About Dr Becky Batagol

Dr Becky Batagol is a senior lecturer in law at the Faculty of Law, Monash University. In 2017, she is the President of the Australian Dispute Resolution Research Network. She is a researcher and teacher with a focus on family law, family violence, non-adversarial justice, dispute resolution, gender, child protection and constitutional law. Becky is the co-author of Non-Adversarial Justice (2nd ed, 2014), Bargaining in the Shadow of the Law? The Case of Family Mediation (2011) and the author of many academic articles. Becky is the chief-editor of the ADR Research Network blog and tweets regularly under the handle @BeckyBatagol.

“Safe and supported”: Developing a model for mediating family violence cases beyond family law

Dr Becky Batagol, Monash University & Professor Rachael Field, Bond University

Email contacts: Becky.Batagol@monash.edu; rfield@bond.edu.au

This post comes from work we are doing together focusing on how to appropriately identify and respond to cases of family violence in mediation practice outside the area of family law.

This is our first time working together, after many years of knowing each other (we met at the National Mediation Conference in 2000). As two feminists, we are convinced that there are ways to make dispute resolution processes safer and more supportive for the women who must use them who are also victims of family violence. The project brings together Rachael’s expertise in crafting and evaluating a model for mediating family violence cases in family law through the Coordinated Family Dispute Resolution program and Becky’s expertise in family dispute resolution and follows from her work as a consultant to the Royal Commission into Family Violence in 2015. (The views here are the views of the authors and not of their employers or organisations they have worked with previously).

Our work in this area is developing, and our thinking here is not final. We welcome your email or comment feedback. This post was developed from presentations at the 5th Annual Australian Dispute Resolution Research Network meeting in Hobart in December 2016 and at the AIJA Non-Adversarial Justice Conference, Sydney in April 2017.

tom simpson FV

Photo credit: Tom Simpson

 

Our aim in this project is to flesh out key elements of a safe and supported model of mediation in cases involving family violence that can be used across a range of contexts.

A great deal of attention has been paid to mediating cases of family violence in the field of family law. Outside the family law field, little attention has been paid to how to appropriately identify and respond to cases of family violence in mediation practice.

In our work together we are using what we have learned from family law dispute resolution to flesh out key elements of a safe and supported model of mediation in cases involving family violence that can be used across a range of contexts.

Beyond family law, there are a range of other contexts where dispute resolution professionals will have an ongoing role in dealing with the consequences of family violence eg

  • disputes with providers of essential services, such as electricity, water, banking and telecommunications, as a result of economic abuse
  • child protection conciliation conferences/ADR in state Children’s Courts
  • the negotiation/mediation process that takes place in finalising the conditions of family violence orders in state magistrates’ courts, and
  • restorative justice contexts as an adjunct to the criminal and family violence system

We believe that the imperatives relating to dispute resolution and family violence remain broadly similar regardless of the context. There is a legitimate concern about the use of informal dispute resolution processes in cases of family violence because of deep power imbalances between perpetrators and victims. On the other hand, with a focus on safety and with appropriate support and careful attention not to minimise the violence, there are clear potential benefits of mediation for victims of family violence which can include self-determination, certainty, reduced financial and other costs and timeliness.

We use the Coordinated Family Dispute Resolution model pilot to inform an analysis of the potentialities and possible pitfalls of the use of dispute resolution in the contexts outside family law

 

Context: Coordinated Family Dispute Resolution

In 2009, the Australian Federal Attorney-General’s Department commissioned a specialised model of family mediation for matters involving a history of domestic violence. The Coordinated Family Dispute Resolution model (CFDR) was piloted between 2010 and 2012 in five different locations around Australia, and evaluated by AIFS. CFDR was designed to support parties with a history of family violence to achieve safe and sustainable post-separation parenting outcomes. The model’s design sought to provide a multidisciplinary approach within a framework designed to specifically address some of the issues arising from a power imbalance resulting from a history of domestic violence. AIFS noted that the model is comprised of four case-managed phases which are implemented in ‘a multi-agency, multidisciplinary setting (which) provide a safe, non-adversarial and child-sensitive means for parents to sort out their post-separation parenting disputes’.

Eventually, funding was not provided for full roll-out of model due to political, resource and funding issues, although the fight for funding for CFDR continues.

The CFDR model was complex and multifaceted as the table below shows:

CFDR

The special features of CFDR which work together to create the potential for safe and just outcomes – and which could be integrated into the diverse dispute resolution contexts we discuss further below – include:

  1. A coordinated response

The CFDR model demonstrated that it is important to bring a range of professionals together including government and community agencies to achieve a safe process, and it is critical that these diverse agencies and professionals share information and communicate effectively with each other.

2. A focus on specialist risk assessment

A critical element of the CFDR model was the integration of specialist risk assessment across the model’s practice which maintained the safety of the participants, and particularly the victims of violence and their children, as the highest priority. The safety focus of the risk assessment process went significantly beyond the usual FDR intake screening process which predominantly assesses that the parties’ have the capacity to participate effectively in the mediation process. These specialist risk assessments were conducted only by qualified and experienced DV and men’s workers with highly developed risk assessment skills, including an ability to identify ‘predominant aggressors’ of family violence.

3. The use of a legally assisted, facilitative model of mediation

In CFDR, a facilitative, problem-solving model of mediation was practised. This was because the goal of CFDR mediation was acknowledged as being to assist the parties resolve disputes about parenting safely, rather than to have a transformative effect. The design of the model acknowledged that it is not possible – in the 3-4 hours of a mediation session to have a transformative effect on perpetrators of violence. The best way to promote the safety of victims and their children was to support the making of relatively short-term parenting decisions. Transformative changes in a perpetrators violent behaviour may be possible but require the support and expertise of professional men’s behavioural change workers.

4. Special support measures needed to respond to domestic violence in mediation

The CFDR model also featured a number of additional special measures to protect the safety of victims and children. These measures were designed to support the hearing of the parties’ voices, and enable the parties to reach post-separation parenting agreements that upheld the best interests of the children. One such special measure was the acknowledgement of the concept of a ‘predominant aggressor’ in the model

5. Listening to the child’s voice

The involvement of children in CFDR mediation was not part of the general pilot process although the model as it was developed argued for inclusion of a professional children’s worker. If the child’s voice was included in the process it was only as a result of a decision by the CFDR team of case management professionals, and after careful analysis of the safety implications of this approach. Only appropriately trained and qualified ‘children’s practitioners’ could be asked to participate in CFDR to support the hearing of the child’s voice. These practitioners were required to have extensive clinical experience working with children and family violence.

The pilot was evaluated by the highly respected researchers at the Australian Institute of Family Studies under the leadership of Dr Rae Kaspiew. A number of the evaluation findings affirmed the efficacy of the design elements of the model in terms of facilitating the safe and effective practice of family mediation where there is a history of domestic violence. For example, it was found that adequate risk assessment for the parties’ safety and well-being is critical in domestic violence contexts; preparation for the parties’ participation in the process was key; and vulnerable parties have more chance of making their voice heard in mediation in the context of lawyer-assisted models, as long as those lawyers are trained adequately in dispute resolution theory and practice. In short the report said that CFDR was ‘at the cutting edge of family law practice’ because it involved the conscious application of mediation where there had been a history of family violence, in a clinically collaborative multidisciplinary and multi-agency setting.

 

Context: Royal Commission into Family Violence

The work of the Victorian Royal Commission into Family Violence, has shown that an understanding of the nature of family violence and an ability to identify and respond to cases of family violence is central to the work of anyone working in law and dispute resolution in a number of diverse fields.

The Victorian government set up the Royal Commission in 2014 to examine and evaluate strategies, frameworks, policies, programs and services and establish best practice for four areas – the prevention of family violence; early intervention; support for victims of family violence, particularly for women and children; and accountability for perpetrators of family violence. The Royal Commission was also asked to investigate means of ensuring systemic responses to family violence, investigate how government agencies and community organisations can better integrate and coordinate their efforts, and make recommendations on how best to evaluate and measure the success of strategies and programs put in place to stop family violence.

On 30 March 2016, the Victorian Parliament tabled the report of the Royal Commission into Family Violence. The report represents the culmination of 13 months of work by Australia’s first ever Royal Commission into family violence.

