Australia, all the way with ADR. Or are we?

I have been putting the finishing touches on my chapters for the second edition of our book Non-Adversarial Justice, to be published by Federation Press in the middle of this year. The book is co-written with Monash and former Monash law colleagues Michael King (now a Magistrate in WA), Arie Freiberg and Ross Hyams. The book brings together a collection of ideas and practices from disparate areas of the criminal and civil justice system that share some common responses to the adversarial nature of our legal system. We describe these processes as ‘non-adversarial justice’ which we acknowledge is a vague and probably overly negative term, but we have stuck with it because we haven’t been able to come up with anything better. The book explains our views on these commonalities and provides a chapter on the key aspects and ideas of each ‘non-adversarial’ practice or process, including therapeutic jurisprudence, ADR, restorative justice, preventive law, holistic law and creative problem-solving. The are also chapters which situate these ideas in various fields of practice and chapters which thematically draw together new ways of thinking on lawyers, courts and legal education. The book focuses on Australia with reference to international developments.

The first edition book came out in 2009.  In this new edition, we look back over the past 5 years of innovative Australian justice policy and conclude that:

“Because non-adversarialism is new and contentious it is also politically sensitive. Governments that regard this form of justice as being “soft” on crime, ineffective, “heavy-handed”, and expensive have abolished courts, schemes and programs while others recognise their value and have introduced procedural reforms, increased the number of courts and expanded their jurisdiction to cover new areas of harms or problems.”

I have been updating the chapters on family law processes and on ADR. Once of the things I enjoy about writing this book is how each chapter gives me a near-perfect helicopter-view of the terrain of that area.  In relation to ADR policy, there has been a noticeable cooling in government attitudes towards ADR processes within our broader civil justice system in the past half-decade. In particular, I have observed a drawing back from widespread implementation of ADR requirements in the justice system. This is evidenced by the repeal of pre-action legislation in both Victoria and NSW in 2011 and 2013 and, also in 2013, the dissolution of the 18-year-old National Alternative Dispute Resolution Advisory Council (or NADRAC), the independent body established to advise the federal Attorney-General on policy issues relating to ADR. In our book we summarise the Australian ambivalence towards ADR in the following way:

“These changes illustrate how the place of ADR and other non-adversarial processes in the justice system is contingent upon the support and patronage of government. Real resistance to non-adversarial practices remains and can make even established non-adversarial processes the subject of political contention. “

 Pre-action procedures, originally developed in England and Wales in the late 1990s, encourage early settlement of disputes, full disclosure of information between the parties and, where the matter cannot be resolved, the narrowing of the issues in dispute, all before proceedings have commenced. Effectively, they cement the place of ADR in the ordinary civil litigation process. Pre-action procedures have been introduced into three Australian jurisdictions since 2009, making this area the most dynamic in the already active field of ADR. However, the legislation introducing pre-action procedures has already been repealed in two of these jurisdictions (Victoria and NSW), revealing the significant unease that exists around the presence of ADR in the contemporary civil justice system in Australia, particularly where lawyers and the parties they represent are mandated to use ADR processes outside specialist jurisdictions. Only at Commonwealth level do pre-action procedures remain a at broad-scale level in Australia, known as “genuine steps” statements, which must be filed prior to litigating in the Federal Court of Australia and the general lists of the Federal Circuit Court of Australia under the Civil Dispute Resolution Act 2011 (Cth). So far, the federal government has indicated no public interest in changing these laws.

In England and Wales, where there are more than 12 -pre-action protocols covering particular areas of civil law, a recent review of rules and principles governing the costs of civil litigation found that the decade-old pre-action protocols system generally worked well, with a few tweeks necessary here and there. However it was recommended that one protocol that covered all areas of civil practical not governed by a specific protocol be repealed. Lord Justice Jackson, author of the review, argued that pre-action protocols work best when tailored to specific areas of practice rather than adopting a “one-size-fits-all” approach to civil litigation generally.  

