive me for running over your cat.” This is probably not an essential ingredient of an apology. But it not only powerfully emphasises the apologiser’s acceptance that what they did was wrong but also – because the apologiser feels the need to be forgiven – elevates the person to whom the apology is made into the morally powerful position of being able to dispense or withhold forgiveness.
  5. A promise to take remedial action or an assurance that remedial action has already been taken: “I’ve installed speed humps in the driveway so that, in future, I’ll never go fast enough to run over a cat.” Again, this is not an essential ingredient, but it powerfully reinforces the acceptance of responsibility, reassures the injured person that it will not happen again and, possibly, gives them hope that, because the suffering they encountered will not be inflicted on them again, or on anyone else, they have not suffered in vain. It seems to be particularly important in medical negligence cases.

So, a full 1+2+3+4+5 apology is: “I ran over your cat. It was my fault – I was speeding down the driveway. I apologise from the bottom of my heart. To make sure it never happens again, I’ve installed speed humps in the driveway. Please forgive me.“ 

Interestingly, the legal definition of “apology” in New South Wales does not go nearly this far. Section 68 of the Civil Liability Act 2002 (NSW) defines “apology” this way:

In this Part – apology means an expression of sympathy or regret, or a general sense of benevolence or compassion, in connection with any matter whether or not the apology admits or implies an admission of fault in connection with the matter.” (emphasis added)

We might regard the Civil Liability Act s. 68 definition as articulating the bare minimum necessary to constitute an apology, while contemplating that some apologies will go further by expressly or impliedly admitting fault. Section 69 of the Act then provides that an apology does not constitute an admission of fault or liability, is not relevant to the determination of fault or liability, and is not admissible in any civil proceedings as evidence of fault or liability.

Section 20 of the Defamation Act 2005 (NSW) makes similar provision about the effect of apologies in defamation proceedings, but that act does not define “apology“, nor does the Interpretation Act 1987 (NSW).

Some apparent apologies do not even go as far as the s. 68 bare minimum. Here is part of the statement posted by the Australian Broadcasting Commission on 31 May 2021 in relation to the discontinance of defamation proceedings brought against it and one of its reporters by the former federal Attorney-General Christian Porter:

The ABC did not intend to suggest that Mr Porter had committed the criminal offences alleged. The ABC did not contend that the serious accusations could be substantiated to the applicable legal standard – criminal or civil. However, both parties accept that some readers misinterpreted the article as an accusation of guilt against Mr Porter. That reading, which was not intended by the ABC, is regretted.” (emphasis added)

One can assume that the terms of this statement were the subject of some hard negotiations between the parties’ legal teams and that they represent the result of compromises by both parties. The ABC says that it did not intend to accuse Mr Porter of being guilty of criminal offences … but accepts that what it said was capable of being misinterpreted as doing that.

But note the use of the passive voice, which makes it impossible to attribute the expression of regret to anyone in particular. The ABC did not say that it regretted the misinterpretation. Instead, it said “that reading … is regretted“. By whom, you ask? Was this “an expression of regret” by the ABC within the meaning of s. 68?

If you start looking hard at “apologies”, armed with the criteria in this post, you will be amazed at how few actually are genuine apologies. Be alert for the most pernicious of all fake apologies, the very common insult-and-justification-masquerading-as-an-apology. This takes the form, “Some people were so foolish as to take offence at my comments last week on [insert subject matter] and I’m really sorry about that.” Many of Donald Trump’s comments about his outrageous statements took this form.

This sort of fake apology has none of the ingredients of an apology. It does not contain an admission that the speaker’s comments were offensive, nor an apology for giving offence by making the comments. Instead, it insults the people who found the comments offensive by saying that they were foolish to have taken offence. It then redoubles the insult by saying that the speaker is really sorry that those people are so foolish – in other words, they are so foolish that they deserve pity for their foolishness. And, finally, note that the statement actually amounts to a justification of the comments – by saying that only really foolish people would have found them offensive – rather than an apology for making the comments.

