About Professor Lisa Toohey

Lisa Toohey is a Professor at the Newcastle Law School in New South Wales Australia. Her full profile is online at www.newcastle.edu.au/profile/lisa-toohey

Mediation standards in Australia – uncovering what actually happens

Alan Limbury

This blog post has been made on behalf of its author, Alan Limbury of Strategic Resolution and was originally published on the Kluwer Mediation Blog on 22 February 2021. It is republished in accordance with Kluwer’s editorial guidelines. The original post can be found here.

Photo by fauxels on Pexels.com

Given the confidential nature of mediation, it is a rare set of circumstances that allow us to catch a glimpse into the mediator’s craft. The current review of the professional standards governing Australia’s accredited mediators provides one such opportunity, The review seeks, to the extent permissible, to uncover what practitioners are actually doing, including the extent to which their knowledge and skills change with experience and in response to the various contexts in which they practise.

What is being reviewed?

After several years of discussion and community consultation, in 2008 a voluntary National Mediator Accreditation System (NMAS) was adopted in Australia. It comprises a set of Practice Standards which specify the minimum practice and competency requirements of a NMAS accredited mediator and a set of Approval Standards which specify the training, assessment, personal qualities and experience required for renewal of accreditation. The system also sets out the qualifications required of Recognised Mediator Accreditation Bodies (RMABs) in order to accredit mediators in accordance with the NMAS. The NMAS was last reviewed in 2015.

The current review

Last year the Mediator Standards Board (MSB), which oversees the system, engaged Danielle Hutchinson and Emma-May Litchfield of Resolution Resources (RR) to lead the NMAS Review 2020-21 in order to evaluate the effectiveness of the NMAS and consider what changes and additions need to be made.

Drawing on well-established techniques from the field of education and psychometrics, RR has adopted a collaborative and data-driven approach. The Australian DR community can therefore feel confident that any recommendations arising out of the review are evidence-based, informed by expert practitioners and reflect the variety of processes and contexts in which practitioners typically operate.

The NMAS Review 2020-21 Process

The process provides a number of opportunities for interested stakeholders to contribute. In particular, it includes widespread consultation involving reference groups, workshops and surveys amongst MSB members, RMABs, training organisations, mediators, community groups, professional associations and other experts in the field.  Information collected from these events will be subject to rigorous data analysis to identify a range of patterns including the way that practice may evolve with experience or as it is applied in different contexts. This type of psychometric analysis, though well-established in other disciples, it not typically used in the dispute resolution sector. This presents an exciting opportunity for the MSB, which is expected to consider the recommendations in mid-2021.

Reference groups

In the first stage, five Reference Groups sought to identify areas for possible amendment to the current standards in relation to First Nations Mediators; Diversity and Inclusion; MSB Member Organisations (including RMABs and training organisations); Non-NMAS Processes (including conciliation, family dispute resolution, hybrid processes and restorative practice); and Institutions with an interest in NMAS (including courts/tribunals, higher education and institutional dispute systems).

Based on my interest in the role of the mediator in hybrid processes such as med-arb and arb-med-arb, I was invited to contribute my thoughts to the Non-NMAS Processes Reference Group. I worked with fellow contributors to identify areas within the NMAS which might address the practice of “switching hats” whereby the same person may act as both mediator and arbitrator in the same dispute, without jeopardising their impartiality as mediator or the enforceability of any arbitral award. An example of the kind of problems that can arise in this area is here.

Workshops

The second, recently completed, stage involved a series of day-long virtual Workshops. Participants, of which I was privileged to be one, represented a cross-section of the mediation community. The object was to flesh out the work done in the Reference Groups. The key focus areas were Professional Knowledge, Practitioner Skills, Professional Engagement and Professional Ethics and Responsibilities.

Key to our dialogue and work for the day was shifting our focus beyond the minimum threshold for accreditation, a perspective which tends to produce a compliance mindset.  Instead, participants were asked to contemplate and articulate the distinguishing features of mediator practice as typically manifested in those who are newly NMAS accredited, those who are proficient and those who would be considered expert.

These levels of practitioner sophistication were further considered in the differing contexts of conciliation, family dispute resolution, court or tribunal annexed mediation, restorative practice, hybrids and diversity.