The Royal Commission’s report contains 227 recommendations.  The Victorian government has committed to implementing all recommendations in the report, regardless of the cost. The Commission stated that its ‘recommendations are directed at improving the foundations of the current system, seizing opportunities to transform the way that we respond to family violence, and building the structures that will guide and oversee a long-term reform program that deals with all aspects of family violence’ (Summary and Recommendations, p.14).

We focus here on the recommendations which will affect the way in which a range of dispute resolution professionals will have an ongoing role in dealing with the consequences of family violence in our society.

 

Family violence-related debt disputes

Economic abuse is a form of family violence and is recognised as such in a few Australian jurisdictions.

The Royal Commission heard that most women who seek assistance for family violence issues leave their relationship with debt. Through the use of deception or coercion, perpetrators may avoid responsibility for a range of debts and leave their former partners with substantial liabilities (RCFV Report, Volume IV, chapter 21 p.102). This is a form of economic abuse, which is increasingly recognised as a form of family violence across the Australian jurisdictions. A recent RMIT analysis of ABS data showed that nearly 16 per cent of women surveyed had a history of economic abuse.

Women who have family violence-debt often have trouble negotiating the consequences of that debt with service providers. In their report Stepping Stones: Legal Barriers to Economic Equality After Family Violence, Women’s Legal Service Victoria noted that ‘service providers such as energy retailers, telecommunication services and banks have low awareness of the difficulties faced by women experiencing family violence and are unhelpful when interacting with these customers.’ Professor Roslyn Russell has recently shown how staff in bank branches and call centres report dealing with customers who are experiencing, trying to leave, or have left abusive relationships, yet there is limited training for banking staff on family violence.

A major proportion of Australia’s dispute resolution services are offered through industry ombudsman and complaint handling services such as the Victorian Energy and Water Ombudsman and the Commonwealth Financial Services Ombudsman and Telecommunications Industry Ombudsman. These services often use a combination of mediation, negotiation and conciliation to resolve disputes. It is clear these services are dealing with many disputes that arise with service providers as a result of family violence. Because such services are not part of the family violence system they may not have policies or training in place to identify or adequately address financial abuse and family violence.

The Royal Commission recommended that

  • the Victorian Energy and Water Ombudsman and the Commonwealth Financial Services Ombudsman and Telecommunications Ombudsman publicise the availability of their dispute-resolution processes to help victims of family violence resolve disputes (Recommendation 110)
  • comprehensive and ongoing training of customer service staff take place to help them identify customers experiencing family violence (Recommendation 109).

The Royal Commission’s recommendations are designed to develop employees’ capacity to understand, identify and respond to family violence within industry dispute resolution schemes so that victims of family violence can continue to access essential services such as household energy, water, telecommunications and financial services.

 

Negotiating family violence consent orders

Family Violence Intervention Orders (FVIOs) (also known as protection orders and apprehended violence orders in other jurisdictions), are orders made by the courts to protect a person from another family member who is perpetrating family violence.

There are often conditions attached to FVIOs which set out exactly what the perpetrator must do or not do in order to stop committing, and to prevent the future commission of, family violence. In Australia, FVIOs are made by state Magistrates’ courts.

The Royal Commission noted that ‘a high proportion’ of FVIOs are made by consent which means that the parties to the intervention order agree themselves to the FVIO and the conditions attached to the order which the Magistrate merely formalises (RCFV Report, Volume III, Chapter 16, p.134).

There is an incentive for perpetrators to settle orders by consent in the Victorian system because they can be made without the perpetrator admitting to any or all of the family violence allegations set out in the FVIO application.

However, for victims, there is a clear danger inherent in the negotiation process for consent orders, as described by the Commission:

‘the negotiation process involved in arriving at an order by consent may be opaque and variable depending on the situation, the parties and the presence of legal representatives. If there is a history of family violence between the parties, with everything that can entail – including an imbalance of power, fear, vulnerability, and the possibility of manipulation and coercion – it is extremely important that the negotiation process is properly managed. If the parties are not (or not adequately) legally represented, there is no guarantee that this will occur, and the result can be incomplete or inappropriate orders, whether on a primary application, a variation, extension or withdrawal, or a cross-application’ (RCFV Report, Volume III, Chapter 16, p.178).

Mediation is not formally part of the process for negotiating FVIOs in Victoria, although it is in the ACT, the only such jurisdiction in Australia to use mediation formally.

The danger of any negotiation process used to determine the terms of FVIOs is that it is the very acts of family violence that are being discussed and negotiated, and that a poor process may result in a poor order with conditions that fail to protect the victim and her children.

Because so little is known about the process for negotiating consent orders for FVIOs in Victoria, the Royal Commission adopted a cautious approach and recommended that a committee be established within the next three years to investigate how consent-based family violence intervention orders are currently negotiated and to develop a safe, supported negotiation process for victims (Recommendation 77). On this issue, the parallels to family dispute resolution are clear.

 

Restorative Justice and Family Violence

Restorative justice is a process which was developed from the criminal justice system which enables all parties who have a stake in an offence to come together to discuss the aftermath of the offence and implications for the future. While restorative processes have a criminal provenance, which makes them distinct from DR processes such as mediation and conciliation, the processes share in common a commitment to party empowerment and a sense that creative solutions can be found through ‘talking it out’ which would not be possible in the formal legal system.

The Royal Commission noted that while the justice system plays a fundamental role in protecting victims’ safety and promoting perpetrator accountability, that many women find the reality of the court process to be deeply dissatisfying and even re-traumatising: ‘A strong theme that emerged from consultations held by the Commission was the need for victims to understand the options available to them, and the process involved, and to be empowered to make their own decisions about what steps and outcomes are appropriate’ (RCFV Report, Volume IV, Chapter 22, p.136).

Restorative justice programs have the potential to provide family violence victims with the chance to be heard, to explain to the perpetrator what the impact of the violence has been and to be empowered to discuss future needs, including any reparations. Such a process potentially places great power in the hands of the family violence victim.

However, the same concerns can be raised about the use of restorative justice in family violence cases as there are about the use of family mediation in cases of family violence. The concerns about use of restorative justice in this context include unequal power relationships between victims and perpetrators, concerns about safety, and concerns about the appeal to apology and forgiveness which are part of the cycle of abuse in family violence.

The Commission concluded that restorative justice processes have the potential to assist victims of family violence to recover from the impact of the abuse and to mitigate the limitations of the justice system (RCFV Report, Volume IV, Chapter 22, p.143). The Commission recommended that within two years a pilot program be developed for the delivery of restorative justice options for victims of family violence which would have victims at its centre, incorporate strong safeguards, be based on international best practice, and be delivered by appropriately skilled and qualified facilitators (Recommendation 122).

 

Common elements of diverse family violence dispute resolution contexts?

So, what are the common elements of diverse family violence dispute resolution contexts? It is worth considering commonalities between the processes so that we can understand the nature of the dispute resolution content and process. This will better enable us to understand what elements are needed for dispute resolution processes across these diverse contexts.

We see the common elements of the diverse family violence dispute resolution processes as follows:

  1. Victim is part of dispute resolution process.

Across each of the three contexts, the victim of family violence will usually be part of the dispute resolution process. However, the victim may not be there in person (such as through resolution of disputes through ombudsman services, the dispute may be dealt with on the papers).

2. Perpetrator may or may not be part of dispute resolution process.

While the victims will be part of the process, the perpetrator may not always be there. For example, in debt disputes, the victim may be left with a debt and be unable to pay. The perpetrator may not be available or should not always be asked to explain or confirm his actions. However, in restorative justice conferences, the perpetrator may be there. In this case, safety issues must be paramount

3. Family violence may be hard to identify.

We know reporting levels of family violence are low. Matters in dispute may not initially present as a family violence matters. However, family violence may be central to matter, but extent of family violence may be hard to identify.

4. Family violence will affect how the victim will behave.

Victims of family violence are often vulnerable. The violence they have experienced will affect how they will behave in a legal or dispute resolution process.

5. Family violence is central to the nature of the dispute, the process and the outcome.

 

A “Safe and supported” mediation model

What then are the key elements of a safe and supported mediation process that could be used as the basis of new dispute resolution processes for cases involving family violence across a broad range of contexts? To develop these elements we draw from what we have learned in developing Coordinated Family Dispute Resolution in Australia from 2010.

We propose a “safe and supported” mediation model.

We have chosen to focus on a single dispute resolution process, mediation. Mediation is widely used. It offers flexibility and compromise between party empowerment and professional control of the process. Professional control of a process is central in cases of family violence where the risk of harm is great.