So now that your fake-apology-antennae are finely tuned, you are ready to go forth, detect and expose all those fake apologies out there!

For further legal analysis, see Robyn Carroll, Apologies as a Legal Remedy, (2013) 35(2) Sydney Law Review 317.

Robert Angyal SC

17 July 2021

Why are US lawyers allowed to lie while negotiating?

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Robert Angyal SC and Nicholas Saady

The late William Rehnquist, when Chief Justice of the US Supreme Court, gave many speeches at law schools. For a while, to lighten the tone, he started each speech with a ‘lawyer joke’.

Example: What is the difference between a bad lawyer and a good lawyer? Answer: A bad lawyer makes a case drag on for years. A good lawyer makes it last even longer. Example: What looks good on a lawyer? Answer:  A Doberman.

But Rehnquist abandoned his practice when he discovered two things: First, the lawyers in the audience did not think the jokes were funny. Second, the non-lawyers in the audience did not realise they were jokes.[1]

Rehnquist’s discoveries illustrate a problem for the U.S. legal profession: Public distrust.  A 2020 Gallup poll found that only 3% of people surveyed found lawyers’ honesty and ethics to be “very high”, and only 18% found them to be “high”.[2] This public distrust is a perennial source of concern to the national legal body, the American Bar Association.  Its journal regularly features articles such as “What can lawyers do to combat their bad PR?”, which suggests that “carefully executed social media presences” can “build trust, erasing one lawyer joke at a time”.[3]

Rather than carefully curating  lawyers’ social media profiles, we suggest that a better approach to building public trust in lawyers would be revocation of  the American Bar Association rule that allows lawyers to lie when negotiating.  Yes, astonishingly, a disciplinary rule promulgated by the ABA (Model Rule 4.1(a)) allows lawyers to lie about non-material facts when negotiating on behalf of a client.

The very existence of that rule seems problematic. When you look at its legal meaning (or lack of), it becomes even more problematic.  Despite several attempts to define and limit the circumstances in which the rule allows US lawyers to lie, its meaning remains unclear.

One such attempt was a formal ABA ethics opinion, five single-spaced pages long, with 22 footnotes.[4] (The irony inherent in issuing an “ethics” opinion defining when lawyers can legally tell lies apparently was lost on the ABA.)  The perceived need for such a detailed guide to interpreting a one-sentence rule was itself an acknowledgment of the difficulty of interpreting it. We analyse the ABA’s opinion in a just-published law review article and conclude that it contains no coherent statement of principle and leaves the reader no wiser about what the rule means. Other attempts have been similarly futile — even failing to clarify the meaning of the most basic concept on which the rule is predicated: The distinction between material and non-material facts.

The justification for allowing US lawyers to lie about non-material facts seems to be that the recipients of the lies will not be harmed by them — because they will not rely on them, or not regard them as communicating facts. But if legally permissible false statements are trivialised to this extent, why bother making them? Better to tell the truth all the time and gain a reputation for trustworthiness.  On the other hand, if more substantive false statements are allowed by the rule, how can it possibly be justified?

This, we conclude, is an inescapable dilemma generated by a rule permitting lawyers to tell lies. The dilemma explains why all attempts to date to explain the meaning of the rule have failed.  It also explains why any further attempts would be equally futile.

Allowing lawyers to lie affects the image of the profession detrimentally and intensifies public distrust of it. It does enormous damage to the credibility and the moral authority of lawyers. It is damaging in another way also. If you know that the lawyer for your opponent is allowed to legally lie to you during a mediation in some, undefined, circumstances, the only prudent thing to do is to assume they are lying all the time and to disbelieve everything they tell you. So the rule not only generates public mistrust of lawyers, but also makes negotiations highly inefficient, because the parties cannot take anything they are told at face value.

The good news is that there is a straightforward solution to the problems raised in this post: Require lawyers to tell the truth, all the time (which is the position in Australia).  Rather than advocating PR to improve the public image of lawyers, the ABA should heal this self-inflicted wound by revoking Model Rule 4.1(a).