The rationale for considering varying degrees of practice together with processes which have historically fallen outside the NMAS is to enable the development of a standards-referenced framework which identifies the extent to which knowledge, skills, values and obligations may be common across processes and contexts. This also means that processes and contexts requiring specific knowledge, skills or expertise can also be properly recognised.

This way of thinking about mediator practice is difficult. This is especially so for the expert, who must bring to consciousness elements of their craft that have long since become intuitive. With this in mind, RR developed a suite of pre-workshop materials to help us orient our thinking towards this new way of reflecting on and conceptualizing the evolution of one’s practice. The materials included sample scales of mediator knowledge, skills and attitudes and very useful guidelines for describing quality.

Surveys

The next step in the process is to synthesise the information generated via the reference groups and the workshops to inform the development of the NMAS Review Survey. This survey will be the main instrument for consultation and will be open to all interested stakeholders within the Australian DR community in mid-2021.   The data collected via the survey will then be analysed, using a range of psychometric techniques. The findings from this analysis will form the basis of the recommendations to the MSB.

In this way, every person who completes the survey will play a vital part in the NMAS Review 2020-21 and lend their voice to the future of dispute resolution in Australia.

State of the Art: Program from the 9th Australasian Dispute Resolution Research Network Roundtable and advance notice of the 10th Roundtable

Photo by CQF-Avocat on Pexels.com

One of the greatest joys of academic work is the opportunity to discuss big ideas with colleagues. To really get into the details of another person’s work, think through the issues together, and receive critique on our own work – all in a supportive, engaged group.

For nine years, the ADR Research Network has offered precisely that opportunity to established academics and early career researchers from around Australia. Since that first meeting, our membership and scope has expanded, and this year we welcomed participants from Australia, New Zealand and the United Kingdom. And for the first time, the Roundtable was combined with another established research and teaching conference, the Civil Justice Research and Teaching conference, which has been the main meeting of academics who teach and research in what is sometimes known as ‘civ pro’ (civil procedure) – or more commonly these days ‘civil justice’ or ‘civil dispute resolution’.

We look forward to the 10th Research Network meeting, which is scheduled for February 2022 at Bond University on the Gold Coast. As always, we invite early career researchers and especially PhD students to take part, and encourage any readers who are also supervisors to extend that invitation to their students. A call for papers will be made on this site towards the end of 2021.

In the meantime, here’s the conference program from the 9th meeting, which provides an insight into the range of topics covered this year, together with the abstracts of the papers and the bios of the presenters. Keep an eye out for much of this excellent work coming out in journal articles and other formats throughout 2021.

Pandemic Possibilities: Current Research on Technology and Dispute Resolution

Photo of the conference program showing an aerial view of Newcastle Australia

The 9th Australasian Dispute Resolution Research Network Roundtable, held this year in conjunction with the Civil Justice Research and Teaching Conference, was held on 1-2 February and hosted by the University of Newcastle Law School.

Every year the Roundtable provides a unique perspective on the ‘state of the art’ in dispute resolution research – and this year was no exception. For the benefit of those who could not attend, this post draws insights from one section of the many conference papers – those focussed on the technological change that has been hastened by COVID-19.

The Covid19 pandemic required courts, tribunals and dispute resolution providers to rapidly ‘pivot’ to keep providing services during the pandemic. As Dr Joe McIntyre observed in his paper,

The last five years have seen significant developments in the use of digital justice technology globally. Australia has, in contrast, been relatively slow moving in embracing the use of such technologies to improve the efficiency and accessibility of its courts. The sudden shutdown required to respond to the 2020 global pandemic forced jurisdictions around the country to rapidly cobble together technological solutions to allow emergency access to the courts to continue…

Joe’s paper highlighted what he sees as a potential upside of the pandemic-driven technology shift – that we might be might be willing to shift our mindset to embrace a broader conception of the role of a court. His paper also highlighted some of the practical work he’s been doing on an online mechanism for resolution of tenancy bond disputes.

The Roundtable provided early insights into some of the excellent empirical work undertaken during 2020 on the disruption and innovation seen internationally in the civil justice sphere.