We believe that facilitative mediation is the best type of mediation in cases of family violence. A process like facilitative mediation carries with it the possibility of compromise between party autonomy and mediator control of the process necessary to provide a safe and supported negotiation process in the shadow of family violence. It also focuses on problem solving of the issue at hand, without attempting to remedy the relationship (as in transformative processes) which is arguably inappropriate in cases in family violence.

We believe that victim’s safety must always be the key priority in any dispute resolution process involving family violence. The victim’s safety must not be compromised because of her involvement in a legal process and the outcome of the negotiation must always be measured against the goal of ensuring safety for victims of family violence.

We focus on support because this is a key means of providing victims of family violence with the ability to participate in informal dispute resolution processes.

 

Elements of a “safe and supported” mediation process for matters involving family violence

Drawing from the CFDR model, the following are elements which we propose could be part of mediation processes involving family violence. These elements could apply across the full range of contexts mentioned above. It may be that some elements cannot be used in specific contexts. Nevertheless, dispute resolution processes for cases involving family violence should seek to implement as many of these elements as possible.

  1. That issues of safety and risk are placed at the heart of decision-making.
  2. The philosophy behind the dispute resolution process is that perpetrator accountability is a central objective of any mediation process that seeks to work effectively in contexts where there is a history of family violence.
  3. It is central that the family violence itself is not negotiated.
  4. A range of professionals must work together to achieve a safe process. It is critical that these diverse agencies and professionals share information and communicate effectively with each other.
  5. Specialist risk assessments must be conducted only by qualified and experienced family violence and men’s workers.
  6. A legally assisted, facilitative model of mediation should be employed.
  7. There must be acknowledgement of the concept of a ‘predominant aggressor’ in the dispute resolution process. This is especially important where there are cross-allegations of violence against each party, which increases the risk that tactical allegations of family violence could be used to cover up for legitimate allegations.
  8. Where perpetrators are involved in the dispute resolution process, the minimum expectation for participation in the model (and to receive its benefits such as free legal advice, counselling and other supports) is that perpetrators should have to acknowledge that family violence was an issue for their family, and that a family member believes that family violence is relevant to working out the future arrangements for the children.
  9. There must be training for dispute resolution practitioners in the nature of family violence and family violence identification

We acknowledge this this post presents the first stage in our thinking about the use of dispute resolution processes for the management or resolution of disputes beyond family law and in contexts of family violence.

More specific work needs to be done to create context and organisation-specific models of mediation which acknowledge the existence of family violence in disputes and to adequately address the needs of the parties in light of family violence.

We think that the effort that has been put into working with clients around family violence in family dispute resolution holds important lessons for those in other dispute resolution contexts.

The elements of a “safe and supported” mediation model for matters involving family violence that we propose are an important starting point in a conversation about the safety and needs of victims of family violence in our society.

Please let us know your thoughts as we continue to develop our model.

Email contacts: Becky.Batagol@monash.edu; rfield@bond.edu.au

Unnecessarily Adversarial: Has the Time Come For a New Criminal Defence Paradigm?

 

By Joana Bourouphael

This post is written by Joana Bourouphael, a student who studied Non-Adversarial Justice at the Faculty of Law at Monash University in 2016. Joana was part of the unique placement program for that unit, an example of Work Integrated Learning. In the program, students spend 3-5 days at an organisation experiencing both adversarial and ‘non-adversarial’ practices. Students are then expected to produce a written assignment that addresses both practical and theoretical insights into an issue relating to non-adversarial justice. This post demonstrates how direct experience of legal processes enriches the learning experiences of participating students.

head in hands

Photo Credit: L’art au present

This post has been written in response to a placement I completed where I shadowed a barrister in a murder trial. The majority of my observances surrounded witness examination. The post begins with a brief description of my experience of the adversary system and what I was able to witness. This is followed by an introduction to the adversary system in Australia and the features of it that are relevant for my critique. Some problems of the adversary system are then highlighted before proposals for reform are suggested.

 

 1. MY OWN “WAR STORY”

The first time I stepped into the courtroom, I believe I had done so with an open mind. I had been sceptical of all the bad press that adversarialism had received and was of the firm view that in certain circumstances adversarialism was nothing short of necessary. Success of non-adversarial approaches in the criminal justice system has often been limited to and has tended to focus on areas such as substance-abuse and mental health. Naturally then, I did not expect to walk out of a murder trial frustrated at the fact it was too adversarial, or what I would describe as unnecessarily adversarial. And yet, that is exactly what happened.

Perhaps setting the scene would prove helpful. Picture this: a quivering witness, a fully grown adult male, nervously sweating and anxiously fiddling with the pen in front of him, umming and ahing as he was cross-examined by the straight-faced defence counsel, looking back and forth between the judge, the lawyer, and the 12 members of the jury who all starred at this man. He had come forward to the police with his evidence out of his own choice, as he attempted to respond to, ‘You consider yourself a clever person, don’t you Mr X? So why can’t you answer my question with a simple yes or no?’ In the meantime, behind the patronising echoes of the defence counsel, tucked away at the back of the court, sat a man clutching a rosary as he attempted, and failed, at holding himself back from tears. A man who, at the end of the trial, may very well be spending the rest of his life in prison and yet his only contribution to this long and gruelling process was to sit at the back of the court room day after day, as mere observer in a trial that had the potential to affect the rest of his life.

Watching this scene unfold, I thought back to a passage from one of the introductory readings from the Australian Law Reform Commission 103 [1.119] for the Monash University Non-Adversarial Justice unit:

 ‘The term “adversarial” also connotes a competitive battle between foes or contestants and is often associated in popular culture with partisan and unfair litigation tactics. Battle and sporting imagery are commonly used in reference to our legal system. Lawyers’ anecdotes about the courtroom are “war stories”.’

Although, at the time, I thought of this passage as an exaggerated view of the adversarial system: mere hyperbole used in order to stimulate change, the scene I witnessed before me seemed to act out this description perfectly. As Enright puts forward in his article ‘Tactical Adversarialism and Protective adversarialism, ‘many lawyers are culturally attached to, if not addicted to, the notion of adversarialism’ (Despite its attraction for lawyers, the prevalence of the adversarial system should be dependent on its functional adequacy and its ability to effectively and efficiently deliver the goals of the court.

 

 2. THE ADVERSARIAL PARADIGM

 The key aspect of Australia’s adversarial legal system is that it gives primacy to the parties. In essence, and as put forward by the Australian Law Reform Commission 103 [1.117], ‘the parties, not the judge, have the primary responsibility for defining the issues in dispute and for carrying the dispute forward’. The presiding judge takes no part in the investigation or the calling of evidence and their intervention during the trial is usually minimal. In Doggett v The Queen (2001), Gleeson CJ described such a system as reflecting ‘values that respect both the autonomy of the parties to the trial process and the impartiality of the judge and jury’. The adversarial system prides itself on certain strengths, which the Australian Law Reform Commission 32 [2.38] considers to include, ‘impartiality, independence, consistency, flexibility and the democratic character’ of its processes.

In Queen v Whithom (1983), Dawson J said that, ‘A trial does not involve the pursuit of truth by any means’. It has become rather evident that, in the adversarial system, justice means adherence to process. Truth is subservient to proof. Enright refers to adversarialism as a ‘prove it’ system, whereby the adversaries who access the court must prove their case to the required standard; it is then for the court to declare a ‘winner’. This imagery of competition and battle reoccurs throughout the literature analysing the system, highlighting that the framework itself is based on conflict rather than cooperation, a criticism of the system that will be discussed in relation to my personal observations.

 

3. PROBLEMS WITH THE ADVERSARIAL SYSTEM

 Geoffrey Robertson QC in 1998 said in his book The Justice Game, ‘we can’t avoid the fact that the adversary system does make justice a game’. This focus on justice as something to be won or lost like a pawn on a chessboard, as opposed to the aspiration for justice to be attained, is certainly not a new image of the system. Enright tells us that, over time, the adversarial system has been described as one where the parties ‘fight the contest’ and become ‘ego-invested in appearing ‘right’ and ‘winning’’, where the focus is on ‘game-playing’, ‘ignoring the human element’, competing in a ‘battle’, which is a ‘fight to the death where the winner was the last man standing’ ().