Robert Angyal SC is an Australian barrister and mediator and was admitted in the District of Columbia for 40 years. Nicholas Saady is a New York and Australian lawyer and mediator. Their law review article “Legal Lying? Comparatively Analyzing US and Australian Lawyers’ Obligations of Truthfulness in Mediation” has just been published in [2021] 21 Pepperdine Dispute Resolution Law Journal 355 (Issue 2).


[1] Marc Galanter, Lowering the Bar: Lawyer Jokes & Legal Culture (The University of Wisconsin Press 2006) at p. 3.

[2] Gallup, “Honesty/Ethics in Professions | Gallup Historical Trends” (2020) https://news.gallup.com/poll/1654/honesty-ethics-professions.aspx.

[3] Danielle Braff, “What can lawyers to combat their bad PR?”, ABA Journal (February 1, 2020) https://www.abajournal.com/magazine/article/many-people-ignore-their-legal-needs-because-they-dont-trust-attorneys-what-can-lawyers-do-to-combat-their-bad-pr.

[4] ABA Committee on Ethics and Professional Responsibility, “Obligation of Truthfulness in Negotiation and Mediation”, Formal Opinion 06-439 (2006).

Fairness and Mediation: A Contribution to the Debate

Thank you Joanne Law for your thoughtful contribution to the debate on Mediation and Fairness on :

Really interesting, if somewhat cynical perspective on the question of fairness in mediation by Robert Angyal.

I would take a different perspective and narrow my focus down to mediation in accordance to the National Mediator Accreditation System practice standards and ethics.

The generally accepted meaning for ADR is Alternative Dispute Resolution (alternative to court) but I am with the crew who are working towards ADR meaning Appropriate Dispute Resolution. That shifts the focus from Court as the benchmark or expected approach to resolving disputes as is implied by looking at other than court as alternative and puts court where it belongs as the last resort in the continuum when people and their advisors are incapable of resolving the issues without a decision maker.

We have an unfortunate tendency to use acronyms in our industry which is not ideal, especially if we don’t identify what the letters mean.

In mediation we avoid assumptions in our language when we mediate and I hope most mediators have their ears tuned in to hear assumptive language and use clarifying questions to open the assumptions up to scrutiny.

I feel that Mediation should be facilitated in accordance with the ethics established in our NMAS standards and in the case of family law mediators regulations not arbitrary moral norms. There is a huge assumption in believing that moral norms has any type of universality as morality isn’t universal. It’s a product of upbringing, religious norms and life experiences etc.

Does the list of criteria given for assessing civil disputes really cover appropriate criteria? Those given were “efficiency, cost, access, speed, compliance with the rules of natural justice, and so on.”

I would add effectiveness in resolving the dispute, increasing understanding and improving communication.

If we take the definition of mediation from the NMAS Standards it is “Mediation is a process that promotes the self-determination of participants and in which participants, with the support of a mediator: (a) communicate with each other, exchange information and seek understanding, (b) identify, clarify and explore interests, issues and underlying needs, (c) consider their alternatives, (d) generate and evaluate options, (e) negotiate with each other; and (f) reach and make their own decisions.

A mediator does not evaluate or advise on the merits of, or determine the outcome
of, disputes. (there is a proviso that recognises the more evaluative or advisory end of the spectrum. Footnote in the standards: For a mediator using a blended process, which may involve the provision of advice see Section 10.2 of the Practice Standards)

If we lived in the ideal world I would like to create people wouldn’t be mediating based on fear of the risks associated with litigation that they have rushed into but instead go to mediation first, share their perspective of what they need to resolve the dispute and work towards something that can be considered as acceptable by both.

So for me a fair outcome is within the range of somewhere between the best possible outcome and the worst case scenario for both. And that they are able to work through the decision making in a respectful process where they are not coerced, bullied or pushed into a feeling that they have no other options.

Rather than thinking about fair as being a single outcome perhaps we could think of it as an outcome that those involved can accept without regret.