The English and Welsh experience of pre-action protocols shows that they can change litigation cultures and encourage more settlement (although ADR processes themselves may not be used). For Australia, the implications are that we may be better placed to develop pre-action procedures tailored to the peculiar litigation dynamics of specific areas of civil practice rather than broad-scale requirements as currently legislated in the Civil Dispute Resolution Act 2011 (Cth). Indeed in Australia, some specialist jurisdictions have for some time successfully required participation in ADR before court proceedings can be instituted for certain personal injury claims in Queensland, for farm debts in NSWfor NSW retail tenancy disputes, and in family law disputes since 2004. Failure to comply with these requirements opens a party up to an adverse costs order.

The recent skittishness around ADR policy in Australia can be connected to new governments coming to power and signalling that a new sheriff is in town. These governments, in Victoria, NSW and at federal level, have not benefited from years of high level bureaucratic advice on justice policy, may not share the commitment to ADR and may prefer to appeal to more conservative elements of the legal profession who see innovative dispute resolution policy as a challenge to the profession itself. The legal profession is inherently conservative and is slow to embrace widespread change. For so long, litigation, alongside negotiation associated with litigation practice, have been the way that lawyers have furthered their client’s interests. Compelling parties to use ADR processes such as mediation is a step too far in the eyes of many, as Victorian Attorney-General Robert Clark explained in the 2011 second reading speech for the Civil Procedure and Legal Profession Amendment Act 2011 (Vic)

“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.”  (Parliament of Victoria, Parliamentary Debates, Legislative Assembly, 10 February 2011, Victorian Government Printer, Melbourne,  p.307).

My own view is that governments across the Australian jurisdictions should be putting effort (and a great deal of effort, too) into ensuring that ADR processes that are provided are of high quality and have robust protections built in for the disadvantaged and vulnerable, acknowledging that not all cases should settle, although many can, so that court processes are still necessary and towards finding the right balance between legal and non-legal service provision for civil disputes. Getting these issues rights asks us to face the tough questions head-on and address the real tensions behind the ideal of access to justice in a constrained financial context. But this is the space we need to be in for us as a nation to develop the next frontier of justice policy. Whole-scale abolition of schemes designed to increase settlements as occurred in NSW and Victoria and dissolution of high-quality advisory bodies such as NADRAC takes us further away from where we need to be. These decisions have taken us backwards.

What do we all have to do to move forward on this important social issue?

National Mediation Conference 2014

The 14th National Mediation Conference will be held from Tuesday 9 – Thursday 11 September 2014. Chosen from delegates’ feedback, the selected theme for 2014 is “Pathways to Resolution: the Challenge of Diversity”.

The conference website has just been launched and can be found here.

Conference Co-conveners Tania Sourdin and Walter Ibbs explain what the conference is and how it works

The Conference will bring together diverse practitioners, policy makers, researchers, managers, judges and leaders in the field of mediation, negotiation and dispute resolution to explore the diversity of experience, conflict, intellectual outlook, cognitive style, cultural competence and many other attributes that contribute to the richness of the resolution environment.

This Melbourne NMC is especially exciting for those of us who do research in the field of dispute resolution, as for the first time the National Mediation Conference will be combined with the Research Forum of the National Alternative Dispute Resolution Advisory Council (NADRAC). The two great dispute resolution research events in Australia will now be combined. It is going to be a dispute resolution ideas fest and we should all expect to walk away mind-boggled and tongue-tied. Sourdin and Ibbs write ‘This addition will provide delegates with the opportunity to meet and engage on the latest trends and issues in ADR research.’ The 2 day Research forum will start on the last day of the NMC and will continue the next day also.

Since the demise of NADRAC, it is not clear what the status of the research forum will be. But there are many working hard behind the scenes to ensure that it goes ahead regardless. 

The call for papers is now open and abstracts can be submitted from now until 21 February 2014 here.

The theme of the conference is ‘Diversity’.

 The Conference Organisers are particularly interested in presentations that support this theme. The concurrent sessions will be grouped into the following general streams and presenters should nominate to which stream their presentation or poster will relate.

 The streams are:

  • Family;
  • Business & Workplace;
  • Court & Tribunals;
  • Community Mediation;
  • System Design, Public and Statutory ADR;
  • Online dispute resolution/New technologies;
  • Training & Standards;
  • International Approaches;
  • Mediation Practice (including blended, cultural & inclusive ADR practice); and
  • NADRAC ADR Conference stream.