Although I had hoped the above descriptions would be far from accurate when I witnessed a trial for myself, I can only say with grave disappointment that my experience of the adversarial system failed to prove those descriptions wrong. My critique, and therefore also my proposals for reform, focuses mainly on the defence barrister, who exploited his right to ask leading questions with total disregard for what effect this would have on the witnesses he was cross-examining. The barrister’s aggressive demeanour and patronising tone had different affects on different witnesses. Many looked as though they were uncomfortable, eager for their questioning to conclude so they could leave. Some became frustrated with the defence counsel’s approach, whilst others became genuinely distressed by the process. Even I, as an observer, felt uncomfortable and concerned for the witness. It is not that what the defence counsel was doing was wrong. Counsel was seeking to discredit witnesses and poke holes of doubt into the prosecution’s case; a reasonable approach to take. It is difficult to see, however, how these methods of using the witnesses merely as a means to an end can be justified. Moreover, as an observer, and as I suspect the jury felt, I couldn’t help but naturally feel against the defence. It is difficult to want to trust and believe someone who appears willing to go to any lengths to prove themselves right and ‘win’.

 

4. THE NEED FOR REFORM

 The Hon Michael Kirby warns us not to ‘throw the baby out with the bathwater’. An adversarial system will inevitably give rise to adversarialism, and some adversarialism is indeed necessary. Although it is not recommended that adversarialism be removed in its entirety, (after all, it does come with its benefits), it is arguable that the system has become unnecessarily adversarial. Enright distinguishes between this ‘good’ and ‘bad’ adversarialism, distinguishing ‘protective’ adversarialism, which is essential for justice, and ‘tactical’ adversarialism, which is toxic to justice. He says that tactical adversarialism ‘occurs where the rules and practices allow a lawyer to attempt to win the case by means of tricks and stratagems that have no connection with the merits of the case’. It is this desire to win at all costs, which is sometimes referred to as ‘zealous advocacy’, that I was able to witness for myself in the defence lawyer (King et al, 2014, 266). It is this ‘tactical’ adversarialism, which is unnecessary and unjustifiably present in the justice system, that should be ‘thrown out’.

 a. REFORMING LEGAL EDUCATION

 Moving forward, one of the simplest and arguably most effective reforms would be in the field of legal education. Reforming legal education to focus less on what lawyers need to know and more on what lawyers need to do would help solve some of the problems with the adversarial system that were adumbrated earlier on. By reforming legal education, the legal profession is inadvertently affected and therefore, so is the justice system itself. Making positive changes to the way students are taught in law school would remove the unnecessary adversarialism in both legal practice and culture.

Currently in Australia, law schools are highly competitive environments that use case-based teachings, which focus on appellate judgments and use written examinations to assess students. Freiberg, in her journal ‘Non-adversarial approaches to criminal justice’, says that, ‘current teaching practices are, to a large extent, based on the adversarial paradigm’, but it is possible for this argument to work both ways. Although the adversarial framework of the Australian system has meant that legal education has followed this practice to give rise to law courses that are inherently adversarial, the emphasis law schools put on adversarialism has arguably fuelled or exacerbated this culture of competition and the image of the lawyer as a ‘zealous advocate’. In order to change the legal culture so that a defence lawyer doesn’t feel the need to push a witness to what might be described as the edge of having a breakdown, at the off chance that this would better help him ‘win’, it is necessary to address the problem at its root: law schools which plant seeds of adversarialism into each and every law student.

Countless reports and papers have been published recommending such reform. The Australian Law Reform Commission stated that legal education should focus on what lawyers need to be able to do, as opposed to what they need to know; the MacCrate Report by the American Bar Association in 1992 recommended traditional legal teachings be integrated with practical lawyering skills; the Carnegie Report said that there should be ethical and social skills teaching in order to engage the ‘moral imagination’ of students. How can these recommendations be brought to life in law schools?

The content of the curriculum of law schools requires change. The aims of law schools need to be re-evaluated and reflected through their teachings. The “Priestley 11”, as found in the Legal Profession (Admission) Rules 2008, which fails to address the need for practical skills, is somewhat out-dated. Freiberg provides a helpful list of items that the curriculum should also provide, including an understanding of the nature of conflict, skills in negotiation and mediation, subjects that were problem-based as well as doctrine- or theory-based, and an understanding that cases involve real people and therefore have psychological and emotional aspects to them.

Although making changes to the content of classes is a good place to start, it is not enough to remove the preoccupation of unnecessary adversarialism. In their journal article ‘The Law School Matrix: Reforming Legal Education in a Culture of Competition and Conformity Legal’, Sturm and Guinier say that education must move away from what they call a culture of ‘competition and conformity’, arguing that law school culture should be made an integral part of the conversation about law school reform. Their justification of which is that the legal culture will shape a lawyer’s ‘modes of thought, their language, their self image as professionals, their particular professional and organizational history’. It is evident, therefore, that the legal culture law students are nourished in, where they develop into lawyers, has a great effect on the legal profession as a whole. It is also important to recognise, however, that to change the legal culture, one that has been passed down through generations of lawyers and to which most legal professionals are attached, is not to be considered a light task and can only occur over considerable time. This is particularly so since law schools, as relatively conservative institutions, are rather resistant to fundamental change.

 b. REFORMING THE ROLE OF THE JUDGE

 Reforming legal education, although necessary, may have limited effects on the confrontational environment witnessed within a courtroom. A somewhat more drastic reform may look to alter the role of the judge to something more akin to the inquisitorial systems present in most of Europe, what many writers refer to as ‘active, not passive, judges’ (See, eg Freiberg, 2007, 217).

The inquisitorial system is dominated by the preliminary investigation stage where a file or dossier is prepared which is relied upon throughout the case and contains witness statements and all the evidence gathered. It is then the judge who presents the evidence and conducts the trial process whilst the lawyers play the more passive part. In some ways, the roles are the reverse of what is seen in an adversarial system. What this means is that although both systems have the seeking of truth as their aim, the adversarial system attempts to do this by pitting the two parties against each other in the hope that the competition will reveal the truth. This is one of the main reasons why the inquisitorial stem is far less confrontational and appears far less conflict-focused or competitive. Furthermore, because less emphasis is placed on oral evidence there is very little, if any, cross-examination of witnesses in the manner of an adversarial trial and it is the judge who conducts witness questioning. This means that the adverse affects on innocent witnesses, like those I had witnessed myself, are greatly reduced in the inquisitorial system. Moreover, since in the adversarial system it is the parties that choose which evidence to produce, there is no guarantee that they will present everything that is relevant if it has the potential to harm their case. This is, of course, avoided in the inquisitorial system where it is down to the judge to collect evidence and choose what should be presented.

It should be noted, however, that judicial impartiality is considered a major strength of the Australian adversarial system. Malleson described it as, ‘a key principle which is valued not just as a means of ensuring fair and truthful judgements but for its key role in maintaining public confidence in the decisions of the court’. The fact that the judge is independent of and separate from the prosecuting authority ensures that both parties are treated fairly and guarantees impartial treatment without bias. Former Chief Justice Gleeson referred to a judge’s demeanour as giving ‘to the parties an assurance that their case will be heard and determined on the merits, and not according to some personal predisposition on the part of the judge’. This effectively means the system is less prone to abuse and doesn’t promote bias.

 

5. CONCLUSION

Courts in common law jurisdictions such as Australia are a part of criminal justice system based on an adversarial system of law. The system relies on a two-sided structure of opposing sides that present their position on the case before an impartial judge. It is this framework, whereby adversaries are pitted against each other in order to reveal the truth to the judge, which creates an environment of tension and conflict within the courtroom. I had the opportunity to personally witness this confrontational setting in the context of a murder trial, and was critical of what I had observed. This essay therefore analysed the negative aspects of the criminal trial process that I was able to see, focusing mainly on the unnecessary adversarialism emanating from the defence lawyer.

One suggestion is the reform of legal education. This is arguably the best place to start in order to truly remove the negative aspects of the courtroom atmosphere such as conflict and confrontation. It would address the problem from its root by altering the curriculum to include non-adversarial classes but should also look to changing the culture of law school away from one of competition, where ‘winning’ is seen as the ultimate goal. A successful change in the culture of law schools would resonate through to the legal profession and the justice system.