The Roundtable provided early insights into some of the excellent empirical work undertaken during 2020 on the disruption and innovation seen internationally in the civil justice sphere.

Associate Professor Genevieve Grant undertook a study of 37 lawyers about their experiences of hearings undertaken both online and by phone. Her findings reflected a wide range of experiences and both the advantages and disadvantages of hearings at a distance.

In New Zealand, Dr Bridgette Toy-Cronin has been looking – both pre- and post- pandemic at the telephone mediation of rental disputes. While this research was already important in 2019, it has acquired new urgency during 2020 as telephone mediation has become more widespread. While the ‘low tech’ solution of telephone can make it accessible for those not able to engage with video technology like zoom, the medium presents its own unique challenges.

Tayne Redman, is a lawyer at the Accessible Justice Project, which is an organisation established bythe University of Adelaide and law firm Lipman Karas – and which operates as a not-for-profit law firm. Tayne’s presentation highlighted the intense community demand for innovative and cost-effective delivery of legal services – now more than ever for the ‘missing middle’ who can neither afford legal advice nor are eligible to receive legal aid.

My own research, currently still at the stage of data analysis, unintentionally examines the impact of covid on innovation in law firms and legal education. Like many researchers, my team collected data during 2020, which meant that participants’ thoughts were naturally attuned to the impact of the pandemic. That study, designed to understand how legal actors conceptualise and respond to ‘innovation’ has highlighted the beneficial effect that a rapidly emergent situation can have on innovation. Not only is the speed of innovation, by necessity, sped up, the need for rapid change can dampen the impact of path dependency and lessen resistance to change.

What, then, is the way forward for the legal profession, legal institutions, lawyers and academic in this new environment? I think it’s summed up beautifully by one of my interviewees, the Dean of a large law school:

It’s important to consider the relationship between research and its contribution and its community – it’s at its best when there’s mutual understanding. We have brought a sense of mutual understanding much more clearly back into the frame as a result of COVID-19.

We need to focus on what communities and businesses need, and to design solutions that meet those needs. We need to keep building new and innovative partnerships between the academic sector, the public sector and the private sector, and bring lots of voices into the conversation. We also need to carefully evaluate solutions that have been implemented quickly, before allowing temporary fixes to become more permanent. It is reassuring that there is so much important research from the Network continuing in 2021.

What do ‘lay’ people know about justice?

Justice League Entrance

This post is from Charlie Irvine, from the University of Strathclyde in Glasgow, where he is the Course Director on the LLM/MSc in Mediation and Conflict Resolution.  Charlie’s profile is online at https://www.strath.ac.uk/staff/irvinecharliemr/ 

This post is based on his recent publication in International Journal of Law in Context [1]
Image: “Justice League Entrance” by cogdogblog is licensed under CC BY 2.0

 

In June 2017 I travelled from Scotland to attend a symposium on ADR and Justice at La Trobe University, Melbourne.  Being midway through a PhD it seemed an unmissable opportunity to meet other researchers ploughing the same furrow.  It certainly was, and I’m grateful to Lola Akin Ojelabi and Mary Anne Noone for organising it, but in academic life exciting foreign travel usually comes at a price. Three years later they are both to be congratulated for inspiring, editing and contributing to a special edition of the International Journal of Law in Context. I describe my contribution below.  

‘Lay’ people

University teachers faced with marking hundreds of papers have been known to find some crumbs of comfort in students’ more eccentric answers.  I’m not immune to this guilty pleasure, recently learning that ‘another form of ADR is arbitrary.’  More seriously, I am sometimes struck by a common theme among first year law students.  Here are three examples:

‘One of the major drawbacks of mediation is that lay people are in control of justice.’

‘Lay individuals are not capable of concluding rationally justified outcomes.’

‘How will a lay person truly know what is right and wrong if they have no in-depth knowledge of the law?’

However crudely put, these remarks suggest that a few months of legal study are sufficient to persuade young people that the rest of humanity (‘lay’ people)  lack the capacity to achieve or even reason about justice.

When lay people are the decision-makers: mediation

For those of us who practice mediation these sentiments are frustrating.  My clients seem to do a great deal of thinking about justice, and are quite capable of rejecting economically advantageous settlements if they view them as unjust or unfair.  Justice, or resisting injustice, can trump self-interest.