 

 

 

Dumb decision— The Closure of NADRAC

Last Friday, the Australian government announced the abolition of NADRAC, the National Alternative Dispute Resolution Council.  NADRAC’s functions will be absorbed into the federal Attorney-General’s Department.

Whichever way you look at it, the abolition of NADRAC  just doesn’t make sense.

An account of the reasons is dutifully provided on the NADRAC homepage.

Following the Australian Government’s announcement on 8 November 2013 to abolish or rationalise a number of non-statutory bodies, the National Alternative Dispute Resolution Advisory Council will close. The closure of this group is a whole-of-government decision that was taken to simplify and streamline the business of government.

NADRAC advises the Attorney-General and federal courts and tribunals on dispute resolution matters and also provides high quality dispute resolution information to the Australian public and dispute resolution community.  One of NADRAC’s central roles is promoting Alternative Dispute Resolution (ADR) within the Australian community.

From NADRAC’s own website we can see something of its nature and history

NADRAC was established in October 1995 and had its origins in the 1994 report of the Access to Justice Advisory Committee chaired by the Hon Justice Ronald Sackville, Access to Justice – an Action Plan. The report recognised the need for a national body to advise the Government and federal courts and tribunals on ADR issues with a view to achieving and maintaining a high quality, accessible, integrated federal ADR system.

NADRAC is a non-statutory body. Funding is provided through the Australian Government Attorney-General’s Department.

NADRAC played a central role in creating the National Mediator Accreditation Scheme and the Mediator Standards Board which have both helped develop quality standards for mediation practice and enabled the professionalisation of this important dispute resolution process. This work helps thousands of Australians access high quality and fair negotiated solutions to their problems, making less and less relevant the ‘alternative’ part of the label Alternative Dispute Resolution, .

One look at NADRAC’s publications page reveals a wealth of high quality information available there (around 45 substantial publications). In particular NADRAC’s 2012 Your Guide to Dispute Resolution stands out as an important part of a system wide access to justice strategy for providing accessible information for ordinary Australians about dispute resolution options. One of my favorite and most used NADRAC publications is NADRAC’s 2003 paper Dispute Resolution Terms, which is useful in a practice-led field such as ADR to assist with the development of quality standards for diverse dispute resolution practices around Australia.

We do not know what will happen to the valuable contents of the NADRAC website. You can access an archived copy of the NADRAC website from 6 November (before the decision was announced) here (via). Very clever sorts have archived via Dropbox almost the entire contents of the NADRAC publication treasure trove here and as a general zip file here.

The work of NADRAC is unique in Australia in working towards a high quality, accessible, integrated federal ADR system. Its role cannot be adequately replaced by individual players within the justice system, either the courts, tribunals, dispute resolution practitioners, lawyers, academics or even the Attorney-General’s Department.

Two of the most outstanding aspects of NADRAC’s position as an arms-length adviser to the Attorney-General are its independence and its grounded expertise. NADRAC’s independence enables it to advise government on important but unpopular aspects of civil justice policies, advice which it may not be possible to be given by the Department itself. Coming from an independent non-statutory body as NADRAC is, this advice need not conform with government policy but may lead the way towards higher quality dispute resolution processes. Sometimes even unwelcome advice is important in leading to better policy outcomes for Australians.

The grounded expertise of NADRAC comes primarily from the professional expertise of individual Council members, who, according to the NADRAC website ‘come from around Australia and bring to the council a broad range of experience in the area of dispute resolution.’ Subject matter experts draw their expertise from the diverse fields in which they work and so by definition, are not always employed by government departments. The Council format enables subject matter experts to routinely provide grounded advice to government in a manner compatible with their professional positions, efficiently harnessing their expertise to improve government policy.

 The Australian government’s stated reasons for the closure of the 21 non-statutory bodies centre around boosting productivity and cutting unnecessary red tape. Shutting NADRAC’s doors will not reduce regulation — it’s Charter does not include regulation in its purposes, but is limited to advice and information dissemination.

The government’s reasons for the closure of the 21 bodies also state

Many of these non-statutory bodies have outlived their original purpose or are not focused on the Government’s policy priorities. As a result, their work is best carried out by the relevant government departments or agencies.

