Alternative Dispute Resolution Initiatives - Research Paper Example

Can the notion of free participation (voluntary) and consensual participation be fully or adequately attained in court annexed ADR programmes. Abstract The court-annexed mediation is generally viewed as an act of denying freedom to the parties in choosing their forum for getting their disputes decided. Though there are ideological disadvantages, they are far outweighed by the practical benefits that can be achieved by mandatory mediation i.e court annexed mediation. Those who oppose it are myopic in that when statutory mediation inbuilt in several legislations are not considered as undesirable or as not facilitating voluntary or consensual participation , how a court annexed one can be said to deny consensual participation is not clear. Australia has been recognised internationally as a global leader for its Alternative Dispute Resolution (ADR) initiatives1 including court-annexed ADR in all its courts and tribunals2, not to speak of community mediation and private mediation prevalent in all the jurisdictions. As mediation should have the flexibility that promotes innovation and diversity, National ADR Council of Australia has advised against a particular set of standards to be followed uniformly in mediation just as in the Model Uniform Mediation Act of the United States.3 There are several forms of ADR out of which this paper is concerned with court-related ADR which usually takes the form of mediation. Mediation is supposed to be a voluntary process whereas the court directed mediation seems to be against that spirit of voluntary nature. The paradoxical nature of this form of ADR therefore gives rise to the debate on in its merits and demerits. The controversy is whether consensual or free participation by the disputants is practicable when the court compels them to subject themselves to mediation. The court directed mediation initiated in 1980s is now widely being followed as a dispute resolution process in almost all the Australian courts.4 While voluntary mediation schemes are found in the Federal Courts of Australia and District court of New South Wales, court-related mediation which can be called mandatory schemes are prevalent in Supreme Courts, Family Courts and Administrative Appeals Tribunals of Queensland, Victorian and Western Australia. However, currently mandatory referral to mediation at the instance of court is increasingly being resorted to.5 Just as there is flexibility in ways the ADRs are conducted, there are five different models of appointing mediators. They are appointed by the court, outsourced from outside mediation organisation, selected from the court maintained panel of external mediators, selected by the disputing parties themselves or appointed with the combination of the above said schemes.6 If the mediator is an employee of the court, the cost of mediation is borne by the court or by the parties if the mediator is selected by them.7 A reference is also required to be made to National Native Title Tribunal (NNTT) so that the tribunal can also make traditional indigenous dispute within the ambit of court’s overall dispute management procedures.8 Altobelli9 stated in a conference held in 2000 that there had been about 104 statutory instruments having reference to mediation or similar processes. The list of statutes continues to grow providing for court-annexed mediation programs. Yet there are many statutes providing for mediation without court’s compulsion. Many industries have already set up schemes such as Telecommunications Industry Ombudsman, the Life Insurance Complaints Scheme, the Australian Banking Industry Ombudsman and the National Electricity Code have provided for attending to consumer complaints through mediation or other forms ADR. Merits and Demerits Merits The United States Institute of Judicial Administration has opined that court-annexed mediation should be ordered only if it would better serve the interests of the parties, justice system and the public than what voluntary mediation can serve.10 Mediation in its perfect philosophical sense should have the characteristics of confidentiality, voluntariness, empowerment, neutrality and capability to offer a new solution.11 The “willingness factor” introduced by David,12 in a mediation process can be meaningful only if the above philosophy voluntariness is present so as to achieve maximum effectiveness. Hence the argument for the court-ordered mediation should far outweigh or at least ensure the effect of the above philosophical elements. The obvious advantages of a court-annexed i.e mandatory mediation are as follows. The parties welcome mandated dispute resolution because they think it safe if it is conducted under the control of the court. Parties or their lawyers are more accustomed to litigation process than voluntary process. Compelling parties to mandatory mediation will