A second proposal, which addresses the issues of adversarialism more directly but that is also a more substantive change to the current adversarial framework, would be to alter the role of the judge to be more like what exists in inquisitorial systems. In the adversarial system, the judge is often described as ‘impartial’. Lawton LJ said, ‘I regard myself as a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts, I must neither take part in it nor tell the players how to play’ (Laker Airways Ltd v. Department of Trade [1977]). Such a system is often contrasted to the inquisitorial system where the judge has a key role to play in the investigation and the calling of witnesses. This shifts control of the case from the adversaries to the judge, diminishing the element of conflict between both sides and removing the power of the defence lawyer to create confrontation.

Although I believe there is a need to reform legal education, not only to keep up to date with the forever evolving justice system, but also to better the legal culture, I doubt it would be sufficient to have a substantial impact on the dynamics of the courtroom. For such a change, more direct reform is needed, for instance, the reform of the judicial role. It is, however, recognised that many legal professionals have a certain attachment to adversarialism and so the deep-rooted, entrenched legal culture and long-standing role of the judiciary will not be easy to uproot. Nonetheless, it seems to be the appropriate way forward in order to move away from the current system of conflict and confrontation.

 

Joana Bourouphael is a third year law student at the University of Warwick and is currently on one-year exchange at Monash University. Her enjoyment for advocacy has lead her to get involved in many mooting competitions, including the national Landmarks Chambers Mooting Competition 2016. She has also been involved in pro bono work with the Warwick Death Penalty Project Group, as well as with the Bar Pro Bono Unit. Additionally, she is set to trek Machu Picchu in aid of the Make-A-Wish in September 2017.

 Twitter handle: @JBourouphael

 

 

 

 

 

 

 

 

 

 

 

 

Call for Papers: International Seminar on ADR and Legal Aid, Kolkata, India, June 2017

THE WB NATIONAL UNIVERSITY OF JURIDICAL SCIENCES, KOLKATA Presents

International Seminar on ADR and Legal Aid (A Dissemination Seminar under the Department of Justice Project) 24 June 2017

Background:

Strength of the justice delivery system lies in providing quick and inexpensive relief to the people having disputes. Most of the states in the world have responded to this need of the people by setting up strong forum of ADR. However, the issue doesn’t seem to be addressed satisfactorily in India, which still primarily banks on the judicial settlement of disputes. This has paved way for congestion in courts, ultimately leading to the unwanted delay in the dispensation of justice. There is a huge backlog of cases pending before various High Courts as well as lower judiciary in India.

However, at no point of time the inflow of cases can be stopped nor should it be, since the doors of justice can never be closed. Therefore, there is a need to increase the outflow, which requires some additional outlets like ADR.

Dispensation of justice in India has also got setback due to the inability of poor to have access to the justice delivery system. Today, seeking justice has been an expensive affair in spite of the sincere urge and efforts to make it cost effective. Various other factors like lengthy procedures, complex issues involved, unreasonable adjournments granted and many more have made us to be skeptical towards the Judiciary.

But like in life, even in law we have some silver lining- a ray of hope, a helping hand towards the needy. Legal aid is one such scheme which guarantees to all that in case of need for legal assistance, a person can ask for it not as a charity but as a right. The efforts to popularize the ADR mechanisms and to provide necessary legal aid are made through the Arbitration and Conciliation Act 1996 and Legal Services Authorities Act 1987. The legal aid and Lok Adalats under the Legal Services Authorities Act 1987 are increasingly dealing with civil cases, matrimonial cases, criminal cases excluding noncompoundable offenses, labour matters as well as matters pertaining to motor accident claims. Legal aid societies have emerged in many parts of India to assist the needy in seeking justice or even to provide free legal aid in suitable circumstances.

Emergence of national law universities in many states has also helped in promoting access to justice through the institutional legal aid societies. Despite the above efforts, the situation is still worrisome. Large numbers of people in India are still not having access to justice and many amongst the remaining are not satisfied with the kind of justice delivered to them. The state of West Bengal is not an exception to this norm. The West Bengal Judiciary has time and again stressed on the importance of ADR and legal aid in the settlement of the disputes.

However, the masses have not yet embraced the ADR whole-heartedly due to their scepticism about the effectiveness of ADR coupled with the over-reliance on the traditional court system. Moreover, the lawyers, being trained only in hardcore litigation, are finding difficulty in adapting to ADR mechanisms. Added to this, quality legal aid has always remained expensive and illusive for poor mass.

In light of the above factors, The WB National University of Juridical Sciences has undertaken a major research project to study the position of ADR and legal aid in West Bengal with an objective to improve them. The research team of the project has conducted a study of current position and has come out with its findings. Finalising the research report is now being done with a dissemination seminar to receive inputs from different scholars in the field.

 

Objectives

One of the major objectives of this seminar is to discuss the project findings before the panel of experts and to get their valuable feedbacks. Since the research team is suggesting on the improvement of situation relating to ADR and legal aid in West Bengal, search for a better working model is on. Hence, all the papers to be deliberated in the Seminar would carry the objective of outlining such a model.

 

Call for Papers

Those who are interested in presenting a paper on any area of ADR or legal aid must send an abstract of 600 words along with a brief biographical note (not more than 200 words) on or before 25 April 2017.

Submission should only be on any good model of ADR or legal aid, which is practically working in any part of India or in other jurisdictions. Preference would be given to those papers that incorporate empirical method of research. The acceptance of paper for presentation would be informed by 30 April 2017.

A full length paper of 4,000 – 6,000 words must be sent by 10 June 2017. If the full length paper is not submitted before the last date, authors will not be allowed to present the paper in the Seminar. Submission of the full length paper would be presumed as unconditional consent of the author/s for its possible use in the preparation of research report by the organisers.

Submission of abstracts and full length papers must be made through e-mail to Dr. Shyamala D. at shala_llm@yahoo.co.in. All submissions must be made in Microsoft word.

 

Participants’ Registration

There is no registration fee for the Seminar. However, the participation to the Seminar is limited to 50 participants (excluding the paper presenters).

All interested participants must register by sending a mail to Ms. Amrisha Tripathi at amrishat@nujs.edu. Registration would be done on first-come first-served basis until the seats are filled.

 

Financial Support

Limited financial support is available on competitive basis to meet the transportation and accommodation expenses of outstation participants presenting their papers. Financial support to the extent of Rs. 30,000 (Indian Rupees thirty thousand only) would be available to selected four international participants. Financial support to the extent of Rs. 10,000 (Indian Rupees ten thousand only) would be available to selected four national level participants. Decision on financial support would be made on the basis of quality of the paper and its relevance to the project work.

Those who would like to avail the financial support must submit their full length paper by 15 May 2017 along with a request for financial support highlighting their expected expenditure to enable the organising committee to take an early decision. Decision of the organising committee on all aspects shall be final and binding. Financial support, if granted, shall be collected by the recipient during the time of seminar by providing adequate proof of identity.

 

Dates

Last date for submission of Abstract: 25 April 2017

Last date for submission of Full Paper: 10 June 2017

Last date for submission of Full Paper for Seeking Financial Support: 15 May 2017

Conference Date: 24 June 2017

 

Contacts

E-mail id for Submissions: shala_llm@yahoo.co.in

E-mail id for Registration by Participants: amrishat@nujs.edu

Contact Number: +9133-23357379 / 0765 (extn 1180) +91 8617705282

Conference Coordinator Dr. Sandeepa Bhat B. Professor of Law Principal Investigator – Department of Justice Project on ADR & Legal Aid The WB National University of Juridical Sciences 12 LB Block, Sec III, Salt Lake City, Kolkata West Bengal, INDIA

 

Conference Venue:

The WB National University of Juridical Sciences 12, LB Block, Sec III, Salt Lake, Kolkata – 700098 *

Note: Certificate would be issued to only those participants who attend all sessions.

 

Consultation comment invited – Review of the Farm Debt Mediation Act 1994 (NSW)

The following has been posted on behalf of Dr Hanna Jaireth, Farm Debt Mediation Officer at the NSW Rural Assistance Authority

Consultation comment invited – Review of the Farm Debt Mediation Act 1994 (NSW)

drought

Photo credit: Tim Vrtiska

The Farm Debt Mediation Act 1994 (NSW) (FDMA) is being reviewed to ensure it continues to deliver on its original intent, and to provide a model for nationally consistent legislation.

The Board of the NSW Rural Assistance Authority (RAA) is overseeing the review.

Your feedback is requested in response to questions in the Review Consultation Paper (PDF, 696.57 KB).

