I am alarmed by the disparaging comments about the contribution of mediation to Justice in the Law Council of Australia (LCA) submissions to the Enquiry into Access to Justice Arrangements of the Productivity Commission. Here, I am on my way to identifying the issues as I see them.
In wondering where these issues have come from, I found myself creating a potted history of the relationship between lawyers and mediators in Australia since 1980s.
As I see it, among mediators and lawyers, collegiality has waxed and waned over the last 30 years. ADR organisations such as LEADR and ACDC, among others, were initiated and developed by members of the legal profession exclusively for lawyers in the 1980s. By the late 1990s, membership was open to all mediators. In my experience, a respectful, productive demarcation of the roles of lawyers and the roles of the mediator was the result. Typically lawyers consulted each other then collectively referred their clients to a mediator. Mediators referred participants for legal advice before, during and after mediation.
The tone changed in the early 2000s. During and after presentations at mediation conferences, mediators and lawyers each took exception to how their work and the work of the other was portrayed. Later in the mid-2000s there were some difficult discussions within and between stakeholders in the National Mediator Accreditation Standards, often dividing along the mediator-lawyer lines.
The difficult conversations took place, the National Approval and Practice Standards were agreed, the Mediator Standards Board was elected and the relationships became more harmonious. People in dispute had the benefit of the complementary approaches of legal advice and mediated cooperation. This was a decade or so in which I thought of myself as practising CDR (Complementary Dispute Resolution). Participants reached agreements developed from their mutual interests in the context of their rights. Their lawyers had provided legal advice on the substantive issues, contributed to and reality tested substantive options and procedural alternatives. Their mediator had provided supportive, even-handed procedural guidance within a cooperative setting. Mediators drafted heads of agreement and lawyers drafted legal documentation. Justice was done; participants were satisfied; implicitly rights were respected. The expertise of participants, lawyers and mediators integrated to create tailor-made, practical, respectful, legal, thorough agreements, as it had in the late 1990s.
Now, in the 2010s, as indicated in the LCA submissions, some estrangement between the legal and mediation professions has resurfaced. As I read it there are at least three contributing issues.
What is mediation? Is mediation occurring when a lawyer presides over rights-based, past focused, Act centred decision making process, at which legal representatives do most of the talking? Is a ‘settlement conference’ underway? To me, ‘mediation’ describes an interest-based, future focused, person-centred process at which participants do most of the talking and a mediator manages an even-handed process. My previous post What is Mediation …? considers this.
What qualifies a mediator? The LCA submissions express concern regarding the expectations of expertise appropriate for conducting mediations, in particular the need for lawyers to meet the Approval and Practice Standards of the Mediator Standards Board (MSB). To me the role of the mediator is the antitheses of the role of the positional negotiator and of the litigator, in much the same way as the roles of a physiotherapist and an orthopedic surgeon differ. The qualifications therefore differ. It is a quite different question to ask ‘What qualifies a chair of a settlement conference?’
How can mediation be considered to contribute to Justice? The legal profession, as described in the LCA submissions, has concerns about the contribution of mediation to Justice and to access to Justice. More accurately the LCA regards mediation (and settlement conferences?) as an impediment to Justice.
In November 2013 the Law Council of Australia (LCA) tabled its opinion of the contribution of mediation to Justice and to access to Justice. In its submissions to the Enquiry into Access to Justice Arrangements of the Productivity Commission the LCA declared mediation to be ‘achieved through oppression’, to use ‘vulgar force’ and to deliver ‘just a settlement’.
338. It has been said that “Mediation is not about just settlement, it is just about settlement”. No doubt it is good for parties to settle cases (and that is what for centuries their professional advisors have helped them to do) but settlement achieved through oppression is not so obviously a desirable end. Then it is just the successful exercise of vulgar force – the very thing that the system of justice was invented to defeat.
339. There are real risks to the parties where the protections of litigation are not available. That is, where there is no guarantee of seeing the relevant documents, where the economic power or strength of character (or even sheer unreasonableness) of a party become the most powerful forces in the negotiation, and where the figure with apparent authority is focussed on achieving settlement, not on redressing the imbalance so as to enable justice to be done.
340. The Law Council submits that those participating in mediation require legal advice and, in many cases, representation. Without access to legal advice and representation prior to participation in mediation or other ADR, participants may not be in a position to fully appreciate their legal rights and options. Mediators are largely restricted from providing legal advice to participants in mediation. In these circumstances, legal representation is crucial for parties to understand their legal rights and obligations and which underlying facts are relevant to resolving the dispute.
My response to the LCA submissions is a heady blend of astonishment, concern and relief. I am astonished that in 2013, after years of cross-fertilisation of ideas during the formative years of the mediation profession, such significant misunderstandings about the contribution of mediation to Justice might still hold currency. I am concerned that a review of the comments is considered. I am relieved that the comments have been made openly.
What I read as the LCA’s misunderstandings probably reflects the dissonance in the assumptions of the LCA and me about people, about the pathways to satisfactory dispute resolution and fundamentally about Justice.
The LCA recasts people as parties, appearing to me to assume that at the onset of a dispute people lose their humanity, their uniqueness, their instrumentality and gain dependence creating a need for someone to speak for them. “No doubt it is good for parties to settle cases … ” 338
The LCA goes on to assume that there are two pathways to conclude a dispute: rights-based determination or oppression. “… settlement is achieved through oppression…” Referring to mediation 338
These assumptions seem to me to be due to the fundamental assumption that the legal profession are the gatekeepers both of Justice and of access to it and that people are the bystanders. The submissions of the LCA read to me as if Justice is the instrument of those providing it, not of those experiencing it. “… which underlying facts are relevant …” 340 “There are real risks to the parties where the protections of litigation are not available.” 339
I too make assumptions. They too are open to question. As I see it, people are the raison d’etre of the Justice system. Each person is a complex, evolving, adaptive being who has much in common with other people as well as significant differences. Each person is unique.
To me, there are numerous pathways to Justice, each variously meeting the varying interests of people and society. One often overlooked pathway is to do nothing, leaving natural events to meet the interests of people in dispute. When it comes to rights, I regard them as a formalised way of the State benchmarking the interests of its people. To me a rights-based approach is is a mismatch for complex, evolving, adaptive human beings. I agree that on a societal scale, for a ‘rainy day’, rights are pivotal to democracy. On an interpersonal scale, they are limited in usefulness and often counterproductive. My rights are your rights, They clash; we clash!
The big one is Justice which for me is primarily the balancing of the interests, including the subset of rights, of each unique person and their community. Only when interests-based Justice cannot be reached, with procedural, substantive and personal assistance by participants, I look to rights as a basis for a determination of Justice.
I read the assumptions of the LCA as authoritarian. They have their place. I think they are highly appropriate to short, sharp intervention in short, sharp emergencies. I would feel more optimistic about a constructive dialogue with the LCA if their submissions had the welcoming and authoritative tone of a conversation.
Here’s to a rapprochement phase in the mid 2010s!