It is not only students who question whether mediation can deliver just outcomes.  A good many lawyers and judges are mediation sceptics and a thriving cottage industry within legal scholarship is devoted to demonstrating its shortcomings.[2]  Even supporters of mediation tend to stress other benefits like cost, speed and good process, leaving justice well alone.

However, academics like a gap because our research can fill it.  A review of the critical literature highlights a gap in our understanding of mediation.  While a lot of attention has been paid to settlement rates, satisfaction, mediator behaviour and procedural fairness,[3] very little research focuses on parties’ reasoning about justice.  And yet each time a case settles both sides must have good reasons for doing so.  What can we learn from their thinking?  I was particularly interested in mediations with unrepresented people, given that represented parties may well defer to their legal advisors.

The research

Scotland has not been particularly receptive to mediation. Some of our most prominent judges have made pointed speeches praising litigation and decrying anything that might divert cases away from the courts.[4]  At the small claims level, however, things are more open and mediation schemes have been operating in the country’s two largest courts since 1999 and 2014 respectively.  These presented an opportunity to interview mediation consumers who experienced relatively little legal or judicial endorsement of the process.  In the end I interviewed 24 people; the article is based on my initial analysis of five interviews.  Qualitative research is less concerned about large, representative samples than in-depth exploration of a complex topic.

Findings

Participants were keen to discuss their thinking.  Not being repeat players in the courts the experience of mediation left a vivid, if not always pleasant, memory.  When asked about what they sought or why they settled they rarely mentioned the law.  However, they expounded a number of themes lawyers will recognise, either as legal doctrines or aspects of practical lawyering.  These included:

  • Restitution – ‘I’m quite happy to take … not be out of pocket from what I intended’
  • Punishing bad behaviour
  • Teaching someone a lesson – ‘he needed to learn that he can’t just get away with things’
  • Holding businesses to account – one participant regretted mediation’s privacy and wished for an ombudsman
  • Pragmatism and tactics – assessing your adversary’s strengths, weaknesses and stubbornness
  • Risk – when you go to court, it’s a 50/50, there’s no guarantees’
  • Empathy for the other party
  • The urge to be, or be seen to be, a fair person (see next paragraph).

Self-presentation[5]

Interviewees are not impartial reporters, and Barnett Pearce warns researchers to watch out for the work language is doing: ‘The world is made, not found.’[6]  An interview is a unique social event and it is reasonable to ask why participants chose some themes and not others.  What were they up to?  What did they want me to understand?

I noticed most tended to answer a question I hadn’t asked: ‘What kind of person are you?’  They seemed particularly keen to portray themselves as fair; e.g. I’m fair … it’s my personal position, you know what I mean’ or I said, this is where I will meet and I said, I think this is fair.’   This self-presentation may play an important role in mediation’s success.  People generally[7] want to see themselves as fair; they probably want the interviewer (me) to see them as fair; and there is a good chance they would also like the mediator to see them as fair.  Perhaps this is why mediation’s success rates and compliance are often greater than sceptics anticipate.

Conclusion

I am not suggesting that these non-lawyers had suddenly developed the capacity for legal reasoning.  Rather, my goal was to counter the reflex dismissal of non-lawyers’ capacity for justice.’[8]  This research reminds us that law and justice are not identical.  A lack of training in legal reasoning does not necessarily mean a lack of interest in or capacity for justice reasoning.

What makes mediation challenging and interesting is that, at least at the low-value end of the justice system, it provides people with the opportunity to determine not only the outcomes to their disputes, but the criteria by which those outcomes are evaluated.  It turns out those criteria amount to more than simple self-interest and include a strong urge to be seen as a fair person.

Paying more attention to ordinary people’s justice reasoning may provide valuable clues about the sort of societal norms on which any legitimate legal order must be based.  In the article I argue that theories of justice would do well to take account of this reasoning, proposing that natural law theory’s emphasis on human rationality explains mediation outcomes better than legal positivism, with its emphasis on state backed rules.  Far from being one of mediation’s drawbacks, giving lay people a voice in justice may prove one its most important contribution.

