ADR and the Importance of Data

A recent post by Dr Becky Batagol had me thinking about the importance of good data collection in the field of ADR.  ADR proponents make many claims about the benefits of ADR.  We also know that most dispute resolution processes occur behind closed doors, which challenges our ability to make sweeping statements about “what goes on” in ADR processes.  Good data, collected from third party facilitators, disputing parties and non participant observers, helps us to make strong claims about the efficacy of ADR forums.

Such data may help us to more clearly consider questions that we believe we already know the answer to.  Do ADR processes really preserve relationships when compared to litigation?  Are the values of self-determination and autonomy actively promoted in ADR?  Do parties focus more on their interests, rather than their positions in ADR?  Are remedies achieved in ADR more flexible and varied, compared to court adjudication?

ADR researchers also need to consider methodological approaches that allow us to say things like:

  • ADR is cheaper than litigation.
    ADR is quicker than litigation.
    Settlement rates in ADR are high (compared to what?)
    Party satisfaction with ADR processes is high.

When I think about these claims, I think about the (initial) words of Thomas Jefferson and the American Declaration of Independence… “We hold these truths to be sacred and undeniable”.  I think good data allows us to cast sunlight on many of ADR’s claims.  It is important that we do shine light on these claims, so that users and providers of ADR services understand what ADR can and cannot sensibly lay claim to.  Becky made reference in her earlier post to data that would be useful to have:

  • settlement rates
    factors that may influence settlement rates, such as referral stage
    what happens when disputes are not settled at ADR
    participant satisfaction with ADR and perceptions of fairness, the time and costs expended by participants and service providers.

For members of the ADR research network and readers of this blog – what other data do you think we should be trying to collect??

James

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Wishin’ and Hopin’: ADR Policy in Victoria

The past couple of years have seen dispute resolution increasingly politicised in Australia, as we have explained elsewhere. The Victorian election, held on 29 November this year and which resulted in a change of government, is no exception.

The new Australian Labor Party (ALP) government has made an explicit commitment to increasing use of ADR in Victoria. The government’s pre-election platform states (at p 67-8):

 Where disputes occur, Government should provide Victorians with options to resolve them at the earliest stage to avoid the cost, stress and delay that is often a feature of traditional court proceedings.

Specific policies promised in relation to ADR include increased promotion of mediation and ramping up the dispute resolution options at VCAT, the Victorian Civil and Administrative Tribunal, so that it is restored as “a simple, low cost jurisdiction that assists parties seeking speedy resolution of their matters in a less formal and intimidating environment.”

The government has also committed in its platform to providing increased access to justice for vulnerable Victorians (p.67). It has promised an inquiry into access to justice in Victoria including into availability and funding of Community Legal Centres (CLCs). Specific measures pledged to improve access to justice include increased funding for Victoria Legal Aid, addressing “the clogging of the court system”, fixing the problems with funding cuts at VCAT and encouraging more lawyers to work at Community Legal Centres through providing incentives such as scholarships and HECS rebates.

Related promises in the ALP platform include mainstreaming into the broader court system some of the successes of the problem-oriented courts set up in Victoria over the past decade (p.64) so that offenders are better connected to the services they need to address their offending.

While the previous government was in power Victoria from 2010-14, ADR policy moved slowly at best. The Attorney-General for that government, Robert Clark, had publicly expressed his commitment to ADR, stating to the LEADR Kongress in September last year: “The State government is a strong supporter of ADR and the role it can play in bringing about just outcomes in a timely and cost-effective manner.” However the record of the coalition government supporting ADR did not match these words when, in 2011, it repealed legislation containing broad-scale pre-action procedures mandating participation in ADR for all civil disputes before the courts. In passing these reforms, the Attorney-General stated in Hansard on 10 Feb 2011 (at p 307):

It is common sense and good practice for parties to attempt to resolve their dispute without resorting to litigation if there is a reasonable prospect of success in such an attempt. However, the government’s view, and the view of many practitioners, is that to seek to compel parties to do so through these heavy-handed provisions will simply add to the complexity, expense and delay of bringing legal proceedings, because of the need to comply with these mandatory requirements, whether or not they are likely to be useful in any particular case.

It is regrettable that the legislation was repealed without any evidence base of the effectiveness of the reforms or independent testing of the Attorney’s claims.