If promotion of (as NADRAC’s charter demands)  ‘high quality, economic and efficient ways of resolving or managing disputes without the need for a judicial decision’ is no longer relevant or is not a government policy priority, then I am deeply concerned for the future of our federal civil justice system. This is a major shift in government policy that was not announced before the election and has not been foreshadowed since. 

Access to justice has been a stated priority of successive federal governments since the 1990s, regardless of political persuasion. Most recently at Commonwealth level, the Access to Justice Taskforce produced a report in 2009 which led to the Civil Dispute Resolution Act 2011 (Cth) which requires litigants to take genuine steps to resolve a dispute before commencing legal proceedings in the Federal Court and Federal Circuit Court. The Australian Productivity Commission has a current project, to report in September 2014, looking at access to justice and civil dispute resolution.  There is a long history in jurisdictions around the world of using ADR as part of a holistic access to justice strategy.

Promotion of ADR, one of NADRAC’s core functions, may increase justice efficiency. In the context of recent questions around timeliness and litigation delays as well as litigation cost increases, the promotion of appropriate, high quality ADR as part of a broader civil justice policy doesn’t just make sense, it saves dollars. It is hard to see how abolishing NADRAC will lead to real cost savings.

This decision raises serious questions about the direction of Australia’s civil justice policy. The demise of NADRAC means we have less independent, reliable information and advice to help answer those questions.

If you would like to protest the decision to close NADRAC, my colleague Anne Sutherland-Kelly, a mediator and dispute resolution community leader, has drafted a form letter you may wish to copy and send to the Commonwealth Attorney-General, Senator the Hon George Brandis QC (senator.brandis@aph.gov.au) or to the Prime Minister, the Hon Tony Abbott MP (tony.abbott.mp@aph.gov.au)

The Hon Tony Abbott

The Prime Minister

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

Fax: 02 6273 4100

or

Senator the Hon George Brandis QC

The Attorney General

PO Box 6100

Senate

Parliament House

Canberra ACT 2600

Fax: 02 6273 4102

 

10 November 2013

 

 Dear Prime Minister/Attorney-General,

 Re: Reverse closure of NADRAC

 The announcement, made on 8 November 2013, to close The National Alternative Dispute Resolution Advisory Council (NADRAC), is shocking in itself and in the manner in which it was done.

 The closure was announced without consultation with ADR organisations. The Chair and members of NADRAC were told of the closure on Friday, not having been alerted previously that this closure was under consideration.

 Cost savings in the administration of justice are being driven by ADR more than any other single factor. NADRAC is a key contributor to the development of ADR in Australia. Closing NADRAC is false economy. By withdrawing this support for the development of ADR, this decision will  increase government costs, both federal and state.

NADRAC has been a global leader in the development of alternative dispute resolution (ADR) policy and regulation. It is looked to regionally and internationally as a model of ADR leadership.

 Since NADRAC’s creation in 1995, it has given an exemplary service to successive Australian governments, providing independent policy advice of the highest quality to Commonwealth Attorneys-General on the development and regulation of ADR including providing coordinated and consistent advice on achieving and maintaining a high quality, accessible, integrated Commonwealth ADR system.

 Included among NADRAC’s many contributions are the following:

  •  NADRAC provided vital support and assistance in establishing the Mediator Standards Board and the National Mediator Accreditation System (NMAS) under which ADR practitioners are nationally accredited.
  • NADRAC has undertaken many significant projects and extensive research that have helped to promote a culture of collaboration and greater use of ADR.
  • NADRAC has produced a body of scholarly and practical publications of the highest quality relied upon by practitioners, students and administrators throughout Australia and internationally. The NADRAC website lists 45 substantive publications over its 18 year history.
  • The NADRAC 2012 publication Your Guide to Dispute Resolution provides a comprehensive and easily understood resource for the Australian community.

 Legal systems all over the world are recognising the benefits of strong, well regulated, ADR practice as an adjunct to courts and tribunals. The proven benefits include:

  •  efficiency and cost saving in the administration of justice
  • increased access to justice
  • dispute resolution that meets community needs by resolving, rather than just determining, conflict between citizens

 NADRAC has been a key body in making Australia a global leader in this international trend. When the international legal world is looking to follow Australia’s leadership in the development and regulation of ADR, it is difficult to understand why this key body would lose the support of its own government.

 I urgently request that the government revisit this ill-advised decision.

 Yours sincerely,