References

[1] Irvine C, ‘What Do “Lay” People Know About Justice ? An Empirical Enquiry’ [2020] International Journal of Law in Context 1-19, DOI 0.1017/S1744552320000117

[2] I summarise the main themes in the article, pp. 2-7.

[3] For example: Charkoudian L, Eisenberg DT and Walter JL, (2017) ‘What Difference Does ADR Make? Comparison of ADR and Trial Outcomes in Small Claims Court’ 35 Conflict Resolution Quarterly 7-45

[4] See Irvine C, (2012) ‘Scotland’s “Mixed” Feelings about Mediation’ SSRN e-library https://ssrn.com/abstract=2713346

[5] Goffman E, (1959) The Presentation of Self in Everyday Life (London: Penguin Books)

[6] Pearce WB, (2006) ‘Doing Research From the Perspective of the Coordinated Management of Meaning (CMM)’ Available from: https://www.taosinstitute.net/Websites/taos/files/Content/5692988/Overview_of_CMM_in_Research_version_2.0.pdf  (accessed 10 June 2018), p. 7

[7] At least as far as these unrepresented people were concerned.  I interviewed two legal professionals later in the study, and both appeared to regard fairness and justice as puzzling and none of their business.

[8] Irvine 2020 (n. 1) p. 1

New Milestones for the Australasian Dispute Resolution Research Network

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It is now nearly five years since the Australasian Dispute Resolution Network blog was founded in late 2013.

Since that time we have now built up a loyal following of over 10,000 readers, plus additional subscribers through our Twitter presence.    To all of you who have supported us, thankyou!

Associate Professor Becky Batagol, who has served  tirelessly as our Editor-in-Chief for the past five years,  has handed stewardship of the blog to another long-time supporter of the Network,  Dr Olivia Rundle.

As always, the blog remains the primary means of communicating the work of the Australasian Dispute Resolution Network.    We consciously do not maintain any other burdensome administrative structures, such as a formal membership structure or mailing lists.  You can read more about our policies here.   We welcome and encourage participation from anyone wishing to disseminate research about dispute resolution and especially encourage PhD students and emerging academics to participate – and we are not limited to Australasia.   If you would like to become a guest blogger, or a permanent member, please contact Olivia.

We look forward to this next phase of evolution for the Network and the blog,  thank Becky for her hard work and welcome Olivia!

Show me the money! The new Australian Financial Complaints Authority

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In just a few weeks, the three pillars of Australia’s financial dispute resolution architecture will be rolled into a single new body – the Australian Financial Complaints Authority (AFCA).

From 1 November 2019, AFCA will replace the Financial Ombudsman Service (FOS), the Credit and Investments Ombudsman (CIO) and Superannuation Complaints Tribunal (SCT).

As the AFCA website explains, the body will be funded by its members – i.e. Australian financial providers – with the amount payable by a particular provider being a combination of a base subscription and usage based charges.  This is a mechanism common to industry-funded schemes, and is designed to promote effective internal dispute resolution by providers, and ensures that complainants (consumers and small businesses) can access the scheme free of charge.

The jurisdiction and powers of AFCA are set out in its Scheme Rules.  One notable, and beneficial, feature of AFCA is its power to deal with systemic complaints alongside individual disputes, to order that changes be made, and to report AFCA’s findings to government bodies such as ASIC, the ATO and APRA (the Australian Prudential Regulation Authority).

Dispute resolution practitioners may also be interested to know that AFCA has advertised a number of positions at various levels in both Sydney and Melbourne.  Details here.

Image:  Pixabay, licensed for free commercial reuse.

Dispute resolution in the age of information – understanding the legal information experience

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We are said to live in the ‘age of information’, with a vast volume of possibly relevant information available to us for every single decision – from the purchase of an everyday item to the resolution of a complex family dispute.    This has led one commentator to remark  that this large amount of information makes us “like a thirsty person who has been condemned to use a thimble to drink from a fire hydrant.”[1]

Training and experience helps to enable lawyers to  identify information that is current, relevant to the jurisdiction, and authoritative.  However, how do unrepresented parties make sense of legal information?

This was the key research question in a project undertaken by myself and an interdisciplinary group of colleagues.   Funded by the Australasian Institute of Judicial Administration,  we examined how unrepresented parties involved in disputes engage with the information that they need to make sense of their legal rights and responsibilities.