Submission options

You may respond by 5 May 2017 by:

  • completing theonline survey, or
  • emailingyour comments, or
  • posting your comments in hardcopy, or
  • one or more of the above.

Online survey

The online survey provides the questions raised in the Review Consultation Paper (PDF, 696.57 KB) so that if you wish, you can respond easily to all or some of the questions.

Individual survey responses will not be published.

Questions 1 to 3 are mandatory so that we can assess which stakeholders express which views, and we can provide you with information about the outcomes of the review.

Email your comments

If you wish to email a submission, please email farmdebt.mediation@raa.nsw.gov.au.

We would prefer to receive longer submissions in Word and/or Pdf format as an attachment.

Please make it clear if you attach additional documents to your submission, whether those documents may be published on the review website.

Post your comments

You may send a submission in hard copy to:

Dr Hanna Jaireth NMAS | Farm Debt Mediation Officer

NSW Rural Assistance Authority

Level 2 | 161 Kite Street | ORANGE  NSW  2800
Locked Bag 23 | ORANGE  NSW  2800
Ph: 1800 678 593 | Fax: 02 6391 3098 | E: hanna.jaireth@raa.nsw gov.au
W: www.raa.nsw.gov.au

Release policy

The RAA will not accept or publish anonymous submissions or comments.

Private contact information will not be published, but submitters’ names and organisations will be published unless a request for confidentiality is agreed after consideration of a written request.

Submissions will be published on the RAA’s website in full or in part unless the RAA declines to accept a submission because it contains information of a private, legal or otherwise sensitive nature, or because it is vexatious, offensive or defamatory.

If a submission includes something critical of another person or organisation the RAA will write to them and ask them to respond, and the RAA may decide to withhold publication of both the submission and the comments made in response.

Further information

If you need to access a translating and interpreting service please telephone 1300 651 500 or visit the Interpreting & Translation page of the Multicultural NSW website.

For further information please:

 

There is a time and place for mediation but a bullying allegation in the workplace is not one

 By Carmelene Greco

 

This post is the final in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University in 2016. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

 

bully

Photo Credit: Dick Vos

The practice of mediation to resolve workplace bullying allegations is controversial and largely debated amongst academics. Ironically, effective resolution of such disputes is extremely important in our jurisdiction, with Australia having substantially higher rates of workplace bullying when compared to our international counterparts. This “hidden problem” requires a specialist and careful response but mediation is not it, and it may in fact make the situation worse.

 

Workplace bullying is notoriously difficult to define and there is still no nationally uniform definition. It has been described as “repeated, unreasonable behaviour directed towards a worker or group of workers, that creates a risk to health and safety”.  It involves an addiction to controlling others, harassment and verbal abuse and constant unjustified criticism. It is not, as accurately stated by the Fair Work Commission, “reasonable management action that’s carried out in a reasonable way”.

Mediation, which aims to be an empowering process, involves trained third parties intervening on a dispute to assist parties to make their own decisions. As stated by the National Alternative Dispute Resolution Advisory Council:

The mediator has no advisory or determinative role…but may advise on or determine the process of mediation…

Therefore, any solution is not imposed on parties but arises out of the empowerment of the parties to make it themselves.

It is important to stress that there is a lot of evidence of mediation providing an effective outcome in many cases where it helps facilitates solutions to problems that appear unsolvable. However, the key distinguishing features of mediation, which make it an attractive option in many instances, are the very reasons it is inappropriate for workplace bullying.

 

Comparing workplace bullying and family violence

The very nature of workplace bullying automatically suggests that mediation is an unsuited response. Workplace bullying is frequently compared to domestic violence – they are considered “almost identical twins”. In both scenarios there is an addiction to power, the controlling of another in a detrimental way and a severe power imbalance.

Mediation, and other forms of ADR, can be considered inappropriate in cases of family violence. This is exemplified by current Australian family law legislation that affords an exception to the mandate of alternative dispute resolution where there is the presence of family violence. This displays the recognition by the Australian Parliament of how a severe power imbalance can undermine the benefits of mediation.

Similarly, in the case of workplace bullying, a power imbalance and a potential ongoing relationship exists, as such the effectiveness of mediation is reduced.

Consistently, shuttle mediation may also be an ineffective solution as it can exhaust parties into premature agreement, as well as not effectively ensuring the relationship of control has ceased.

Accordingly, on the basis that mediation is not appropriate for allegations of domestic violence, it is equally unsuitable for allegations of workplace bullying. It was argued by Hadyn Olsen that:

The practice of demanding mediation as the first response to any workplace grievance (including Workplace Bullying) places our society back in the same position it was in the 60’s and 70’s in regard to domestic violence. It is an entirely inappropriate response to this problem.

In conjunction with this dynamic is the fact that there are very few options available to the target of workplace bullying. It can be that the target has already resigned, intends to resign or is still employed and wishes to remain employed. The target is likely to be placed in a position of being wedged in a toxic working environment because of their financial needs and a lack of options for alternative employment. This again places the target of workplace bullying in a particularly vulnerable position, which is unique to this category of dispute.

The defining feature of workplace bullying allegations is the power imbalance between the bully and their target, which is exacerbated if the employer is also the bully. Mediation in such conditions is likely to reinforce the dynamic and worsen the situation, as it would in the domestic violence context already discussed. Meanwhile, reaching a constructive outcome jointly between parties is the hallmark of mediation – that is it involves a compromise and a desire to settle. A bully is unlikely to have this aim but instead view the mediation as an opportunity to further manipulate the target. Furthermore, the target is likely to be further disempowered and unlikely to reach a favourable outcome because of a lack of capacity to negotiate with the bully.

Hadyn Olsen noted that he has not met any target of workplace bullying who feels mediation was fair for them but argues that instead, in most cases targets feel further abused and damaged by the process. Similarly, a representative from Northern Territory Working Women’s Centre stated that:

The imbalance of power is so profound that she is just not able to speak freely… I think it would be unsafe and really inappropriate if it required the person who was being bullied to sit face to face with the person who was bullying her….

  

Bullying is not and cannot be a neutral agenda item

In a typical mediation, the issue to be considered is one that both parties are equally as affected by or equally contributed to. But in the context of workplace bullying, the agenda is entirely based on the inappropriate behaviour of the bully in the workplace.

A mediator may struggle to frame this issue as an agenda item and by referring to it as a ‘relationship’ the target of the bullying may interpret this to mean the mediator does not believe the bullying occurred. At the same time, a bully would view this as a reinforcing their lack of fault. Therefore, in workplace bullying allegations the person and the issue cannot be separated and trying to frame it otherwise can be detrimental.

 

Mediation fails to punish past behaviour

 Mediation focuses on the present and future relationship between the parties and does not punish past behaviour. This is because it usually involves a mutually engaged in conflict. But workplace bullying is different. There is clearly one victim; one person who needs recognition of what has occurred in order to heal and move on. Dr Caponecchia stated that:

Mediation is more focused on not whether it happened or not but, ‘Let’s get back to work’, which may mean transferring someone.

Facilitators of workplace mediation argue that this is a benefit of mediation because it offers a fresh start and is about moving forward. However it is unlikely that targets of severe bullying will be looking for a fresh start and, instead, are more likely to want recognition and an apology. This is particularly the case where the target has decided to resign from their employment.

 

Public interest

 It may also be in the public interest for matters of workplace bullying to go to court and not to be held in a private mediation. Mediation keeps any wrongdoing outside public scrutiny or knowledge. This is not a good thing because the knowledge of the prevalence of workplace bullying is significantly restricted, which in turn, reduces the likelihood of policy being developed in response. Because of the high levels of workplace bullying in Australia, full transparency is necessitated to establish an effective response.

 

But does this mean mediation can never be appropriate for workplace bullying?

 It is arguable that a complete power balance between parties to a mediation is not the norm and hence it is always the role of the mediator to manage this relationship and minimise the impact of any imbalance.

Power imbalance can be managed by:

  • the use of support persons for each party (whether that be a family member or otherwise);
  • effectively communicating the rights of each parties and ensuring they are aware of these rights;
  • reality testing the options available to both parties;
  • representation by an advocate; and
  • informing the target that they have specific rights against the bullying – such as the ability to lodge a formal complaint.

If it is believed that the imbalance of power is not so severe that a mediator can effectively manage it, mediation may potentially be appropriate. However this is going to very much depend on the particular situation. It is likely that a mediator is going to be able to more effectively manage the power imbalance if intervention is early. Mediation is of no use where the target is now seeking full justice or retribution.

