The Benefits and Challenges of Conducting Empirical Research on ADR

I have just started an empirical project on the use of ADR in resolving discrimination claims, which I mentioned in an earlier post on this blog, and the process of completing the research has reminded me of some of the challenges of conducting empirical research, particularly when the focus of the study is conciliation. In this post, I reflect on these challenges for researchers.

First it’s necessary to explain the context and use of ADR in resolving discrimination complaints in Australia. A person who has experienced discrimination is required to lodge their claim at either the Australian Human Rights Commission or their local equal opportunity agency before they can proceed to court (except in Victoria where this has been optional since 2011). The agency will assess the complaint and if it has substance and falls within its jurisdiction, it will attempt to resolve the complaint using conciliation facilitated by staff conciliators. Most are settled and both the process and outcome are confidential. Those that don’t settle are either withdrawn or proceed to hearing where they may undergo mediation as part of the court’s case management processes.

Conciliation plays a central role in addressing discrimination complaints in Australia yet very little is known about it. Since Margaret Thornton conducted the earliest empirical study of conciliation in 1989,[1] researchers have found it very difficult to get access to information about the conciliation processes. This is because most legislation requires the process to be confidential so that if the matter doesn’t settle, the parties can’t use what was said during conciliation in court proceedings.

If the matter does settle, though, the settlement agreement usually contains a confidentiality clause which can be worded broadly enough to prevent the parties from discussing the claim and the settlement outcome. This makes it next to impossible to interview parties about their experience of the conciliation process and its effectiveness, and it means information is not available, certainly not publicly, about what exactly the claims are settling for. Researchers can interview parties who proceed to court (if the researcher can get access to them) but their view of the process will be quite different from the people who settled their claim.

 

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Photo: Paul McIllroy, Creative Commons

The most common method researchers have used to explore ADR in this area is to interview staff conciliators at equal opportunity institutions and lawyers. However, sourcing interview participants can present its own challenges. There is often not a big pool to draw from – the agencies usually have only a handful of staff conciliators, depending on the size of the State or Territory, who may then suffer from ‘research fatigue’ if they are always called upon. Some may not have enough experience in conducting conciliations. It can be difficult to identify lawyers with enough experience to comment on the process – lawyers don’t usually focus on discrimination law; it’s one part of a large practice area, usually employment law and even those on it may also be small. Barristers may not have any experience of the conciliation process because they will be briefed later.

In saying that, I think that there are many benefits of conducting empirical research on ADR. For one thing, it is a very interesting type of research to undertake. As a legal academic who is used to spending time in a library or at her computer reading legislation, cases and work by other academics, it is often a welcome relief to leave the office and speak to people!

Too often we can get caught up in the theory of law and how it should be operating, whereas empirical research reveals law ‘in action’ and shows its strengths and shortcomings. I have found this to be particularly important in this field where there are very few cases each year; the development of the law is taking place behind the conciliation doors. Empirical research is the only way of filling this gap in knowledge.

[1] Margaret Thornton, ‘Equivocations of Conciliation: The Resolution of Discrimination Complaints in Australia’ (1989) 52 The Modern Law Review 733.

This post draws upon a paper I presented with Dr Alysia Blackham at the Labour Law Research Network’s Conference at the University of Toronto, 25-27 June, 2017.

 

Using ADR to Resolve Discrimination Complaints

I have recently started a research project about Victoria’s anti-discrimination laws that will evaluate, amongst other things, the state’s model of optional ADR. This model has been operating since 2011 and is unique in the country. I thought this would be a good opportunity to reflect on how ADR is used in anti-discrimination law and some of the problems that have arisen from its prevalence.

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A person who has experienced discrimination is required to lodge their claim at either the Australian Human Rights Commission or their local equal opportunity agency before they can proceed to court (except in Victoria but many complainants still approach the agency first anyway). The agency will assess the complaint and if it has substance and falls within its jurisdiction, it will attempt to resolve the complaint using conciliation facilitated by staff conciliators. My earlier research showed that the vast majority of discrimination claims are settled or withdraw prior to hearing; the courts hear very few discrimination claims each year.[1]

There are many reasons for the prevalence of ADR in this jurisdiction. One of the most attractive features of ADR is that it is less intimidating than a court proceeding, which demands, amongst other formalities, technical hearing and evidentiary procedures. ADR is well suited to people who would not pursue a claim if they had to participate in a public hearing. This is particularly important in anti-discrimination law because so many complainants are vulnerable or from marginalised communities. Court hearings are also costly whereas conciliation is provided by a statutory agency so it is cost-free unless parties choose to retain legal representation. ADR is quicker and more expeditious than litigation. Often the agencies are required to process complaints within a set timeframe. For example, one of the Australian Human Rights Commission’s performance targets is to finalise 80% of complaints within 12 months of receipt. In 2015-16 it exceeded this and finalized 98% within 12 months.[2] By contrast, litigation can take years to resolve. ADR is confidential so the parties can negotiate freely, knowing that what is said cannot be used subsequently if the matter goes to court. Finally, ADR is more flexible than litigation. The parties control the outcome, rather having an outcome imposed by a judge. There are no restrictions on the settlement the parties can agree to. Theoretically, the parties determine the terms of settlement.

There are, however, problems with using ADR to resolve discrimination claims. The first is also a problem in other areas of law – the power imbalance between the parties. The concern is that the ADR process may reinforce this to the complainant’s detriment. The Conciliator is expected to address any power imbalances but this may not always be possible, particularly if there are lawyers involved and they engage in aggressive, adversarial behaviour and argue about the merits of the claim, rather than allowing the parties to negotiate an appropriate resolution.

Second, there is no guarantee that ADR protects the public’s interest in eliminating discrimination or that it protects the complainant’s rights and interests. This is most problematic if ADR is used purely as a case management technique, and it often has the purpose when it is managed by a court – the goal is to avoid a hearing.

Finally, while confidentiality is a benefit of ADR, it is a significant limitation in two respects. Most settlement agreements contain a confidentiality clause which prevents the parties from discussing the claim but which many agencies interpret as preventing them from releasing information about the nature of the discrimination complaints they receive and how they are being resolved, even in a de-identified form. This has led to a significant gap in the information that is available about the ADR process and the outcomes negotiated, including for research purposes. This makes it difficult for potential complainants to ascertain how best to resolve their claim and it means courts are not aware of the creative ways in which discrimination could be addressed. The other problem with confidentiality is that masks the extent to which discrimination remains a problem in society and denies the law the opportunity to play an educative role. It then becomes easy for the community to think that discrimination is no longer a problem because it is all hidden.

In 2011, Victoria became the only Australian jurisdiction where it is optional for complainants to lodge their claim at the agency and undertake conciliation. Many complainants are still choosing this path, which shows the value of ADR in this area of law. I am certainly not suggesting abandoning ADR; for many complainants, participating in ADR, having what one lawyer I interviewed described as a “cathartic experience” can be more significant than the actual outcome obtained at settlement. Its limitations must be borne in mind and it is worth considering how to retain the benefits of ADR while mitigating its shortcomings.

 

[1] Dominique Allen, ‘Behind the Conciliation Doors Settling Discrimination Complaints in Victoria’ (2009) 18(3) Griffith Law Review 778.

[2] Australian Human Rights Commission, Annual Report 2015-2016, 27.