When I am training mediators I coach them not to use language like “Are you happy with the outcome?” which reminds them of their best case scenario which is likely to be closer to the other parties worst case scenario. Instead if you ask “Is that acceptable to you?” people can think about does the outcome fit within the range they believe is reasonable. Because for me the answer to the question “who decides what is fair?” should be those who have to live with the agreement reached.

The questions asked at the end are questions that have multiple answers depending on the style of mediation. Settlement negotiation mediation may work as described but other types of civil mediation are used instead of and without any intention of going to court.

Why does mediation work?
How does mediation work?

For mediation where lawyers are included in the process.

How can I effectively represent a client at mediation?

By empowering your client rather than speaking for them and definitely by finding out what they want rather than pushing them into what you think they can get if you push hard enough.

What are the ethical limits on my advocacy at mediation?

My thinking is why do lawyers think that mediation is a process where they need to be advocating rather than assisting with problem solving?

Is Fairness Relevant to Mediation? A Reply to Angyal

Jonathan Crowe, Professor of Law, Bond University

Robert Angyal has posted an interesting response to Rachael Field’s earlier post about the National ADR Principles. Unfortunately, his post contains several conceptual confusions. This reply unpacks some of them.

First, Angyal asks ‘what is meant by “ADR”?’ Now, everyone knows that ‘ADR’ means alternative or appropriate dispute resolution, referring to a range of dispute resolution options that offer alternatives to the courtroom.

For Angyal, apparently, ‘ADR means going to court’. This must cause a great deal of confusion, because nobody else uses the term that way. It seems that Angyal subscribes to what is sometimes called the ‘Humpty Dumpty Theory of Language’:

‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.’

Next, Angyal raises a very valid and important query. When we draft standards or principles for ADR or mediation, are we engaged in a descriptive or normative enterprise? Are we trying to describe ADR as it is or as it ought to be?

The way Angyal frames the question seems to assume a binary answer. That is, our objective must be either descriptive or normative, but not both. However, this is too simplistic. ADR and mediation are functional concepts – they describe human practices with a specific purpose or goal.

As I have argued in detail elsewhere, functional concepts are best described using what is sometimes called a ‘function+’ theory – that is, a theory that combines their common descriptive characteristics with their normative aim.

The answer to Angyal’s query, then, is that any adequate account of ADR or mediation must consider both its descriptive and normative dimensions. However, Angyal is sceptical about the very possibility of a normative analysis.

Angyal assumes that any normative analysis of ADR or mediation must be based on ‘moral norms’. He then challenges this, saying:

First, who laid down these moral norms, and by what authority did they do so? Second, and equally fundamental, why should we assess mediation by moral norms at all?

A preliminary issue arises here. Why does Angyal assume that the normative point of ADR or mediation must be based on ‘moral norms’? Human practices and institutions typically have some internal point or goal, but this objective need not necessarily be an overtly moral one.

In any event, even if we accept Angyal’s assumption, his two questions are odd. In relation to the first question: why assume that if moral norms exist, they must be ‘laid down’ by someone?

If two physicists are arguing about the existence of black holes, it would be weird for one of them to ask the other, ‘Who created these black holes, and by what authority did they do so?’ The question is whether black holes (or moral norms) exist, not who created them.

Angyal’s second question has a straightforward answer. The reason we should assess ADR or mediation by moral norms is that morality, by its very nature, is the fundamental evaluative standard we use to assess human actions and practices.

However, Angyal doubts this. He claims:

We don’t normally assess the practice of civil dispute resolution by moral norms; no, we assess it by criteria such as efficiency, cost, access, speed, compliance with the rules of natural justice, and so on. Why should mediation be different?

Angyal seems to accept here that we assess ADR or mediation by reference to normative criteria internal to the practice. However, he denies these criteria are moral ones. This raises the question: where does the normative weight of these criteria come from?