Consequently the suitability of mediation very much depends on the stage of escalation of the bullying. It is thought that mediation can be a helpful early intervention technique. The House of Representatives, Standing Committee on Education and Employment (2012), inquiry into workplace bullying found that several submissions supported mediation as an early intervention.  It was stated in that report that:

Mediation cannot be the panacea to workplace bullying, rather, it is an effective early intervention tool and needs to be applied on a case-by-case basis.

Moira Jenkins also supported the use of it as an early intervention model stating that:

I do not think mediation is appropriate later on when you have very damaged people, but as an early intervention I think it is great.

We should begin with the assumption that mediation is an inappropriate way of dealing with workplace bullying. Where the bully is the employer, this position will not change. In such cases, arbitration provides a more appropriate dispute resolution option as it offers the opportunity for the past wrongdoings committed by the bully to be discussed and for them to be held to accountable. This is an important process for the victim in moving on and essential to facilitate a productive working environment by focusing on past behaviour, which mediation fails to do. In addition, arbitration allows somebody in power to define what is and isn’t bullying and to avoid allegations by the bully of hypersensitivity in the victim.

Alternatively, however, if it is identified that the bullying is at the very early stages of escalation and that a mediator is able to effectively manage the existing power imbalance, mediation may then be carefully conducted. If there is any doubt, it is in the best interest of the general public and of the target, that mediation is avoided as a means of managing allegations of workplace bullying.

A consequence of this protection of the victim of workplace bullying may be, unfortunately, that their access to justice is reduced to some extent. However, this is, in many circumstances, a necessary concession. Additionally, the availability of arbitration, which is not an overly expensive option for litigants, ensures that justice is not inaccessible.

 

Carmelene Greco completed a Law/Arts degree, with a major in journalism, at Monash University in 2016. She is now a graduate lawyer at King & Wood Mallesons and has a keen interest in exploring alternative dispute resolution prospects within the commercial law context.

Nearly Neutral: A Mediator’s Best Bet

By Amanda Selvarajah

This post is the third in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

 

the-gate-by-guillaume-delebarre

‘The Gate’ by  Guillaume Delebarre: Creative commons source

The National Mediator Accreditation System removed “neutrality” as a requirement on their list of ethical standards in 2015. This may suggest a trend away from the truly “neutral” mediator in the sense of a ‘detached third-party’. But does this mean we are to rule out neutrality entirely as an ethical consideration in mediation? With a trend of increasingly interventionist mediators, a complete disregard of the concept could place participants at great risk of being subjected to ethically dubious decisions.

     Perhaps the reason for the mediation community’s shift from neutrality is not because of a flaw in neutrality itself, but rather a failure to grasp a version of neutrality that can and should be an important element of an ethical mediation. Instead of defining neutrality as an unattainable attribute intrinsic in the nature of a mediator, perhaps we should be viewing neutrality as a constant practical endeavour throughout the mediation process, a mediator who’s nearly neutral.

Why Neutral At All?

A mediator in its simplest description is a ‘trained, impartial third party’ who assists parties in making their own decisions. However, mediation remains unregulated and virtually unmonitored as it is typically conducted in private with assurances of confidentiality. Mediated parties are expected to relinquish a guarantee of the principles of justice and fairness that would be inescapable in a common law court. It is these qualities of mediation that leave participants particularly vulnerable to a biased decision in the event of a potentially opinionated, interventionist mediator. Therefore, it is the consensual participation in the process and the assurance of “neutrality” that many consider the source of the process’s legitimacy.

On the spectrum of mediator involvement in mediation, the facilitative approach, which focuses a mediator’s role to procedural stages, leaves parties with as much freedom and control in the substance and outcome of the mediation as possible. The evaluative approach, on the other hand, has even been disregarded by some, like the Victorian Association for Dispute Resolution, as being a form of mediation at all. They argued that the mediator’s ‘input into the content, and sometimes the outcome’ of the mediation made the process inherently contrary to the core principles of mediation.

Such or any mediator involvement may suggest, as critics of the evaluative mediation approach do, an immediate breach of neutrality. But this is only the case if neutrality is restricted to a ‘strict, dualistic sense of the mediator either being or not being neutral.’

Why Not Be Absolutely Neutral?

To truly make the case for a re-imagined concept of neutrality, one must first accept the bold suggestion that mediations are not neutral in its literal sense and could likely never be so. Mental health professionals have found that ‘there is no such thing as total impartiality, neutrality, or lack of bias when working with people, even though as practitioners they may strive for such ideals.’ In mediation specifically, research has shown that in practice, mediators may affect and influence mediation at almost all stages of the process. Examples include ‘the ways they structure the interchange between the parties, in terms of the sequencing of storytelling and the framing of responses and what needs to be responded to.’ It follows then that any assessment of a mediator’s success in reference to their ability to be neutral, in the literal sense of the word, would set almost all our mediators up for failure.

However, regardless of a mediator’s ability to be neutral, there is the added consideration that absolute neutrality may not even be conducive to the goals of a truly successful mediation. For example, in the case of the simultaneous expectations that a mediator be both absolutely neutral but also committed to facilitating an equal conversation, one often comes at the cost of the other.

Mediated parties often experience a power imbalance. Therefore, a hands-off mediator may in these cases fail to protect ‘vulnerable parties from inappropriate pressure’. In family law mediation (family dispute resolution or FDR), for example, parties often meet at very unequal terms. Mediators in these cases may be caught between either claiming a position of absolute neutrality, thereby stripping them of the power to ‘redress imbalances’, or recognising a role in sometimes having to take ‘affirmative action… to achieve a balanced agreement.’

Family dispute resolution practitioners must consider if ‘family dispute resolution is appropriate’ before mediation is undergone. This may allow for vulnerable parties to be excluded from the mediation process, sparing mediators the struggle of balancing these competing expectations. But some victims still ‘feel that FDR processes fail to identify and manage the risk of family violence effectively.’ The exclusion also does nothing for parties beyond family abuse dynamics who may still be more vulnerable than the other party due to cultural, societal or financial factors.

This concept of absolute neutrality is similarly challenging for indigenous mediators, to whom Western notions of neutrality may not make sense. In indigenous mediation it has been recommended that a respected elder would likely be the more appropriate choice of mediator than a neutral third-party. Selecting a mediator for their ability to intimately understand the parties as opposed to their ability to detach themselves from them is arguably in direct opposition to Western expectations of a successful mediator. A commonality in our understandings of a successful mediation, however, may be the increasing interest in addressing the conflict at the heart of mediations.

Therapeutic jurisprudence, a philosophy focused on critically viewing our legal systems to maximise the health and wellbeing of those who engage with it, has been applied to improve and direct law reform throughout Australia’s legal system. Critically assessing the purely facilitative mediation process through a therapeutic jurisprudence lens unearths the potentially anti-therapeutic effects of having a non-interventional, solution-centric mediator who as a result, fails to address and redress the underlying tensions at the heart of parties’ relationships. The development of therapeutic jurisprudence throughout Australia is proof that the indigenous community’s focus on rebuilding and strengthening relationships is not unique and could be facilitated in mediations with a more involved mediator.

A New, Nearly Neutral Approach

Neutrality was seen as a cornerstone of mediation’s procedural fairness, the idea that ‘what is required by procedural fairness is a fair hearing, not a fair outcome’. The facilitative approach has, therefore, been described as having the highest regard for procedural fairness on the basis of perhaps a rather simplistic equating of a fair hearing with a decision-maker who allows parties to make their own case with as little intervention as possible.

This argument assumes, however, that participants of mediation are always equally capable of articulating and pursuing their own interests and that they are always more concerned with a practical outcome than a resolution of the underlying feelings and conflict which brought on the mediation in the first place.

However, research has shown that in mediation ‘the basis of authoritativeness (e.g. of the ability to gain voluntary acceptance from members of the public) is changing from neutrality-based to trust-based.’ This suggests that contrary to advocates for neutral mediators, parties may actually prefer a more interventionist mediator who is willing to foster openness and build a relationship of trust over a detached one.

So perhaps instead of aligning neutrality with a mediator who never intervenes, it would be best to hold mediators’ interventions to standards ‘of non-partisan fairness or impartiality’ instead. For example, weighing, as an objective third-party, whether an intervention would make sense to ‘facilitate a productive dialogue by encouraging or even coaching reticent or inarticulate parties’ to promote a generally more just proceeding. After all, in the immortal words of Theodore Roosevelt, ‘Impartial justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.’