ensure faster settlement of cases. Since dispute resolution should have administrative support in order to be effective, mandatory mediation readily provides it through governmental infrastructural support. The increased use of the court-annexed mediation serves to educate parties and lawyers about the effect of dispute resolution so that they will make use of the ADR mechanism outside court processes in the future. The court-mandated ADR gets institutional recognition. This type ADR helps parties avoid expenses for the court as well as litigants otherwise incurred through litigation. Lawyers and disputants are motivated to use ADR process before going to the court. Corporations are under compulsion to make decisions due to the prospect of resorting to ADR.13 Most of the mediation programmes originally introduced for voluntary preference have been made mandatory as the parliaments at Federal, State and Territory perceived their utility and empowered courts to order mediation regardless of the disputants agreeing to it. Such a process also saves courts’ time and therefore judges welcomed the provision to order mandatory mediation. 14 The underlying idea behind the above arguments for the mandatory mediation is that it would be of benefit to the parties even though they hesitate to avail mediation.15 Justice Black, the then Chief Justice of the Federal Court of Australia spoke in 1996 about the advantages of the mandatory mediation as a result of amending the section 53 A of the Federal Court of Australia Act 1976 for changing the consensual ADR to mandatory one. However, he cautioned that mandatory participation should not be at the disadvantage of the parties. Mandatory participation should therefore be sparingly exercised having regard to the circumstances of a particular case. Justice Rogers stated in his decision in Alleo Steel (old) Pry Ltd v Torres Strait Gold Pry Ltd that even though parties had been bent upon resorting to litigation, they were compelled to submit to mediation process because of obvious utility of an independent third party’s intervention which can bring the parties under different perspective for agreeing to a settlement outside the court. 16 Recently in July 2009, Chief Justice Robert French spoke of the Multi-Door court house (the original term was “Comprehensive Justice Centre) mooted by the Harvard University Professor Frank Sander in 1976 17 since accepted by the senate for legislation and implemented in the U.S.A as pilot projects in few states during 1980s. The one at Washington has gained wide acceptance. The other pilot projects have not survived. Reason for this is given as acceptance depends on the attitudes and circumstances prevailing in each place. Multi-door court house refers to the arrangement by which all incoming cases are screened for possibility of being settled through any of the ADR mechanisms before being finally taken up by the court if no resolution could be arrived at. Choosing the court forum is obviously for sourcing of /identifying potential disputes and hence it need not send wrong signals that it dilutes the judiciary’s core function.18 In Australia too, Land and Environment Court has become a multi-door courthouse as explained by Justice Brian in a speech published in Alternative Dispute Resolution Journal in 2008.19 Family Court of Australia has also undertaken trial implementation of multi-door courthouse during 1990s under the scheme of “Integrated Client Services”. The Chief Justice French Robert cites these developments as the recent history of court-annexed ADR in Australia.20 Henry Cecil, a legal novelist and an English County Court Judge has, in one of his lectures said 21 In civil cases an interview with the judge and counsel may be particularly useful to enable them to arrive at a fair settlement satisfactory to both sides. It is perfectly true that the public is not present at those negotiations but neither is the public present when counsel or solicitors are discussing a case between themselves to arrive at a settlement…… In the result, I have never known of a civil case where an interview between the judge and counsel did any harm to either of the parties or to the public. Judge Lauer of the Municipal Court in New York has been quoted by Professor Marc Galanter as having said as far back in 1920s as 22 It is the duty of the court, as I see that duty, to stop the fight if possible before the fighters are seriously hurt. This can be attempted by an effort to adjust the dispute or differences of the contending parties. Thus Justice Robert French justifies that judicial involvement in encouraging settlement out of court, as a process incidental to litigation process has been well recognized. In the U.S. rule 16 of the Federal Rules of Civil Procedures 1983 provides for directing attorneys of the parties or parties themselves if unrepresented to appear for conference before the