The results of that research have been published in a series of forthcoming articles, including most recently in volume 27(4) of the Journal of Judicial Administration:

Jonathan Crowe, Rachael Field, Lisa Toohey, Helen Partridge and Lynn McAllister, “Understanding the Legal Information Experience of Non-lawyers: Lessons from the Family Law Context” 27(4) Journal of Judicial Administration 137.

What is “legal information experience”  and why does it matter?

Research into legal needs is not a new phenomenon – and it typically focusses on the prevalence of particular types of legal problems, the interaction between different types of legal problems, and the consequences of legal problems for the wellbeing (physical, mental and financial) of individuals.  An excellent example of  this type of research is the large-scale legal needs survey work of the Law and Justice Foundation  of NSW.

“Legal information experience” can be categorised as a subset of legal needs research, but it differs from much existing work on legal needs in its focus and methodology. While some legal needs studies may also consider the role of information, such as the sources that individuals have consulted in order to address their needs, this is usually from a perspective of satisfaction with the available options.

Research into the legal information experience, by contrast, focuses on the lived experiences of people accessing legal information, including how they locate sources of information, engage with those sources and use them to understand their situations.   It uses  a qualitative, interpretive research method based on in-depth interviews with a smaller sample of participants.  This approach is used to gain a detailed understanding of a participant’s unique perspective and to reveal the meaning of the experience from their point of view.[2] It therefore represents a useful complement to larger legal needs surveys in unravelling the complexities of how to best facilitate access to justice.  

Our study of legal information experience identified five key issues:

  1. Complexity: Parties struggle with the complexity of the information experience;
  2. Credibility: Parties have difficulty in assessing the credibility and reliability of sources of information and the information provided;
  3. Preferences: Parties indicate clear source preferences, which are not the same preferences that lawyers might expect;
  4. Application: Parties have difficulty applying the information retrieved from various sources to their individual situation; and
  5. Language: Parties tend to use language that is no longer reflected in family law legislation or practice.

Each of these aspects of  legal information experience has implications for how legal information can be provided, communicated and interacted with by both experts and non-experts alike.  It also offers insights into how to optimise interactions between experts and non-experts.

In subsequent blog posts we will expand on these findings  and the implications for dispute resolution practitioners, lawyers, and others involved in the communication of legal information.

 

 

Footnotes

[1]RS Wurman, Information Anxiety 2 (Que, 2001) 15

[2]S Kvale and S Brinkmann, InterViews: Learning the Craft of Qualitative Research Interviewing (SAGE, 2nd ed, 2009).

 

Image Credit: wuestenigel (https://www.flickr.com/photos/30478819@N08/30155035707/) Flickr via Compfight (http://compfight.com) cc (https://creativecommons.org/licenses/by/2.0/

Save the Date: 7th ADR Research Roundtable 2018

Please consider saving the date for the 7th ADR Research Roundtable, which will be held at the University of the Sunshine Coast on 3-4 December 2018.

A call for papers will be issued closer to the date.   Early Career Researchers and PhD students are particularly encourage to participate – the Roundtable is an opportunity to present work in progress and receive feedback and critique in a supportive and friendly environment, and to network with leading dispute resolution academics.

A Watershed for Arbitration? – entry into force of the Mauritius Convention

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On 18 October 2017, the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (New York, 2014) (the “Mauritius Convention on Transparency”) will enter into force.     Current signatories include Australia as well as many of Australia’s major European investment partners, as well as the United States.

What is the Mauritius Convention?

The Mauritius Convention, as its name suggests, is designed to ensure transparency in the investor-state arbitration process (not any other types of arbitration, such as international commercial arbitration).

The Convention (or more accurately, the UNICITRAL Rules adopted by the convention) is ground-breaking because it represents a major shift away from the traditional model of arbitration being a private, confidential process.    Like most forms of arbitration, investor-state arbitration has previously been undertaken predominately in private, with no guarantees of public access to information about the dispute, the arguments, or even the award and reasons.   While this may be understandable in the case of private arbitration between commercial parties, the nature of investor state arbitration is different.    Because of the nature of the dispute – a disagreement about the treatment of a foreign investor by a host state –  there are generally important issues of public policy at stake.