It seems plausible that ‘efficiency, cost, access, speed [and] natural justice’ are morally valuable – if not in themselves, then because they advance some deeper objective. However, Angyal seems to think they are morally inert. If so, why do we care about them?

Angyal then turns to the issue of whether fairness is relevant to mediation. He begins by contending that the question, ‘is mediation fair?’, is fundamentally ‘unanswerable’, because ‘the parties will disagree about what’s fair’.

Obviously, though, the fact that people disagree about a question does not mean it is unanswerable. If two physicists disagree about the existence of black holes, this does not mean there is no fact of the matter about whether they exist.

Angyal then claims that ‘parties to a mediation aren’t participating in the mediation because they think it’s a fair process and/or one that will lead to a fair outcome’. He calls this an ‘empirical observation’, but as far as I know he has not conducted any empirical research. He is just relying on his anecdotal impressions from practice.

Angyal argues that ‘fairness is not a concept that’s relevant in mediation’ because parties are driven by considerations of cost and, in particular, the desire to avoid litigation. This leads them to settle even where this may not be objectively fair.

Angyal’s response to this is to ‘abandon questions about fairness in mediation as irrelevant’. However, this seems like a cop out. Suppose a bully is beating people up every day in the playground. He is far stronger than any of the other children.

The children who are beaten up every day might well think ‘fairness is not a concept that’s relevant’ in the playground. If someone says about the bully, ‘that’s not fair!’, they might cynically reply that ‘fairness doesn’t enter the picture’.

Does this mean we should all just give up on changing things and let the bully have his way? Of course not. We should insist on the relevance of fairness, even if it means radically reimagining the way things currently operate.

Angyal’s perspective, in the end, suffers from a lack of imagination. It may be true that fairness does not play a guiding role in many mediations. However, this does not mean it should be abandoned as one of mediation’s ethical goals.  

Whatever happened to the National ADR Principles: A Reply by Robert Angyal SC

Robert Angyal SC has posted a detailed and thought provoking response to the most recent ADR Research Network Blog Post on the National ADR Principles – so I have posted it here on Robert’s behalf. Many thanks Robert for your engagement with the Blog! And thanks to Vesna and Teresa who also posted comments! Keep the comments coming!

Image result for image for the good news and the bad news

The post asks, “Is ADR essentially about the provision of a process which is fair, or an outcome which is fair, or both?” There are several problems with the question itself.

First, what is meant by “ADR”? To this writer, ADR means going to court because the primary dispute resolution process, mediation, has not resulted in settlement of the underlying dispute. This is because mediation is ubiquitious in modern Australian civil dispute resolution. I think, however, the author of the question meant something different by “ADR”.

The second problem with the question is this: Is it a question which calls for a description of how mediation actually is practised in Australia and an assessment whether it leads to fair results – that is, does it call for a descriptive answer? Or is it a question about how mediation should be practised in Australia – that is, does it call for a normative answer based on moral norms about how the practise of mediation should be conducted?

If the question is a normative one, it leads to two more questions: First, who laid down these moral norms, and by what authority did they do so? Second, and equally fundamental, why should we assess mediation by moral norms at all? We don’t normally assess the practice of civil dispute resolution by moral norms; no, we assess it by criteria such as efficiency, cost, access, speed, compliance with the rules of natural justice, and so on. Why should mediation be different?

The third problem with the question “Is mediation about a fair process or about a fair outcome?” is the biggest one: It assumes that mediation is fair (descriptive) or should be fair (normative). It doesn’t admit the possibility that mediation might not be about fairness in either sense. You’re saying, I know, “Hang on, of course mediation is meant to be fair; that’s why people do it rather than going to court.”

I have two sorts of bad news for you. The first bad news is that in any particular case, the question “Is mediation fair?” is unanswerable, for lots of reasons. The biggest reason is that the parties will disagree about what’s fair. That’s why they’re having a mediation in the first place. If they could agree about what’s fair, they wouldn’t need a mediation or a mediator. Given this and the fact that mediations always are conducted in private, even if a third party could find out the outcome of a particular mediation, how could they form an opinion as to whether it’s fair?