trial for several purposes including exploring or facilitating settlement of the case, as part of case management objectives. However due to possibility of pitfalls, a judge other than the judge who will be conducting the trials will be assigned the job of holding the settlement conference.23 In Australia too, pre-trial conference mooted in 1984 had been in vogue in New South Wales, Victoria and Western Australia. Relevant rule is O 10 r 1(2) (g) of Federal Court Rules which reads as 24 the parties attend before a Registrar or a Judge in confidential conference with a view to reaching a mediated resolution of the proceedings or an issue therein or otherwise clarifying the real issues in dispute so that appropriate directions may be made for the disposition of the matter or otherwise to shorten the time taken in preparation for and at the trial. Justice French Robert himself experimented with mediation in two matters on condition that they would be tried by another judge should the mediation failed. Since he had read allowing parties to vent against one another would bring about resolution, he engaged the parties in a matter in ex parte meetings for venting against each other but it did not end in resolution. On the other hand, another matter of more complexity ended up in resolution. In yet another matter, he was asked to mediate by his counterpart in Perth involving a dispute between the Commissioner of Taxation and a CD-Roms importer. He converted the matter for neutral evaluation and gave opinion adding that opinion might be different if tried by another judge at trial. Surprisingly within six weeks of the process, the matter was resolved. This led to adoption of neutral evaluation in Perth as pilot projects engaging senior counsels as the neutral evaluators. Mini-trial also was practiced in South Australia as a form of ADR wherein matter before a judge would be referred by him to another judge to conduct a mini trial.25 John North, President, Law Council of Australia26 states that court-annexed mediation could help clear backlog of cases pending for long in the courts thus bringing much needed reliefs to the litigants. It all started when Victorian County court Building cases ordered in 1983 for matters being referred for mediation. The mediation movement gained momentum in early 1990s when the Chief Justice of the Supreme court of Victoria decided that delays in Supreme Court could be reduced only way of massive effort at using mediation as part of the ADR. Sequel to this, some 762 cases pending as in 1992 were reviewed and 280 of them were sent for mediation and 104 were settled as a result. Though there were sceptics who said mediation was a waste of time and a novel experiment, history proved otherwise. Legal professional started advising clients to engage in mediation to avoid judicially imposed decisions. Even in mid-trial parties were tempted by asking if mediation could be tried. In court annexed mediation, there will be a less intimidating environment for parties to explore options for settlement and pave way for them to express their opinion without fear.27 Demerits In respect of the above said Land and Environment Court of New South Wales wherein court-annexed mediation was initiated, Barrister and Critic Terry Naughton QC says that compulsory mediation would rather be more expensive and protracted than in the court.28 Besides, mediation should be borne out of voluntary actions on the part of litigants and conducted by a third person with the approval of the parties disputing. He quotes Hilary Astor and Christine Chinkin as saying that any mediation done at the instance of an authority would compromise its consensual character.29 Ingelby also has made observations in Victorian Small Claims Tribunal, the Family Court and the Federal Court that mediation would lose its definitive character if it is made mandatory. His observations are that in the pre-trial conferences or processes named as mediation, the third party mediators are settlement-centric and critical of the litigation process. They insist that settlement is preferable to imposed decision since even after the mediation there will be good will prevailing among the parties. That third party neutrals made comments and settlements without close examination of the merits of each case. Such comments made by the person with authority made the court-annexed mediation to appear as quasi-adjudicative and a compromised dispute resolution process.30 That lack of party autonomy blurred the difference between mediation and adjudication. He came to the conclusions that the third party neutrals in the three court annexed programmes acted as quasi judicial authority instead of promoting neutrality.31 He also says that the so called success of court-annexed mediations is wrongly perceived due to lack of accurate data on voluntary mediation. Ingelby does not agree that mediation does not