Photo: Creative Commons – Blue Diamond Gallery under licence
The judicial mind has never been particularly accessible to me. Perhaps the requirements of objectivity and neutrality impose opinion-censoring constraints or perhaps the judiciary tends to have a preference for the law and the facts.
Whatever the reason, it is difficult to get a sense of ‘the view from the bench’ about the ADR space in which we research, teach and practise.
There are some judicial views that are well known.
We do know there is a continuing theme of judicial approval for the ‘cheap and quick’ features which are so emphasized by legislatures and courts’ administration and which were arguments promoted vociferously by early ADR advocates as a means of garnering support.
The 2009 speech to the profession by the Chief Justice of the Supreme Court of Victoria (as she then was) The Hon. Marilyn Warren included powerful advocacy for ADR. She dwelt on the significant reduction in court lists achieved via ADR and the ‘extraordinary’ saving in court time and resources – a more elegant version of the ‘cheap and quick’ cost benefit analysis.
This theme was repeated in 2012 in an important paper by The Hon. P A Bergin SC, Chief Judge in Equity of the Supreme Court of New South Wales (as she then was).
She endorsed mediation as a:
‘cost-effective and efficient mechanism for resolving disputes. Mediation is pursued in large part because of its potential to significantly reduce the practical and financial burden of a dispute’.
We do have some other evidence about how judges see ADR.
We know that judges also have concerns about ‘ripeness’ and warn against matters being referred to mediation before the dispute is ripe – which generally means, in their view, after the pleadings are closed and very substantial costs have already been incurred.
‘Judicial experience tells us that in litigation it is a bit like picking fruit. We need to pick the “mediation peach” when it is ready – too early it will be hard to penetrate the fruit; too late it is over-ripe. The judicial art is to time the “sweet moment”.’
Bergin also enters the ripeness discussion, referring to her own 2007 research. This suggested that settlement was more likely to occur if mediation was attempted late in the proceedings, although she does acknowledge her sample was limited and that it did not take into account mediations that are resolved before proceedings are issued.
The endlessly interesting litigious adventures of Gina Rinehart and her family have also provided some obiter by Brereton J on the ripeness issue noting:
‘So far as mediation is concerned, sooner or later – as with most commercial and family disputes – it may well be desirable that these proceedings be referred for mediation. But in my view, they are not ripe for that yet. Further disclosure will have to take place before the proceedings can be referred for mediation’.
We also have a few glimmers of insight into how judges see mandatory mediation.
In her same paper, Bergin reflects on legislative imperatives to mediate and acknowledges the value in attempts to remedy power imbalances but overall displays some scepticism about its susceptibility to exploitation.
‘The characteristics of certain disputes justify legislation deeming that good faith involves a requirement to mediate first in the context of those disputes. It is another thing entirely to conclude that good faith requires disputants to Mediate First in all cases.’
‘In my experience forcing parties to mandatory mediation early is arbitrary and often clumsy.’
So apart from some tasty crumbs dropped into a few keynote addresses and the odd piece of obiter, we don’t have a strong sense of how judges view ADR.
However the recently released AIJA study – ‘Court-Referred Alternative Dispute Resolution: Perceptions of Members of the Judiciary’ – hopefully marks the beginning of a new appetite to conduct research revealing the judges’ perspective on key elements of ADR.
The research, conducted by Dr. Nicky McWilliam of the University of Technology, Sydney, and Dr. Alexandra Grey of Macquarie University Law School, drew data from 104 judges from various jurisdictions about whether and how they considered and encouraged ADR in cases over which they presided. Defining referral as including suggesting ADR by ‘nudging’ and referring parties to ADR with or without their consent, the study also looked at:
- the availability and use of ADR in assisting court proceedings;
- whether or not there were prerequisites to ADR referral, in particular judges’ awareness of parties’ interests as well as knowledge of the process itself; and
- judges’ personal assessments of ADR’s ability to
- achieve unique results and
- impact workload and judicial satisfaction positively.
The differences and similarities which emerged in judicial behaviour and perception were fascinating. Two particular issues, on which there appeared quite a degree of agreement, drew my attention:
- most judges believe that referring matters to ADR processes requires them to have an understanding of:
- the nature of the case;
- jurisdiction and the tier of court involved; and
- parties’ needs and interests.
Further, the research revealed that most Supreme Court judges in the Equity and Common Law Civil Divisions are motivated to consider referral to ADR by their overriding purpose of “facilitating the just, quick and cheap resolution of the real issues in the proceedings”.
Interestingly, despite their view that an understanding of ADR was important, the study revealed that 75 per cent of responding judges had no ADR training despite most having been appointed since court-referred ADR had been legislated and during a period when ADR was well used. The authors note:
‘While it may be argued that judges appointed in an age where ADR is common do not need training that surely underrates the contribution training can make: not everything can be, or is best left to be, learnt by osmosis.’
They gently suggest that increased training may enhance decision-making regarding the many factors shown in the study to affect judicial perceptions of whether or not court-referred ADR is appropriate and to share experiences of how court-referred ADR is being considered and used by other judges.
- Judges (particularly Supreme Court judges) were also concerned with timing – a version of the ‘ripeness’ issue – and expressed concern about referring cases to ADR “too early”, worrying that early referral may mean that one side’s case may yet be unclear and that even a position paper may not remedy this.
So now, thanks to the AIJA, we are beginning to collect more reliable data about the judges’ perspective of ADR, starting with their perceptions of court-referred ADR.
This is great news for those of us who wish to influence how judges see things and to build their peripheral vision about the promise of mediation. Thoughtful research about how judges see things now provides us with a place to begin.