This post is by Dr John Woodward, of University of Newcastle, and was workshopped at the ADRRN Roundtable 9-10 December 2019. John is the 2020 President of the Australasian Dispute Resolution Research Network.
For all of our progress in advancing the cause of mediation in Australia, there is one problem that remains tantalisingly difficult to resolve. It is the problem of persuading lawyers (including some judges and court administrators) to embrace facilitative mediation in a way that is consistent with the core beliefs that are valued by mediation theory. These include the facilitative role of the mediator, the idea that the mediator is there to assist the parties to work through their problem together, to view their interests and the interests of the other through first-hand discussion and active participation in the consensus building and option creation activities that lead to secure and durable solutions.
This is a problem that can be traced back through what Boulle described as the three stages of mediation development in Australia (Mediation: Principles, Process, Practice 3rd ed p 349-350). The hostile reaction to uncritical acceptance of mediation, concerns that it has the potential to develop a ‘two-tiered’ justice system with only a form of ‘second-class justice’ available for the underprivileged and concerns that vulnerable parties (particularly women) would lose the protection offered by the rules and procedures of the formal justice process are all underpinned by the unarticulated assumption that the rules and procedures of the formal justice process somehow offer a superior form of justice against which all others should be measured.
Lawyers’ instinctive tendency to frame dispute narratives in terms of a rights-based story, their reluctance to look beyond solutions that are consistent with “what the court would order” and their insistence in maintaining control of disputants’ conversations in mediation sessions are all problematic for optimum outcomes in facilitative mediation. They are also redolent of the three core elements of legal professional culture identified by Macfarlane in her work The New Lawyer: How Settlement is transforming the practice of law.
Given the distance we have travelled in advancing mediation as an accepted part of the justice institutions in Australia, and the obvious successes it has enjoyed as a dispute resolution process, it is worth exploring why there remains an undercurrent of resistance from the legal profession and what, if anything, might be done to correct it. The course of my own PhD journey suggests a few preliminary observations which I think are worth making.
Firstly, it is notable that throughout the whole empirical project, not a single lawyer research respondent disagreed with the proposition that mediation is a good thing and is to be applauded and encouraged as an effective means to bring an end to disputes. Of course it is entirely possible that some of those responses were a result of social acceptability bias and that no self-respecting lawyer should, in the twenty first century, be seen as opposing a measure that has gained such wide acceptance among lawyers and justice administrators. However, it is unlikely that their unanimity can be explained in that way. The research data revealed some highly developed and nuanced conversations about various features of mediation, disputant behaviours, issues around enforcement and other matters of practical significance to disputants and their lawyers.
Secondly, lawyers’ perceptions of problems with mediation were almost always framed in rights-based terms. They complained that too much time was taken up with petty, emotional, irrelevant matters that were inadmissible in the case or that mediators were too facilitative and not directive enough so that the parties were not getting the benefit of what the mediator considered would happen if the case were to proceed to trial. The latter complaint explained why some research respondents preferred to have a retired judge as mediator. It was, they said, a more legitimate process if the mediator could bring judicial expertise to the mediation so that the parties could see what would happen if the case were to be decided by that judge. This tendency to “legalise” the mediation process is well recognized in the literature and was described in the Australian Productivity Commission’s Report Access to Justice Arrangements of 5th September 2014, which (at page 13) noted a “creeping legalism” by which institutions which were set up to provide low cost alternatives to the court with an emphasis on self-representation were becoming increasingly formal with the introduction of legal representation, lawyers behaving as if they were in court and bringing an adversarial tone to the proceedings.
A third observation, and one which emerged as a major concern for lawyers engaged in court-connected mediation, is the uncertain limits of confidentiality and admissibility of communications in and around the mediation process. In fact this feature emerged from the research as the single most problematic inhibitor of lawyers’ engagement in court-connected mediation. It deserves further attention and is the subject of my paper to the 8th ADR Research Roundtable in Melbourne.
Confidentiality is one of the foundational pillars of mediation (Morris and Shaw p 320). It features in every published book on mediation. Some books dedicate entire chapters to the subject of confidentiality in mediation. As Hardy and Rundle have observed, there are competing public policy considerations in relation to whether or not parties should be able to use information disclosed in mediation in later court proceedings. On one hand, there is a public interest in parties being able to resolve their disputes outside the court using a frank and open exchange of information without the fear of that information returning to haunt them if, despite their best endeavours, the dispute should prove incapable of resolution by negotiation. See Field v Commissioner for Railways (NSW) (1957) CLR 285. On the other hand there is also a public interest in ensuring that the best evidence is available in court proceedings to ensure that a just and equitable outcome is possible by way of court determination. See AWA Ltd v Daniels t/as Deloitte Haskins and Sells (1992) 1 ACSR 462.
The parliaments of Australia have attempted to reconcile these two competing public policies by introducing legislation to prohibit the introduction into evidence of information obtained during settlement discussions or in mediations. Statutes such as the Evidence Act, 1995 (NSW) and the Civil Procedure Act 2005 (NSW) have been very effective in protecting client settlement privilege and preventing privileged communications from being disclosed in court proceedings. They have thus well-served the interests of the traditional justice institutions.
But they have not well-served mediation whose very different interests are not so much in non-disclosure of protected information as in preventing misuse of protected information as the research data revealed. Mediation’s concern is much broader than merely the exclusion of protected information from evidence. As Boulle explained, one of mediation’s great benefits is:
“…its attraction to potential users wishing to avoid adverse publicity and increase parties’ willingness to enter mediation and engage in open and frank negotiations in the knowledge that disclosure cannot damage them publicly among competitors or prospective adversaries.”
An examination of the relevant statutes in NSW reveals that lawyers’ expressed anxieties around the limits of mediation confidentiality may well be justified and that the values identified by Boulle and others may not be available to disputants who mediate in the shadow of the law. Even if this conclusion paints an unduly pessimistic picture of the objective reality of court-connected mediation in NSW, the research evidence clearly revealed that lawyers’ perceptions of mediation are that they must be cautious in allowing their client to speak or otherwise to participate directly in mediation except through their lawyer. Many research respondents explained that they counselled a cautious approach when advising their clients about mediation and most preferred that their clients not speak. A few admitted positively forbidding their clients from saying anything at mediation.
There is evidence going back as far as Rosenthal in 1977 to support the view that settlement outcomes are directly and proportionately related to the level of client involvement in the subject matter of the dispute. Since then a long line of social researchers from Pruitt (1981), Daubman (1984), Johnson, Mertz and Robinson (1985) have conducted research experiments which have confirmed these findings.
In 1986 Carnevale and Isen conducted a series of experiments designed to establish the effect on disputants’ ability to engage in integrative bargaining of suggestion by their lawyers. Participants in the study were subject to a contrived negotiation under control conditions in which some respondents were provided with supportive and positive reinforcement (called ‘positive affect’) and others were not. The study concluded that negotiators in whom positive affect had been induced achieved consistently higher outcomes than negotiators not in a positive state.From this literature and the results of my own empirical researches it is concluded that the quality of court-connected mediations in NSW is being compromised and that it will continue to be so until we are able to come to terms with the need to construct an appropriate framework of mediation confidentiality which goes beyond the present limited protections afforded by the statutory provisions for settlement privilege.