It remains to be seen whether the deeds of this new Victorian government match its words. The fact that ADR and access to justice were explicitly part of the policy platform prior to the election is promising. The new Attorney-General, Martin Pakula, has big shoes to fill, his Labor predecessor being Australia’s most reformist AG, Rob Hulls (Lionel Murphy having fewer years in the job).

While we wait to know more from the government in Victoria, here’s my personal wish-list for the Attorney-General to tackle in relation to dispute resolution/ ADR policy reform in Victoria

  1. A public review of the quality and effectiveness of ADR processes in Victoria. ADR is offered in every Victorian court and by many other state providers. But we know little about the quality of services offered (including settlement rates, satisfaction, inter-professional collaboration around the process and the fairness of outcomes). The Productivity Commission  recently called for all State and Territory governments to conduct an independent public review of the effectiveness and efficiency of dispute resolution mechanisms within their jurisdiction every 5 years, starting by 30 June 2016 (p.298). Such a review would be a good start for a government intent on making an impact where there is already significant state outlay on ADR services and efficient justice investment is an imperative.
  2. Mandating public reporting on standard ADR data by all Victorian ADR service providers (including courts and tribunals, Community Legal Centres, Victoria Legal Aid and other dispute resolution services such as the Dispute Settlement Centre of Victoria, or DSCV). Higher quality and consistent data collection would enable us to understand whether existing ADR services meet their aims and whether gaps in service provision exist. Higher quality data means that money can be efficiently allocated where there is highest need. The public availability of such data is crucial to ensure transparency in provision of dispute resolution services when ADR lacks the many of the fairness protections available in the public court system. The absence of adequate dispute resolution data was noted by the Victorian Law Reform Commission (VLRC) in its 2008 report on Victoria’s civil justice system in relation to the effectiveness of court-ordered mediation in Victoria (at pp 278-83). In 2009, when the Victorian Parliament’s Law Reform Committee recommended that

    At a minimum, the Committee believes that there is a need for consistent data collection across ADR service providers about:

    -settlement rates

    -factors that may influence settlement rates, such as referral stage

    -what happens when disputes are not settled at ADR

    -participant satisfaction with ADR and perceptions of fairness the time and costs expended by participants and service providers. (pp. 58–59)

  3. Widespread use of family group conferences for child protection matters usually commenced in the Children’s Court of Victoria. In 2010, just prior to the State election in that year, the Victorian Law Reform Commission set out a range of options for reform of the processes followed in child protection cases in the Children’s Court of Victoria. One of the options canvassed involved a graduated range of supported, structured
    and child-centred agreement-making processes as the principal means of determining child protection application outcomes instead of existing court processes. The Commission noted that most agreements in child protection matters are already the result of informal bargaining between the parties’ lawyers (at para 7.4) and that supported and child-centered processes such as family group conferences would better enable agreements that are in the best interests of the children involved and which stick in the longer term. These options for reform were never implemented following the 2010 election and may yet help to ensure that scarce resources already invested in Victoria’s child protection system are directed towards assisting vulnerable children have care arrangements that meet their best interests.
  4. Better connecting and integrating state-funded family violence and police services with federally-funded Family Dispute Resolution (FDR) services so as to better protect those experiencing family violence. In 2010 the Australian and NSW Law Reform Commissions’ joint inquiry into family violence concluded that there was potential for FDR to expeditiously and effectively resolve parenting disputes in cases involving family violence but that there had to be better coordination with State and Territory child protection and family violence systems (at paras 21.12-21.13 and 21.50). The Luke Batty case has clearly demonstrated the need for more effective coordination of state-based family violence and police services and services within the federal family law system. The Victorian government has committed to holding a royal commission into family violence. By committing to work specifically with FDR providers including Family Relationship Centres and Victoria Legal Aid’s Roundtable Dispute Resolution, the Victorian government can help to provide avenues for seamless, safe and supported decision-making following family breakdown for women and children experiencing family violence.

So, that’s my list. What is on your personal wish-list for ADR policy reform in your State or locality?

Becky Batagol would like to disclose that she worked for the Victorian Law Reform Commission on its inquiry into Protection Applications in the Children’s Court of Victoria in 2010.