 

Amanda Selvarajah is (@amanda_darshini) currently in her third year of the Bachelor of Law (Honours) program at Monash University. Her research has focused on questioning the limits of the law and its rooms for improvement across a variety of fields. Last year, her research into the abuse of forensic evidence in court was selected for presentation at the International Conference of Undergraduate Research.

 

Should mediation be regarded as a separate profession?

By Spencer Csapo-Grege

This post is the second in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

 

I INTRODUCTION

For effective dispute intervention, mediation may be a necessity. Issues may arise as intervention through mediation requires a particular skill set that is not taught to all mediators. Because mediation requires independence of knowledge it could thus benefit from existing as a unique profession.

The central issue is whether the lack of legal, or other specialised expertise in independent mediation outweighs the positive benefits of independents being solely trained in mediation skills. I propose that it would – mediation should not be a distinct profession, based on three peripheral issues.

The first is that of qualification, it is already evident that Mediators can be sufficiently qualified to demonstrate an appropriate standard in their mediation ability.

The second issue addresses the need for professionalism, over the potential loss of individual comfort.

And, the third is the issue of Content – independent mediators may not understand, and hence be able to implement, necessary content into their mediation, such as a mediator not being able to recommend legal options due to a lack of formal training in the law.

separate

Mediation should remain a separate profession. Photo: creative commons source

II ISSUES OF QUALIFICATION

Dispute resolution practitioners currently rely on their status as professionals in other fields such as law, psychology or social work to demonstrate their expertise into the area of mediation. Due to this diversity there are mediation laws which both regulate the requisite standard of mediation, as well as mediator accreditation.

In the National Mediator Accreditation System mediators do not require a formal qualification to satisfy mediation standards. A requisite of experience in mediation, or good personal attributes can satisfy the qualification criteria – demonstrating the potential of being insufficient.

Hence it can be erroneously said that mediation would benefit from formal qualification as its independent identity as a profession will be established, rectifying this potential of insufficiency. However, mediation involves dealing with the individual’s specialised issue, and the accumulation of content relevant experiences aids in its resolution. Thus the identity of mediation is based on the content mediated upon, not on the process.

The current system is effective in recognising this through interconnecting mediation, as dispute resolution, into its relevant field, such as law.

If mediation was a separate profession, there may be two possible financial benefits. Firstly, having to pay someone who has been educated in another profession to mediate, such as law, can be more costly than if mediation was distinct, because the education requirements would likely be less. Secondly, because of this educational difference, Mediation is subject to possible monetary exploitation – lawyers’ fees can be standardised as expensive due to their legal expertise, and not because of their ability to mediate.

This is problematic because monetary gain should not be the driving force behind mediation. If a mediator only cares about making a profit, and not the parties’ situation, then they may stall time to earn a higher profit, even though it is not in the best interests of those involved. Thus a distinct profession of mediation, that is capable of attracting individuals desiring mediation for reasons other than financial gain remains beneficial.

Even though there is possible financial detriment and shortage of formal qualification, the established method of mediator qualification remains sufficient because it binds and aligns dispute intervention to its relevant field. However, the current system of qualification may not be adequate. This is because the National Mediation Accreditation System primarily focuses on facilitative mediation and fails to cover the full range of mediation practices.

However, this flaw also represent the adverse effect that separate mediation can bring – an inapplicability of appropriate mediation principles to specific subject matter and a possibility of exploitation due to mediator exclusivity. Thus, current mediation regulation should not be revolutionised so that mediation is an independent profession.

III ADDRESSING INDIVIDUAL WELL-BEING THROUGH PROFESSIONALISM

A Assistance of Therapeutic Mediation?

A contentious issue with the integration of mediation with other fields is the impact of the people involved on an individual level. If mediators were trained independently, there would be stronger emphasis on the individual and the relationship of the parties – thus therapeutic mediation could benefit. However, a professional able to help with the specific dispute at hand is likely to aid individual well-being because the parties will appreciate the mediator’s assistance on the basis of their professionalism – finding comfort in the mediator having relevant expertise to deal with the content matter of issue. For example, although a psychologist has better educated understanding of, and thus will take into account, the individuals emotional and mental well-being – as opposed to a lawyer. It is probable an individual will be more distressed in a psychologist trying to mediate for them in a matter of law, then a lawyer, because the psychologist is not trained in legal procedure.

B Advancement of Facilitative mediation?

Facilitative mediation is proven to be the most common form of mediation in Australia and is thus the recognized standard. If the integration of mediation advances facilitative mediation, then it indicates that mediation should not be a distinct profession. Integrating mediation provides for a more accurate basis of assessing an individual’s needs, which is important to facilitation, because it’s concerned with addressing both the personal and commercial needs of the parties. And, complete understanding of the individual’s options and abilities, in the case of law, are only prevalent because of the mediator’s legal background. Because mediators cannot usually give legal advice, parties are encouraged to have a lawyer attend with them as the need for legal understanding arises. Thus there is an issue in that a lawyer may want the most profitable outcome for themselves, and not necessarily the best situation for their client, and can, as an advisor to a party in mediation, cause disruption. This issue would be increased if mediators were separate and did not have legal training, because people would be further required to bring lawyers with them, for greater comprehension in choosing the best course of option between mediation and legal. Due to this dependent variable, the parties’ needs may not be prioritized and therefore a separate profession of mediation should not be established.

IV DIFFERENCE IN CONTENT

If mediation was a distinct profession would need to overcome the issue of how to achieve specialization in the subject matter of each mediation. We know that mediators intervene in the content of disputes, even in facilitative mediation. For effective intervention they must be familiar with the subject matter so that they can adequately provide information – based on all available knowledge. Content differentiation varies depending on the type of mediation, however, as outlined below, in general it is likely to indicate that mediation should not be a separate profession, but instead exist as a form of specialisation within its relevant profession. For example – as a lawyer, psychologist or social worker specialising in mediation, with requisite qualifications that demonstrate both their ability to work in the relevant field, as well as their ability to mediate.

The most appropriate option for parties to take may not be that of pure mediation but, for mediation to be a specialisation in a range of professions, such as law. Lawyers are trained in law and can rely on that experience to resolve the issue in a way that may be practical in the circumstances. This is because the legal avenue, may be more feasible then pure mediation. Thus, for a dispute to be resolved in a balanced manner the recommendation of legal options can also play a vital role in mediation – such as through settlement mediation to determine if the matter can be practically resolved in the legal sense, not just through negotiation. Hence, if mediation was independent, it would be difficult to intervene in disputes because the intervener, the mediator, may not fully comprehend the matters of discourse.

Mediation as a separate profession causes another issue in that if a mediator was mediating on a legal matter, but was not trained in the law, they would not be able to predict court decisions, and pressure parties into accepting on the basis of their predictions. Essentially evaluative mediation would be non-existent, or at best, less accurate. Thus, as evident, it is not feasible to blend all the content on which mediation can be applied, into one distinct profession.

V CONCLUSION

Mediation incorporates differing aspects and thus its independence can create broadness which undermines the field itself. The first two issues discussed, that of qualification and professionalism are contentious, and indicate possible support for independence – financial benefit towards the public and emotional health of the parties. Support for the third issue is highlighted as many mediation services focus on the resolution of relationship issues, and not just legal problems. However because relationship issues can be largely influenced by the law, a requisite of comprehension which remains vital to mediation. The third concern discussed demonstrates that this requisite of comprehension only exists with the knowledge gained through formal training in a relevant profession – supporting the current system. Mediation is hence mutually intertwined with its relevant subject matter, whilst benefit is also provided in its separation. As a result, the most suitable conclusion is that there should be organisations within the relevant professions, such as law, to manage mediation – it should be an area of specialised expertise, and not an area of independence.

 

Mr Spencer Csapo-Grege is a third year law student at Monash University with a primary interest in international law, banking and investments. He wishes to focus specifically on international investments, with a particular orientation towards banking. Furthermore, Spencer aims to be involved with international politics through the United Nations – he believes that state sovereignty has no place in a globalised world. For the practice of domestic law, Spencer’s interests are in alternative dispute resolution as he believes that most issues should be resolved outside of the court system. Currently Spencer runs a licensed investigations business and aims to finish his undergraduate studies at the end of 2017.