For example, many Australians first heard of investor-state arbitration following an ultimately unsuccessful claim against Australia by Philip Morris (Asia) via an investment agreement between Australia and Hong Kong, seeking compensation for the impact of  Australia’s plain label packaging laws.   In other cases, investor-state disputes have arisen as a result of environmental measures, public health measures, and even anti-discrimination provisions in post-Apartheid South Africa.   As a result, investor-state dispute resolution has received quite a lot of negative publicity, and many states are retreating from the system of investor-state arbitration by terminating international agreements.

The Convention operates by giving ‘teeth’ to the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration.  These Rules, although they do contain exceptions, provide three main types of transparency in arbitrations to which they apply:

  • Open hearings:  Hearings are to be made public, with the arbitral tribunal to make arrangements to facilitate public access to hearings.
  • Amicus curiae/third party submissions:  formalising  the right of arbitral tribunals to receive relevant amicus curiae and other third party submissions.
  • Publication:  Submissions and awards must be made public.

 

When does it apply to Australia?

The entry into force of the Mauritius Convention has taken place pursuant to Article 9 of the Convention – six months after the ratification of three signatories.    However at the present time, the convention only applies to disputes between Canada, Mauritius and Switzerland.  In Australia, implementing legislation is currently before Parliament. However, in time, most signatories can be expected to complete the ratification process according to their domestic laws.  However even prior to ratification, parties to an Investor-State arbitration can still agree to the voluntary application of the provisions.

 

A Watershed for Arbitration?

To those used to the context of domestic litigation, these sound like trivial changes, but they represent a great leap forward for transparency in investor state dispute settlement.  Some commentators have even considered that the convention may  lead to a change of culture in relation to arbitration more broadly.

China’s Diversified Dispute Resolution System by Dr Bin Li

Image: Supreme People’s Court, China.  Image from Wikimedia Commons

Today’s post is a piece by Dr Bin Li,  a lecturer at Newcastle Law School Australia.

The large population of China presents unique challenges for access to justice.  With a population approaching 1.4 billion people, there are around 11.5 million civil cases per year, according to the statistics of the Supreme People’s Court of China (‘SPCC’).  [1]

The idea of diversified dispute resolution ( ‘DDR’) was first put forward in 2004 by the SPCC as part of a parcel of reforms designed to advance access to justice[2], with the SPCC urging lower-level Chinese courts (People’s Courts) to develop capacity in mediation and give greater recognition to arbitration.  Further, the Supreme People’s Court called for collaboration and joint development of the DDR model with other entities and organisations external to the people’s courts.

At the time of these announcements, the SPCC had not provided a clear definition of the concept of DDR.  This was subsequently articulated in 2014 by the Fourth Assembly of the Eighteenth Central Committee of China Community Party in its Decision concerning Some Major Questions in Comprehensively Moving Governing the Country According to the law Forward,.  In that document, the  DDR was defined as an organic and coordinated dispute resolution system comprising mediation, arbitration, administrative adjudication, administrative review, litigation and other processes.

Arguably, therefore, DDR has some similarities with the systems of alternative dispute resolution  as it used in Western courts, but also some significant differences.   They have in common the prominent use of mediation as key process, and recognition of the role of arbitration.  However, DDR has a more expansive definition in that it encompasses other dispute resolution processes, including administrative review; the second and a more significantly, is that DDR is intended to operate as a coordinated and court-controlled system.

Thus,  the creation of the  DDR system has become an integrated part of judicial reform in China and an important task for a range of Chinese government entities at provincial and national level, including administrative departments for justice of local governments, which  regulate  the system of people’s mediation[3], along with the Supreme People’s Court a nominated by the Chinese Communist Party to take the lead in this process.

From 2014 onwards, the SPCC has actively encouraged lower level people’s courts to speed up their development of the DDR system,  and People’s courts have responded with measures such as the implementation of mandatory mediation programs prior to disputes being admitted to the litigation process. This is a very encouraging news for mediation in China as in the past, people’s courts had only used mediation during the litigation process rather than prior to litigation. Now the practice is that before the dispute is accepted by people’s courts to litigation, the people’s courts will aim to solve it before proceeding to litigation.