allow informal processes as a way of dispute settlement. The flexibility of processes is not present and this makes one party to dominate over the other. His important argument is that mandatory mediation makes a mockery of rule of law.32 He argues Court annexed dispute resolution creates rules against litigation, to replace the habit of settlement in “professionalized justice” with a rule in favour of settlement in “incorporated justice”…… The danger in compulsory mediation is that this particular “interplay or even interpenetration of law and discipline ‘will lead’ to ‘disciplinary power’ being exercised without judicial restraint.” In other words, the rule of law is predicated on a professional justice system dispensing justice in accordance with accepted, though dynamic, curial practice. ADR practiced in court-annexed programs breaks down the rules of adversarial justice and disguises them as incorporate justice under a court-approved process. Simply stated, court-annexed dispute resolution blurs line between curial and non-curial dispute resolution in a destructive and confusing manner…..33 According to Professor Jennifer David, ‘willingness factor’ which characterised any ADR is absent in the court annexed mediation. 34 According to Solicitor Michel Dawson, mandatory ADR is unfavourable to poor litigants since already 90 percent of cases are settled just before final hearing without the need for a mandatory ADR which imposes financial burden on the parties. Dawson also says that ADR also compromises personal rights of the parties by domination State rights. 35 Conclusion The thesis of this paper is whether mandatory mediation impedes the principle of free and consensual participation by the parties or rather court-annexed ADR would facilitate consensual or free participation by the parties. Though the mandatory participation literally would mean that it is a forced one, it is in fact a blessing in disguise for the disputing parties who will naturally have the tendency to hesitate to ask for mediation but would readily agree if only advised as if they had been waiting for such an advice to come about. And there is no case that a decision in a mandatory mediation is not appealable. Hence there is no case that parties’ rights are permanently extinguished. Although mediation is a court annexed one, it should just serve as a reminder to the parties to engage in mediation before finally deciding to litigate. Merely because they are forced to embrace mediation, there is no case that they will be denied free or consensual participation. This gives an impression that court litigation does not facilitate free participation. Whether it is mediation or litigation, without a consensus, they cannot participate in either. The only difference is that in mediation, parties get a chance for consensual participation to submit to the mediator’s decision willingly and in respect of court, the fact that the decisions are appealable would show that parties willingly submit to the court’s decision subject to appeal. Hence the court annexed mediation that facilitates a platform once again before approaching the court should be viewed as a matter of convenience rather as an impediment to parties’ freedom. Seen in different angle in both mediation sans compulsion as well as mediation mandated by the court, attitude and decision of the mediators is not likely to differ. Alexander Nadja, 2001, What’s Law Got To Do With It? Mapping Modern Mediation Movements in Civil and Common Law Jurisdictions, Bond Law Review, 13(2). Australia, 2001, NADRAC, A Framework for ADR Standards, Report to the Commonwealth Attorney-General, 47. Cecil Henry 1970, Public Images of the Judges in Cecil (ed), The English Judge, p 66. French Robert, 2009, Perspectives on Court Annexed Alternative Dispute Resolution, Law Council of Australia — Multi-Door Symposium H.Astor, 2001, Quality in Court Connected Mediation Programs, AIJA, Victoria, 8-13. Preston, "The Land and Environment Court of New South Wales: Moving towards a Multi-Door Courthouse", Pt 1: (2008) 19 Alternative Dispute Resolution Journal 72; Pt 2: (2008) 19 Alternative Dispute Resolution Journal 144. North John, 2005, Court Annexed Mediation in Australia- an Overview, Law Council of Australia R.French, 1994, Role of the Native Title Tribunal, 1 NTN 9. Sander Frank, 1979 "Varieties of Dispute Processing", in Levin and Wheeler (eds), The Pound Conference: Perspectives on Justice in the Future. Spencer David, Brogan C. Michael, 2006, Mediation law and practice, Cambridge University Press, p 268 Spencer L David, 2000, Mandatory Mediation And Neutral Evaluation: A Reality In New South Wales, Australasian Dispute Resolution Journal, Vol. 11, No. 237 T.Sourdin, 2001, Key Issues in Alternative Dispute Resolution: 12. T Altobelli, 2000 ‘Mediation in the Nineties: The Promise of the Past’ Fifth National Mediation Conference, Brisbane. Read More