The second piece of bad news is that my empirical observation, based on mediating for 30 years, is that parties to a mediation aren’t participating in the mediation because they think it’s a fair process and/or one that will lead to a fair outcome. They’re mediating because, and mediation works because, they are worried stiff about continuing the underlying legal proceedings. They are worried because litigation is very expensive, very destructive of relationships, very time-consuming and drawn-out and – most scary of all – very unpredictable as to result, with costs usually following the very unpredictable result. Losing means you get nothing out of the proceedings except the obligation to pay not only your costs but also the winner’s costs.

So the reason they are mediating is to mitigate the huge risks inherent in conducting civil litigation. To put it bluntly: Many parties to civil litigation can’t afford to lose – but they have no way of knowing with any certainty whether they will lose or win. They are looking for a way to avoid taking the risk of losing.

Some parties are even worse off: They can’t afford to run the legal proceedings to judgment but neither can they afford to call a halt to the proceedings, because a party who discontinues proceedings almost always has to pay the costs to date of the other side. They are caught in a costs trap, from which they need to find an escape. Mediation offers hope of an escape.

What this means in practice is that fairness is not a concept that’s relevant in mediation. Typically, a party will settle at mediation if the settlement being offered to them is better than the risk-laden nightmare of continuing the underlying legal proceedings. That’s the calculus that drives mediations towards settlement in my experience. It means that a lot of cases settle on terms that might shock outsiders: Plaintiffs sacrifice their causes of action and claims for damages in exchange for being released from the obligation to pay the defendant’s costs. Defendants who could defeat the plaintiff’s claim at trial pay plaintiffs to go away – because, the defendant knows, it will cost a lot of money to defeat the plaintiff’s claim but those costs won’t be recoverable from the plaintiff. So, as long as the case can be settled for less than the defendant’s irrecoverable costs, it’s cheaper to settle than to win the case. Fairness doesn’t enter the picture.

So can we abandon questions about fairness in mediation as irrelevant? They only distract attention from difficult and important questions about mediation, such as:

  • Why does mediation work?
  • How does mediation work?
  • How can I effectively represent a client at mediation?
  • What are the ethical limits on my advocacy at mediation?

Robert Angyal SC
4 July 2021

Another interesting post from Robert is in the wings – so keep an eye out for that one!

Whatever happened to the National ADR Principles?

Premium Photo | Green fern leaf on a white background

In 2011 the National ADR Advisory Council (NADRAC) formulated a set of National ADR Principles (included in the 2012 publication Your Guide to Dispute Resolution) as follows:

1. People have a responsibility to take genuine steps to resolve or clarify disputes and should be supported to meet that responsibility.

2. Disputes should be resolved in the simplest and most cost effective way. Steps to resolve disputes including using ADR processes, wherever appropriate, should be made as early as possible and both before and throughout any court or tribunal proceedings.

3. People who attend a dispute resolution process should show their commitment to that process by listening to other views and by putting forward and considering options for resolution.

4. People in dispute should have access to, and seek out, information that enables them to choose suitable dispute resolution processes and informs them about what to expect from different processes and service providers.

5. People in dispute should aim to reach an agreement through dispute resolution processes. They should not be required or pressured to do so if they believe it would be unfair or unjust. If unable to resolve the dispute people should have access to courts and tribunals.

6. Effective, affordable and professional ADR services which meet acceptable standards should be readily available to people as a means of resolving their disputes.

7. Terms describing dispute resolution processes should be used consistently to enhance community understanding of, and confidence in, them.

On 14 September 2016, the ADR Advisory Council (NADRAC’s supercedent) noted in a published paper on their website that: ‘ADR is founded on ideas – it is intrinsically ideological. The ideas which underpin ADR are neither scientific nor inert – they comprise an unmistakeably value-laden set of principles’. 

ADRAC went on to ask the following questions which continue to be relevant and challenging for the DR community in Australia.