To achieve such an aim, the people’s courts have established  Coordination Centres for Mediation and Litigation (“CCML”). During this pre-litigation mediation process, CCMLs usually invite people’s mediators to participate and help with the settlement, and when acting in this capacity, these mediators are known by a term that means ‘specially invited mediators’.  This distinction is interesting as  People’s mediation is separate from mediation provided by people’s courts during the litigation process and it is provided and undertaken by administrative units of departments for justice at provincial level. in .  Therefore, by inviting people’s mediators to the pre-litigation mediation process conducted by the CCML, the people’s courts have started to explore the way where mediation can be more utilised while the relationship between mediation and litigation can be carefully dealt with.

Challenges in Implementation

There are, however, some barriers for the people’s courts to get over in order that the completion of DDR can be achieved.

First and foremost, there is an absence of domestic legislation defining the leadership role of SPCC. The aspiration is to have As its definition suggests, the DDR is an organic system focusing on the coordination of various dispute resolution approaches. It is therefore important to have a lead agency to oversee and coordinate reforms. In this respect, though SPCC has been nominated by CCP to take the lead in the reform, there is no legislation confirming such a leading role taken by the SPCC. The subsequent problem would be how SPCC could smoothly coordinate the reform where the functions of government are involved, such as people’s mediation.

The second difficulty is related to the unsuccessful practice of people’s mediation. In China, people’s mediation is a process where a people’s mediation commission persuades the parties concerned to a dispute into reaching a mediation agreement on the basis of equal negotiation and free will and thus solves the dispute between them. Also, according to the law, Ministry of Justice is responsible for people’s mediation nationally, with provincial justice departments taking responsibility for guiding the people’s mediation within their respective administrative regions. The 2010 People’s Mediation Law was designed to make mediation a key process for the resolution of civil disputes, and to ameliorate the workload of the  people’s courts. However, evidence shows that people’s mediation has not worked as well as expected, which appear to be due to a range of factors, including the public having little interest and confidence in mediation.  For example, there is no accreditation system for people’s mediators whose quality therefore cannot be guaranteed. [4] In addition, one cultural factor possibly undermining the public’s confidence is that Chinese people would rather trust judges than the people’s mediators who they don’t know at all.

Thirdly, the use of CCMLs presents particular challenges. In people’s courts,  judge are usually involved by guiding the mediator’s work. However this involvement presents particular issues if the dispute is not resolved through mediation.

The first option would be for the judge involving in the previous mediation to hear and decide. In this case, it may be possible for the judge to exert pressure on the parties to settle their disputes in mediation. In addition, since the judge has already known the case, it is questionable whether that judge is still an appropriate person to try the case. The second option is that the dispute will be registered as a case and resolved by a different judge, which will then prolong the resolution of the dispute.

This piece has presented a short perspective of the opportunities and challenges in creating a DDR system in China.   There are interesting parallels between the experience in China, but also unique challenges.   In China, as elsewhere, the key to making this court-led system effective is to identify how the DDR can be effectively integrated into the workflow and procedures of already busy courts.  In this respect, a nationally accredited system for people’s mediators will help establish the confidence of the public. It is also vital for SPCC to lay down some specific rules on this court-led reform, such as whether the judge already involving in the pre-litigation mediation is still eligible for hearing the case provided that the dispute has not been resolved by mediation. A related question also needs to be answered being whether the information disclosed in mediation can be used in the subsequent litigation. So far people’s courts in different provinces could have different answers to these two questions and it is the right place for SPCC to step in.

[1] https://supremepeoplescourtmonitor.com/tag/china-court-statistics-2015/

[2] Notice of the Supreme People’s Court on Issuing the Second Five-Year Reform Outline for the People’s Courts (2004-2008).

[3]http://www.cspil.org/Uploadfiles/attachment/Laws%20and%20Regulations/[en]guojifalvwenjian/PeoplesMediationLawofthePeoplesRepublicofChina.pdf.

[4] Art. 14 of People’s Mediation Law only provides that the people’s mediators shall be adult citizens with ‘certain level of culture, policies and legal knowledge’.