NMAS and the distinction between process and substance in Court-Connected Mediations

This post is by Nussen Ainsworth and Svetlana German and was workshopped at the ADRRN Roundtable at Latrobe University on 9-10 December 2019

Nussen Ainsworth and Svetlana German presenting at the ADRRN Roundtable in December 2019.

Achieving a fair agreement has been recognised as a central goal of mediation. However, there is no consensus amongst mediation scholars as to the meaning of a fair mediated agreement and how to best achieve it. Conceptually two broad categories of fairness in mediation can be proposed; procedural fairness relating to the process of mediation and substantive fairness relating to the outcome of the mediation. The National Mediator System in Australia expressly addresses fairness in Section 7 in “Procedural fairness and impartiality” stating: 

7.1 A mediator must conduct the mediation in a fair, equitable and impartial way, without favouritism or bias in act or omission. 

7.2 A mediator must identify and disclose any potential grounds of bias or conflict of interest before the mediation, or that emerge at any time during the process. 

7.3 A mediator must not mediate in cases involving a conflict of interest without the informed consent of the participants, and then only if, in the mediator’s view, the conflict would not impair his or her impartial conduct of the process. 

7.4 A mediator must support participants to reach agreements freely, voluntarily, without undue influence and on the basis of informed consent. 

7.5 A mediator must provide participants appropriate opportunities to speak to and be heard by one another in the mediation, and to articulate their respective interests, issues and underlying needs. 

7.6 A mediator must ensure, so far as practicable, that participants have had sufficient time and opportunity to access sources of advice or information necessary for their decision-making. 

7.7 A mediator must encourage and support negotiations that focus on the participants’ respective interests, issues and underlying needs and must encourage participants to assess any proposed agreements accordingly and with reference to their long-term viability. 

Whist the apparent focus is on procedural fairness, the NMAS directs mediators to encourage an assessment of the proposed agreements with reference to long-term viability. One reading of this may imply that substantive unfairness can undermine the viability of the agreement. In support of this interpretation, in NMAS 6.2 the mediator “must be alert to changing balances of power in mediation and manage the mediation accordingly”.  Internationally, some mediator standards direct that a mediator may indicate non-concurrence with a decision they find inherently unfair or may refuse to draft an agreement which “seems fundamentally unfair to one party”.  Where a mediator promotes settlement without regard to the legal rights of the parties the outcome of the mediation may be unjust.  In court connected mediation there is an additional argument that the outcomes should be measured by legal standards, as parties in court connected mediation should be entitled to expect “equivalency justice” which has both procedural and substantive components. This may be particularly difficult where parties are not represented or are uninformed about their legal rights.

A study of Court Connected Mediation Mediators demonstrates that mediators do engage with substantive law

Preliminary findings from this study provide insights into what is happening in  Court Connected Mediations including what role the mediator and law have in this process.  The data was collected by Nussen Ainsworth through interviews with 24 mediators, and the observation of 32 mediation across three CCM sites. The research focuses on the mediation process, the role of the mediator and the role of the law in CCM. A number of relevant findings included:

  1. Law was integral to the mediators. Wearing a lawyer hat is very much ingrained in their identity, it is the prism that for the majority of their professional life saw and dealt with everything. The data suggest that for these mediators it is not a simple process to simply take off their legal practitioner hat. It appears that the opposite is true; the mediator relies on and leverages off their legal background when acting in the role of mediator. 
  2. Substantive legal knowledge was the most common response mediators gave when asked what skills and knowledge they relied on in the mediation. Based on their responses, substantive legal knowledge can be from general ability to ‘understanding of what the dispute was about’  to ‘it was very important to have substantial knowledge of the VCAT advisory opinion on safety measure and I think that stood me in good stead knowing the current status of that opinion’
  3. In CCM mediators are not reluctant to engage with the legal merits of the dispute, and some even take active steps to embrace such engagement.  
  4. The CCM mediators are aware of the prevalence, and beneficial role law has in and on CCM. The vast majority of the mediators said their legal background affects how they conduct a mediation. 
  5. The majority of the mediators said that mediators could evaluate or advise of the merits of the substantive dispute of the outcome of the dispute. However many mediators were firmly of the opposite view and said this sort of activity is never appropriate.  This remains a complex issue as there was a divergence of opinions between the mediators that said it is appropriate to evaluate and give advice as to what type and how much is appropriate. 

Further clarity in the guidelines is required

Although the data focused on the CCM disputes, the evidence suggests that the NAMS Standards are applied by mediators in varied way. The issue of mediators giving advice has long been discussed in the literature and something that is not encouraged and even frowned upon. However, this study demonstrates that this was not reflected in practice.  Some mediators do in fact evaluate the dispute from a legal perspective and concern themselves with both procedural and substantive justice. Whilst this may address some of the concerns raised in the literature it should be expressly addressed in the NAMS to ensure that there is a consistency of process and ensure that the obligations are clearly set out in relation to this critical aspect of mediation practice. 

Nussen Ainsworth is a Lecturer at the College of Law and Justice, Victoria University. Accredited specialist in mediation, Law Institute of Victoria. Editor in Chief of the Australasian Dispute Resolution Research Network WordPress site from February 2020.

Svetlana German (BSC/LLB (UNSW), LLM (Columbia University) is an academic at the University of Notre Dame, Sydney and barrister and accredited mediator at 10th Floor Selborne Wentworth Chambers.  Svetlana teaches in the areas of Dispute Resolution and Property Law and is currently undertaking a PhD at the University of Technology Sydney (UTS) where she holds theQuentin Bryce Law Doctoral Scholarship. Her doctoral research examines mediator perception of their obligation to remain neutral where one of the parties is unrepresented.

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