Can the principles be combined to arrive at the following four core values:

1. personal responsibility – based on the ability to make informed choices

2. proportionality – between dispute and process

3. fairness and integrity – as to process (query as to outcome)

4. public confidence.

Are there core values missing from this list?

Is ADR essentially about the provision of a process which is fair, or an outcome which is fair, or both? And whose assessment of ‘fair’ is to be applied in any instance: is it to be evaluated from the perspective of the law, society, or the participants?

Please share your views!

Acknowledgements: Fern

The Dispute Tree or the Dispute Pyramid?

Thank you to Kate Curnow for her 2015 Blog – the all-time 5th most viewed Blog on DR for the ADR Research Network. Brilliant.

The Australian Dispute Resolution Research Network

In ‘The Dispute Tree and the Legal Forest’ (2014) 10 The Annual Review of Law and Social Science 105, Albiston, Edelman and Milligan propose replacement of Miller and Sarat’s dispute pyramid with a dispute tree.  They further suggest the stages of the emergence and transformation of disputes – that is, naming, blaming and claiming (Felstiner W et al, “The Emergence and Transformation of Disputes: Naming, Blaming Claiming” (1980-81) 15 (3-4) Law and Society Review 631) – be conceptualised as non-linear and fluid.

Why a Dispute Tree?

The dispute pyramid was proposed by Miller and Sarat in: Miller RE and Sarat A, ‘Grievances, Claims, and Disputes: Assessing the Adversary Culture’ (1980) 15 Law and Society Review 525:

Dispute Tree

Albiston, Edelman and Milligan argue the metaphor of a tree with many branches better reflects the non-linear and dynamic nature of dispute resolution as well as the legal and non-legal means by which people may seek to…

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Dumb decision— The Closure of NADRAC

This is the fourth most viewed Blog of the ADR Research Network – a personal favourite of mine! Associate Professor Becky Batagol writing at the end of 2013 to protest the defunding of NADRAC. A feisty, passionate Blog – which still applies today. Let’s all call for funding for ADRAC!!

The Australian Dispute Resolution Research Network

Last Friday, the Australian government announced the abolition of NADRAC, the National Alternative Dispute Resolution Council.  NADRAC’s functions will be absorbed into the federal Attorney-General’s Department.

Whichever way you look at it, the abolition of NADRAC  just doesn’t make sense.

An account of the reasons is dutifully provided on the NADRAC homepage.

Following the Australian Government’s announcement on 8 November 2013 to abolish or rationalise a number of non-statutory bodies, the National Alternative Dispute Resolution Advisory Council will close. The closure of this group is a whole-of-government decision that was taken to simplify and streamline the business of government.

NADRAC advises the Attorney-General and federal courts and tribunals on dispute resolution matters and also provides high quality dispute resolution information to the Australian public and dispute resolution community.  One of NADRAC’s central roles is promoting Alternative Dispute Resolution (ADR) within the Australian community.

From NADRAC’s own website we can see something…

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Unpacking the “adversarial advocate”

We are continuing to showcase the top 10 most viewed blogs of the ADR Research Network. We’re up to the third most viewed blog. A thought provoking blog on an important DR issue by our esteemed colleague and friend Dr Olivia Rundle.

The Australian Dispute Resolution Research Network

The traditional lawyer is described as the “adversarial advocate”. I have been contemplating what this actually means when the traditionally oriented lawyer works within the context of dispute resolution. What does “adversarial” mean – does it mean to be oppositional with others or does it mean to be partisan for the client? What does “advocate” mean – does it mean to put an argument on behalf of the client or is it a substitute for the title “lawyer”? If it means the former, does an advocate necessarily act as spokesperson and the client refrain from participation?

Let’s start with some dictionary definitions of each of the words. These are taken from the online Oxford Dictionary.

“Adversarial” is an adjective and has two meanings. First, “involving or characterised by conflict or opposition”. This meaning brings in a competitive flavour. Secondly, a law specific meaning of adversarial is offered in the…

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